Pachauri Defamation Suit: Court Rejects Interim Gag Order Plea

By Aditya Singh Chawla

The Patiala House court at Delhi has rejected R. K. Pachauri’s plea for an interim gag order against NDTV, Bennett Coleman and Co., and the India Today Group. The media houses had been made defendants in a defamation suit filed by him in 2016.

In 2015, an FIR had been filed against Pachauri by a woman employee of TERI (The Energy and Resources Institute, of which he was then the Chief) accusing him of sexual harassment. Following these allegations, several other women had spoken out about similar experiences while they had worked at the organization. The allegations and ongoing proceedings had received extensive coverage in the media.

Pachauri filed for defamation against multiple parties, including the media houses, one of the women who had spoken out, as well as her lawyer. He sought a gag order against the media houses, and damages of Rs. 1 Crore from the victim and her lawyer.

We have written previously about how suits such as these are in the nature of ‘SLAPP’ suits – Strategic Lawsuits Against Public Participation. These are cases where powerful individuals and corporations use litigation as a way of intimidating or silencing their critics. The defendants are usually media houses or individuals who are then forced to muster the resources to mount a legal defense. Even if they are able to secure a victory in Court, it is at the cost of a protracted and expensive process.

The court has now refused to grant an interim injunction against the media houses, noting the right of the public to be aware of the developments. It further noted that public figures can be held to a higher degree of scrutiny by the public. However, it has also held that further reportage must also carry Pachauri’s views, and indicate that the matter is still pending before the Court. The text of the order may be found here.

Aditya is an Analyst at the Centre for Communication Governance at National Law University Delhi

Delhi High Court Refuses to make Group Administrators Liable for Content posted by Other Members

In April 2016, two directives issued by two separate state governments in India made social media group administrators (‘administrators’) liable for content circulated by other members of the group. This came in the wake of a series of arrests in India for content posted on WhatsApp. This included arrests of administrators for content posted by other members. In our previous post, we argued that making administrators liable is not legal and severely undermines their right to freedom of speech and expression.

This question surrounding the liability of administrators for content posted by others recently came up before for consideration before High Court of Delhi. In a recent order, the Court recognised the problem of placing this burden on administrators.

In this case, damages for defamation were also sought from the administrator of a Telegram and a Google Group on which the allegedly defamatory statements were published. Recognising the inability of the administrator to influence content on the group, the Court found holding an administrator liable equivalent to holding the ‘manufacturer of the newsprint’ liable for the defamatory statements in the newspaper.

The Court reasoned that at the time of making the group, the administrators could not expect members to make defamatory statements. Further, the Court took into account the fact that the statements posted did not require the administrator’s approval. Consequently, the Court found no reason to hold the administrator responsible.

However, the contention of the petitioner that the administrator has the power to ‘add or remove people from the group/platform as well as to filter’ was not evaluated on merits, as it was not the pleaded case of the petitioner. The courts response to such arguments remains to be seen.

In the midst of increasing restrictions on social media groups and administrators, this order is a welcome step. It is imperative that Governments, law enforcement agencies and courts take note to ensure that freedom of expression of administrators and users of such platforms/groups is not undermined.

What’s the hue & cry about Criminal Defamation?: Summary of Arguments from the Supreme Court

A Supreme Court bench of Justices Dipak Misra and Prafulla Pant is hearing a set of at least thirty petitions challenging the constitutional validity of criminal defamation (Sections 499 and 500 of IPC and section 199 of CrPC).

The summary of hearings from the first six days can be found here.

Busy Day for Free Speech in the Supreme Court: Defamation and Pornography

Image: http://www.internetlawcommentary.com/wp-content/uploads/2015/06/defame530.jpg

Subramanian Swamy v. Union of India

The Supreme Court bench of Justices Dipak Misra and Prafulla Pant today heard a bunch of almost two-dozen petitions, which challenge the constitutional validity of criminal defamation (sections 499 and 500 of the Indian Penal Code). Among the more prominent ones are petitions from Mr. Subramanian Swamy, Mr. Rahul Gandhi, Mr. Rajdeep Sardesai and Mr. Arvind Kejriwal, whose government incidentally days after him challenging the validity of criminal defamation came out with a circular “to deal with instances of defamatory imputations covered under Sec 499/500 of IPC against the CM and ministers”.

