Case BriefsHigh Courts

Madras High Court: G.R. Swaminathan, J. has quashed the defamation case filed by V.V. Minerals (P) Ltd. against Economic Times and its reporter.

Facts

The respondent V.V. Minerals had instituted a defamation case against the petitioners ? Grievances Redressal Officer, the Editor, a reporter of the Economic Times and the husband of the reporter. As per the complaint, the offending publication appeared in the February 1-7 2015 issue of Economic Times Magazine titled “Scam on the Shores”. The article which was written by the 3rd petitioner ? Sandhya Ravishankar, a journalist working with the Economic Times, was based on a Public Interest Litigation (“PIL”) filed by one Victor Rajamanickam. According to the report, the T.N. Government had authorised the respondent to mine and export monazite which is a prescribed substance. To mine monazite, approval of Department of Atomic Energy is necessary. The report further claimed that on account of the enormous illegal mining, the local villagers have been exposed to serious health hazards.

The respondent controverted the allegations and issued notice pointing out that the husband of the said journalist (the 4th petitioner) had earlier applied for employment in a news channel in which the respondent is having substantial stakes and that his request was rejected. The respondent directly alleged that the journalist wrote the article out of hatred and malice and to settle scores with the complainant for having declined to employ her husband. The respondent lodged a complaint with the Judicial Magistrate, Thirunelveli, who found that prima facie, a case under Section 500 (punishment for defamation) read with Section 109 (punishment for abetment) of the Penal Code. was made out. Accordingly, he issued summons to the petitioner. Aggrieved, the petitioners approached the High Court under Section 482 CrPC (inherent powers of High Court).

Submissions

Anand Chandrasekar, counsel for the petitioners, relied on a host of precedents to contend that the proceedings against the petitioners deserve to be quashed. Per contra, V. Lakshminarayanan, counsel for the respondent, submitted that the offending publication is per se defamatory and that it has brought down respondent’s reputation and caused irreparable harm.

Two apparent errors

1. Improper description of Accused 1 & 2 (Petitioners 1 & 2 herein)

In the complaint filed by the respondent, Accused 1 & 2 were described only as the Grievance Redressal Officer, Economic Times & the Editor, Economic Times, respectively. They were described by posts and not by names. Referring to Section 476 read with Section 61 read with Form 1 of the Second Schedule, CrPC, the High Court restated that in a criminal case, where the accused is an individual, he/she will have to be named in person and if he is merely referred to by designation, the court ought to return the complaint as defective. Here, the trial Magistrate appeared to have acted mechanically while taking cognizance of the complaint without noticing the said defect. This apart, merely because the Grievance Redressal Officer could redress the respondent’s grievance, he cannot be accused of having committed an offence of defamation. 

2. Overstepping of territorial jurisdiction

Referring to Section 202 CrPC, the Court stated that a mere look at the cause title would have revealed that the accused are not residing within the jurisdictional limits of the Judicial Magistrate, Thirunelveli.

Wife ? an independent personality

The 4th petitioner (husband of the journalist, Petitioner 3) was roped on the sole ground that he abetted the offence. As per the complaint, the 3rd petitioner wrote the offending article at the instigation of her husband because he applied for a job in a news channel run be the respondent and his application was rejected. As per the Court:

“The 3rd petitioner is an independent freelance journalist. If I accept the contention of the complainant’s counsel, that would undermine the agency of the woman concerned. This concept of agency has considerable philosophical import and was evolved by the feminists during the last century. The complainant wants me to assume that the 3rd petitioner lacks personal autonomy. The 3rd petitioner definitely has the capacity to act independently and make her own free choice. I cannot assume that the 3rd petitioner was a pawn or tool at the hands of her husband. Her innate dignity can be upheld only by deleting the 4th petitioner from the array of accused.”

