What Can The Wire Do to Challenge Jay Shah’s Ex Parte Injunction?

‘The Wire’ had earlier carried a report alleging Jay Shah’s company had received kickbacks since Modi came to power.

On Monday, The Wire, which carried a report alleging BJP President Amit Shah's son, Jay Shah, "has seen a dramatic increase in some of his businesses since Narendra Modi became Prime Minister", received a set of legal documents.

In a press statement, The Wire said the set of documents arrived in an envelope, which had no covering letter and comprised only of photocopies. Among the contents of the order, the following standout:

1. Special Civil Suit No 442/2017 filed by Jay Amit Shah in the Court of the Fourth Additional Senior Civil Judge Ahmedabad Rural (Mirzapur) Ahmedabad.
2. Application praying for an interim injunction pending the hearing and final disposal of the suit.
3. Text purporting to be Order Below Exhibit 5 SPCS No 442/2017 dated 12 October 2017, of B K Dasondi, 4th Addl Senior Civil Judge, Ahmedabad Rural (Mirzapur), Ahmedabad.

What is This Ex Parte Injunction About?

All three documents relate to a new civil suit filed against The Wire by Jay Shah in the Ahmedabad civil courts, rather than the criminal defamation suit previously filed in the Ahmedabad criminal courts (which was adjourned for a second time on Monday).

The suit (document no 1) no doubt alleges that The Wire’s article, dated 8 October 2017, defamed Jay Shah, and is likely to claim damages from them (cabinet minister Piyush Goyal had earlier quoted a figure of Rs 100 crore). Document no 2 is an application by Shah to prohibit The Wire from publishing anything further relating to him until the suit is fully decided.

Unlike the others, which do not have any immediate effect, document no 3 appears to be an order by the court granting an ex-parte injunction, that is, an order passed by the court at the request of the plaintiff (Shah), without granting the defendant (The Wire) a hearing.

This is the crux of the order:

Pending hearing and final disposal of the interim Injunction, defendants are restrained by order ad-interim injunction from using and publishing or printing in any electronic, print, digital or any other media, or broadcast, telecast, print and publish in any manner including by way of interview, holding TV talks, debate and debates, news items, programs in any language on the basis of the article published in ‘THE WIRE ‘ (dated 8/10/2010), either directly or indirectly, on the subject matter with respect to the plaintiff in any manner whatsoever.

The order is specified to be an “ad-interim injunction”, which means that it is meant to apply till the next hearing.

As a result, the intention of the order appears to be to bar The Wire from publishing anything relating to the content of their article about Jay Shah till the next date on which this case is heard by Justice Dasondi.

Can the Court Pass Such an Order Without Notifying The Wire?

In its press release relating to the receipt of these documents, The Wire has noted that they were "neither served notice nor given an opportunity to be heard before this ex-parte injunction was sought and granted".

The concept of granting a hearing to the other side is considered a principle of natural justice (audi alteram partem), and is a crucial part of Indian legal procedure. The Code of Civil Procedure specifically mentions that before granting an injunction, a court has to give direct notice to the opposite party that they have received an application for this (Order 39, Rule 3).

Unfortunately, this same Rule also allows injunctions to be granted without notifying the other side, if the court is convinced that the delay required to notify the other side and let them respond would defeat the purpose of the injunction itself.

So basically, if the applicant (in this case, Jay Shah) were to convince the court that it was urgent that The Wire be stopped from writing about him, the court technically has the power to grant this kind of injunction even without notifying The Wire.

At the same time, the court is mandated to record why exactly it felt the matter was so urgent that it didn’t need to give notice to The Wire, and has to immediately send all details of the application for the injunction to them.

Can The Wire Challenge This Order?

The Wire has mentioned in its press statement that “It goes without saying that this attempt to gag The Wire will not go unchallenged.”

It was no doubt expected that Jay Shah would ask for an interim injunction against The Wire during the pendency of the case – this is in fact what the second document received by the media organisation was all about. Getting such an injunction is not meant to be just a matter of making an allegation.

A detailed three-step test would have to be applied by the courts, including assessing:

1. whether Shah has a prima facie case against The Wire;
2. whether he would suffer damage if the injunction weren’t passed; and
3. whether the inconvenience caused to The Wire by injuncting them is on balance lesser than the inconvenience being caused to Shah without it.

However, The Wire also has a clear right of appeal against the ex-parte injunction under Code of Civil Procedure. Order 43, Rule 1 allows appeals against interim injunctions (including ex-parte ones). As a result, The Wire can approach the High Court (or a district court more senior than the one which passed the injunction) to appeal the ex-parte injunction.

Of course, under normal circumstances, The Wire would also get a chance to argue how this three-step test was not satisfied in this case. And at the next hearing, they will be given a chance to argue against the broader injunction asked for by Shah (in document no 2). However, if unchallenged, the ex-parte injunction would still apply against them till such time.

In such appeal, they would need to argue that there was actually no urgency for the injunction to be granted, and/or that the application by Jay Shah failed to satisfy the three-step test for an injunction to be granted.

The Foundation for Independent Journalism, publisher of The Wire, competes with Quintillion Media Private Limited, the publisher of The Quint, in some markets.

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