ORDER G. H. MALIK, J. - This order will dispose of CMA 5497/92 in suit No. 578/92 and CMA 5498/92 in Suit No. 579/92.
The plaintiff, Senator Sultan Ali Lakhani, has filed these suits for damages and for permanent injunction in consequence of the articles, entitled "HONEY POT STING OPERATION DOES NOT 'LACK SENSE' and "WINE, WOMEN, SONG AND BLACKMAIL", which are alleged to he defamatory of the plaintiff, published in the issues dated the 24th August, 1992, of the newspapers THE NEWS and JANG respectively. The defendants in the suits are the respective editors-in-chief, editors, printers, publishers and the reporter of the two newspapers.
The plaintiff has not been named in the articles but it is an admitted position that he is the person referred to therein The articles are identical and the allegations therein are:
(i) that Munawar Ali alias Munnoo and Shafqat Hussain alias Shan ran guest houses for the plaintiff at House No. 70/1, 6th Street, Phase V, Defence Housing Authority, House No.44, 14th Street, Phase V, DHA, a house situated of 17th Commercial Lane and a house on Sunset Boulevard, of Korangi Road where ' most of the bureaucrats and politicians, were offered Wine, Women and fun" and where "many top politicians. Including at least one Federal Minister and some high level bureaucrats and police officials" were secretly filmed, by a crew hired by the plaintiff, while "they boozed and made love with some of the most sought after call girls of the country."
(ii) that the plaintiff used the aforesaid Munawwar Ali and Shafquat Hussain "for what looked like' a massive blackmailing operation."
(i.e) that the plaintiff treated "very important persons" including "at least one Federal Minister, the leading spiritual-cum-political leader, who is also identified as the senator 2 of the industrialist, two key senators, many MNAs and top officials from the District Management Group, customs and police" on board his super luxury yacht featuring a fully loaded bar. Three air-conditioned rooms and one super- luxury master bedroom; and that those persons were secretly filmed "as they enjoyed the night of frolic in the super luxury master bed room."
(vi) that the plaintiff "virtually" bought his seat in the Senate.
(v) that the plaintiff "imported a Land Cruiser for himself and another to gift a fellow Senator from Karachi under the garb of ambulances for an unknown foundation."
(vi) that Hakim Ali Zardari escaped prosecution in 1990 because he had chosen the plaintiff as a partner.
(VII) that the plaintiff prevented "a probe against such fishy concerns as Mill Rock, Oregon Industries and Allied Granite."
(viii) that half a dozen times in the last six years cases of evasion of excise duty were registered against the tobacco concerns of the plaintiff.
2. According to the plaintiff, these allegations are scandalous, false, malicious and defamatory. He has, therefore-, sought, in the suits, a permanent injunction to restrain the defendants from printing/publishing/distributing any art ich-s/material, including articles complained of) adverse loot defamatory of him and/or the companies with which lie is associated; and damages amounting to Rs.500 million.
By the present applications, the plaintiff seeks a temporary injunction to restrain the defendants from "printing/publishing/distributing any articles/material adverse to the plaintiff including (the articles complained of or) defamatory of the plaintiff and/or the companies..... In which the plaintiff and his family have substantial shareholding and with which he is associated or which is adverse, defamatory or injurious to his business interest therein.... Or which is injurious to his fair name, reputation and violative of his dignity as a respectable citizen".
The stand of the defendants, in their written statements, is that the article was written and published "in public- interest and for public good without any malicious (intent) or ulterior motive"; that the defendant No. 5 interviewed a large number of persons who "unveiled the truth" to him, and conducted thorough investigation before writing the article". It amounts, in substance, to pleas of justification, qualified privilege and, apparently, fair comment.
3. Mr. Khalid Anwar submitted that the articles complained of are ex facie libelous; that the defendants, while pleading justification, privilege and fair comment, have not disclosed the sources of their information; and that then- failure to disclose the sources amounts to refusal to answer a question, which is not permissible in view of Article 15 of the Kanoon-e-Shahadat Order or under Common Law. According to him, the law in England was the same prior to its amendment by Section 10 of the Contempt of Courts Act, 1981. In t his connection, he cited.
