On scandalous information and “high-profile†people
..and why blocking of blogs is not the only thing you should be worrying about.
Most, if not all, of you must have read about the recent case against Rahul Gandhi involving a missing girl that was dismissed last week. What struck me was this last sentence from the report in The Hindu (emphasis added):
On the basis of her deposition, the court imposed a cost of Rs. 50 lakh on the petitioner and, taking suo motu cognisance of an effort to defame a high-profile person, ordered a CBI probe.
Suo-moto cognisance? I thought that was *very* interesting. Is there any precedence for such suo-moto actions related to defaming a “high-profile” person? I then also stumbled across this report in The Indian Express which mentioned that:
The court also ordered the CBI to register a case against websites which, Samrite claimed, had reported the incident, and the persons involved in the plot to frame Rahul Gandhi. The court directed that till the investigation was completed, and the websites in question were cleared by the CBI, their display in India shall remain banned.
Further, the court asked the CBI to prepare a list of such other websites which are involved in display of scandalous information about persons holding high public offices and submit a report on the next date of hearing.
That set several alarm bells ringing. To start with, who is a high-profile person? what constitutes defamation or attempt to defame or “display of scandalous information”?
What action will the Court prescribe? Will such websites (if any) be banned? Will their owners, publishers be fined? arrested? something else?
P.S. I also noted from the Indian Express report that:
The court directed that Rs. 25 lakh shall be paid to the girl, Rs. 20 lakh to Rahul Gandhi and Rs. 5 lakh to DGP Karamvir Singh for producing the girl and her parents in the court within the time frame.
Why pay the police for doing their job? Was their some kind of a reward on this? And what should the courts do if the police are unable to produce someone within the time-frame? Does anyone remember Dilip Patidar?   Comments and thoughts welcome, as always.
Somewhat Related Posts:  On Artistic Freedom, Censorship and Responsibility and On Husain, Khajuraho and Moral Policing.  Pl. also read about plans afoot to regulate online content and blogs.
Also Read: On Blogs, Comments, Liability and Being Sued
Hi,
Thanks for raising this point. my blood was boiling when I heard this “High profile thing”. This is becoming too much to bear. the may be a false one but raising this to this low by our justice system is disturbing.
I wish to fight it out my own way.. I am writing two poems which will focus on this subject – “Nyaay ki devi” and “Hum phir se samvidhan likhenge”. I will share with all of you very soon.
The death of anarchy will happen soon. Please bringing these issue
Does this rule apply to some ‘high profile people’ or all.
Does this mean that N.Modi can sue Tseeta and AR for their ripped fetus canard?
Chirag dil ka jalao
Bahut andhera hai……
Thanks Shantanu for drawing the attention of bloggers to this. It does raise an important point of bloggers’ (like any other citizen) being responsible for their writing/comment. Let’s face it, today a blog too is a powerful tool, and, it can, without any factual basis, make comments and defame others.
What is intriguing, though, is court’s solicitous concern about ‘high profile’ people. Here, the court is elevating people with, presumably, a higher reputation (?) to a relatively higher status. Debatable.
Another aspect: Of late, comments on blogs have forced ‘mainstream media’ to acknowledge/cover stories they would rather have ignored. Bloggers have also put the mainstream media on the defensive about their superficial (if not outrightly mischievous)rant against Hinduism in the name of ‘secularism’. The discomfiture of mainstream media vis-a-vis cyber space is all too obvious.
Does it then suggest that the mainstream media/judiciary (?) are now debating whether comments on internet need to be brought under stricter regulatory framework? (Though, my understanding is that comment on internet anyway is subject to the laws of the land).
Hi Shantanu, I read the judgement of the Hon’ble High Court of Allahabad and the same is rather unfortunate in having gone overboard in its zeal to come down heavily of frivilous litigation.
A petition for Habeas Corpus if filed under Article 226 of the Constituion of India before a High Court of under Article 32 directly before the Supreme Court.
The Supreme Court has in a litany of cases laid down the law that the jurisdiction of the High Courts U/A 226 is in fact wider than the powers of the Supreme Court U/A 32, as the Supreme Court will only exercise jurisdcition directly only if the right to life under Article 21 is affected (which explains the pollutions and environment matters as well as habeas corpus cases being directly heard by it) as regards Article 226, the SC has held that the Constitution gives the HC powers to interfere not only where a fundamental right has been violated but also executive decisions which are unjust and violative of the law can be challenged under Article 226 before the HC.
The plenary powers must be exercised with circumspection.
