Speakers at Press Club of India meeting unequivocally criticised the frequent use of defamation as a means of stifling and threatening the media.
New Delhi: “Any support extended by a political party in power to a private person’s defamation suit against another private person (of any profession or calling) is condemnable and must be condemned,” said eminent jurist Fali S. Nariman on Wednesday.
His observation, made in a written message to the Press Club of India, was read out at a meeting to discuss the defamation cases filed against The Wire by BJP president Amit Shah’s son for reporting on his business affairs.
Shah’s son, Jay Shah, has filed a criminal defamation case and a civil defamation case seeking Rs 100 crore in damages. He has already secured an ex-parte ad interim injunction against The Wire from a civil court in Ahmedabad which its editors say they intend to challenge.
The PCI meeting was called to discuss “Issues arising out of support extended by the ruling party and government to a private person’s defamation suit against journalists”. Chaired by veteran journalist Anand Sahay, the gathering was addressed by PCI president Gautam Lahiri, lawyers Prashant Bhushan and Karuna Nandy and the former editor of the Economic and Political Weekly, Paranjoy Guha Thakurta.
In his opening remarks, Lahiri said anyone was free to file a defamation suit but the Press Club of India was shocked to see “the government machinery rallying to defend a private citizen … That is why we have called this meeting.” He said the PCI had also invited railways minister Piyush Goyal – who had come out in defence of Jay Shah, described by his lawyer as a “private citizen” – and Union law minister Ravi Shankar Prasad to give their point of view. “We received a message from Goyal that he had “noted” our invitation,” said Lahiri, while Prasad did not reply at all.
Every speaker unequivocally criticised the frequent use of defamation as a means of stifling and threatening the media. “If the proverbial fourth estate is to speak truth to power, play an adversarial role to guard our democratic structure, then journalists have to come together. If you believe that this is important to strengthen democratic institutions and democracy, then the media has to speak against the indiscriminate use of SLAPP (strategic litigation against public participation) suits,” said Thakurta.
Himself a victim of such SLAPP suits by what he called as “some of the richest persons in India”, Guha Thakurta said, “This kind of use of the law, on occasions misuse of the law, has become rampant. The way forward may be to have a kind of a fund, perhaps instituted by organisations like PCI, to which public-spirited citizens can contribute.”
Describing his experiences of having fought such defamation cases in the past, he added, “I think never before in the 40 years that I have been a journalist have I seen defamation suits being used in the manner that they are being today – to stifle the voices of dissent. India is one of the few counties in the world where defamation is both a civil and criminal offence. The UK used to be known as the defamation capital of the world but even there the laws have changed.”
“I am saying a social activist, or a journalist should not have to face the threat of being put behind bars just because a person does not like what she or he writes. While the judiciary has the right, I wonder under what circumstances should the judiciary pass an injunction without giving the other side, so to say, the right to be heard,” said Thakurta.
Bhushan said that in civil defamation, truth is an absolute defence. “Civil defamation can sustain only when you have said something false which maligns the reputation of the person. But if the facts of the story are correct, it is irrelevant whether the person’s reputation is trashed or not.”
“In criminal defamation, however, you have to not only show that the story is true but also that it is a matter of public interest. The Wire’s story is obviously a matter of public interest – where the businesses of the son of India’s largest political party is in question,” he added.
Bhushan criticised the role of a section of the judiciary and a large section of mainstream media. He said that he was surprised that the courts in Ahmedabad thought it fit to issue summons to The Wire in the civil and criminal defamation cases. “It is a purely factual story, a mere recital of facts on record. The first thing the criminal court should have asked before proceeding to issue summons is to ask what is false in the story. It should have been thrown out right at the threshold.”
Bhushan gave the example of the Supreme Court of the United States, which had refused to pass any injunction on the New York Times (NYT) for publishing the Pentagon papers. “In the Pentagon papers case, in which the US government went to the court to prevent the NYT from publishing the papers and had argued that this may reveal information that would jeopardise the security of the country, the court had shot it down categorically. The law on this is clear.” Similarly, he came down heavily on the civil court issuing an injunction on The Wire without even hearing it.
“Today, I read a report that said summons were issued because The Wire did not give enough time to Jay Shah to respond. The law is clear that it is not incumbent on a publication to seek a response, if it is convinced about the truth of the story. It is a different matter that The Wire published the story with a detailed response from Shah’s lawyer.”
Both Thakurta and Bhushan said that until now, Jay Shah has not refuted any fact of the story. “An ex parte injunction is unheard of in such a matter. It only goes on to show that the authorities feel that they have a section of the judiciary under their control. This is highly unfortunate,” Bhushan argued.
He also came down heavily on the role of the mainstream media. “The day the story came out, a section of the mainstream media did not cover it. It even blacked out the press conferences the opposition parties held on the revelations of the story. Only when BJP leader and minister Piyush Goyal jumped in to defend Jay Shah did the bulk of the media report on the issue. Thanks to social media, it was not possible to black out the story despite other intentions of those in power.”
But he said that this is alarming for our democracy because “most of the mainstream media has been compromised either by inducements, or corporate control, or threats and fear.” Thakurta, too, raised an important issue. “Truth is supposed to be your biggest defence. But no one is questioning the truth of the story. Instead, most are questioning the motive of the reporter who has written it. This has been the case with The Wire story and many other cases.”
Karuna Nundy flagged the need for the media to have an organised mechanism to fight such cases. “I think that organisations need to get together to make sure that the legal process itself is not the punishment. I know the Editors Guild is taking up the cases, but a more concerted campaign needs to happen. What The Wire has demonstrated is heroism but what we primarily need is structural change,” said Nundy
She added that “the reason the story is one of the most important stories of our times is that it was as much an artefact as it was a piece of journalism as people were amazed to find someone raising questions about Amit Shah.