(i) Attorney General v. Clough (1963) 1 QB.773
(ii) British. Steel Corporation u. Granada Television Ltd. (1981) A.C. 1096 (i.e) X Ltd. And Another v. Morgan-gram pian (Publishers) Ltd. And others (1990) 1 All. E.R. 616).
He submitted, further, that, in the circumstances of the case, the defendants are liable to be restrained by a temporary injunction as prayed; and relied on -
(i) Illustration (e) to Section 55 of the Specific Relief Act.
(ii) Hari Shankar v. Kailash Narayan (AIR 1982 M.P.47).
(i.e) NELSON's LAW OF INJUNCTIONS, 3rd Edition, P. 870.
Mr. Aziz A. Munshi referred to illustration (i) to Section 54 of the Specific Relief Act and to Rao on Law of Injunctions, 6th edition, pages 143, 144, 182 and 183 in support of the plaintiffs case;.
4. Mr. Muhammad Ali Mazhar, for the defendants, submitted, firstly, that the defendants have disclosed sources of their information; and, secondly, that injunction sought by the plaintiff cannot be granted because (a) it would amount to prior restraint on publication which would be in violation of the freedom of speech and of the press which has been guaranteed by the Constitution, (b) damages would be adequate relief in the event of the plaintiff succeeding in the suit, and (c) the defendants have not threatened to publish anything defamatory of the plaintiff. He relied on.
(i) American Law Report 2nd, volume 47, para 5, page 720,
(ii) American Law Report, 2nd ed., volume 175, para 26, j). 499; and ps. 718, and 726.
(i.e) Brij Bhushan And Another v. The State of Delhi (AIR 1950 S.C. 129).
(iv) Express Newspapers Ltd. v. Union of India (AIR 1950 S.C. 578).
(v) Unireme Corporation (Pvt.) Ltd. And others v. Abdullah Ismail and others (1992 M LD 2374).
(vi) Fraser v. Evans and others (1969) 1 All.E.R. 8( 10).
(vii) Corpus Juris Secundum, Vol.43, para 134, p, 679.
In reply, Mr. Khalid Anwar submitted that the American cases are not applicable because whereas in the American Constitution there is a total and unqualified prohibition against making of any law abridging the freedom of speech or of the press", the rights of freedom of speech and of the press under our Constitution are guaranteed "subject to reasonable restrictions imposed by law in the interest of the glory of Islam or the internity, security or defence of Pakistan or any part thereof, friendly relations with foreign states, public order, decency or morality, or in relation to Contempt of Court, Commission of or incitement to an offence According to him, the provisions of Specific Relief Act and Section 499 of the Penal Code are such reasonable restrictions as are contemplated by Art. 19 of the Constitution. He then referred to NELSON's Law of Injunctions, 3rd ed., paras 51 to 53 and the case of Subhas Chandra Bose v. R.Knight A Sons and another (AIR 1929 Cal. 69). As for the case of Fraser v. Evans, it was submitted that it was distinguishable.
5. In the course of arguments, Mr. Khalid Anwar produced a copy of JANG dated the 18th December, 1994, wherein it was reported that Miss Babra Sharif, a well known film actress,-had married the plaintiff. The report admittedly, was not correct and, according to. Mr. Munshi, was indicative of the defendants' "bent of mind". Mr. Munshi, therefore, submitted that it was necessary to restrain the defendants as prayed and that, but for this report, restraint on further publication of the impugned articles would have been sufficient. He also referred to Order 39, C.P.C, which provided for issuance of an injunction to prevent injury.
Mr. Mazhar submitted that the news of the marriage of Miss Babra Sharif to the plaintiff was circulated by PPI and was published in several newspaper including JANG and that contradict ion was published in the issue of JANG dated the 19th December, 1994. He produced copies of various newspapers in which the same story was published and a copy of JANG in which the contradiction was published.