Attorney General Mr. Mukul Rohatgi and Additional Solicitor General Mr. PS Narasimha represented the Union of India. The Attorney General at the outset requested the court to refer the matter to a constitutional bench as per Article 145(3) of the Indian Constitution. The bench however did not seem very inclined and provided examples of multiple cases in the recent past including Suresh Kumar Koushal and Shreya Singhal which were decided by a two judge bench. In response the Attorney General submitted that if in other instances the correct course was not followed, that should not be a reason to not refer the matter in the present case. Mr. TR Andhyarujina, who has been appointed as an amicus in the case also supported the Attorney General’s contention. The Court has allowed the Union of India to raise this issue in their final arguments and has agreed to answer it in the final judgment.

The bench clarified that it will only be dealing with the issue of constitutionality of sections 499 and 500 of IPC and will not look into how these sections are applied. The bench also stated that it cannot abolish a provision as that is the job of the parliament, it can only look at the constitutionality of the provision.

Mr. Andhyarujina informed the court that among the various terms mentioned under Article 19(2) of the Constitution there is no judgment on the issue of defamation and what the court needs to decide is whether the right to freedom of speech and expression as guaranteed under Article 19(1)(a) is inhibited by defamation being a penal provision.

The Attorney General also dealt with the issue of criminal and civil defamation and stated that a civil suit for damages in such instances keeps pending for years and there is hardly any award provided, nor is there any deterrence effect whereas criminal provision at least has some deterrence effect. He also compared the situation to the English system and was supported by Mr. Andhyarujina and both of them stated that unlike the India system its easy to approach the civil court for damages in such cases and obtain a relief whereas in India the system should be kept in mind. However, the bench reiterated that it will only examine the constitutionality of the sections and the system that exists for civil defamation and the time taken to decide such suits will have no bearing on that.

Mr. Andhyarujina stated that theses sections are used as an inhibitor for freedom of speech and expression specially in political context, to which the court stated that different people have different views regarding the validity of the provisions under Article 19(2) including the two amicus appointed by the Court and the matter should be carefully considered.

The bench specifically asked the amicus to assist the court with two questions. Firstly, whether sections 499 and 500 can be read down if required and secondly, whether the fact that there has been a trend of some countries abolishing criminal defamation will have any impact on this court deciding the constitutional validity of a statutory provisions in light of our written and organic constitution.

The court has directed the Union of India to file a counter by 11^th July and all the petitioners to file their propositions of law by 14^th July which is the next date of hearing.

Kamlesh Vaswani v. Union of India

Image: http://i.telegraph.co.uk/multimedia/archive/03343/ChrissyChambers_En_3343155k.jpg

The Kamlesh Vaswani matter that has asked the Court to direct the Government to block all pornography over the Internet came up before the bench headed by the Chief Justice today. The petitioner stated that they have filed an affidavit highlighting the issue of revenge porn. The Court agreed with the seriousness of the matter and agreed to look at the issue of revenge porn. However, the Chief Justice refused to passed any interim order in the matter and stated that the Court cannot interfere in what adults do inside the four walls of their house and doing so may be violate of their Article 21 rights. The bench has asked the Union to file it’s reply in four weeks.

(Sarvjeet is a Project Manager & Fellow at the Centre)

Cases in which the Supreme Court will consider the validity of Criminalization of Defamation

The Supreme Court of India is currently hearing a bunch of petitions challenging the validity of Sections 499 and 500 of IPC among others.

PICTURE: http://law.famu.edu/wp-content/uploads/2015/03/defamation.jpg

The Centre for Communication Governance at National Law University, Delhi will been tracking the case and is collecting various documents relating to it.

NOTE: There are 25 petitions which have been tagged together- the latest list of petitions can be found at: https://drive.google.com/file/d/0BycAZd9M5_7NbWhubWo5eU92OTA/view?usp=sharing. 

We are in the process of finding out the details of the lawyers and other documents regarding the same.

