Shri Naresh Kumar vs The Wire & Ors.
- Court
- Delhi High Court
$~J-
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 20.07.2026
+ CS(OS) 749/2023
SHRI NARESH KUMAR .....Plaintiff
Through: Mr. Manik Dogra, Sr. Advocate with
Ms. Bani Dikshit, Mr. Dhruv Pandey,
Mr. Uddhav Khanna and Mr. Dhruva
Viz, Advocates.
versus
THE WIRE & ORS. .....Respondent
Through: Ms. Nitya Ramakrishnan, Sr.
Advocate with Mr. Sarin Naved, Ms.
Stuti Rai, Mr. Saurabh Sagar, Md.
Zeeshan Ahmad and Md. Noumaan,
Advocates. Mr. Deepak Gogia, Mr.
Aadhar Nautiyal, Advocates for D-3.
Mr. Aditya Mathur and Ms. Anuparna
Chatterjee, Advocate for D-4.
HON’BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
J U D G M E N T
ANUP JAIRAM BHAMBHANI, J.
I.A.NO. 22961/2023
By way of the present application filed under Order XXXIX
Rules 1 and 2 read with section 151 of the Code of Civil Procedure,
1908 (‘CPC’) the applicant/plaintiff seeks the following reliefs:
“ a) That pending the hearing and final disposal of the Plaint;
(sic) the Defendants, be restrained from in any manner, directly or
indirectly publishing and/or commenting and/or communicating
and/or issuing or causing to be published/commented/communicated/
issue any tweet, article, interview and material to the public in any
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Signed By:VIKAS
RAWAT
Signing
Date:20.07.2026 14:52
manner whatsoever, containing or referring to allegations similar to
the ones set out under the said tweets/posts/videos or any part thereof
or in any manner similar thereto, except when proceeding with the
same in accordance with law;
b) That pending the hearing and final disposal of the Plaint;
(sic) the Defendants, be directed to remove/take down/withdraw all
defamatory and unwarranted allegations made against the Plaintiff
in the posts impugned herein or any other allegations similar to the
ones set out under the said tweets/posts/videos or any part thereof or
in any manner similar thereto;
c) That pending the hearing and final disposal of the Plaint,
Defendant No.3 and 4 be directed to take down the
tweets/posts/videos or any other tweets/posts/ videos containing or
referring to allegations similar to the ones set out under the said
posts/tweets/videos or any part thereof or in any manner similar
thereto;
d) For ex parte ad-interim reliefs in terms of prayer clause (a,
b, c);
e) For such other and further reliefs as the nature and
circumstances of the case may require be granted and that this
Hon'ble Court may deem fit in the interest of justice;
f) Any other ex parte ad interim orders, in terms of the above .”
2. The prayers in the application have been made in the context of an article
dated 09.11.2023 titled “ Links of Son of Delhi Chief Secretary to
Beneficiary’s Family in Land Over-Valuation Case Raise Questions ”
published by the respondents/defendants Nos.1 and 2 on the website
“ https://thewire.in/ ” (‘subject article’).
3. The essential narrative in the subject article is as follows:
3.1.The publication relates to the acquisition of a certain parcel of land
by the National Highways Authority of India (‘NHAI’) for the
Dwarka Expressway. The parcel of land was proposed to be
acquired from two Delhi businessmen, Subhash Chand Kathuria
and his brother, Vinod Kathuria, one of whom is related by
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Signed By:VIKAS
RAWAT
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marriage to the promoter of a real estate company in which the
plaintiff’s son, Karan Chauhan, is employed. In May of the relevant
year, the District Magistrate, South-West District, Delhi (‘DM’),
passed an order awarding compensation of Rs. 353 crores to the two
individuals in relation to 19 acres of land situate in Village:
Bamnoli, which was to be acquired for the road project, working
out to Rs. 18.54 crores per acre. By this order, the DM reversed an
earlier decision of 2018 of the adjudicating authority, ( i.e., the
Additional District Magistrate) which had awarded compensation
of (only) Rs. 41.52 crores for the same land, on the basis of a
valuation of Rs. 53 lakhs per acre. The direct beneficiaries of the
enhanced compensation were the afore-named Subhash Chand
Kathuria and Vinod Kathuria.
3.2.The subject article said that Subhash Chand Kathuria is the
father‑in‑law of Mr. Aman Sarin, the promoter of the realty
company M/s. Anantraj Limited; and that the son of the plaintiff (at
which time the plaintiff was Chief Secretary of Delhi) is an
employee of Anantraj Limited and is also a director in 03 other
companies, some of which have business links with Anantraj
Limited. It is stated in the subject article that not only do the said
companies and Anantraj Limited and its various verticals have
common directors, but in certain cases the postal address and email
address of these entities are the same as that of Anantraj Limited.
3.3.In the subject article defendants Nos.1 and 2 also carried the
plaintiff’s version as regards the transaction in question, where he
denied any knowledge of, or connection with, his son’s business
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Signed By:VIKAS
RAWAT
Signing
Date:20.07.2026 14:52
dealings. In the subject article the Chief Secretary Naresh Kumar is
reported to have stated that his son is not dependent upon him, and
that the son’s commercial affairs are not known to him. The
plaintiff is further quoted as stating that his son, Mr. Karan
Chauhan, has been employed with a listed public limited company,
M/s. Anant Raj Housing Ltd., since June 2019; and that he has no
knowledge of the relationship, if any, between the directors of M/s.
Anant Raj Housing Ltd. and Mr. Subhash Kathuria, nor has he had
any occasion to become aware of such relationship.
3.4.Most importantly the subject article recorded the plaintiff’s assertion
that there is no conflict of interest on his part. The plaintiff is quoted
as saying that the queries posed appear to have been framed with
the intent of maligning him at the instance of the officer who had
committed the alleged misconduct. The subject article also quotes
the plaintiff as asking whether the publication was siding with the
officer who passed the impugned order. The plaintiff is further
reported to have contended that certain disgruntled elements,
against whom action has been taken or is under way, including in
matters relating to the so‑called “Delhi Excise Scam” and “Sheesh
Mahal” issue, are attempting to circulate false and fabricated
complaints against him.
3.5.While the subject article notes that concerns have been raised about
a possible conflict of interest, it duly records the plaintiff’s
categorical denial of any wrongdoing and says that the plaintiff has
been making efforts to distance himself from the transaction. It is,
however, also stated in the subject article that questions remain
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Signed By:VIKAS
RAWAT
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Date:20.07.2026 14:52
regarding the plaintiff’s failure to disclose any potential conflict of
interest when NHAI raised an alarm in relation to the over-
valuation of the land.
4. Notice on the present application was issued on 21.11.2023; pursuant to
which reply dated 21.12.2023 has been filed by defendants Nos.1 and 2;
and reply dated 18.12.2023 has been filed by defendant No.3. Rejoinder
dated 05.03.2024 has also been filed by the plaintiff to the reply filed by
defendants Nos.1 and 2. Defendant No.4 has only filed its written
statement; without filing any reply to the present application. Written
submissions have also been filed by the plaintiff and defendants Nos.1
and 2.