The Sullivan principle

The High Court referred to New York Times v. Sullivan, 376 US 254, wherein the Supreme Court of the United States noted the profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. In order to survive, free speech needed breathing space – that is, the space to make mistakes. Erroneous statement was inevitable in free debate and therefore, the very existence of free debate required the protection of such statements. In that case, Justice Brennan propounded the test of “actual malice” wherein liability for defamation could be imposed only if the maker of the statement either knew it was false or published it with reckless disregard for its truth or falsity. On this, the High Court referred to the book “”Offend, Shock or Disturb” by Gautam Bhatia.

Criminal law of defamation involving the press ? clarified

The criminal law on defamation stands codified in Sections 499 and 500 IPC. Referring to the Second Exception (pubic conduct of public servants) and the Third Exception (conduct of any person touching any public question) to Section 499, the High Court clarified:

The Sullivan principle as amplified in Rajagopal v. J.Jayalalitha, AIR 2006 Mad 312, and Petronet Lng Ltd.v. Indian Petro Group, (2009) 158 DLT 759 (Del), have to be necessarily read into the Exceptions to Section 499 whenever the freedom of the press is involved. There can always be a margin of error. The permissible width of the margin will depend on the facts and circumstances of each case. The media can avail this defence whether the complainant is a public official or a private entity. Mere inaccuracies in reporting cannot justify initiation of prosecution.

The Court further explained:

“What must be seen is whether the subject matter is a public question or not. Exception 3 to Section 499 IPC refers to public question. Of course, the said expression has not been defined anywhere including the Law lexicons. But, one can safely understand it to mean an issue in which the public or the community at large has a stake or interest. Media ought to be relieved from any criminal prosecution once it is noted that its case falls within the Exception as delineated above.”

Duty of High Court in safeguarding the freedom of press

Referring to the decision in State of Madras v. V.G. Rao, AIR 1952 SC 196, where the Supreme Court described itself as sentinel on the qui vive, the High Court observed that the Court can never desert its duty when it comes to protecting the fundamental rights. The High Court stated that the observations of the Supreme Court will apply to the entire higher judiciary.

The Court then referred to the provision of Section 482 CrPC and observed:

“Most of the legal provisions conferring power are couched in a permissive language. But there is something called ethical imperative. It envisions that inherent powers go with implicit duties. Courts often nudge and remind the executive that possession of power is coupled with a duty to exercise the same. Judicial power can be no different. When freedom of press which is a fundamental right is at stake, higher judiciary is obliged to exercise not only its inherent power but also exert itself a bit. An unused power is a useless tinsel. There is no point in merely saying that press is the foundation of democracy.”

The Third Exception

The offending article was based on the allegations in a PIL filed in the Madras High Court against the respondent. Notably, the article contained the response of the respondent. Although there were a few mistakes in the reporting, but a clarification was later carried by Economic Times expressing regret. Also, it is true that the original petitioner turned out to have lacked bona fides and he was relieved from the proceedings, but the PIL was not terminated. It was converted into a suo motu PIL and the case is pending till date. It was noted that a Division Bench of the High Court is actively seized of the matter and this sufficiently indicates the importance of the issue raised in the offending article.

On such facts, it was held that this on the very face of it would fall within Exception 3 to Section 499. The Court observed that:

“When a defence can be established in a summary manner and does not warrant a regular trial, relief ought to be granted in a petition under Section 482 CrPC. As already pointed out, Petitioners 2 and 3 have shown their bona fides by reaching out Thiru.Vaikundarajan and publishing his response in the very same article.” 

Decision

In such view of the matter, the High Court held that the petitioners could not be said to have defamed the respondent by the article in question. The very institution of the impugned complaint was held to be an abuse of the process of court. Quashing the same alone would secure the ends of justice. Accordingly, the impugned proceedings against the petitioners were quashed. [Economic Times, v. V.V. Minerals (P) Ltd., 2020 SCC OnLine Mad 978 , decided on 5-5-2020]   

COVID 19Hot Off The PressNews

The Press Council of India is saddened to know that a large number of journalists while on call of duty have contracted the COVID virus.

It appeals to the Government and all other authorities to help the journalists those who have contracted the virus while reporting on the pandemic from the containment Zone, hotspots and other COVID affected areas by providing medical help and required support to mitigate their hardships.

