Zee Media vs. Positiv Television: The Mahabharata of defamation
Since 2012, there have been four more lawsuits and three judgements. The scale of this litigation and the sordid facts reveal a new dimension to the escalating war between Naveen Jindal and Subhash Chandra,
says PRASHANT R THIKKAVARAPU. Pix: livelaw.in
You can tell a judge is angry with both sides when he begins the judgment with “This is another unfortunate case where two known corporate personalities are fighting each other tooth and nail oblivious of consuming precious judicial time”. This was the first line of the judgment delivered by Justice Jayant Nath of the Delhi High Court on March 5, 2015 in the case of Naveen Jindal v. Zee Media Corporation Ltd. (Accessible over here.)
This case is a part of the ongoing Mahabharata between Naveen Jindal the industrialist and former Congress MP and the Zee Media Corporation, which is a part of Subhash Chandra’s media empire. The background of the Jindal-Zee war can be traced back to the sensational ‘reverse-sting’ conducted by Jindal a couple of years ago in October, 2012, wherein representatives of Zee Media were allegedly caught on tape demanding Rs. 100 crore in advertising fees from the Jindal Group in exchange for “going slow” on coverage of the Group’s alleged involvement in the coal-block allocation scam. The ‘reverse-sting’ led to the arrest of high ranking executives of Zee Media. Jindal and his flagship power and steel company – JSPL also sued Zee Media for Rs. 200 crore before the Bombay High Court. Zee Media responded by sending JSPL a notice for defamation demanding Rs. 150 crore but it not yet clear whether Zee Media did in fact follow up the notice with a lawsuit.
The arrests and the initial lawsuit filed in 2012 got plenty of coverage in the mainstream media and the unprecedented facts of the case kicked of a debate on media ethics. Since 2012, there have been four more lawsuits – two were filed by Naveen Jindal against Zee Media and two were filed by Subhash Chandra, Zee Media and Essel Infraprojects against Positiv Television (Pvt.) Ltd which owns Focus TV. There have been stories in the media that Naveen Jindal bought a stake in Positiv Television from Matang Sinh, the former Congress MP who has been arrested for his alleged involvement in the Saradha scam.
The scale of this litigation and the sordid facts reveal a new dimension to the escalating war between Naveen Jindal and Subhash Chandra. Going by the allegations being levelled against each other, it is quite clear that this case is no longer a mere corporate rivalry – it is an intensely personal battle between two corporate honchos. These cases severely weaken the case of self-regulation of the Indian media as the courts have had to repeatedly step in to rein in the offenders.
The four lawsuits and three judgments resulting from this litigation are discussed below:
(i) Judgment of Justice V. K. Shali on April 1, 2014 in the case of Naveen Jindal & Anr. v. Zee Media Corporation Ltd., Sameer Ahluwalia, Sudhir Chaudhary & Vasindra Mishra CS(OS) No. 881 of 2014 before the High Court of Delhi: This was a lawsuit for defamation filed by Naveen Jindal seeking a pre-telecast stay of Zee Media’s election coverage of Jindal in the months running up to the General Elections in 2014 for Parliament. Jindal alleged that between 1.3.2014 and 24.3.2014, Zee Media made defamatory allegations against Jindal more than 131 times with an aim to damage Jindal’s prospects of getting elected to Parliament. Zee Media has been accused of an attempt to stir up sentiments amongst the Kumhar and Prajapat communities, both of which constitute a significant percentage of the population of the Kurukshetra constituency from where Jindal was planning to contest. Zee Media had broadcast stories on alleged highhanded behaviour by Jindal and his bodyguards against the members of these communities. A complaint regarding the coverage was initially filed with the Election Commission and the same was referred to the NBSA. Jindal then also followed up with the lawsuit.
Zee Media defended its actions as an exercise of its fundamental right to free speech and said that it was merely offering a fair comment on the activities of a public figure. It also defended one particular allegation where Jindal had claimed that he was accused of being tainted, by stating that it had merely said that Jindal was in company of tainted persons like Rahul Gandhi and that the word ‘taint’ is anyway not defamatory.