6. It will be convenient, before considering the other arguments advanced by the learned Counsel, to deal with the contention relating to the alleged failure of the defendants to disclose sources of their information and the consequences of such failure. The submission of Mr. Khalid Anwar was that a newspaper or a journalist has no special privilege and is not entitled!o refuse to disclose its or his source of information. He relied on Art. I 5 of the Qannon-e-Shahadat Order which, in relevant parts, provides- "A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any Civil or Criminal Proceedings, upon the ground that the answer to such question will criminate or may tend directly or indirectly to criminate, such witness or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind."
Article 15 relates only to a witness and applies, it seems, to examination of witness in Court or on commission. Such witness cannot refuse to answer a question as to any matter which is relevant to any matter in issue in the suit. That Article is, therefore, not germane to the present proceedings because then was no witness being examined in Court and even if the filing of an affidavit could be treated as equivalent to giving evidence, there was no question put to any of the defendants. The question of refusal to answer, therefore, does not arise, in any event, refusal to answer a question, by a witness, cannot necessarily lead to the conclusion that the case of party questioning him is thereby proved; and the only consequence of refusing to answer a question would be that the witness would be guilty of Contempt of Court,
7. The English Law on the subject before the enactment of the Contempt of Courts Act, 1981, was that journalists had no immunity based on public interest which protected them from disclosing in a Court of Law their sources of information when such disclosure was necessary in the interests of justice but that there might be elements of public interest in protecting the revelation of the source for there was a public interest in the free flow of information, which would vary from case to case.
Thus, in the case of Attorney General v. Clough, a journalist was held guilty of Contempt of Court for refusal to answer a question put to him by a Tribunal, which would have revealed the source of his information; and in the case of BRITISH STEEL CORPORATION, the defendant was ordered, on balance of public interest, to disclose the names of those who had supplied to them the documents of the plaintiff. Now, by ) Section 10 of the Contempt of Court Act, 1981, no person can be required to disclose his source of information, nor would be guilty of Contempt of Court for refusing to disclose the source unless it is shown to the satisfaction of Court that it is necessary in the interests of justice or national security or for the prevention of disorder or crime. Following that Act, it has been held in the case of X Ltd. u. Morgan-Grampian (Publishers) Ltd. That where interest of administration of justice generally outweighed the general public interest in protecting journalistic sources, the Court would make an order requiring disclosure, and that, on the facts of that case, there was no particular public interest in publishing the information derived from the documents of the plaintiff which had been stolen.
8. None of the above cases have any bearing on the A present controversy and it was not even suggested in the argument that the alleged failure of the defendants to disclose their sources of information was proof of anything. No other argument having been advanced on the subject, it is not necessary to dwell on it any longer.
The next argument on behalf of the plaintiff was based on illustration (o) to Section 55 and illustration (i) to Section 54 of the Specific Relief Act, 1877, and on Order 39, rule 2(1), C.P.O. Sections 54 and 55 of that Act are concerned with grant of perpetual injunctions and provide, inter alia, that, subject to the other provisions contained in or referred to by Chapter X of the Act, a perpetual injunction may be granted to prevent the breach of an obligation existing in favour of the applicant and that where, to prevent breach of an obligation, it is necessary to compel the performance of certain acts, the Court may in its discretion grant an injunction to prevent the breach complained of and also to compel performance of the requisite acts. Illustration (i) to Section 54 and illustration
(e) to Section 55, respectively, are as follows:- "(i) A is B's medical adviser. He demands money of B which B declines to pay. A then threatens to make known the effects of B's communications to him as a patient. This is contrary to As duty, and B may sue for an injunction to restrain him from so doing."
"(e) A threatens to publish statements concerning B which would be punishable under Chapter XXI of the Pakistan Penal Code. The Court may grant an injunction to restrain the publication, even though it may be shown not to be injurious to B's property.
