The glacial pace of delivering defamation rulings

A Livelaw report on one of the cases.

 

Two recent judgments, one from the High Court of Himachal Pradesh delivered on August 29, 2017 and another from the District Judge at Tiz Hazari delivered on August 31, 2017, demonstrate, once again, the glacial pace of the Indian judicial system.

The first judgment involves a criminal complaint filed against the then editors and reporters of CNN-IBN and Cobrapost on April 1, 2007 (the summoning order by the magistrate that was the subject of the HC litigation was passed on April 1, 2015), while the second judgment is a civil defamation case that was filed against Times of India on February 28, 1998.

It is unacceptable that it took the judicial system 10 years to decide whether the criminal complaint deserved to go to trial and 20 years to deliver a judgment in a civil case where only two witnesses participated in the trial.

The inordinately slow pace of the system aside, both judgments deal with some rather interesting issues of law.

CNN-IBN 7 & Annirudh Bahal vs. Maulana Mumtaz Ahmed Quasmi & Ors.

The news report that was at the centre of this litigation was a sting operation by Cobrapost, founded by Annirudh Bahal, that showed Maulana Mumtaz Ahmed Quasmi, a member of the Himachal Haj Committee, allegedly receiving a bribe of Rs. 10,000 to send certain people for the Haj Pilgrimage although they were not entitled to be on the list.

 

The report was then either broadcast or published by CNN-IBN 7 – the judgment is not clear on this point – under the headline ‘Haj Ke Dalal’. The Maulana in question filed a criminal defamation complaint against Ashutosh who was the editor of IBN-7, Rajdeep Sardesai who was Editor-In-Chief of the IBN18 Network and Anirudh Bahal, editor of Cobrapost and the following reporters at Cobra Post: Jamshed Khan, Sayeed Mansoor and Sushant Pathan.

It should be mentioned that Cobrapost usually conducts a sting operation and then ties up with other media outlets to broadcast the story. The reporters are thus usually from Cobrapost, while the final editorial decision rests with both the editors of Cobrapost and also the editors of other news channels.

This is an inherently risky set up because the editors of Cobrapost’s media partners are assuming risk for content prepared by reporters who are accountable only to the Cobrapost editor. In a case of civil defamation, it is possible to have an indemnity clause requiring Cobrapost to compensate for any adverse verdict in a defamation case, but not so in criminal law since the sanctions under criminal law are prison terms and not monetary damages.

After a criminal complaint has been filed, it is up to the magistrate to apply his mind and decide whether a prima facie case has been made to summon the persons accused of the crime. In the alternative, the magistrate can simply dismiss the criminal complaint. In this case, it took the magistrate eight years to pass an order summoning the accused! Thereafter the accused challenged the summoning order before the High Court, in 2015, under a rather wide provision that allows for the High Court to quash any criminal proceeding in order “to prevent abuse of the process of any Court or otherwise to secure the ends of justice”.

The  accused in criminal cases generally try to get courts to exercise this power under Section 482 to quash a criminal case before a trial starts and pretty much every accused gives this section a shot in court either after a summoning order has been passed or after a chargesheet has been filed by the prosecution.

There are several tests, in different judgments, on how the power under Section 482 is to be exercised. The simple test is to examine whether the complaint and the magistrate’s order have made out a prima facie case against the accused. Very often, criminal complaints are filed against a bunch of people without making individual averments against each of them. In which case, the courts sometimes quash the complaint.

In this case, one of the issues examined by the court was whether the editors i.e Ashutosh and Sardesai could be prosecuted for criminal defamation. In particular, the court examines the issue of vicarious criminal liability.

In civil cases, vicarious liability is used to hold a master accountable for the acts of his servants because the master profits off the work of the servant. However, vicarious liability does not automatically apply in criminal cases unless the statute specifically provides for it.

There is some legislation which make the directors of the company criminally liable for the acts of the company’s employees. In the case of the print media, The Press and Registration of Books Act, 1867 defines the editor as “the person who controls the selection of the matter that is published in a newspaper” thereby attributing knowledge to him for all content in the paper, opening the editor to liability in both civil and criminal cases.

But this legislation does not apply to the electronic media and the editors cannot be automatically attributed with knowledge of all content published or broadcast.

It is not clear as to whether either Sardesai or Ashutosh narrated the contents of the Cobrapost report over the news or whether the report was merely published on the site. If they had uttered any of the words in question, they would be liable for criminal defamation.