In this case, the petitioner obviously has not made our a sustainable case against RG. His petition may have lacked in material particulars and the last nail in the coffin of his case was the statement of the girl in court denying the the entire episode.
The HC is not expected to make a roving enquiry while hearing a case under Article 226 and neither is it to entertain a petition (normally) that involves seriously disputed questions of fact for which the taking/recording of evidence may be necessary and that is the province of the Trial Court.
Coming back to this case, the Courts usually are within their authority to impose cost on the pettitioner if his petition has been found to be frivilous and a fishing or a gold digging expedition. This is usually done to deter unscrupulous litigators from abusing the process of the court and indulge in judicial blackmail against other individuals. However, this kind of cost is unprecedented.
The court, with the utmost respect has lost all sense of proportion while imposing such a cost. Yes the petitioner ought to have been penalised, especially after the girl in question gave a statement in court that the entire case foisted by him is false. Coming to the other aspect where the court has asked for information relating to other websites which are writing/slandering important persons against which action is proposed, once again, the HC has drifted way off course.
Article 19(1)(a) of the Constitution guarantees the right to freedom of speech and expression to every person. Therefore such an order falls foul of the constitutional right which is guaranteed to us.
Besides, assuming that some site has slandered/libelled against anyone, then that person can prosecute the offender for defamtion U/s. 500 of the Indian Penal Code besides suing him for damages in a civil action. Therefore, where an effective alternate remedy is available, the HC should stay off in entertaining a Writ Petition. The HC has played a Knight errant by going beyond its jurisdiction in passing such an order.
I am sure that the petitioner would challenge the said order in SC and there is a very good chance that the SC would stay the order for costs and also stay the roving enquiry orderd by it.
I wont be surprised if the HC comes in for some harsh criticism by the SC when it hears this case.
Hi Shantanu, please pardon the typographical errors as the above was typed in haste.
First, the case itself had no basis. I saw those websites and did not believe it even when I am hardcore anti-Gandhi family. I can pick up any family members of any of my neighbors who left the neighborhood and make those outlandish claims in a website.
Second, as the commenter above noted there is a valid case of defamation here. But it is RG who has to file a case against it. It is not the defamation of the court that court has to fine petitioner on behalf of RG. My best guess is that judge was indirectly scolded for serving notice to Rahul Gandhi, so he tried to make amend. Is not it amazing what political power can do?
Third, this is typical of heavy handed treatment that government/judiciary/media tries to hand out when royal mafia family is in question. The congress government is guilty of appointing all sorts of sycophants in all sorts of positions but when NDA came in power it did not establish any different sort of precedents.
Shantanu once blogged about RG being arrested in Boston by FBI in 2001. He concluded that there was no believable report available in the media (only later we understood that nothing in media is believable) and it must be an internet hoax. Few days back, while talking to Times-Now, Ram Jethmalani commented that Vajpayee government bailed out Rahul Gandhi in the Boston airport. This is notable for three reasons.
One, there was no serious competition between BJP and Congress even then. Had it been so, the shrewd politicians like Vajpayee would have used it to put Congress on the back-foot. Only other explanation is that they tried to cut backroom deal by helping him.
Second, media’s extra ordinary success in pushing this story to the realm of conspiracy theories then.
Third, Arnab Goswami quickly suppressed the comment. This could have been an amazing story about NDA. But no one in the media reported it knowing that prince charming’s prospects (which is not much according to some) will be hurt by it.
And they say they are neutral media. The truth is, we Indians suck at big names. That is our colonial legacy. We are like caged birds who refuse to see that cage doors are open and there is no one who can own us.
Very nice and hard hitting blog. There are two sets of rules in the country, that is why Hassan Ali is handled with kid-glove and I have to settle the dues of some two thousand rupees, (on the other end of spectrum there was the guy in Hyderabad who committed suicide for inability to pay loan of INR 2500).
Dear Shantanuji
Thanks for initiating a discussion on this very important subject. Many issues are involved–the most important being freedom of expression.It is indeed surprising to find an exalted court being so sensitive and solicitous about guarding for the reputation of high profile persons( or is it a particular high profile person?) Does it mean that henceforth there should be no publicity of allegations involving high profile persons? Do not A Raja,K Karunanidhi and members of his family, Suresh Kalmadi, Madhu Koda , Shibu Soren, Sharad Pawar,Mayawati, Hasan Ali, Ratan Tata,Pawan Bansal, Nira Radia P J Thomas, KG Balakrishnan and others making the headlines day after day qualify as high profile persons?