9. Illustration (e) is in fact concerned with grant of an injunction to restrain the doing of an act whereas Section 55 of the Act provides for grant of permanent mandatory injunction. It is, therefore, not clear why that illustrations has been placed under Section 55 instead of under Section 54 though it has been suggested by a Writer that illustration (e) and (f) have been annexed to Section 55 probably because of the use made of them in illustration (g) to Section 55.
Be that, as it may, the above sections and the illustrations govern the cases of permanent injunctions which may be granted at the trial when the entirety of evidence and material is before the Court, whereas, as provided bv Section by Section 53 of the Specific Relief Act, the grant of a temporary injunction is regulated by Code of Civil Procedure. The Code provides by Order 39, rule 2(1), inter alia, that in any suit for restraining the defendant from committing an injury of any kind, the Court may grant an injunction to restrain the defendant from committing the injury complained of.
Thus, the Court has the power and the jurisdiction to grant a perpetual injunction to prevent breach of an obligation and a temporary injunction to provent an injury. Since every person has a right to his reputation there is a corresponding obligation on others not to do anything which is calculated to harm that reputation and thereby cause injury to such a person. There can, therefore, be no doubt that the Court has the power- and the jurisdiction, in an appropriate case, to restrain publication of defamatory material.
10. However, the occasion for exercise of the power can arise only if it appears on the material before the Court that the defendant has threatened, or is likely, to commit an act likely to cause an injury. Mere apprehension on the part of a plaintiff is not sufficient. In the present case, the plaintiff, in his affidavit, has reiterated the allegation in the plaint, and has alleged in para 3 thereof.
"That I have suffered severe mental anguish as a result of the activities of the defendants and have also been severely adversely affected in my business, political and social activities. Although legal notices. Were served upon the defendants calling upon them to publish an apology retracting the allegations levelled against me, no such action has been taken by the defendants. I, therefore, very seriously apprehend a continuation of the campaign of vilification that has been launched against me."
11. The allegation, thus, is that the refusal on the part of the defendants to retract the allegations and to tender an apology has caused a serious apprehension in the mind of the plaintiff that the defendants will continue "the campaign of vilification" against him. In. The reply to the legal notice, the defendants stated that the impugned article was published in good faith, for public good without any malicious intention or ulterior motive and that it was "true in facts and substance". The refusal, on their part to apologise or to retract was, therefore based on their stand in the reply.
Surely, if the defendants case is that the allegations were true they cannot be expected to tender an apology; and failure to tended an apology, in the circumstances, cannot reasonably be construed as evidence of any intention on their part to either repeat the publication of the articles complained of or to publish any other defamatory material. In any case, the alleged apprehension in the mind of the plaintiff is not with regard to publication of any specific material but it is that the defendants will continue their coming of vilification. The implication is that there was when the impugned articles were published, already in existence a campaign which would be continued.
"Campaign", according to Chambers. Twentieth Century Dictionary, means, inter alia, "an organised series of operations m the advocacy of some cause or object. "There Is, however, no allegation that the defendants had published anything before or since the impugned articles and before the plaintiff signed the affidavit. The allegation of existence of campaign is, thus, unfounded and the question of its continuance does not arise. It is true that during the pendency of the suit, a report- was published in JANG that Miss Babra Sharif had married the plaintiff. Assuming, for the sake of argument, that such a report was, in all the relevant circumstance's, defamatory, it is not evidence of any intention on the part of the defendants to defame or to vilify the plaintiff because that report was circulated by P.P.I. And was published in various newspapers; and, subsequently, a contradict ion was also published. If anything, the publication of the report may, at worst, be evidence of negligence but certainly not, of any intention to launch or continue any campaign.
12. The applications are, therefore, liable to be dismissed on the short ground that there is nothing on the record to show, even prinia facie, that the defendants have threatened, or are likely, to repeat the publication of the impugned articles or to publish anything else which may be defamatory of the plaintiff. However, in view of the general importance of the matter I would consider the remaining arguments advanced by the learned Counsel.