5. At the interim stage, vidé judgment dated 22.11.2023, the learned
Predecessor Bench had passed the following ad-interim directions in the
present application:
“ 30. In the circumstances, following ad-interim directions are
passed:-
(i) the defendant nos. 1 & 2 are directed to remove/take down
the impugned article titled 'Links of Son of Delhi Chief Secretary to
Beneficiary's Family in Land Over-Valuation Case Raise Questions'
dated 09.11.2023, available at https://thewire.in/government/delhi-
chief-secretary-nhai-land-compensation .
(ii) the defendant nos. 1 & 2 are directed to remove/take down
the tweets/posts circulated and published on defendant no.3,
available at
https://twitter.com/thewire_in/status/1722624013942636890 and
https://twitter.com/meetujain/status/1722921620522860765, images
of which are filed as Document nos. 4 & 5 of the documents
accompanying with the plaint.
(iii) the defendant nos. 1 and 2 are further directed to not post,
circulate or publish any similar defamatory content against the
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Signed By:VIKAS
RAWAT
Signing
Date:20.07.2026 14:52
plaintiff as set out in the subject article/publication dated
09.11.2023. ”
6. The court has heard Mr. Manik Dogra, learned senior counsel and Ms.
Bani Dikshit, learned counsel for the plaintiff/applicant; and Ms. Nitya
Ramakrishnan, learned senior counsel for defendants Nos.1 and 2/non-
applicants.
UBMISSIONS ON EHALF OF THE LAINTIFF
S B P
7. Learned counsel appearing for the plaintiff have made the following
principal submissions in support of the plaintiff’s case:
7.1.It has been submitted that the plaintiff is the (now former) Chief
Secretary of Delhi and has had an illustrious government service
career since August 1989, against whom defendants Nos.1 and 2
have made libelous allegations in the subject article. It has been
argued that even the title of the subject article in itself is sensational
and falsely gives an immediate portrayal and perception of guilt,
abuse of power and the existence of a quid pro quo in relation to a
transaction concerning a parcel of land, to any reader of the subject
article.
7.2.It has been submitted that through the subject article defendants
Nos.1 and 2 have attempted to create an obscure linkage between
the plaintiff’s son and a private party involved in the matter of
enhanced valuation of a plot of land situate in Village: Bamnoli,
Delhi which was being acquired by the NHAI. The subject article
falsely suggests wrong-doing on the part of the plaintiff since the
plaintiff’s son works in a real estate company, one of whose
directors is the son-in-law of one of the private persons whose land
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Signed By:VIKAS
RAWAT
Signing
Date:20.07.2026 14:52
was being acquired. It has been submitted that the tone, tenor and
language of the subject article gives an immediate impression of
guilt against the plaintiff; and gives the impression of underhand
dealing by the plaintiff by emphasising the aforementioned link.
7.3.It has been argued that the subject article is a pre-planned conspiracy,
and an attempt to gain cheap publicity by sensationalising the issue,
with the intention of injuring the plaintiff’s reputation and defaming
him, based on half-truths and gross misrepresentations, while acting
as mouthpieces of certain persons who may have personal/political
agenda against the plaintiff in order to browbeat him.
7.4.It has further been argued that the subject article only includes
selective portions of the plaintiff’s response, and does not
emphasise the fact that it was the plaintiff’s intervention that
resulted in highlighting the over-valuation of the plot of land in
question, consequent to which action was taken. It is the plaintiff’s
argument that had the assertions made in the subject article been
true, the plaintiff would not have brought the matter to the notice of
the competent authority on his own volition, as soon as the matter
came to the plaintiff’s notice.
7.5.It has also been submitted that the plaintiff’s counsel served upon
defendants Nos.1 and 2 a lawyer’s notice dated 13.11.2023, calling
upon them to take-down the subject article within 48 hours of
service of the notice, and to further cease and desist from
circulating/re-circulating the same; and also to tender an
unconditional apology to the plaintiff and publishing the same on a
primary location on defendant No.1’s website for at least 24 hours
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Signed By:VIKAS
RAWAT
Signing
Date:20.07.2026 14:52
at a stretch. However, neither did defendants Nos.1 and 2 accede to
the aforementioned demands, nor did they even reply to the
lawyer’s notice.
7.6.It has further been submitted that in judgment dated 22.11.2023
granting ad-interim relief to the plaintiff in the present application,
the learned Predecessor Bench has observed that the:
“ … impugned article is a litany of misrepresentations and
convoluted insinuations made in a reckless manner, without
any regard for the truth, and with a view to inflict damage
on the reputation of the plaintiff. ”
It has been pointed-out that subsequent to the passing of
judgment dated 22.11.2023, defendants Nos.1 and 2 took-down
the subject article; and the said judgment has not been challenged
by defendants Nos.1 and 2.
7.7.It has been argued that even though defendants Nos.1 and 2 have
challenged the maintainability of the suit, no application seeking
dismissal of suit or rejection of plaint or seeking setting-aside of
judgment dated 22.11.2023 has been filed by them till date. It has
also been argued that the maintainability of the suit cannot be
adjudicated at this juncture, in an application seeking interim relief.
7.8.Since, as recorded in order dated 14.03.2024, defendants Nos. 1 and
2 have challenged the maintainability of the present suit citing the
1
Supreme Court ruling in R. Rajagopal vs. State of T.N. and Ors ,
learned counsel for the plaintiff have drawn attention to para 26(3)
of the said judgment, which reads as follows:
1
(1994) 6 SCC 632
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Signed By:VIKAS
RAWAT
Signing
Date:20.07.2026 14:52
“ 26. We may now summarise the broad principles
flowing from the above discussion:
*
“ (3) There is yet another exception to the rule in (1) above
— indeed, this is not an exception but an independent rule.
In the case of public officials, it is obvious, right to privacy,
or for that matter, the remedy of action for damages is simply
not available with respect to their acts and conduct relevant
to the discharge of their official duties. This is so even where
the publication is based upon facts and statements which are
not true, unless the official establishes that the publication
was made (by the defendant) with reckless disregard for
truth. In such a case, it would be enough for the defendant
(member of the press or media) to prove that he acted after
a reasonable verification of the facts; it is not necessary for
him to prove that what he has written is true. Of course,
where the publication is proved to be false and actuated by
malice or personal animosity, the defendant would have no
defence and would be liable for damages. It is equally
obvious that in matters not relevant to the discharge of his
duties, the public official enjoys the same protection as any
other citizen, as explained in (1) and (2) above. It needs no
reiteration that judiciary, which is protected by the power to
punish for contempt of court and Parliament and
legislatures protected as their privileges are by Articles 105
and 104 respectively of the Constitution of India, represent
exceptions to this rule. ”
(emphasis supplied)
It has been submitted that a bare perusal of para 26(3) of
R. Rajagopal inures to the benefit of the plaintiff, since in the
present case the subject article is a publication made in “ reckless
disregard for truth ” and even “ reasonable verification of the
facts ” was not conducted by the defendants.
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Signed By:VIKAS
RAWAT
Signing
Date:20.07.2026 14:52
7.9.It has further been submitted that the subject article is not a comment
on the discharge of official duties by the plaintiff, and that there is
no mention of the plaintiff’s official duties in the entire article. The
subject article is focused on the link between the plaintiff’s son (not
the plaintiff himself) and the beneficiaries of the enhanced
compensation, one of whom is related to the director of the real
estate company, in which company the plaintiff’s son is also a co-
director. The subject article goes on to allege that the parties have
benefited from the position of the plaintiff as the Chief Secretary of
Delhi in relation to acquisition of land.