Justice Shali’s judgment on the point is quite interesting. It can be accessed here. He refers to precedent in the case of Charanjit Singh to hold that Jindal being a public figure “should not be so ‘thin skinned’ or should be rather ‘thick skinned’ so as to complain about the allegations or the averments or the write ups which are taking place against him in the media or are being telecast unless and until they are grossly defamatory per se.” Conceding that some of the statements were probably inaccurate or incorrect, the Court held that it would not impose prior restraints on Zee Media’s coverage of Jindal’s activities. In what should probably come as an insult to Zee Media, the judge dismisses the allegation that Zee’s coverage would probably turn the voter against Jindal, finding the argument “unconvincing”. Justice Shali then also tells Jindal that “if he is so sensitive and thin skinned”, he “ought not to have taken a rough and tough path of being elected to the representative body”.
The judgment however does conclude with a direction to Zee TV that it comply with the NBSA guidelines and obtain the view of Jindal before telecasting a story on him.
(ii) Judgment of Justice Manmohan Singh on January 15, 2015 in the case of Subhash Chandra & Anr. v. Positiv Television (P) Ltd, Naveen Jindal & Ors. CS(OS) 2777 of 2014 before the High Court of Delhi
Positiv Television, which owns Focus TV, has a very interesting history. This channel was initially promoted by Matang Sinh, the former Congress MP who was recently arrested in the Saradha scam. In October, 2013 the Economic Times carried a story on how Naveen Jindal was dragged into an ownership dispute over Positiv TV after Matang’s estranged wife – Manoranjana who is also a shareholder in Positiv TV, filed a petition before the Company Law Board (CLB) alleging that Naveen Jindal was getting a backdoor entry into Positiv Television in violation of an earlier status quo order of the CLB. According to ET’s report, Matang’s wife had alleged that Jindal got a stake in the company by loaning Matang a sum of Rs. 127 crores. However both Jindal and Matang had then denied the allegations raised by Manoranjana.
Coming back to lawsuit filed by Zee Media and Subhash Chandra before the Delhi High Court. The judgment records that the lawsuit alleges that Focus TV, which is owned by Positiv Television had been broadcasting allegedly defamatory comments against Chandra and Essel Infraprojects Ltd, a company that is a part of Chandra’s Essar Group. The channel had been running a program though out the year 2014 under the title "Ajab MP Ghazab Ghotale", which in itself is play on the state of M.P.’s slogan – M.P. Ajab hai, Sabse Gazab Hai. One of the stories was apparently titled "Salakhho Ke Peeche Honge Chandra" and it flashed a photograph of Subhash Chandra. An excerpt of the news coverage can be accessed here. Justice Manmohan Singh’s judgment doesn’t go into too many details but it is clear that the allegations pertain to some alleged land scam in MP involving Essel Infraprojects.
Originally, Essel Infraprojects responded to the allegations made by Focus TV, by filing a civil suit for defamation before the Bombay High Court in July, 2014 against Positiv Television Pvt. Ltd, Matang Singh and 6 other people – Naveen Jindal is not included in that list. Strangely that suit appears to have made no progress and the next date of hearing is April 13, 2015. Perhaps frustrated with the slow progress of that lawsuit, Subhash Chandra and Zee Media filed another defamation suit before the Delhi High Court against Positiv Television and four others including Naveen Jindal. As per Justice Singh, Jindal’s lawyers denied that he has any connection with Positiv Television.
The present judgment of Justice Singh does not deal with the defamation issue – the focus instead is on whether Chandra’s lawsuit can even be entertained by the Court while Essel’s suit is pending before the Bombay High Court. The judgment can be accessed over here. Under the law, two parties cannot file a second suit while a first suit is still pending on the same issues. Obviously in this case, the Plaintiffs were different because Subhash Chandra was not a party to the first suit in Bombay. Justice Singh therefore denied Positiv Television’s request to have the suit dismissed. He however does make the following statement “One of the stories gives an impression to the general public that the plaintiff No. 1 has been sentenced for something which he has done. The telecasting of such stories would definitely give rise to a fresh cause of action as the said Focus channel has already pronounced a judgment when even the trial before court is yet to completed. In fact, it is in bad taste. The said story was telecasted when hearing in the matter was being conducted. No view/comments were obtained from Plaintiff No. 1 (who was targeted in the said story) which is necessary.” The High Court also records, without makings any findings, the argument made by Chandra that “the TV Channels of defendant No. 1 have been doing nothing but showing praises for Naveen Jindal and his family members on one hand and on the other hand is broadcasting defamatory programmes against the plaintiffs”. Unless Chandra can prove a link between Jindal and the television channel, the latter will walk away damage-free from this litigation. The main hearing on the defamation issue will probably take place on a later date.