While the Courts undoubtedly have the power and the jurisdiction to grant interlocutory injunction to restrain publication of a libel, the exercise of that power is discretionary and, the discretion is exercised in accordance with certain rules which have been evolved by the Courts.
13. The first requirement is, of course, that the plaintiff must establish a prim facie case. Mr. Khalid Anwar submitted that the impugned articles are ex facie libelous; but libel, by definition, is publication of something which is not true and whether or not a statement or an article is libellous depends, inter, alia, upon whether or not it is true. The defendants in the case have pleaded justification, privilege and fair comment, it is, therefor, necessary to see whether, on the material before me, the plaintiff has made out a sufficiently strong puna facie case for the grant of interlocutory injunction. The kind of case which a plaintiff has to make out has been subject matter of several decisions in England.
14. In the case of Liverpool Household Stores Association v. Smith.(18K7> 37 Ch. App. 170) it was held that the Court had jurisdiction to restrain, by interlocutory injunction the publication of a trade libel but as, if it grants an injunction, it must pronounce the publication libellous before it has been found so by the jury, the jurisdiction was to be exercised in the clearest cases where any jury would say that the matter complained of was libelous, and where, if they found otherwise, their verdict would be set aside as unreasonable Cotton, L.J. Referred to Coulson u. Coulson (3 Times L.R.846) where it was said that in granting an interlocutory injunction Court must come to decision on question of libel or no libel and therefore the jurisdiction was of a delicate nature and ought only to be exercised in clearest of cases; and observed that was a case of an existing document brought before the Court, and that- "..... In the case of an existing document brought before the Court, the Court can judge of its character, but how can the Court judge whether documents which are not yet in existence will be libellous? In my opinion it would be very dangerous to grant an interlocutory injunction with reference to future publication unless we could lay down definitely some line which would include only the 'publication of what would necessarily be libellous."
Lopes, L.J. Agreed with Cotton, L.J. And went on to say, at page 184,-- "..... It does not appear to me to be perfectly clear, taking all the circumstances into consideration, that the. Jury will come to conclusion that the letters which have been published were libels, as to justify the Court in granting interlocutory injunction against republishing them; and as regards; and as regards future letters of the description mentioned in the notice of motion, it clearly is not so apparent that a jury would find them libels as to justify the Court in interfering in the way asked."
15. The rule laid down in Coulson v. Coulson was again affirmed in the case of Bonnard u. Perryman (1891) 2 ch. 269-where it was held that the libellous character of the publication complained of was beyond dispute "but the effect of it upon the defendant can be finally disposed of only by a jury, and we cannot feel sure that the defence of justification is one which, on the facts which may be before them, the jury, may find to be wholly unfounded, "it was, therefore, observed that it is wiser, in all but exceptional cases, "to abstain from interference until the trial and determination of the plea of justification."
16. More recently, in the cast' of Fraser v. Evans, and others (19691 1 All. E.R.8 - the plaintiff sought an interlocutory injunction to prevent the defendants from publishing an article. The defendants accepted that the article would be defamatory of the plaintiff but said that if they were used for libel, their defence would be that the facts are true and the comments which they make on them would be fair comment made honestly on matter of public interest. It was held by the (hurt of Appeal that the plaintiff was not entitled to injunction. Lord Denning, M.R. (as he then was) said, at page 10,; One of the principle difficulties in dealing with this case is that we do not know what the article when published will contain. We do not know what the extracts will be. We do not know what facts will Instated or what comments will be made. Despite this ignorance, we have to deal with the case as best we can" and went on to hold- "Insofar as the article will be defamatory of the plaintiff, 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 t hat he intends to justify it or to make fair comment on a matter of public interest.
This has been established for any years ever since Honnard v. Perryaman. The-reason sometimes given is that the. Defences of justification and fair comment are for the jury, which is a 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."
There is no wrong done if it is true, or if it is fair comment on a matter of public interest. The Court will not prejudice the issue by granting an injunction in advance of publication."