7.10.It has been submitted that even if the subject article was a comment
on the discharge of the plaintiff’s official duties, R. Rajagopal
would not protect defendants Nos.1 and 2 since there is no truth in
what has been stated in the subject article; and the tone, tenor and
allegations made in the subject article do not report the correct facts,
though the defendants had access to all facts from the plaintiff
directly. It has been argued that the subject article is therefore a
reflection of recklessness and ‘yellow journalism’, for which there
can be no protection.
7.11.In support of their submissions, on the point of what have been held
to be ‘official duties’, learned counsel for the plaintiff have relied
on the Supreme Court’s judgment in State of Orissa & Ors. vs.
2
Ganesh Chandra Jew , the relevant portion of which reads as
follows:
2
(2004) 8 SCC 40
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RAWAT
Signing
Date:20.07.2026 14:52
“ 11. It has been widened further by extending
protection to even those acts or omissions which are done in
purported exercise of official duty. That is, under the colour
of office. Official duty therefore implies that the act or
omission must have been done by the public servant in the
course of his service and such act or omission must have
been performed as part of duty which further must have
been official in nature. The section has, thus, to be
construed strictly while determining its applicability to any
act or omission in the course of service . Its operation has to
be limited to those duties which are discharged in the course
of duty. But once any act or omission has been found to have
been committed by a public servant in discharge of his duty
then it must be given liberal and wide construction so far as
its official nature is concerned. …… ”
(emphasis supplied)
Learned counsel for the plaintiff also places reliance on
the Supreme Court’s ruling in Centre for Public Interest
3
Litigation & Anr. vs. Union of India & Anr. the relevant portion
of which reads as follows:
“ 9. …… The act must fall within the scope and
range of the official duties of the public servant concerned.
It is the quality of the act which is important and the
protection of this section is available if the act falls within
the scope and range of his official duty. There cannot be any
universal rule to determine whether there is a reasonable
connection between the act done and the official duty, nor
is it possible to lay down any such rule. One safe and sure
test in this regard would be to consider if the omission or
neglect on the part of the public servant to commit the act
complained of could have made him answerable for a
charge of dereliction of his official duty . If the answer to
this question is in the affirmative, it may be said that such
3
(2005) 8 SCC 202
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act was committed by the public servant while acting in the
discharge of his official duty and there was every
connection with the act complained of and the official duty
of the public servant. This aspect makes it clear that the
concept of Section 197 does not get immediately attracted on
institution of the complaint case.
“ 10. Use of the expression “official duty” implies
that the act or omission must have been done by the public
servant in the course of his service and that it should have
been in discharge of his duty. The section does not extend
its protective cover to every act or omission done by a public
servant in service but restricts its scope of operation to only
those acts or omissions which are done by a public servant
in discharge of official duty.
“ 11. If on facts, therefore, it is prima facie found
that the act or omission for which the accused was charged
had reasonable connection with discharge of his duty then it
must be held to be official to which applicability of Section
197 of the Code cannot be disputed. ”
(emphasis supplied)
Reliance has also been placed on K.K. Mishra vs. State of
4
Madhya Pradesh and Anr. wherein the Supreme Court has
interpreted ‘official duties’ as under:
“ 11. The problem of identification and correlation
of the acts referred to in an allegedly defamatory statement
and those connected with the discharge of public
functions/official duties by the holder of the public office is,
by no means, an easy task. The sanction contemplated under
Section 199(4) CrPC though in the opposite context i.e. to
prosecute an offender for the offences committed against a
public servant may have to be understood by reference to the
sanction contemplated by Section 197 CrPC which deals
with sanction for prosecution of a public servant. There is a
fair amount of similarity between the conditions precedent
4
(2018) 6 SCC 676
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necessary for accord of sanction in both cases though the
context may be different, indeed, the opposite.
“ 12. While dealing with the requirement of sanction
under Section 197 CrPC this Court in Urmila Devi v.
Yudhvir Singh [Urmila Devi v. Yudhvir Singh, (2013) 15
SCC 624 : (2014) 5 SCC (Cri) 470] had taken the following
view which may have some relevance to the present case:
(SCC p. 651, para 59)
“59. The expression “official duty” would in the absence of any
statutory definition, therefore, denote a duty that arises by
reason of an office or position of trust or authority held by a
person . It follows that in every case where the question whether
the accused was acting in discharge of his official duty or
purporting to act in the discharge of such a duty arises for
consideration, the court will first examine whether the accused
was holding an office and, if so, what was the nature of duties
cast upon him as holder of any such office. It is only when there
is a direct and reasonable nexus between the nature of the duties
cast upon the public servant and the act constituting an offence
that the protection under Section 197 CrPC may be available and
not otherwise. Just because the accused is a public servant is not
enough. A reasonable connection between his duties as a public
servant and the acts complained of is what will determine
whether he was acting in discharge of his official duties or
purporting to do so, even if the acts were in excess of what was
enjoined upon him as a public servant within the meaning of that
expression under Section 197 of the Code.” ”
(emphasis supplied)
7.12.It has further been submitted that ascertaining whether defendants
Nos.1 and 2 acted with reckless disregard for truth is a question of
trial and cannot be summarily adjudicated at this interim stage. To
support this submission the plaintiff has placed reliance on the
judgment of this Bench in Lakshmi Murdeshwar Puri vs. Saket
5
Gokhale and Anr. , in which case also the matter concerned the
discharge of official duties; and in order to adjudge whether or not
there had been reckless disregard for truth, the entire process of trial
was undertaken.
5
2024 SCC OnLine Del 4446
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Signed By:VIKAS
RAWAT
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7.13.It has accordingly been prayed that the application be allowed and
the interim order passed vidé judgment dated 22.11.2023 by the
learned Predecessor Bench be made absolute.
S UBMISSIONS ON B EHALF OF D EFENDANTS N OS .1 & 2
8. Opposing the prayers made in the application, learned senior counsel
appearing for defendants Nos.1 and 2 has made the following principal
submissions:
8.1.It has been submitted that the subject article is a factual presentation
of two views, published after taking both sides of the story and after
giving the plaintiff sufficient opportunity to respond; and has been
published after proper due diligence. It has further been submitted,
that the subject article does not allege any wrongdoing by the
plaintiff; and it is not even the plaintiff’s case that the subject article
presents any factually inaccurate narration of events. It has further
been submitted, that the incident reported in the subject article was
in the public domain and thus satisfies the test of public interest.
8.2.It has been argued that the plaintiff does not deny that the son-in-law
of one of the private parties, which party was awarded
compensation, is a co-director with the plaintiff’s son in another
company. It has also been alleged that throughout the course of
disciplinary proceedings against the delinquent DM, the plaintiff
did not disclose the aforementioned link to any authority.
8.3.It has further been argued that essentially the plaintiff’s grievance
seems to be that he has not been extolled for his actions in the terms
that he would have liked; that it was the plaintiff who initiated
action against the delinquent DM and the plaintiff’s main grouse is
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that he has not been sufficiently appreciated for the same in the
subject article. It has been submitted that this does not, by any
means, amount to defaming the plaintiff. Furthermore, even if the
plaintiff’s grievance that the title of the subject article is
‘unpalatable’ is considered to be valid, that alone does not make it
a case for issuance of an injunction.