(iii) The judgment of Justice Jayant Nath on March 5, 2015 in the case of Naveen Jindal v. Zee Media Corporation Ltd. & Anr. CS (OS) No. 143 of 2015 before the Delhi High Court
This case is about Zee Media’s coverage of an on-going criminal case where allegations have been made by an un-named woman before Chhattisgarh High Court against Naveen Jindal and another person. The facts of the case as explained by Justice Jayant Nath are extracted below:
“The allegations made before the Chhattisgarh High Court are that in 2001 Mrs. ABC was threatened by one Mr. D. K. Bhargava. Thereafter the said Mr. Bhargava and the plaintiff went to her house and robbed her chastity and forcibly took her thumb impression on some documents. It is further stated that on 18.8.2010 while she was standing on the road she was dragged inside the factory of JSPL where unnatural rape was committed on her. This is the nature of allegations on which an enquiry is being conducted by the Chhattisgarh Police.”
The purported reason for this alleged assault on Mrs. ABC was that Jindal Steel & Power Ltd. (JSPL) wanted to purchase a piece of land belonging to Mrs. ABC and both of them were in litigation over the said piece of land.
Jindal’s main grouse in the lawsuit before Justice Nath is the manner in which Zee Media has been covering the criminal investigation being conducted by the police in this case. Jindal has alleged that Zee Media has been conducting a media trial of the case in Chhattisgarh by airing more than “20 defamatory and false programs against the plaintiff w.e.f. 7.1.2015 to 15.1.2015”, misrepresenting the orders of the Chhattisgarh High Court in the case and pressurizing the Chhattisgarh Police, by making it appear that the police was not acting as per the law while conducting the investigation. These 20 programmes were allegedly spread over 22 hours and were telecast on various channels of the defendant “showing an abnormal and extra zeal”.
For its part, Zee Media responded by saying that it was exercising its fundamental right to free speech and that it had a right to comment on the conduct of a public figure like Jindal. According to Zee Media, “merely asking inconvenient or uncomfortable questions to the police or about the plaintiff would not amount of interference in the cause of justice.”
Justice Jayant Nath of the Delhi High Court was unconvinced by Zee Media’s argument. He took note of the long history of acrimony between Zee Media and Naveen Jindal before passing an interim injunction restraining Zee Media and its associates from “publishing any article or write-ups or telecasting programmes on the allegations against the plaintiff as made by Mrs. ABC either in the complaint or before the police, till the time the police completes its enquiry and, if necessary, investigation and files and appropriate report/document before the court.” The court quickly clarifies that the injunction is temporary and is applicable only till the investigation is completed and that Zee Media was free to report on the final conclusion of the police and any subsequent judicial proceedings.
Such ‘prior-restraint’ orders or as the Supreme Court prefers to call them – ‘postponement orders’ are rare but legal after the Supreme Court’s judgment in the case of Sahara India Real Estate Corporation Ltd. and Ors. v. Securities and Exchange Board of India and Anr. The Delhi High Court has previously invoked this doctrine to gag the media’s reporting of the sexual harassment charges against Justice Swatanter Kumar and more recently to gag the media on reporting on the charges against Pachauri – although that order was soon lifted.
Legally speaking, this injunction of the Delhi High Court is without jurisdiction because in the Sahara case the Supreme Court traced the power of ‘postponement’ to the ‘contempt’ powers of the superior judiciary in the Constitution. This means, that a person seeking to take advantage of the SC’s order is required to file a contempt petition before the High Court. The present case before Justice Jayant Nath was however a civil suit not a contempt petition. It is doubtful whether the Delhi High Court could even entertain a contempt petition in this case because all the judicial proceedings in this case are taking place in Chhattisgarh and it is only the Chhattisgarh High Court which can exercise constitutional contempt powers in the State of Chhattisgarh. Surprisingly, this argument is never dealt with in the judgment.
Conclusion: The scale of the above-described litigation between Jindal and Subhash Chandra is breath-taking. Rarely in the history of the country have two corporate rivals gone at each other’s throat in such a public manner. We’ll never know just how many of the allegations are true or false, until the trials conclude before the courts. In the meanwhile those advocating for a new regulator to crack the whip on the Indian media have just found fresh ammunition for their arguments. Given the manner in which Zee Media ramped up its coverage of Jindal after the ‘reverse-sting’, one is forced to question whether an ordinary citizen will ever have the guts to expose any potential wrong-doing by a prominent media house? How will this litigation affect the credibility of Zee Media, Focus TV and of the entire electronic media?
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