The media persons who are working on ground zero are advised to take due health related precautions while performing their duties.

Further keeping in view their vulnerability, the management of media/publication house need to take necessary steps to ensure their care.


Press Council of India

PR/11/2020-PCI

[Press Release dt. 22-04-2020]

Hot Off The PressNews

As reported by ANI, the United States of America has passed a bill unanimously, which would impose sanctions on Saudi officials who were involved in the killing of Saudi journalist Jamal Khashoggi.

House of Representatives passed Saudi Arabia Human Rights and Accountability Act which requires — director of National Intelligence to publicly identify persons who were involved in the murder of Saudi journalist last year.

The said act requires the director of National Intelligence to publicly identify the persons involved in killing of Khashoggi and impose visa and travel sanctions on them.


[Source: ANI]

Case BriefsHigh Courts

Manipur High Court: A Bench of Lanusungkum Jamir and Kh. Nobin Singh, JJ., released Kishorchandra Wangkhem, the 39-year old journalist who was detained under the National Security Act, 1980 for criticising the Government through Facebook posts.

At about 2 pm on 27-11-2018, Kishorchandra was picked up by some unidentified persons on Police uniform and brought to Imphal Police Station where he was detained for about 5 hours. On the same day, a detention order under NSA was passed against him by the District Magistrate, and he was taken to Manipur Central Jai, Sajiwa, where he had been lodged since.

S. Chitranjan, Advocate led arguments on behalf of Kishorchandra and challenged his detention under NSA as illegal and unlawful contending that he did not get a chance for making an effective representation against his detention. Per contra, N. Kumarajit, Advocate General of Manipur and S. Suresh, Additional Solicitor General appearing for the Union of India supported the detention order.

The primacy issue in focus was: whether the detention order date 27.22.2018 stood vitiated due to non-supply of the picture with captions alleged to have been posted by the petitioner on his Facebook wall on 7.8.2018 and non-supply of the duplicate copy of the CD containing four video clips relied on by the DM, thereby preventing the petitioner from making an effective representation before the concerned authority?

The High Court found that the pictures in controversy and the CD concerned, which found mention in the ‘grounds of detention’ were not supplied to Kishorchandra. This, as per the Court, prevented the petitioner from making an effective representation against his detention. The Court said: “We have, therefore, no hesitation to come to the conclusion that non-furnishing of the pictures with copies alleged to have been posted by the petitioner on his Facebook wall on 7-8-2018 and compact disc containing four video clips, vitiates the very detention order dated 27-11-2018.”

In such view of the matter, the writ petition filed by Kishorchandra Wangkhem was allowed and the detention order passed against him under the National Security Act was set aside. He was directed to be set at liberty forthwith unless wanted in other cases. [Kishorchandra Wangkhem v. State of Manipur, WP (Crl.) No. 18 of 2018, dated 04-03-2019]

Hot Off The PressNews

As reported by media, Journalist Priya Ramani appeared in the Patiala House District Court for the defamation case filed by MJ Akbar (Former Union Minister).

Priya Ramani was the first woman to accuse MJ Akbar of sexual allegations during the “#me too” campaign.

MJ Akbar had filed a defamation case against her, stating the cause that the article published by Ramani in which she had stated she was sexually harassed by MJ Akbar in the past. Several women had raised their voices in support of Ramani along with the ones who had been the victim of the same.

Therefore, today on appearance at the Patiala House District Court, Ramani was granted bail with a bond of Rs 10,000 by Additional Chief Metropolitan Magistrate, Samar Vishal.
Ramani after the court proceedings gave a statement that “truth is her defence” and after the next date it will be her turn to tell the story.

The next date of hearing is fixed to be 10-04-2019.

