The Sunday Indian in the dock again
The Tata Group's case of criminal defamation against the magazine has been re-opened after seven years.
PRASHANT R THIKKAVARAPU examines the Delhi High Court’s ruling. Pix: April 27, 2014 issue of The Sunday Indian.
One of the many silly laws in India today is Section 499 which criminalizes defamation and punishes someone found guilty of it with imprisonment for two years, a fine, or both. It is used on a disturbingly regular basis, especially by the political class to sue one another and by companies who are not in a mood to take any criticism lightly.
Like any other criminal litigation in India, half the punishment of being named as an accused in a Section 499 complaint is the unbelievably long time it takes for the judicial system to deliver a ruling.
A perfect example of such delayed proceedings is the recent judgment of the Delhi High Court on February 27, 2015 in the case of Tata Motors Ltd. v. State & Others. (The judgment can be accessed here). In this case, Tata Motors filed a criminal defamation complaint against The Sunday Indian and its editors, Arindam Chaudhuri, Malay Chaudhuri, A. Sandeep, Sutanu Guru, Abhimanyu Ghosh and the printer Ashok Bose.
As an interesting aside, it should be noted that both the Tata group and Arindam Chaudhari institute defamation proceedings quite frequently. The Tata group has previously sued Greenpeace while Chaudhari has sued The Caravan magazine, amongst others, but those proceedings were civil proceedings.
Getting back to the story at hand, The Sunday Indian which describes itself as "the nation’s greatest news magazine", is a part of Chaudhuri’s business empire. In its issue published in February, 2007 the magazine published an article titled “People’s Car or Blood Car? Is Ratan Tata bent on destroying the JRD legacy shame in Singur, TSI exposes and documents the disgrace.”
The article contained statements calling Singur a “war zone” and saying “you get the feeling that blood has been spilled here”. Tata Motors, which was in the news at the time for its efforts to acquire land in Singur, West Bengal for building a factory to manufacture the Nano, the world’s cheapest car, responded by filing a complaint alleging criminal defamation.
Just to provide some more context to the article in The Sunday Indian, the agitation by farmers in Singur took place in the immediate aftermath of an actual bloodbath at Nandigram, another district in West Bengal, where several farmers were killed by the police during agitations against land acquisition. The political and social commentary at the time did draw parallels between the agitations at Singur and Nandigram since both agitations were against land acquisition.
Such complaints have to necessarily go to a Metropolitan Magistrate (MM) who then has to decide whether a prima facie case for an offence under Section 499 has been made out. This only means that the MM has to conclude that it is more likely than not that an offence has been committed.
This standard of proof for taking cognizance of an offence, is lower than the ‘beyond reasonable doubt’ that is required to convict a person after trial. If the Magistrate feels that a prima facie case of defamation has been made out, he can issue a summons to the accused. If not, the magistrate can dismiss the complaint.
The Magistrate also has the option to order a police enquiry into the matter and consider the enquiry report before deciding to issue a summons. Once a summons has been issued and the accused gets a chance to respond to the allegations, the Court may either discharge the accused if it feels that there isn’t enough evidence for framing charges or, if there is enough evidence, frame charges against the accused and conduct a trial.
In this case, the MM dismissed the complaint without even summoning the accused, noting that the statements did not appear prima facie to defame the complainant since the article appeared to be “exaggerated” rather than defamatory and that it appeared to have been “published in good faith and for protection of public interest”.
This order of dismissal by the MM was dated 09.10.2007. Aggrieved by this order, Tata Motors filed a revision petition before the Delhi High Court in 2008 and after seven years, the High Court delivered its ruling on February 27, 2015, setting aside the order of the MM and ordering the matter to be re-heard.
The High Court came to this conclusion on the grounds that the MM should not have gone into possible “defences” at the stage of deciding whether to issue a summons. Publication in “good faith” is one of the defences to criminal defamation in Section 499. The mere fact that the MM had stated “considering that the article had been written in good faith” was seen by the High Court as an attempt by the MM to infer the possible defence of the accused.
According to the High Court, the Magistrate should have relied only on the record before it i.e. the published material, the statement of witnesses and the complaint itself while deciding whether or not there was a prima facie case against the accused.
With all due respect to the Court and without referring to any of the precedents discussed in the judgment, it appears rather illogical to conclude that the MM cannot consider possible defences available in Section 499 at the time of deciding whether or not to issue a summons.
How is a judge to make out a prima facie opinion on whether or not an offence has been committed if he or she is not allowed to look at the defences offered under the law? Without considering these, any judicial opinion is a half-baked opinion and not a prima facie opinion.
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