8.4.It has been submitted that as recorded in order dated 14.03.2024, the
present suit is not maintainable in view of the Supreme Court ruling
in R. Rajagopal , which holds that the remedy of damages for
defamation is simply not available to public officials in relation to
acts done in discharge of their public duties even if the allegations
made in that regard are not true. It has been alleged, that as the
record would show, defendants Nos.1 and 2 took reasonable steps
to verify the facts narrated in the subject article, and even reached-
out to the plaintiff to give him a proper opportunity to communicate
his version of events. It has been argued therefore, that the
defendants cannot be said to have acted with ‘reckless disregard for
truth’ in the present case. It has further been contended that the
plaintiff has not even alleged disregard for truth or falsehood; and
the subject article relates to the plaintiff’s duties as a public servant,
and is thereby covered by the Supreme Court’s decision in R.
Rajagopal .
8.5.It has been stated that defendants Nos.1 and 2 have complied with
the ad-interim directions issued vidé judgment dated 22.11.2023;
however, the direction contained in para 30(iii) of that judgment,
which directs that “ (iii) the defendant nos. 1 and 2 are further
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RAWAT
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directed to not post, circulate or publish any similar defamatory
content against the plaintiff as set out in the impugned
article/publication dated 09.11.2023 ”, amounts to a ‘gag-order’
and is contrary to the “Bonnard Standard” and that direction ought
to be recalled. In order to substantiate this assertion, defendants
Nos.1 and 2 have placed reliance on the Supreme Court decision in
Bloomberg Television Production Services India Pvt. Ltd. vs. Zee
6
Entertainment Enterprises Ltd. , the relevant extract of which
reads as follows:
“ 6. Significantly, in suits concerning defamation by
media platforms and/or journalists, an additional
consideration of balancing the fundamental right to free
speech with the right to reputation and privacy must be
borne in mind [R. Rajagopal v. State of T.N., (1994) 6 SCC
632]. The constitutional mandate of protecting journalistic
expression cannot be understated, and courts must tread
cautiously while granting pre-trial interim injunctions. The
standard to be followed may be borrowed from the decision
in Bonnard v. Perryman [Bonnard v. Perryman, (1891) 2 Ch
269 (CA)]. This standard, christened the “Bonnard
standard”, laid down by the Court of Appeal (England and
Wales), has acquired the status of a common law principle
for the grant of interim injunctions in defamation suits
[Holley v. Smyth, 1998 QB 726 (CA)]. The Court of Appeal
in Bonnard [Bonnard v. Perryman, (1891) 2 Ch 269 (CA)]
held as follows : (Ch p. 284)
“… But it is obvious that the subject-matter of an
action for defamation is so special as to require
exceptional caution in exercising the jurisdiction to
interfere by injunction before the trial of an action
to prevent an anticipated wrong. The right of free
speech is one which it is for the public interest that
6
(2025) 1 SCC 741
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individuals should possess, and, indeed, that they
should exercise without impediment, so long as no
wrongful act is done; and, unless an alleged libel is
untrue, there is no wrong committed; but, on the
contrary, often a very wholesome act is performed
in the publication and repetition of an alleged libel.
Until it is clear that an alleged libel is untrue, it is
not clear that any right at all has been infringed;
and the importance of leaving free speech
unfettered is a strong reason in cases of libel for
dealing most cautiously and warily with the
granting of interim injunctions.”
(emphasis supplied)
“ 7. In Fraser v. Evans [Fraser v. Evans, (1969) 1
QB 349 : (1968) 3 WLR 1172 (CA)], the Court of Appeal
followed the Bonnard principle and held as follows : (QB p.
360)
“… insofar as the article will be defamatory of Mr
Fraser, it is clear he cannot get an injunction. The
Court will not restrain the publication of an article,
even though it is defamatory, when the defendant says
he intends to justify it or to make fair comment on a
matter of public interest. That has been established for
many years ever since (Bonnard v. Perryman
[Bonnard v. Perryman, (1891) 2 Ch 269 (CA)] ). The
reason some times given is that the defences of
justification and fair comment are for the jury, which
is the constitutional tribunal, and not for a Judge. But
a better reason is the importance in the public interest
that the truth should out. …”
(emphasis supplied)
“ 8. In essence, the grant of a pre-trial injunction
against the publication of an article may have severe
ramifications on the right to freedom of speech of the author
and the public's right to know. An injunction, particularly ex
parte, should not be granted without establishing that the
content sought to be restricted is “malicious” or “palpably
false”. Granting interim injunctions, before the trial
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commences, in a cavalier manner results in the stifling of
public debate. In other words, courts should not grant ex
parte injunctions except in exceptional cases where the
defence advanced by the respondent would undoubtedly fail
at trial. In all other cases, injunctions against the
publication of material should be granted only after a full-
fledged trial is conducted or in exceptional cases, after the
respondent is given a chance to make their submissions.
“ 9. Increasingly, across various jurisdictions, the
concept of “Slapp suits” has been recognised either by
statute or by courts. The term “Slapp” stands for “Strategic
Litigation against Public Participation” and is an umbrella
term used to refer to litigation predominantly initiated by
entities that wield immense economic power against
members of the media or civil society, to prevent the public
from knowing about or participating in important affairs in
the public interest [ Donson, F.J.L., Legal Intimidation : A
Slapp in the Face of Democracy (London, New York : Free
Association Books, 2000).] . We must be cognizant of the
realities of prolonged trials. The grant of an interim
injunction, before the trial commences, often acts as a
“death sentence” to the material sought to be published,
well before the allegations have been proven. While granting
ad interim injunctions in defamation suits, the potential of
using prolonged litigation to prevent free speech and public
participation must also be kept in mind by courts. ”
(emphasis supplied)
It has been argued that the test of ‘exceptionality’ laid
down in the aforementioned rulings is not met in the present
case, and that therefore an injunction ought not to have been
granted. It has also been submitted, that as set-out in their
written statement, defendants Nos.1 and 2 have established
their defence in relation to the subject article, viz., that the
article was published after due diligence, after verifying facts,
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and that it amounted to ‘fair comment’ on the actions of a public
official, and was published in public interest. In view of the
aforementioned, it has been prayed that the ad-interim direction
contained in para 30(iii) of judgment dated 22.11.2023 be
recalled.
S UBMISSIONS ON B EHALF OF D EFENDANT N O .3
9. At the outset, it has been submitted on behalf of defendant No.3, i.e., X
Corp., which is a company incorporated under the laws of the United
States of America and operates an online social media platform called
‘X’ (formerly known as ‘Twitter’), that the present application and the
suit have no legal or factual basis vis-à-vis defendant No.3.
10. It has been submitted that defendant No.3 plays no role in creation of the
content uploaded by users on the aforesaid platform, and thus defendant
No.3 only qualifies as an “intermediary” under section 2(1)(w) of the
Information Technology Act, 2000 (‘IT Act’). Under section 79 of the
IT Act, being an intermediary, defendant No.3 is exempt from any
liability in relation to third party information or data made available or
hosted by it.
