bombay high court

Bombay High Court: In a bunch of interim applications seeking to restrain defendants from making/publishing/reproducing/circulating/speaking/communicating any derogatory or defamatory statements against Serum Institute in any medium, to delete/remove any such content from their websites/social media platforms and issuance of an unconditional apology stating such contents to be baseless, R.I. Chagla, J. decided in favour of Serum Institute and CEO Adar Poonawala, and ordered restrain and deletion of prima facie defamatory content.

The instant matter relates to a defamatory suit filed by Serum Institute against defamatory content claiming shut down of Serum Institute of India and arrest of Serum Institute CEO Adar Poonawala, a prominent name in the manufacture and trade of vaccines, which became a household name due to ‘Covishield’ vaccine during COVID-19 pandemic.

The applicants mentioned the Court’s order dated 26-8-2022 in a writ petition seeking compensation against death of a girl allegedly due to after-effects of Covishield vaccine. The said order allowed ‘Hamdast’ apparently requiring delivery of order through Court bailiff, to which, the defendants appealed on their social media platforms to gather at a certain location of plaintiffs’ making derogatory statements of murdering people, also calling them criminals, influencing, inciting anger and hatred among public.

The plaintiffs came up with the defamation suit against the defendants, which involved several interim applications under Section 340 and 340(1) of Code of Criminal Procedure (‘CrPC’), Section 12 of Contempt of Courts Act read with Article 215 of Constitution of India, Order VII Rule 11 of Civil Procedure Code, all taken up by the Court in the instant matter.

The plaintiffs pointed at the trajectory of clinical trials approvals which led to the administration of Covishield vaccination across the country, and other submissions eventually making a strong case in their favour as expressed by the Court.

The Court referred to Shree Maheshwar Hydel Power Corporation Ltd. v. Chitroopa Palit, 2003 SCC OnLine Bom 702 clarifying the principle of law in India regarding civil action for libel and grant of interlocutory relief. Thus, the defendants were required to show that statements were bonafide and made in public interest. However, the Court referred to the affidavit produced by Ministry of Health and Family Welfare which regards plaintiffs to have saved four million lives in India, as against the claim of plaintiffs having ‘murdered millions with their vaccines’. The Court noted the statement in affidavit that “against 2190 million doses administered till November 2022 there had been a total of 26 Adverse Events Following Immunization (AEFI) cases of TTS reported in India, out of which in 14 cases the individual recovered after hospitalization and in 12 cases the individual passed away.”

The Court relied on the case of Jacob Puliyel v. Union of India, 2022 SCC OnLine SC 533 wherein, the Supreme Court considered AEFI to be a well-defined mechanism for collection of data relating to adverse events that occur due to Covid vaccines.

The Court further pointed at the alleged ban on Covishield/Astra Zenica vaccine in European countries to be a misconception while stating the correct facts that it was a temporary measure. The Court relied on Umar Abid Khan v. Vincy Gonsalves, 2009 SCC OnLine Bom 1676 which held that “every repetition of defamatory words is a new publication and distinct cause of action.”

The Court rejected bar by limitation, lack of specification of defamatory statements by plaintiffs, reference to writ petition of girl’s death, and other contentions raised by defendants. The Court found the contents per se defamatory, and the instant case made out in favour of the plaintiffs, i.e., Serum Institute, Adar Poonawala and others. The Court clarified that the instant matter does not require consideration of whether the vaccine was good or bad but decide on defamatory content against the plaintiffs.

Thus, the Court decided the bunch of interlocutory applications in favour of the plaintiffs and restrained the defendants from making/publishing/reproducing/circulating/speaking/communicating any derogatory or defamatory statements against Serum Institute or Adar Poonawala in any medium and delete/remove the existing content as well with an unconditional apology stating such remarks to be baseless, unsubstantiated and unwarranted.

[Serum Institute of India Pvt. Ltd. v. Yohan Tengra, 2023 SCC OnLine Bom 1093, Judgment dated 5-6-2023]

Judgment by: Justice R.I. Chagla

Advocates who appeared in this case :

For Plaintiff: Senior Advocate Aspi Chinoy, Advocate Chetan Kapadia, Advocate Hitesh Jain, Advocate Yuvraj Sing, Advocate Monisha Mane, Advocate Bijal Vora, Advocate Pranav Nair, Advocate;

For Defendant: Advocate C. Keswani, Advocate Dinesh Pednekar, Advocate Vedchetan Patil, Advocate Saransh Jain, Advocate Sneha Dey, Advocate Sunayana Kashid, Advocate Ishwarlal Agarwal, Advocate Dipali Ojha, Advocate Meena Thakur, Advocate Pratik Jain Saklecha, Advocate Snehal Surve, Advocate Hania Shaikh, Advocate Sourav Khanna, Advocate Vikas Pawar, Advocate Sohan Agate, Advocate Samkit Shah, Advocate Vijay Kurle, Advocate Tanveer Nizam, Advocate Nilesh C. Ojha, Advocate Abhishek Mishra.

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