The details and other information regarding the cases is available below. (The table is not exhaustive as we are still collecting information)

If you have any information or copy of petitions or submissions please mail them to sarvjeet.singh@nludelhi.ac.in

Name of Case	Number	Lawyers Appearing for the petitioner	Amicus	Copy of the petition	Copy of the written submission
Subramanian Swamy v. UOI, Ministry of Law & Justice & ors.	W.P. (Crl.) No. 184/2014	Mr. Subramanian Swamy (petitioner in person) Mr. G.S. Mani (Senior Advocate) Mr. A. Lakshminarayanan Mr. M. M. Kashyap	Mr. T.R. Andharujina (Senior Advocate) Mr. K. Parasaran (Senior Advocate)
Arvind Kerjiwal v. UOI, Ministry of Law & Justice & ors.	W.P. (Crl.) No. 56/2015	Dr.   Rajeev Dhavan (Senior Advocate) Ms.   Vrinda Bhandari Mr.   Chirag M. Shroff Ms.   Swati Vaibhav		Available here
Arvind Kerjiwal v. UOI & ors.	W.P. (Crl.) No. 62/2015	Mr.   Arvind P. Datar (Senior Advocate) Mr.   Guru Krishna Kumar (Senior Advocate) Mr.   Trideep Pais Mr.   Gautam
Rahul Gandhi v. UOI & ors.	W.P. (Crl.) No. 67/2015	Mr.   P.P. Rao (Senior Advocate) Mr.   Harin P. Raval (Senior Advocate) Mr.   R.S. Cheema (Senior Advocate) Ms.   Mahalakshmi Pavani (Senior Advocate) Mr.   K.C. Mittal Mr.   G. Balaji Ms.   Tarannum Cheema Mr. Nipun Saxena Mr.   Santosh Krishnan
Foundation for Media Professionals v. UOI	W.P. (Crl.) No. 106/2015	Mr. Anup Bhambhani (Senior Advocate) Mr.Dushyant Arora Ms. Mudrika Bansal Mr. Apar Gupta		Available here

A lawyer’s network to defend journalists; and decriminalising defamation

Author: Nikhil Kanekal

The recent week has been a busy one for us at CCG, thanks to a visit from  Peter Noorlander and Nani Jansen from Media Legal Defence Initiative (MLDI).  We are grateful to all those who joined hands with us in our efforts. In case you were not around or unaware, here’s what we have been up to:

1. A workshop to create a network of lawyers to defend journalists facing charges under restrictions to free speech in India
2. A public discussion on decriminalising defamation; evolving our laws with the advancement of society and technology

Both events were very productive and we promise to follow through with our efforts in these regards. We’d like to offer a recap of the events through some of the press we received. The Hindu carried an article on Saturday’s workshop, which narrates the issues faced by journalists, while also taking stock of how the contours of free speech have become tighter in the last three decades.

Jawahar Raja, a lawyer in Delhi agrees. “Look at the pattern. Somebody is offended; there is a furore; the police take action; someone is arrested; then the person, after a battle, is granted bail; and the case peters out of consciousness. In many instances, the case is dropped or there is an acquittal. But the process itself is a punishment. The trial is a punishment. The prosecution knows keeping you in jail pending bail is the punishment.”

He is right. Journalists at the forefront of the battle for free speech, fighting cases, pay a high price – literally and figuratively. They have to hire legal help; they have to appear before courts regularly; they have to navigate legal processes at a time when many of their organisations wash their hands off the case; they face regular intimidation; they spend years in prison as under-trials, which is what makes getting bail so crucial to at least providing temporary relief.

Monday’s discussion on decriminalising defamation included Peter Noorlander and Nani Jansen from MLDI, Paranjoy Guha Thakurta from the Foundation of Media Professionals and CCG’s Chinmayi Arun as panelists. The Business Standard carried a news story on the event.

Peter Noorlander, CEO of Media Legal Defence Initiative (MLDI), London, said Britain had decriminalised libel two years ago. Earlier, London was known as the libel capital as it was very easy to slap libel cases. Powerful business houses from other countries would bring libel cases on websites, which were allowed to proceed in British courts. Even scientists and artists were getting sued, he said. “The ability of companies to sue on libel was unlimited…and the damages were huge,” he said. With the change in libel laws, things have changed. Now you can’t launch proceedings against any anybody – there has to be a British connection, he said. The damages have also been limited, so people don’t have to face bankruptcy, he said. He said there was a need to pull libel out of the criminal sphere and put it in an appropriate civil law environment.

Read the full articles here

The Hindu: Negotiated freedom

Business Standard: Need to decriminalise defamation, say experts