11. It has further been submitted that under section 79(3) of the IT Act, an
intermediary cannot claim the said exemption only if it fails to
expeditiously remove, or disable access to, any offending material upon
receiving ‘actual knowledge’ that the material is being used to commit
7
an unlawful act; and that in Shreya Singhal vs. Union of India the
Supreme Court has held that in case of an intermediary, ‘actual
7
(2015) 5 SCC 1
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knowledge’ must only be through the medium of a court order. It has
been argued therefore that an intermediary is obligated to remove any
alleged offending content only after the same has been specifically
identified and directed by a court order, for which an intermediary is not
required to be impleaded as a defendant merely for the purpose of
complying with court orders. It is submitted that directions can be issued
to intermediaries even if the intermediary is not party to the proceedings.
It has therefore been submitted that defendant No.3 is not a necessary
party to the present suit and ought to be deleted as a party-defendant.
12. It has also been argued that in Myspace Inc. vs. Super Cassettes
8
Industries Ltd. , it has been held that if an intermediary is tasked with
the responsibility of identifying infringing content from non-infringing
content, it could have a chilling effect on free speech; and that in case of
intermediaries, interim relief has to be specific and must point to the
actual infringing content.
13. It has therefore been argued that in view of the above decisions, it is clear
that any relief of prospective injunction vis-à-vis unidentified future
content cannot be sought or granted against an intermediary. It is
pointed-out that prayer (a) in the present application seeks a prospective
injunction in relation to unidentified future content, which is inconsistent
with the principles laid-down in Shreya Singhal and Myspace , since the
relief sought would require defendant No.3 to monitor, detect and take
down unidentified future content. It has further been argued, that prayers
(b) and (c) in the present application seek the take-down of allegedly
8
2016 SCC OnLine Del 6382
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defamatory content; however, the prayers are vague and do not
specifically provide the URLs of such content, which is inconsistent with
the law laid-down in Myspace , and therefore cannot be granted.
14. It has been argued that similarly prayers (b) and (c) of the application
refer to “ all defamatory and unwarranted allegations ” and “ any other
allegations similar ” (to the ones, in the subject article) which are vague
expressions; and whether any content is defamatory or not has to be
decided by a court, since that decision cannot be based on the plaintiff’s
subjective satisfaction nor can an intermediary be burdened with
adjudging whether or not certain content is defamatory.
15. In view of the above, it has been submitted, that the present suit is not
maintainable against defendant No.3; and it is in the interests of justice
that defendant No.3 be deleted from the array of party-defendants.
UBMISSIONS ON EHALF OF EFENDANT O
S B D N .4
16. Defendant No.4, i.e., Google Inc./Google LLC., which is a company
incorporated under the laws of the State of Delaware, United States of
America and is in the business of inter-alia providing technological
products and services including operating an online search engine,
known as the Google Search Engine, has filed a written statement though
no reply has been filed by them to the present application.
17. It has been submitted on behalf of defendant No.4 that the present suit is
essentially between the plaintiff and defendants Nos.1 and 2 in relation
to the subject article. It has been submitted that the plaintiff claims to be
further aggrieved by the content and posts relating to or referring to the
subject article that have been posted by defendants Nos.1 and 2 and other
third parties on defendant No.3’s platform. It has been pointed-out, that
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the plaintiff has made no averments or allegations against defendant
No.4 in the plaint; and defendant No.4 has been impleaded as a party-
defendant in the limited capacity of being the operator of the Google
Search Engine, with a view to seeking directions for de-
indexation/disabling of allegedly defamatory content from being
displayed on defendant No.4’s platform.
18. It has been submitted that the Google Search Engine is a freely available,
internet-based search engine on which a user can search for any pre-
existing content or information. Therefore, defendant No.4’s platform
merely performs the task of indexing pre-existing information already
published on the web by third-party websites/source websites and
defendant No.4 does not own, control or exercise any editorial oversight
over the third-party websites or content appearing on its platform.
19. It has further been submitted that the Information Technology
(Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021
categorically recognise and exempt such transient and incidental storage
from the ambit of ‘publishing’ or ‘hosting’.
20. It has also been submitted that once the subject article is
disabled/removed from their source URLs/links, the said URLs/links
including any extracts of the alleged defamatory content will no longer
be indexed as search results on defendant No.4’s platform. Therefore it
is submitted that if during the course of the present proceedings this court
passes a direction for taking down the subject article at the identified
source/URLs and web links, such direction has to be directed against
entities and individuals who are the source of the content. Once they
remove the alleged defamatory content, the said URLs/web links will no
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longer be indexed as search results on the Google Search Engine, and in
due course, will no longer appear in the search results on the Google
Search Engine. Further it has been submitted that even if defendant No.4
was to be directed to remove the URLs and links containing allegedly
defamatory content, that would not result in the removal of the offending
content from its source website, since the same content can
appear/resurface on other search engines. Once the content is deleted
from the source, it automatically gets de-indexed from the Google
Search Engine, for which no court orders would even be required qua
defendant No.4.
21. It has also been argued that being an intermediary, it is impossible for
defendant No.4 to have ‘actual knowledge’ of the content of millions of
third-party websites appearing on the Google Search Engine, or for it to
be able to sift through the same to determine what content is defamatory
or not. It has been argued, that courts have repeatedly upheld the view
that intermediaries cannot be called upon to monitor and sift through
such content. It has been submitted, that since the plaintiff’s prayer
places the onus upon defendant No.4 to adjudicate which content (or part
of it) is defamatory or not, which power of adjudication lies only with
the court, the prayer is untenable; apart from being a threat to free
speech. It has further been submitted, that it is also now well settled that
after a court adjudicates whether any alleged content is defamatory,
specific URLs reflecting defamatory content have to be identified and
no active monitoring is required on the part of an intermediary.
22. It has also been argued that defendant No.4 is an “intermediary” in
relation to the search results on the Google Search Engine and is entitled
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to the defences available under section 79 on the IT Act. It has further
been submitted that since defendant No.4 is neither the author nor the
publisher nor does it have any actual knowledge of the allegedly
defamatory content, defendant No.4 is not a necessary party to the
present proceedings.
23. It has been submitted however, that in compliance of judgment dated
22.11.2023, defendants Nos.1 and 2 appear to have removed the subject
article from the source URL on defendant No.1’s website, and the
identified content posted on defendant No.3’s platform also seems to
have been removed. Accordingly, the subject article or its excerpts will
no longer be indexed on the Google Search Engine run by defendant
No.4.
24. Additionally, it has been argued that the plaintiff is also seeking an over-
broad injunction against defendant No.4 for take-down/removal of any
other allegations made against the plaintiff which are similar to, or arise
from, the subject article and the posts in relation to that article appearing
on social media platforms, which prayer is wholly misconceived,
untenable, technologically impossible, apart from being contrary to the
settled law on the role of intermediaries.
25. In view of the above, it has been submitted that defendant No.4 has no
role to play in the present suit; and the suit ought to be dismissed qua
defendant No.4.
D ISCUSSION & C ONCLUSIONS
26. The essence of the insinuation against the plaintiff in the subject article
may be gathered from the following extracts thereof:
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“ The chief secretary has been at pains to distance himself
from the entire affair. But questions about his role in not declaring
the potential conflict of interest when NHAI raised an alarm in the
summer remain.
“ Also, sources say that once NHAI raised the alarm, the
matter should have rested there because the DM was acting in his
judicial capacity and his decision was anyway being challenged in
court. Instead, the chief secretary recommended action against the
DM, which set in motion a chain of events by other government
departments which led to the latter ’ s transfer away from Delhi .”
