Two judges at Delhi’s Rohini Court passed different orders—one reserving its verdict, the other setting it aside—on its September 6 ex parte order that gagged journalists from reporting allegedly defamatory articles against the Gautam Adan-led group of companies.
District Judge (DJ) Sunil Chaudhary reserved his order on journalist Paranjoy Guha Thakurta’s plea, whereas District Judge Ashish Aggarwal set aside the same September 6 order on pleas filed by Ravi Nair, Ayush Joshi, Ayaskant Das and Abir Dasgupta. The orders are different, with different results because the journalists split their appeals instead of challenging it together.
DJ Aggarwal observed that Senior Civil Judge Anuj Kumar Singh, Rohini District Court, should have heard the journalists before issuing gag orders “which had impact of prima facie declaring articles are defamatory and even directing their removal.”
DJ Chaudhary, while reserving orders without granting any relief, however, observed that only courts had the authority to deem content as defamatory.
“Till the court makes a declaration (that an article is prima facie defamatory), how can the injunction be passed?” DJ Chaudhary asked on a plea seeking an injunction on anti-Adani articles till the matter is finally decided on merits.
The September 18 hearing was significant as it addressed the root of the controversy arising from the gag order and its repercussion that have resulted in an unprecedented level of censorship after a notice was issued by the Ministry of Information and Broadcasting directing the takedown of 183 videos and 83 Instagram posts.
Senior Advocate Trideep Pais, representing Thakurta, argued that the September 6 gag order virtually allowed the Adani Group to put on the “shoes of a judge” and a compile list of articles it deemed defamatory. The Adani Group, represented by senior advocates Anurag Ahluwalia and Vijay Agarwal, however argued that the articles were hurting their business interests.
Senior advocate Vrinda Grover, for the four above-mentioned journalists, argued that in this country, there is no law that tells anyone, particularly the press, not to write or question any entity. “Would the heavens have fallen if notice would have been given to me?...Please note, freedom of speech of expression, the journalists are agents of the press who take this right forward,” Grover said.
During the second hearing, advocate Aggarwal submitted there was a campaign against Gautam Adani. Pointing out how even the split in the appeals was a strategy, Aggarwal added, “...They are all contributors. All of them like writing against me...it is a completely malicious targeting...Every tweet, retweet or like amounts to republication. It is happening even now,” he said. Aggarwal also hinted at how Thakurta was being probed by the NIA for accepting Chinese funding.
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Why is the September 6 gag order problematic?
The September 6 gag order, by Senior Civil Judge Anuj Kumar Singh, Rohini District Court, was passed ex parte – that is, the affected parties were not heard before they were directed to take down anti-Adani articles.
The order named nine journalists and organisations including Paranjoy Guha Thakurta, Abir Dasgupta, Ravi Nair, Ayush Joshi, Ayaskant Das, and foreign-linked entities like Adani Watch and Organized Crime and Corruption Reporting Project (OCCRP). However, it also included “John Doe” that extends the gag order to other people not named by court.
The gag order would be operational till the conclusion of the defamation suit filed by Adani.
Senior Advocate Trideep Pais—representing journalist Paranjoy Guha Thakurta—argued that by virtue of the Delhi Court’s September 6 order Adani could directly contact intermediaries—like Meta, Google—to take down articles. Based on this order, Adani could have anything removed from the internet and the intermediaries have been directed to take it down.
Adani can take offence to literally anything and ask for its takedown,” Pais argued in court.
Corporate given the role of the judge in its own case
The Delhi court, in its September 6 order, had allowed Adani to compile and submit a list of articles for takedown within 36 hours without further judicial review. The controversy thus gained traction when the Centre on September 16, issued blocking orders to various journalists and news portals directing the takedown of at least 183 videos and 83 Instagram posts.
Sources indicated that these videos and posts did not fall under the original ambit of Adani’s defamation suit against the nine entities. It’s like there was a search of keywords and a list was made wherever Adani’s name was mentioned, the source who was at the receiving end of the blocking order said.
The News Minutes’ Editor-in-Chief Dhanya Rajendran told BOOM that the court order, combined with the ministerial action, grants a private corporation the power to unilaterally silence critical voices.
“This is a step towards censorship that undermines a free press and the public’s fundamental right to know,” Rajendran said.
The senior journalist pointed out that the Delhi Court’s order in Adani’s case is “questionable” because it does not define what is defamatory. Rajendran said the ministry then went one step further and issued take down notices on several Adani-related videos even though the court order only limited the gag order to defamatory stories. “Did the ministry watch the content and decide it was defamatory entirely? Rajendran asked.
What is defamation?
According to Section 356 of the Bharatiya Nyaya Sanhita (BNS), someone commits defamation when they say or print anything that causes damage to a person's reputation—living or dead. The penalty for defaming someone is a jail term upto two years or a fine or both or community service.
If the statement, or the allegedly defamatory information is published online, then it amounts to cyber defamation. In this case, provisions of the Information Technology Act, 2000 will also kick in with its own set of penalties. It is pertinent to note that anyone who repeats, copies or now even likes posts online that is deemed defamatory is equally liable.
However, during the hearing on September 18, District Judge Sunil Chaudhary reiterated that only a court can decide if a post, article, or video is defamatory while orally inquiring if journalist Paranjoy Guha Thakurta had any material to back his claims in the allegedly defamatory articles.
This is the seventh case the Adani Group has filed against Thakurta since 2017.
Recently, a Delhi Court on September 10 fined NDTV's senior journalist Gargi Rawat ₹10,000 for liking a defamatory post which alleged that commentator Abhijit Iyer-Mitra was accused of rape.
“…there is no manner of doubt that the act of the defendant no.2 (Rawat) in “liking” the original defamatory tweet in question amounted to republication and, as a result, the defendant no.2 is liable for the tort of defamation,” the court held.