Criminal Defamation, the Encounter Cop's Latest Lethal Weapon

Are policemen trying to evade accountability by threatening the media with legal action for simply doing their job without malice ?

Gone is the time when “encounter specialist” was a badge of honour and envy in the police force, a suffix that was synonymous with pride, privilege and clout even amongst civvies. So decisively has the popular tide turned against our “Dirty Harrys” that officers are now quick to rush to court in a bid to silence anyone who questions their role in encounters, especially if these are sensational ones pending before various courts, including the Supreme Court.

Rajeev Trivedi, Additional Commissioner (Crimes and SIT) with the Hyderabad police, filed a suit for criminal defamation against five news outlets – CNN-IBN, the Urdu dailes Siyasat and Etemaad, the Hindi language Rajasthan Patrika (Jaipur), the Deccan Chronicle, and the Civil Liberties Monitoring Committee, a Hyderabad-based NGO, for making what he termed were malicious and false allegations regarding his role in the Sohrabuddin Sheikh encounter case.

Last month, the Supreme Court upheld a Hyderabad High Court order allowing the defamation charges to be prosecuted, although the journalists involved had challenged the suit as an effort at muzzling the press.

Concealing complicity

File photo of Kauser-bi, killed by the Gujarat police in a fake encounter.

File photo of Kauser-bi, killed by the Gujarat police in a fake encounter.

Trivedi seems to have taken the maximum umbrage at Rajdeep Sardesai’s programme on CNN-IBN.

On 13 May 2007, Sardesai, in a broadcast titled “30 Minutes- Sohrabuddin- the inside story”, said:

“Police sources say Vanjara and Pandian nabbed [Sohrabuddin’s wife] Kauser-bi in Bidar with help from S.P. Rajiv Trivedi of the Hyderabad Special Investigation Unit … Rajiv Trivedi provided cars with fake number plates in which Sohrabuddin was brought to Ahmedabad and then killed in a fake encounter.”

This was not a statement or accusation recklessly hurled, or a conjecture based on fervid conspiracy theories.

In fact, the Supreme Court in its 12 January 2010 judgment had accused the Hyderabad Police of deliberately obfuscating any probe into the role played by its personnel in the abduction and subsequent murder of the couple:

From a careful examination of the materials on record including the eight Action Taken Reports submitted by the State Police Authorities and considering the respective submissions of the learned senior counsel for the parties, we are of the view that there are large and various discrepancies in such reports and the investigation conducted by the police authorities of the State of Gujarat and also the charge sheet filed by the State Investigating Agency cannot be said to have run in a proper direction. It appears from the charge sheet itself that it does not reveal the identity of police personnel of Andhra Pradesh even when it states that Sohrabbuddin andtwo others were picked up by Gujarat Police Personnel, accompanied by seven personnel of Hyderabad Police. It also appears from the Chargesheet that Kausarbi was taken into one of the two Tata Sumo Jeeps in which these police personnel accompanied the accused. They were not even among the people who were listed as accused. Mr.Gopal Subramanium, Addl. Solicitor General for India (as he then was) was justified in making the comment that an honest investigating agency cannot plead their inability to identify seven personnel of the Police Force of the State. (emphasis added)

In 2007, much before this ringing indictment, the Supreme Court had also instructed senior IPS Officer Geeta Johri, tasked with probing the case, to thoroughly investigate if there was a nexus between the Gujarat and Hyderabad police.

It isn’t known whether Trivedi acted on his own or at someone’s behest in filing the defamation suit, but the way in which the state government granted the mandatory sanction for prosecuting the case strongly hints at the latter possibility. According to Section 196 (2) of the Code of Criminal Procedure, for every individual to be proceeded against under Section 499 of the Indian Penal Code (which criminalises defamation), a separate sanction order is essential. There cannot be an omnibus permission. Although this point was raised before the Supreme Court, the bench rejected it, holding that this requirement was dispensable.

Judicial indulgence

No amount of guesswork is required to conclude that this particular defamation case demonstrates a hitherto unseen police strategy to deal with staged encounters.

The method is this: File a SLAPP (Strategic Lawsuit Against Public Participation) case against the media and anyone else asking questions about the executors of extrajudicial killings and their political masters. The court ought to have clearly seen through this strategy, but failed to. Worse, in allowing the prosecution to proceed, the judges went against the precedent set by their predecessors. That judgment delivered in the case of R. Rajagopal v Tamil Nadu (popularly known as the Auto Shanker case) in 1994, took a principled stand against public officials, especially policemen, being allowed to resort to criminal defamation cases for covering up their crimes.

The case was about prison authorities and some top police and prison officers trying to halt the publication of Shanker’s autobiography. Convicted and sentenced to death for serial murders, Shanker, in the book, had disclosed how some members of the top echelons of the police force had initially helped him escape the law. Ruling in favour of R.Rajagopal, the publisher, Justice Jeevan Reddy invoked and followed the United States Supreme Court’s decision in NYT v. Sullivan , which laid down the “actual malice” standard for criminal defamation cases. Sullivan, the chief of the Montgomery police, had alleged loss of reputation because of an advertisement in the paper which claimed vindictive prosecution and racial discrimination against Martin Luther King, Jr. Rejecting his contention, the court held that public officials could successfully sue for defamation only if the publication involved a reckless disregard towards facts and actual knowledge of the claim’s falsehood.

Undesirable fetters

Referring to the Sullivan decision, Justice Reddy held that the press and public needed to exercise constant vigilance over the acts of public officials. He also referred to the House of Lords’ judgment in Derbyshire County Council vs. Times Newspapers Ltd. (1993) which ruled that although there was a countervailing public interest in protecting the reputation of government servants so that they could fearlessly carry out their functions, it would be contrary to that very public interest if every allegation of defamation was allowed to succeed in court. If these officers were allowed to threaten newspapers with libel suits, it would put “undesirable fetters” on the Fourth Estate’s right to free expression.

On 1 June, another Supreme Court bench stayed the 14 May judgement and tagged the case with Subramanyam Swamy’s   petition challenging the constitutional validity of India’s criminal defamation laws. This is a welcome development, but only in a very limited manner. Because the court has not rectified the fundamental error – of allowing policemen to file a criminal case as a means of throttling any questioning of their role in encounter killings.

Saurav Datta works in criminal justice reforms and media law in Bombay and Delhi, and is associated with the Commonwealth Human Rights Initiative. Opinions are personal.
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