27. The subject article also says:
“ If the DM ’ s decision to raise compensation was “ suspect”,
as his immediate superior, the divisional commissioner, made it out
to be, then the matter should have gone to the National Capital Civil
Services Authority (NCSSA) headed by chief minister Arvind
Kejriwal.
“ Surprisingly, Hemant Kumar was also transferred out to the
Andaman Islands. Delhi government sources say they suspect the
reason Hemant Kumar was transferred out was that the NCCSA
could have summoned the files and Kejriwal could have had a say in
the matter. ”
28. Defendants Nos.1 and 2 also covered the plaintiff’s response to them
inter-alia narrating in the subject article that:
“ He said, “ Since you haven’t shared any complaint(s), I
request you to share such complaint(s) so that replies to the same be
provided to you, and actions as per law may be taken against such
disgruntled elements who made such false and motivated
complaint(s)… In case of publication of factually incorrect
information, I reserve my rights to take appropriate action. ”
29. On point of fact, it is noticed that the subject article does set-out the
plaintiff’s version of events and his denial as to any wrongdoing on his
part, and reproduces his statements at some length. The article also
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carries the response of the Anantraj Limited group in relation to the
plaintiff’s son being employed with them.
30. However, the perspective of defendants Nos.1 and 2 appears to be that
the plaintiff did not take any action against the delinquent DM until
NHAI raised the issue ; and that thereafter, the plaintiff ought not to have
taken any action in the matter since the DM had acted in his judicial
capacity. However, merely because the land acquisition award was
amenable to challenge before a court, does not mean that if any
wrongdoing was made out on the DM’s part, action on the administrative
side could not have been taken by the plaintiff, which he did. Besides,
this also begs the question as to how the plaintiff would have known
about the wrongdoing in the passing of the land acquisition award until
NHAI raised the issue?
31. The timeline for the action, that the plaintiff claims to have initiated, is
important. According to the plaintiff, he had initiated action against the
delinquent DM in June 2023, leading to his approval of recommendation
dated 09.08.2023, which resulted in issuance of letter dated 20.09.2023
by the Directorate of Vigilance, Government of National Capital
Territory of Delhi recommending action by the Central Bureau of
Investigation (‘CBI’) against the delinquent officer (a copy of which was
also was provided to defendant No.2). Thereafter the Chief Minister,
Delhi at the National Capital Civil Service Authority (‘NCCSA’)
meeting held on 20.09.2023, agreed to transferring the delinquent
officer; and on 19.10.2023 the Ministry of Home Affairs, Government
of India transferred the delinquent officer to Andaman & Nicobar
Islands. These actions also resulted in initiation of a CBI inquiry against
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the officer on 20.10.2023. Furthermore, vidé order dated 31.10.2023 the
Delhi High Court also set-aside land acquisition award dated 15.05.2023
passed by the delinquent DM.
32. In para 41 of the plaint, the plaintiff asserts that:
“ 41. Had the Defendant Nos. 1 and 2 provided the entire
conspectus of facts, the readers of their article would have been able
to cull out the fact that it was the Plaintiff himself who had pro-
actively and promptly acted upon the information received by his
office regarding impropriety in passing an arbitral award by the
District Magistrate favouring certain private persons by hiking the
compensation amount to be received towards acquisition of a plot
land. The Defendant Nos. 1 and 2 have completely misled its readers
by utterly failing to highlight the action and departmental processes
initiated by the Plaintiff, which led to a departmental enquiry upon
the delinquent officer, the delinquent officer's suspension and
subsequent CBI inquiry into the matter, all of which were much before
the Defamatory Publication. ”
33. Other things apart, once it is seen that months before publication of the
subject article, the plaintiff had already initiated action against the DM,
and had thereby taken action that was adverse to the interests of the
putative beneficiaries of the enhanced compensation, the fact that the
plaintiff did not disclose the so-called potential conflict of interest,
becomes irrelevant.
34. Also, from the documents cited by the plaintiff, it would appear that the
matter did go before the NCCSA and action against DM was approved
even by the then Chief Minister of Delhi, heading the NCCSA.
35. It is important to note that the subject article did not carry the details of
the actions taken by the plaintiff against the DM, who had passed the
land acquisition award enhancing that compensation. Based on the
material placed before the court, it would appear, that once NHAI had
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raised the objection, the matter would ordinarily have rested with the
judicial or quasi‑judicial scrutiny of the DM’s order, particularly since
in passing the award, the latter was acting in his judicial capacity and his
decision was already under challenge before the competent court.
Instead, the record shows that the plaintiff, in his capacity as Chief
Secretary, recommended action against the DM, thereby triggering a
series of consequential steps by various governmental departments,
culminating in the DM’s transfer out of Delhi.
36. The summary of the actions that were taken at the administrative level,
including personally by the plaintiff, have been summarized in paras 33
and 44 of the plaint. The relevant portion of para 44 of the plaint reads
as under :
“ 44. …… In fact, had there been an iota of misdoing by the
Plaintiff or his son, as is being repeatedly asserted by the Defendants,
the Plaintiff would not have been the officer who started taking action
on the very same day i.e. 18.05.2023 when the matter was brought
into his notice and (i) recommended for CBI inquiry on 09.08.2023
to Hon'ble LG. After approval of Hon'ble LG, the same was
recommended to MHA on 20.09.2023; (ii) proposed internal transfer
of District Magistrate (South West) to post of Special Secretary
(Administrative Reforms) in the meeting of the National Capital Civil
Service Authority's meeting held on 20.09.2023 chaired by the Chief
Minister. Accordingly, order for his transfer was issued on
21.09.2023; and (iii) recommended for initiation of disciplinary
action against District Magistrate (South West) Sh. Hemant Kumar
recommended to MHA on 20.09.2023; pursuant to which MHA asked
CBI to inquire into the matter of passing such arbitration awards by
Sh. Hemant Kumar on 20.10.2023, and also suspended Sh. Hemant
Kumar vide order dated 20.10.2023. ”
37. If the actions referred to above are proved to have been taken against the
delinquent DM; which will have to be done in the course of trial; it will
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be seen that well before the subject article came to be published on
09.11.2023, much action had been taken at the administrative level,
including personally by the plaintiff. The question as to why the details
of such actions did not find mention in the subject article needs to be
addressed, and would be relevant in deciding whether or not the
9
publication was made with “reckless disregard for truth” and/or
whether the subject article was “false and actuated by malice or personal
10
animosity” .
38. The omission on the part of defendants Nos.1 and 2 to include these
aspects in the subject article has been flagged by the plaintiff in para 34
of the plaint. As a matter of fact, the plaintiff asserts that immediately
upon receiving queries from defendant No.2, he provided to her a
detailed chronology of events followed by a detailed response, and also
suggested that defendant No.2 should check the relevant public records
surrounding the issue, instead of putting out any false or misleading
story, and called-upon defendant No.2 to personally examine the official
records on 06.11.2023 and 07.11.2023, as per her convenience.
39. It is now necessary to address the argument placed by defendants Nos.1
and 2, who contend that the subject article relates to the discharge by the
plaintiff of his official duties; and the contrary proposition argued by the
plaintiff, that it does not. In support of their contention, defendants Nos.1
and 2 have placed reliance on the decision of the Supreme Court in R.
