Goswami and Tharoor: Is defamation now toothless?
“An exasperating farrago of distortions, misrepresentations and outright lies being broadcast by an unprincipled showman masquerading as a journalist’.
That was Congress MP Shashi Tharoor’s response to repeated assertions by Republic TV that his wife’s death was actually a murder.
On May 8th Arnab Goswami went berserk on his new channel with a set of mostly anti-Tharoor panelists and some debatable points of circumstantial evidence pointing to Tharoor’s culpability. At one juncture he even referred to Shashi Tharoor as a ‘cold blooded murderer’.
All this and more even before anyone had conclusively proved that it was indeed a murder. ‘I am angered that someone would exploit a human tragedy for personal gain and TRPs. I challenge him to prove his false claims in a court of law…' said Tharoor
And he is right.
When a police probe is underway and the state machinery has been in action for the past few months to find out how and why Tharoor’s wife Sunanda Pushkar died in 2014 does it behove of anybody, let alone a television channel, to blatantly, publicly and brazenly target a man?
Does the ‘innocent until proven guilty’ adage no longer hold good? It is tragic that a personal tragedy is converted into a media circus because some anchor, for the sake of sheer publicity as it appears, chooses to do so.
In 2008 Chyetanya Kunte posted a blog titled ‘Shoddy Journalism’ on his personal website www.ckunte.com in which he commented on the television coverage of the Mumbai 26/11 carnage. He highlighted NDTV’s Barkha Dutt’s handling of the massacre. Legal notices flew and in January 2009 he was forced to retract and withdraw the piece. The charge brought against him by Barkha Dutt and NDTV among other things was ‘defamation’.
If a mere mention in a blog by an innocent blogger was defaming Barkha Dutt and NDTV then how are we to see Republic TV and Goswami’s hysterical tirade against an individual and that too a member of parliament? And it is not the first time that channels and anchors have gone out of control targeting some person or the other. Time and time again they have resorted to sensationalism for whatever reason.
Nonetheless, this kind of coverage was an all- time low even for Arnab Goswami. Does it not go against all the ethics of professional journalism?
Section 499 of the Indian Penal code defines defamation as: ‘Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said to defame that person’ .
Section 500 of the Indian Penal Code on punishment for defamation states that‘ Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both’.
Last year the Supreme Court, in rejecting the petitions filed by the BJP’s Subramaniam Swamy, Congress vice-president Rahul Gandhi and Delhi chief minister Arvind Kejriwal, to decriminalize defamation, upheld the constitutional validity of the criminal defamation law that prescribes a two-year jail term or fine or both for damaging someone’s reputation.
The bench said:‘When reputation is hurt, a man is half-dead. It cannot be crucified at the altar of one’s right to free speech.’
So then how will it play out for the media? For anchors like Goswami and his ilk? For channels that in their need to increase their so called TRPs go all out and bat for unsubstantiated half- truths? Shouldn’t they and their promoters be held liable?
An excerpt from a 2014 judgment of the Patna High Court that quashed a criminal complaint of defamation filed in 2000 by an IAS officer against an employee and union member of the Bihar State Road Transport Corporation states the following:
“Any public servant, operating in public field has to keep in mind that he is under the surveillance of public at large. The only test whether any comment is defamatory or not is whether it is made in good faith and so far as the publisher and editor are concerned, whether such items have been published after due care and attention to the fact whether such news item is correct and non-defamatory.’’
While the first line could justify the channel’s actions, the rest of the verdict is up for grabs as far as the media is concerned.
Defamation cases are aplenty in our courts. And they take decades to come to fruition. The Madras High Court alone at the last count had some 200-odd pending. But these cases have mostly been filed by the government and usually the courts have more often than not found for the media, thereby protecting the right of the freedom of the press and freedom of speech.
But this time the Apex Court in the same 2016 case filed to decriminalize defamation says: ‘Right to freedom of speech and expression is not absolute. It is subject to imposition of reasonable restrictions…there is a correlative duty not to interfere with the liberty of others. Each is entitled to dignity of person and of reputation. Nobody has a right to denigrate others’ right to person or reputation…the legislature in its wisdom has not thought it appropriate to abolish criminality of defamation in the obtaining social climate’
Goswami, like so many others, has always trod a thin line. To date he and his erstwhile employer Times Now have had to contend with damaging suits of defamation that include:
• Justice Sawant, whose photograph the channel says they inadvertently broadcast in a corruption case, has sued them for Rs 100 crores. Their culpability having been established, the court is awaiting the deposit of the said amount.
• The Islamic preacher Zakir Naik, as controversial as he is, has filed a Rs 500-crore defamation notice against Times Now andArnab Goswami for running a “hate campaign” and “media trial” against him.
• B.R. Patil, senior MLA of Karnataka Janata Paksha has sued Times Now and India Today for broadcasting a ‘cash-for-vote’ sting operation which shows him wanting a bribe for votes in the elections to the Rajya Sabha.
• The News Broadcasting Standards Authority has also come down heavily on Times Now /Goswami with a fine of some Rs 50,000 for reporting in a prejudiced manner on the Jasleen Kaur eve-teasing case against the accused Sarvajeet Singh.
The Pune civil court Judge V.K. Deshmukh, by his judgment on Justice Sawant’s Rs100 crore defamation suit, probably hoped to send the media a stern message about media ethics. If the media defames innocent people and is apprised of it, it must repent, since all that was sought at the time was an immediate apology. The channel began scrolling the apology almost two weeks later.
The judgment also upheld the ‘individual’s fundamental right to live with dignity and reputation’ and stated that it ‘cannot be sullied solely because another individual can have his freedom’
Despite all this it appears to be open season and a free-for- all. With social media, trolling and fake news so much a part of rightwing politics this could be another way of targeting a potential political opponent.
But all said and done, no arm of the media through insinuations, half-truths and innuendos should be allowed or used as a tool to threaten or take away a person’s right to live with dignity and respect until proven otherwise in a court of law.
As the Mail Today observed “Generally speaking, Republic appears comfortable operating without any legal fear of defamation so long as the news itself appears
'newsworthy', they feel that if they shout loud enough Republic has a fairly strong public interest defence against any subsequent legal threat”.
Does this then define the freedom of the press prevalent in India today?