The rule has been summarised in Hals bury's Caws of England. Court h Edition, volume 28 paragraphs 1H7 and 168. As follows: "167 Exercise of jurisdiction. Because of the Court's reluctance to fetter free speech and because the questions that arise during the proceedings, such as wind her the -meaning is defamatory, whether justification or fair comment are applicable and as to malic are generally for the jury, interlocutory injunctions are granted less readily in-defamation proceedings than in other matters and according to different principles. An injunction will be granted only if the plaintiff can satisfy the Court that any jury would say that the matter complained of was libellous and where, if it did not so find, the Court would set aside its verdict as unreasonable. It is for the plaintiff to show that the words arc defamatory, false and, where relevant, published with actual 'malice. In addition, he must prove that there is reason to believe that publication or further publication of the words is threatened, or intended and that, if it takes place he will suffer injury of such a nature that damages would not be an adequate remedy.., "
"168. It. Is well-settled that no injunction will be granted if the defendant states his intention of pleading a recognised defence, unless the plaintiff, can satisfy the Court that the defence will fail.
The. Principal applies not only to defence of justification bid also to the defences of privilege, fair comment, consent, and probably any other defence. When qualified privilege or fair comment is the be pleaded, an injunction may nevertheless be issued if the plaintiff can satisfy the Court on the issue of malice."
18. The reasons for the rule of English Law relating to grant of an interlocutory injunction are, thus twofold: (1) that the Courts are anxious to protect the right of free speech; and (2) that the question of libel or no libel being one for the jury, it is not safe to grant an interlocutory injunction except in the clearest of cases. What is cleared of cases has been explained in Liverpool Household. Stores Association v. Smith am1 Bonnard r. Berryman (supra).
Now, is there any reason why the rule of English Law, as outlined above, should not be applicable in this country. I propose to consider the second of the reasons mentioned in the preceding paragraph first and would deal with the question of right of free speech later in the context of the argument which has been presented on the basis of Article 19 of our Constitution.
It is, of course, true that in England the question of fact. Viz. Libel or no libel, is for the jury to decide while in this country there is no jury and the question is decided by the judge himself. Hut does that really make any difference? I think not.
19. The rule that injunction would not be granted except in the clearest of case appears to amount, in the ultimate analysis, to saying that injunction would only be granted where, on the material before the Court at the interlocutory stage, the Judge is satisfied that any jury would find that the material complained of was libellous. The Judge, therefore, places himself', as it were, in the shoes of the jury and decides the question of libel or no libel for the purpose of granting an interlocutory injunction. This is illustrated by the passage, cited above, from the judgment of Lopes, L.J. In the case of Liverpool Household Stores Association v. Smith; and by the fact that interlocutory injunctions have been granted, in proper case's, t o restrain publication of a libel. For example, in Collated v. Marshal (1892) 1 Ch. 571- where the defendants had produced evidence and did not suggest that they could, improve their defence by further evidence of cross- examination of the plaintiff, so that the whole of the defence was before the Court, Chitty, J. Found that the statements Complained of were untrue is substance and in fact and that the defendants intended to continue to publish the statements; am1, therefore, granted injunction though not in the terms asked for by the plaintiff.
20. I am, therefore, inclined to the view that merely because the question of libel or no libel is, in England, for the jury to decide at the trial is no reason for not applying the English rule here; and there appears to be no other reason why the ride should not be applied. In fact, as stated in NELSON'S LAW OF INJUNCTIONS (second edition, page 624)- "...... Doubtless when the occasion arises, the Court will adopt the rule in Bonnard v. Perryman based as it is upon the obvious faq that the grant of an injunction in such cases involves a decision by the Court on motion of the whole question at issue in the suit-libel or no libel- a decision which the Court will naturally be very loth to make, except, in clearest cases."