Rajagopal .
9
para 26(3) R. Rajagopal
10
ibid
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40. The plaintiff’s contention is that the subject article did not relate to the
official duties of the plaintiff; and to support that contention, the plaintiff
has cited certain rulings rendered in the context of the requirement for
sanction for prosecution of public servants. However, even going by the
judicial precedents cited by the plaintiff on the question of what
constitutes ‘official duty’, it is seen that the most relevant and pithy
observation of the Supreme Court is contained in Centre for Public
Interest Litigation . In that case, the Supreme Court observes, that though
there cannot be any universal rule to determine whether a particular act
is connected with the official duty of a public servant, one safe and sure
test is to consider “ if the omission or neglect on the part of the public
servant to commit the act complained of could have made him
answerable for a charge of dereliction of his official duty. ”
41. More in the context of the offence of defamation, the decision of the
Supreme Court in KK Mishra cited by the plaintiff says that what is
required to be seen is a reasonable connection between the duties of the
public servant as a public servant and the acts complained-of; and that
connection will determine whether the public servant was acting in
discharge of his official duties.
42. In the present case, on the plaintiff's own reckoning, he stands clean
since he had initiated the suspension of the delinquent DM. So, had the
plaintiff not acted against the DM, such neglect would have made him
answerable for dereliction of duty. Therefore, even going by the
plaintiff's own submission, the reportage in the subject article did relate
to the performance by the plaintiff of his official duties.
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43. Indeed, in his response to the queries put by defendants Nos.1 and 2, as
part of the documents filed with the plaint, as well as in the course of
arguments advanced on his behalf, the plaintiff has relied extensively on
official records to highlight the steps and actions taken against the DM
who is alleged to have made an erroneous valuation of the subject land.
It is the undisputed position that the DM was suspended in connection
with what is reported in the subject article; that a CBI inquiry was
ordered against that officer on 21.10.2023; and the officer was also
transferred to from Delhi to the Andaman & Nicobar Islands.
44. Now, re-reading R. Rajagopal in the context of the factual matrix of the
present case, it is seen that the Supreme Court has said the following:
“ 26. We may now summarise the broad principles flowing
from the above discussion:
*
“ (3) There is yet another exception to the rule in (1) above —
indeed, this is not an exception but an independent rule. In the case
of public officials, it is obvious, right to privacy, or for that matter,
the remedy of action for damages is simply not available with
respect to their acts and conduct relevant to the discharge of their
official duties. This is so even where the publication is based upon
facts and statements which are not true, unless the official
establishes that the publication was made (by the defendant) with
reckless disregard for truth . In such a case, it would be enough for
the defendant (member of the press or media) to prove that he acted
after a reasonable verification of the facts; it is not necessary for him
to prove that what he has written is true. Of course, where the
publication is proved to be false and actuated by malice or personal
animosity, the defendant would have no defence and would be liable
for damages. It is equally obvious that in matters not relevant to the
discharge of his duties, the public official enjoys the same protection
as any other citizen, as explained in (1) and (2) above. It needs no
reiteration that judiciary, which is protected by the power to punish
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for contempt of court and Parliament and legislatures protected as
their privileges are by Articles 105 and 104 respectively of the
Constitution of India, represent exceptions to this rule. ”
(emphasis supplied)
45. It admits of little doubt that the subject article concerns the plaintiff’s
functioning in his official capacity as the then Chief Secretary, Delhi.
The gravamen of the imputation clearly is, that the overvaluation of land
under acquisition placed the plaintiff in a position of conflict, since the
beneficiaries of such overvaluation were persons alleged to be associated
with the plaintiff’s son. In R. Rajagopal , the Supreme Court has
unequivocally held that a public official cannot maintain an action for
damages in respect of acts and conduct that bear nexus with the discharge
of official duties. Apart from himself asserting that he had initiated
action against the concerned DM, who was responsible for overvaluation
of the land, resulting in the officer’s transfer out of Delhi, the plaintiff
has also urged that defendants Nos.1 and 2 ought to have examined the
relevant official records prior to publishing the subject article, which
according to the plaintiff, would have belied any doubt that the
defendants may have entertained that there was any wrongdoing on his
part. These submissions, in fact, underscore that the subject matter of the
article related squarely to the plaintiff’s discharge of his official duties.
46. Upon a conspectus of the foregoing therefore, it is evident that the thrust
of the subject article pertains to the actions of the plaintiff in relation to,
and in connection with, the discharge of his official functions as the then
Chief Secretary of the Government of NCT of Delhi.
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47. That however, is not where the present matter can be put to rest.
48. It cannot be overlooked that it has been alleged in the plaint that the
subject article was published with reckless disregard for truth and that it
was false and actuated by malice . In this behalf, the following portions
of the plaint are relevant:
“ 27. At this juncture, it is absolutely necessary to apprise this
Hon'ble Court of the extra-ordinary work done by the Plaintiff in the
past 1.5 years serving as the Chief Secretary, GNCTD since 21st
April 2022. Ever since he joined this distinguished office, he has
diligently and meticulously discharged his Constitutional duties and
responsibilities, with an intention to effect good governance in Delhi
for the betterment of the public. While ensuring that the law of the
land and statute are upheld in both letter and spirit, the Plaintiff has
taken several decisions in the larger public interest, which may not
be palatable to certain vested interests, and certain disgruntled
individual(s). Thus, the present smear campaign is nothing but bestial
vendetta against the Plaintiff who has, in the course of the discharge
of his preordained duties, unveiled, amongst other things, the
inordinate and rampant irregularities and corruption by certain
government officials.
“ 28. Enunciated below are illustrations of the extra-ordinary
work done by the Plaintiff in a span of 1.5 years:
a) Seamless organization and management of G-20
Summit in Delhi, which has been appreciated throughout the
world;
b) Transparency in Vigilance through launch of
Vigilance Complaint Information Management System, first of
its kind in the country, so that only verified complaints are
received resulting into stoppage of harassment and
blackmailing of officers by vested interests;
c) Exposed Delhi Excise Scam, including charge-sheets
to various delinquent officials; matter presently under
investigations by ED & CBI;
d) Enquiry in the matter of Sheesh Mahal(official
residence of Hon'ble Chief Minister);
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e) Exposed Scam of Thousands of Crores done in name
of reduction in rates of Late Payment Surcharge to extend
undue favour to electricity distribution private companies at the
cost of public exchequer;
f) Exposed scam of about Rs.l800 crores done by the
forging Govt. records to extend undue favour to electricity
distribution private companies at the cost of public exchequer;
g) Prosecution sanction to CBI against Sh. Amanatullah
Khan, MLA in illegal recruitment in Delhi Waqf Board matter;
h) Disciplinary action for demolition of heritage
monument by the then CEO of Delhi Jal Board Sh. Udit
Prakash (lAS, AGMUT: 2007) along with other officials;
i) . Action w.r.t. Illegal payment of several crores of
rupees by officials of Directorate of Information and Publicity
for political advt. against the judgments of Hon'ble Supreme
Court in Common Cause Case; ”
49. Therefore, as per R. Rajagopal , though in the first instance, a suit for
damages is not maintainable at the hands of a public official in respect
of acts or conduct relevant to the discharge of their official duties, R.