[Source: ANI]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Human Rights Commission (NHRC): The NHRC has taken suo motu cognizance of a media report that the network of editors and media practitioners, namely, SAMDEN has urged the NHRC to seeks swift probe into Shujaat Bukhari’s killing along with his two personal security officers in Lal Chowk area of Srinagar in Jammu & Kashmir on 14.06.2018. Reportedly, SAMDEN has also demanded swift action to be taken by the Central and the State Government for the necessary steps ensuring safety and security of all the journalists across the country.

As per news report, the deceased journalist had been under police protection since the year 2000. He was reportedly facing threats, being a rare voice of moderation and an advocate for peace and justice. Many other NGOs and human rights defenders have also raised their voice against the threats, attacks and murders carried out against the media persons.

The Commission has observed that in view of special provisions laid down under Section 1(2) of the Protection of Human Rights Act, 1993 in connection with the State of Jammu & Kashmir, it generally does not intervene into the matters relatable to entries enumerated in the List II (State List) mentioned under Seventh Schedule to the Constitution of India. In such cases, it is for the State Human Rights Commission to take cognizance of the complaints regarding alleged violation of human rights in the State of Jammu & Kashmir.

However, it further observed that it is learnt that the State Human Rights Commission is closed for summer vacations till 30th June, 2018 and till date, cognizance of this case has not been taken by them. The way, Mr Shujaat Bukhari had been killed by the miscreants indicates that the media persons, even those who have been provided police protection by the State Government, are not safe in the valley. This is a case of violation of right to life of the victim and the incident is causing serious threat to free speech and freedom of press in the State.

Looking into the gravity of the matter, the Commission has issued a notice to the Chief Secretary and the Director General of Police of the State of Jammu & Kashmir calling for detailed report in the matter. The State Government is also expected to provide details of the attacks made on the media persons during last two years along with number of persons died/ injured and status of relief/ rehabilitation provided to the victims and their families. The Commission would also like to know as to what special measures have been taken by the State Government to stop such incidents in the State of Jammu & Kashmir. The response is expected within four weeks.

Besides this media report in the matter, a complaint from the Front Line Defenders, an NGO has been received which has been registered by the Commission. The formal letter from the Commonwealth Human Rights Initiative (CHRI) is yet to be received by the Commission.

National Human Rights Commission

Case BriefsSupreme Court

Supreme Court: In the controversy arising due to the voice samples taken in the matter where the appellants had allegedly demanded a sum of money to refrain from telecasting programmes on a television channel pertaining to the alleged involvement of a corporate entity in a wrongful activity pertaining to the allocation of coal blocks, it was argued by the Appellants that they were being made to read out inculpatory material drawn from an audio recording of the alleged sting operation.

The 3-judge bench of T.S. Thakur, CJI, A.M. Khanwilkar and Dr. D.Y. Chandrachud, JJ held that there was no substance in the submission that the text which is to be read by the Appellants in the course of drawing their voice samples should contain no part of the inculpatory words which are a part of the disputed conversation as a commonality of words is necessary to facilitate a spectrographic examination. Stating that it is not open for the Appellant to dictate the course of investigation, the Court said that the Appellants had not been forced or coerced into furnishing such a sample since it was they who had furnished their consent; secondly, a voice sample is not evidence since its purpose is only to compare it with the questioned text.

Earlier, Delhi High Court had ordered that the purpose of a voice sample is to facilitate the process of comparing it with a recorded conversation. The voice sample is not a testimony in itself since it only constitutes what was described as ‘identification data’ and hence, it is not a substantive piece of evidence. By the order dated 01.07.2016, the Court had directed the Appellants shall be required to read out for the purpose of giving their voice samples using words, but not the sentences, appearing in the disputed conversation in such number as the Director/Scientific Officer may consider necessary for the purpose of comparison in order to ensure that the text which the Appellants would be called upon to read out for the purpose of drawing their voice samples will not have sentences from the inculpatory text. Similarly, permitting the text to contain words drawn from the disputed conversation would meet the legitimate concern of the investigating authorities for making a fair comparison. [Sudhir Chaudhary v.  v. State of NCT of Delhi, 2016 SCC OnLine SC 747, decided on 29.07.2016]