Among the first principles that I learnt as a law student was that “The law is no respecter of persons”.It would have been fine if the court had ordered costs to the parties but taking suo motu cognizance of the case and summarily deciding the quantum and awarding of damages in my opinion amounts to taking upon itself the role of the Party’s agent and the judge simultaneously .
Again the court seems to have gone completely overboard in ordering a CBI investigation and a blanket gag order on the websites. At least I am not aware of any precedent of that kind.Is this consistent with the rule of law.
I am sure others having a better knowledge of law and court etiquette will soon come forward with their considered opinions on the issues raised by this judgment.
Its good to raise these points. High profilew people should be under close scrutiny.It would seem that for ‘high profile’ read Congress and Gandhi parivar.
This action amounts to press censorship.
Congress is a veteran of vendetta politics and a great proponent of the “Carrot and Stick” policy. After 2009 general elections, power-brokers, bureaucracy, media, judiciary realized that if Congress becomes strong/stronger, any in-discretion on their part will invite the classic bloody revenge from the Congress. So, for sometime everyone seems to fall in place. Once the Congress is perceived to be weak after 2012 UP elections, the situation will get much better and we shall see better results from bureaucracy, judiciary, media, etc., who currently are behaving as “keep” of the Congress party thugs.
Thanks to Atul Sreedharan for the detailed exposition of the legal aspects. A quick Google search reveals the author to be a HC Lawyer. It gives me immense hope for India that people of such calibre are coming forward to participate in Satyameva Jayate and other forums in true community spirit.
Though I was oblivious of the legal points Atul has covered in detail, I was at once disturbed by the vehemance of the order, in particular the monetary awards ordered by the court. Wasn’t the DGP just doing his job (or did he go the extra mile?) and is this kind of reward payouts to a government servant proper ? How does the court justify the copious reward to the person who turned up to answer the habeas corpus claiming the sought identity ? Is the largesse not sending a message to all people who dare to challenge high-profile people (the higher class) ? Doesn’t this order create a “chilling effect” for anyone who dares to challenge “high-profile” people ? I thought all people are considered equal before the law. Are “high-profile” people considered higher than “low-profile” people ? And how do you define high-profile people ?
I hope enough light will be shed by citizen journalists on all these as well as more specific matters surrounding the proceedings. Of course, if the “Blog Control” act comes into force, we can be pretty assured that truth will not see light of day. (Read Vicki Nanjappa http://www.rediff.com/news/report/it-act-amendments-are-flawed-experts-vicky-nanjappa/20110310.htm and Churumuri http://churumuri.wordpress.com/2011/03/07/say-no-to-indias-blogger-control-act/ SAY ‘NO’ TO INDIA’S BLOGGER CONTROL ACT).
The court’s logic here is inverted where it attacks media freedom.
In the United States, the media have traditionally had greater freedom to write about public figures than about private citizens.
A judgement in 2006 in UK upheld similarly the the right of media to publish an article in the public interest even if the truth could not be proved.
Read Times Online (UK) commentary
http://www.timesonline.co.uk/tol/comment/leading_article/article668794.ece
Judgement in full: http://www.timesonline.co.uk/article/0,,200-2398969,00.html
This may not apply to the petitioner but can be invoked by any PIL defending media freedom.
Just in: Two websites booked for publishing false news against Rahul Gandhi:
Published: Friday, Mar 18, 2011, 1:59 IST
Place: New Delhi | Agency: PTI
The CBI has registered cases against two websites which allegedly published malicious news items against Congress leader Rahul Gandhi and recovered some incriminating documents and hard disk during its searches at the premises of a former SP MLA from Madhya Pradesh.
The CBI has booked cases against owners of two web sites http://www.indybay.org and http://www.arisona.indymedia.org for filing malicious writ petition on oath against a member of parliament referring contents of the certain websites on the directions of Lucknow Bench of Allahabad high court.
These seem to be US based websites engaged in media activism in US/Mexico etc.
The second link given by DNA India has an error, the correct link could be http://arizona.indymedia.org/
They are mere intermediaries, thus protected under explicit US laws. Much of the civilised/democratic world would be similarly protective though less explicit. Refer:
http://techdirt.com/articles/20060606/0323235.shtml (2006)
http://techdirt.com/articles/20100718/20510110255.shtml (2010)
Notably, I guess in India/China/Zimbabwe etc web sites can be shut down in this manner.