 

In any case, the appropriate course of action for the magistrate would have been to order an investigation into how the editorial process worked at IBN because it is unfair to expect the complainant to have knowledge of the internal editorial processes.

The only burden on the complainant should have been to provide a copy of the defamatory content and the police should then be ordered to investigate. Luckily for the editors, the High Court found that the complaint did not make out any specific averments against either Ashutosh or Sardesai and hence quashed the complaint against the both of them.

The High Court, however, makes it crystal clear that the criminal proceedings against Bahal and the other Cobrapost reporters would continue. The assumption appears to be that Bahal had complete knowledge and intent behind the report but then again it is entirely possible that Sardesai and Ashutosh as editors of IBN would also have had knowledge and intent to publish or broadcast the defamatory content. The fact could have been established only through a police investigation.

Criminal defamation maybe unsavory in a democracy but as long as it exists on the statute it is the law and courts need to apply it as they would any other law.

Ashok Kumar Jain v. Bennett Coleman & Co., Ramesh Chander (Printer & Publisher), Raminder Singh (Resident Editor), Rajnish Sharma (Staff Reporter)

This judgment was delivered in a lawsuit for civil defamation filed by a politician from the Janata Party against the Times of India, its printer, editor and reporter, seeking damages of Rs. 1 crore. The facts of this case are quite interesting.

The plaintiff, who appears to have hopped quite a few political parties, was contesting the Municipal Corporation of Delhi from the Hauz Khas constituency in 1997. Two days before the elections and after the close of campaigning, the ToI published a news report alleging that 233 of the candidates for the elections had criminal records, including the plaintiff. The report had reportedly stated:

“On them (sic) are the Congress, BJP, JD candidates from Hauz Khas. Virender Singh, Janata Dal candidate, is reportedly involved in cases of murder, dacoity, and robbery. The Congress candidate Ashok Jain is involved in a case of murder, attempt to murder, and criminal intimidation”.

When the results were declared, the plaintiff lost the elections by a relatively small margin of 2600 votes. Attributing the loss to the alleged defamatory news report, the plaintiff sent legal notices to the ToI which apparently defended its story on the grounds that there were five cases against the plaintiff, although he was acquitted in three. The paper also stated that it had compiled the figures based on the records of the Delhi Police.

The lawsuit was then filed in 1998. It took 19 years for the court to complete a trial that had only two witnesses and pass a final judgment in favour of the defendant. In a typical defamation lawsuit, once filed, the onus of proving the statement is true lies on the defendant who has published the allegedly defamatory statement.

 

In cases against public officials, the Supreme Court, in the Rajagopal case, shifted the burden to the plaintiff i.e. the public official, requiring them to prove that the alleged defamatory statement was made with malice. This standard, imported from the US, makes it impossible to sue newspapers for factual errors that may be the result of incompetence rather than malice.

Proving malice is near impossible. The truth of the matter, however, is that Indian courts have virtually forgotten the Rajagopal standard even when hearing cases filed by public officials.

I should add that I am not sure if the public official definition of the SC can be extended to candidates contesting for elections. In this case, the onus of proof was on the ToI. Strangely enough, the newspaper did not file any evidence or lead any witnesses to prove the veracity of the statements it made against the plaintiff-politician. As a result the court assumed that the statement was in fact false.

 In the normal course of events, such a legal strategy would have been hara-kiri but luckily for ToI, it won on the next prong of the defamation test, where the plaintiff is required to show proof that they suffered injury because of the defamatory statement.

The plaintiff did not offer convincing evidence on this fact - perhaps it was difficult to prove that the election was lost because of that statement published in the ToI. Only one witness was brought forth by the plaintiff, apart from himself, and even that witness was a friend who was also a politician.

The court hints that common voters testifying to the fact that they were swayed by the publication of the impugned news report may have resulted in a different outcome. The judgment says: “Plaintiffs have not examined any of the voters of his constituency to prove that voters changed their mind to not vote for him nor has he examined any of the senior leaders of his political parties to prove that because of his impugned article he was not allowed to move ahead in his political career.”

All in all, this judgment by Judge Harish Kumar is well reasoned, especially given the standard of the lower judiciary. Now, if only it hadn’t taken 20 years to deliver the judgment. 

The author is Assistant Professor, NALSAR