As noted above, the defendants have pleaded justification, privilege and fair comment. They have yet to produce their evidence; and there is nothing before me to show that they will not succeed in one or more of their defences. It follows that this is not the "clearest of cases" where interlocutory injunction ought, to issue.
21. The anxiety of the Courts to ensure that freedom of speech and of the press is not impaired is another, and perhaps, more important, reason for the rule. As stated by the' Court of Appeal in Bonnard v. Perryman.- ....... 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 the 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.
Lord Denning, M.R. (as he then was) stated in Fraser c. Evans that although the reason for the rule was sometimes stated to be that questions of fact are for the jury, better reason is the importance in public interest that the truth should out and cited the passage, quoted above, from Bonnard r.
Perryman with approval.
In United States of America the most formidable obstacle to the grant of injunctive relief against personal defamation is said to be the feeling of the Courts that to allow such relief would infringe the Constitutionally guaranteed freedoms of speech and of the press by setting up what would be, at least potentially, a system of judicial censorship. See A.L.R., 2nd ed.,vol.47, para 5 page 726.
22. Mr. Khalid Anwar submitted that it would not be appropriate to adopt the American view based as it is on the provision of the American Constitution which prohibits absolutely the making of any law abridging freedom of speech, and of the press because the freedom of speech and of the press recognised by Article 19 of our Constitution is not unqualified but subject to reasonable restrictions imposed by law. According to him, the provisions of the Specific Relief Act and Section 199 of Pakistan Penal Code constitute such reasonable restrictions.
The question, therefore, is whether the right of freedom of speech and of the press under Article 19 of our Constitution is, because it is subject to such reasonable restriction as may be imposed by law for the specific purposes mentioned therein, different in nature and scope from the right under the Constitution of USA N.H. Bhagwati, J. (as he then was) was' of the opinion in the case of Express Newspapers Ltd r. Union of india (AIR 1958 S.C'. 578) that the freedom of speech enshrined in Art. 19
(1) of the Indian Constitution is based on the provision-of the First Amendment to the Constitution of U.S.A, and that it is the necessary corollary of the concept of freedom of speech and expression that no measure can bo enacted which would have the effect of imposing a precentorship; and that such a measure would be struck down as unconstitutional unless it fell within the provisions of.
Art. 19 '(2) of tin1 Constitution relating to imposition of reasonable restrictions for specified purposes.
23. In Ramesh Thapar v. State of Madras (AIR 1950 S.C. 124), it whs observed, at page 128;- ".... Very narrow and stringent limits have been set to permissible legislative abridgement of-the right of free speech and expression and this was doubtless due to the realisation that freedom of speech and of the press lay at the foundation of all democratic organisations, for without free political discussion no public education so essential for the proper functioning of the processes of popular Government is possible. A freedom of such amplitude might involve risks of abuse. But the framers of the ('(institution may well have reflected, with Madison, who was, the leading spirit in the preparation of the First Amendment of the Federal Constitution, that il is better to leave a few of its noxious branches to I heir luxuriant growth than by pruning them away to injure the vigour of those yielding the proper fruits"."
24. In Brij Shushan u. State of Delhi (AIR 1950 SC 129) it was held that an order issued by Chief Commissioner of Delhi requiring the printer, publisher and editor of a weekly,. ORGANISFR, to submit for scrutiny, before publication all communal matter and news and views about Pakistan amounted to imposition of pre-censorship and was, therefore a restriction on the liberty of the press and was not saved by Art. 19 (21 of the Indian Constitution. Patanjali Sastri, J. (as he then was), speaking for the majority, said, at page 134- "There can be little doubt that the imposition of precentorship on a journal is a restriction on the liberty of I he press which is an essential part of the right to freedom of speech and expression declared by Art. 19 (h (a). As pointed out by Black-stone in. His commentaries, "the liberty of the press consists in laying no previous restraint upon publications, and not in freedom from Censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this is to destroy the freedom of the press."