Rajagopal also carves-out an important exception in favour of
maintainability of such a claim, namely that such action would be
maintainable if a plaintiff shows that the publication was made with
reckless disregard for truth , or, proves that the publication was false and
actuated by malice or personal animosity .
50. In the present case, as per the documents cited by the plaintiff, the
veracity of which is yet to be tested , defendants Nos.1 and 2 have
completely omitted to include in the subject article, the actions taken by
the plaintiff against the delinquent DM much before the subject article
was published. Does the fact that the subject article carried no reference
to these actions taken by the plaintiff, tantamount to disregard for truth ;
and whether such disregard is reckless in nature, are aspects that cannot
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be adjudicated except in the course of trial. Another aspect that can only
be tested during trial, is the question whether the omission on the part of
defendants Nos.1 and 2 to include these aspects in the subject article,
makes the article false and actuated by malice or personal animosity.
51. In view of the above, this court is not persuaded to accept the contention
raised on behalf of defendants Nos.1 and 2, that the present suit is not
maintainable at the hands of the plaintiff, in effect, at all by reason of the
law laid down by the Supreme Court in R. Rajagopal .
52. As observed above, though the subject article does relate to the
performance by the plaintiff of his official duties as a public servant, it
is also seen that the plaintiff, in effect, alleges in the plaint that the
subject article was published with reckless disregard for truth; and that
the publication was false and actuated by malice or personal animosity.
These contentions of the plaintiff rest upon certain specific actions that
he claims to have taken in the course of his official duties, alleging that
the defendant has published the subject article at instance of the persons
against whom the plaintiff had acted. These allegations and contentions
would have to be proved by the plaintiff, which opportunity the plaintiff
can only have in the course of trial.
53. It is accordingly held that the present suit is maintainable .
54. Coming now to the ad-interim directions issued by the learned
Predecessor Bench vidé judgment dated 22.11.2023, it is evident that the
directions issued vidé para No.30 (i) and (ii) namely for the
removal/taking down of the subject article from the website of defendant
No.1, as also from the social media platform ‘X’ run by defendant No.3,
are already stated to have been complied with by the respective parties.
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In view thereof, this court is not inclined to interfere with the directions
in para 30 (i) or (ii) at this stage ; and any direction to the contrary would
have to await conclusion of trial.
55. That being said, this court is of the view that the direction issued vidé
para 30(iii) of judgment dated 22.11.2023, whereby defendants Nos.1
and 2 were directed “ not to post, circulate or publish any similar
defamatory content against the plaintiff as set out in the impugned
article/publication dated 09.11.2023 ”, was over-broad, presumptive in
nature and based purely on a hypothetical situation; and therefore, is
untenable in law.
56. In the opinion of this court, defamation as a jurisprudential concept is
different from how it is understood as a lay concept. Every statement or
publication that is derogatory in fact may not be defamatory in law , since
the maker or author or publisher of the statement may raise one or more
of the well-recognised defences to an allegation that what they said or
wrote or published does not amount to a legal wrong . These include the
defence of justification by truth, fair comment, privilege, or such other
legal defences in answer to an allegation of defamation.
57. Moreover, to assume that what someone may publish would be
defamatory, is egregiously hypothetical and presumptive; and therefore
cannot be the basis of a court injunction. No matter how perspicacious a
court may be, it cannot act as a soothsayer and predict what an author
may publish next, and presume it to be offensive to a party, and thereby
gag what is yet to be put-out in the public. This proposition has been
articulated in various precedents, some of which are cited below in
support.
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11
58. In Bonnard vs. Perryman the Court of Appeal has opined the
following:
“… … But it is obvious that the subject-matter of an action
for defamation is so special as to require exceptional caution in
exercising the jurisdiction to interfere by injunction before the trial
of an action to prevent an anticipated wrong. The right of free speech
is one which it is for the public interest that individuals should
possess, and, indeed, that they should exercise without impediment,
so long as no wrongful act is done; and, unless an alleged libel is
untrue, there is no wrong committed; but, on the contrary, often a
very wholesome act is performed in the publication and repetition of
an alleged libel. Until it is clear that an alleged libel is untrue, it is
not clear that any right at all has been infringed; and the importance
of leaving free speech unfettered is a strong reason in cases of libel
for dealing most cautiously and warily with the granting of interim
injunctions. ”
12
59. In Fraser vs. Evans & Ors. the Court of Appeal, Queen’s Bench
Division observed as follows:
“ First, Libel. In so far as the article will be defamatory of Mr.
Fraser, it is clear he cannot get an injunction. The court will not
restrain the publication of an article, even though it is defamatory,
when the defendant says he intends to justify it or to make fair
comment on a matter of public interest. That has been established for
many years ever since Bonnard v. Perryman. The reason sometimes
given is that the defences of justification and fair comment are for the
jury, which is the constitutional tribunal, and not for a judge. But a
better reason is the importance in the public interest that the truth
should out. As the court said in that case:
“The right of free speech is one which it is for the public interest
that individuals should possess, and, indeed, that they should exercise
without impediment, so long as no wrongful act is done.” ”
11
(1891) 2 Ch. 269
12
(1968) 3 WLR 1172
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60. In Kailash Gahlot vs. Vijender Gupta & Ors a Co-ordinate Bench of
the court noted:
“ 47. Similarly, a Co-ordinate Bench of this Court in Sardar
Charanjit Singh (supra), held that the court would not restrain
publication on the plea that if it was published, it would result in a
negative impact on the reputation of the plaintiff. What has not come
into existence cannot be presumed to be defamatory. The court would
not have any material before it to take even a prima facie view that
what would be published would in fact result in loss of reputation. ”
14
61. In S. Charanjit Singh vs. Aroon Purie a Co-ordinate Bench of this
court held:
“ 22. In the instant case the article is not in existence. The
defendants intend to publish an article preferably after obtaining the
views and comments of the plaintiff on the questionnaire dated 21st
January, 1982. The difficulty in dealing with this case is that I do not
know what the article when published will contain. It is not known
what facts will be stated and what comments will be made. It is
therefore not possible at this stage to determine whether the proposed
article would be defamatory or not. But as the defendants state that
they would plead justification and fair comment for publishing the
article pertaining to the plaintiff, I am of the opinion that injunction
should not issue. None of the questions asked by the defendants relate
to the private life of the plaintiff. All questions are directly connected
with his public life. Defence of fair comment and justification has
been raised by the defendants and therefore injunction not to be
issued. ”
62. It is important to appreciate that in matters of defamation, the defences
referred to above would only arise once a publication is made . There is
no conceivable way, whether in fact or in law, by which it can be
presumed that what an author or publisher is proposing to publish would
13
2022 SCC OnLine Del 679
14
1982 SCC OnLine Del 301
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be defamatory, even going by any past publication that may have been
made by the author/publisher.
63. In these circumstances, this court is of the view that the ad-interim
directions issued in para 30(iii) of judgment dated 22.11.2023 are
required to be recalled.
64. Para 30(iii) of judgment dated 22.11.2023 is accordingly deleted .
65. The Registry is directed to give a copy of this judgment along with any
certified copy of judgment dated 22.11.2023.
66. The present application is disposed-of in the above terms.
ANUP JAIRAM BHAMBHANI, J
V.Rawat
JULY 20, 2026 /
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