Mr Shreedharan – Thank you for the very informative outlining of the codified operational framework for the functioning of the courts. The veracity, or lack thereof, of the allegations in this specific case not withstanding, what ensures that testimony on the stand is neither coerced nor suborned perjury, and that the taking/recording of evidence that is the province of the Trial Court is just that for fact finding in petitions involving seriously disputed question of fact and no other ulterior motive.
We are all, after all, generally well aware of the ‘truth making’ proclivities of the Indian Police, particularly in reference to people with no patrons in high places, presumably like the girl in this case produced in court with her parents by the DGP. I am personally reasonably well aware, through run in with the court system in India by friends and acquaintances, of the ‘one way or the other’ case fixing proclivities of Lower/District Courts (is it the same as Trial Court?)officers of the court including but not limited to judges in exchange for under the table benefits in broad day light unto retirement, and never removed for it.
Can you shed some light on what as a matter of practice ensures the integrity of the Indian judicial system and processes to be credible and trustworthy.
Dear All: Thanks for some very thoughtful comments…
I would particularly request Atul and others having legal background and training to respond to the points that have been raised.
Thanks
That the H’ble Allahabad High Court is the most corrupt High Court is well acknowledged by the H’ble Supreme Court itself in a recent comment stating, “all is not well in the Allahabd Court”.
Please also read a recent Outlook story on this.
So, any surprise that the H’ble Judge was pulled up for admitting the writ petition.
The matter has gone to the SC as expected.
http://www.dailypioneer.com/329665/SC-notice-to-Rahul-Gandhi-UP-govt-on-ex-MLAs-plea.html
Expect the next news report 4 weeks later !
The blocking of websites is already taken place. CIS India made an RTI demand for information and the two indymedia sites are part of the 11 blocked. See more at http://www.cis-india.org/advocacy/igov/blog/rti-response-dit-blocking
Here is the main draft of the law:
http://www.mit.gov.in/sites/upload_files/dit/files/RNUS_CyberLaw_15411.pdf
Now refer to page 12, item 2b.
Now, please look at the items in bold. This is our very own blasphemy law being passed in an under-handed manner. Who will decide what is blasphemy? Next, can a lawyer here clarify when a law predicts crime based on “other unlawful manner” without specific reference to specific law, how legal it is?
Please protest the law wherever possible since we can expect media to give it full support so that challenge emanating from internet to it’s hegemony can be curbed. If this law gets implemented and anyone wants to challenge it in Supreme court, I can pull in some support. Let me know.
These words, clauses, and provisions must be clarified whenever the new law is made. Clear examples of what is NOT BLASPHEMY must be laid out in the law or its explanation given by an official body. Since there is already a huge backlog of cases in Indian courts, the new law must strive to minimise litigation. It must endeavour to make blogging troublefree by specifying what is allowable and what is objectionable. If they wish to spare some important personalities from the risk of defamation, they must notify the list so that it is easy for aam aadami to stay clear of trouble.
That, I believe, is the least the government can do to uphold the freedon of its citizens. Leaving things to interpretation will effectively throttle all blogging.
@Prakash,
At least for once I am so with you.
The key thing according to me is that “defamatory”, “libelous” etc have been lumped into the “cyber crimes” bucket and it is Police (if you know the famously corrupt Indian Police) who act on it, making arrests and searches. This makes it easy for journalists, whistle-blowers and even consumer activists to be harassed and their information sources to be compromised. Examples are:
a. (Harassment of ex employee by company whose assets were frozen by courts)
http://www.expressindia.com/latest-news/singaporebased-it-firm-files-cyberdefamation-complaint/277160/
b. (Harassment of Journalist) http://www.mail-archive.com/national-forum-of-india@yahoogroups.co.in/msg01209.html
c. (Harassment of whistle blower by private company) http://punjabnewsline.com/content/whistle-blower-harassment-punjab-police-hc-lists-pil-hearing/22009
d. (Harassment of school principal/PTA by private school/judge/police)
http://www.techgoss.com/Story/406S11-CERT-refused-to-ban-3-school-blogs.aspx
Tell me why such harassment campaigns should be funded by public money ?
Breaking News: Bahu on pursuit of internet activists, whistleblowers and press. Major tool will be “cybercrime”.
http://haindavakeralam.com/HkPage.aspx?PAGEID=13733&SKIN=B
“Govt wants to monitor Facebook, Twitter” http://bit.ly/opAkWX Dumb and Dangerous
Very good piece by Dr Subramanian Swamy (from 2004): Defamation litigation: a survivor’s kit
Be worried: India Asks Google, Facebook to Screen User Content