25. It would, thus, appear that notwithstanding the fact that the freedom of speech and of the press under the Indian Constitution are subject to imposition of reasonable restrictions under Art. 19 (2) thereof, imposition or precentorship. Unless, of course it falls within what have been described as very narrow and stringent limits set to permissible legislative abridgement of the right of tree speech, would be unconstitutional.
2B. The provisions of the Indian Constitution relating freedom of speech and of the press are similar to those of ours. Therefor, pre-censorship in the absence of any reasonable restrict ion imposed by law for any of the purposes specified in Article it would be violative of the freedoms of speech and of the press.
There is tup law, or, at least, none was brought to my notice, imposing prior restriction on publication which might be defamatory; and it does not appear that the language of Ail. 19 of Ik Constitution permits enactment of such a law because defamation is not included in the objects for which reasonable restrictions may be imposed by law. Be that as it may, the provisions of Sections 54 and 55 of the Specific Relief Act and Section 499 of Pakistan Penal Code do not have the effect of imposing prior restraint on publication. As the two illustrations, quoted above, to Sections 54 and 55 of the Specific Relief Act suggest, the Courts may by an injunction, prevent publication of defamatory material; but. Such an injunction would be granted where the material complained of is shown to be clearly defamatory and it is proved that the defendant has threatened to publish it. The injunction would, thus, be granted for protection of the reputation of the plaintiff, if he deserves such a reputation, and not in pursuance of any rule or law imposing pre- censorship or prior restraint. As for Section 499, Pakistan Penal Code, it defines defamation which is punishable under Section 500 of the Code but does Hot impose any prior restriction. Therefore, even assuming that a law imposing prior restraint on publication of libel could bo validly enacted, the provisions cited by Mr. Khalid Anwar are not such provisions.
27. As has been seen, the strongest reason for the Courts in England and U.S.A, in refusing to grant interlocutory injunction to restrain publication of a libel is their anxiety to protect the freedoms of speech and of the press, it cannot reasonably be suggested that the Courts in this country should be less anxious on that score.
In the present case, the allegations in the articles complained of are, no doubt, of a very serious nature and, if untrue, would he grossly defamatory of the plaintiff but the defendants have pleaded justification, privilege and fair comment and on the material before me it cannot be said they will not succeed. Adequacy or otherwise of damage's is also a relevant factor but that can be addressed only on proper evidence' which is not before me at this stage. No injunction can, therefore, be granted to restrain the defendants from republishing t he articles complained of.
The plaintiff is also not entitled to an interlocutory injunction to prevent publication of either material instatement s he cause, inter alia, such an injunction would be violative of the freedom of speech and of the press of the defendants and also because it is impossible to say that such statements or material, if and when published, would be defamatory of the plaintiff.
2b. There is yet another difficulty in the way of granting junction in the terms sought by the plaintiff.
Those terms ire unspecific and very were as will be seen from the prayer in;he application, which has been reproduced hereinabove. As reported in A.L.R., 2nd ed. Vol.47 at page 721, it was held the case. Of Hicks Carp. u. National Salemen's Training Association that~ "The injunction as issued was too vague and uncertain in its terms to be sustained, since it enjoined defendant from publishing articles concerning the plaintiff and its business and methods "heretofore, threatened," and from publishing or circulating any article or writings or statements whatsoever in any way falsely, unfairly, and misleadingly criticizing or reflecting upon plaintiff or its business, course of study, or advertisements, and from making any false, defamatory. Unfair, and misleading representations nr statements directly or indirectly attacking the me beds or business of the plaintiff."
To similar effect in the case of collard v. Marshal (1892) 1 Ch. 571.
29. The case of Hanshankar u. Kailash Narayan is distinguishable because there it was found as a fact that the defendants had started publishing false and defamatory news against the plaintiff in every issue of the newspaper with intent to blackmail the plaintiff and extort money from him and it was held that Article 19 of the Indian Constitution did not confer a right, under the guise of freedom of expression and freedom of press to go on publishing defamatory matter which was a criminal act.
The applications are, in the circumstances, dismissed.