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Defamation, not at the cost of gagging free speech

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The curtailment of an individual writer or author’s freedom of speech and expression should never be lightly viewed. Any person who feels that his good name is being tarnished is entitled to vindicate himself by filing for damages. But to gag the press is illogical.

Gag orders are rare. Ex-parte gag orders even rarer. Those that protect politicians raise eyebrows. Recently an Additional Senior Civil Judge in Ahmedabad granted an ex-parte injunction against ‘The Wire’, a website which recently published an article on Jay Shah’s sudden turn of fortunes in his business enterprises after the present government came to power. Though he is a private citizen, Jay Shah happens to be the son of BJP president Amit Shah.

Another private person, Baba Ramdev, whose close association with the BJP is no secret, also recently obtained an ex-parte injunction by the Karkardooma District Court in Delhi on the distribution and sale of a book ‘Godman to Tycoon: The untold story of Baba Ramdev’. In both cases, neither publisher nor author were given the opportunity to present their version in response to the allegations.

The Supreme Court has frequently frowned upon such orders being granted. Recently, the Court in a response to a petition seeking to ban a book by Professor Kancha Ilaiah titled ‘Samajika Smagglurlu Komatollu’, which is critical of the caste system, stated that any request for banning a book of this nature has to be strictly scrutinised because every author or writer has a fundamental right to speak out ideas freely and address thoughts adequately.

The curtailment of an individual writer or author’s freedom of speech and expression should never be lightly viewed. Any person who feels that his good name is being tarnished is entitled to vindicate himself by filing for damages. But to gag the press is illogical. It serves no purpose except seen as an attempt to throttle the voice of others. Can such an order prohibit the press from reporting proceedings in court on the same subject matter?

Reporting court proceedings can never be defamatory; so there can be no gag order in relation thereto. If that be so, such an order serves no purpose. When court proceedings are reported, the defence of ‘The Wire’ can be published by the website, thereby repeating the allegations. Besides, facts in themselves are occasionally bland, it’s when they are collated and interpreted that they come to life. The questions asked by ‘The Wire’ in the light of filings before the Registrar of Companies were legitimate in themselves, hardly justifying the ex-parte order of the court.

It may be possible, though it escapes credulity, that a company with limited business in 2015-16 saw its turnover spike to Rs 80 crores in 2016-17 and thereafter suffered losses and closed down in October: a saga which does raise questions. The press should not be gagged for asking legitimate questions. Maybe some courts in Ahmedabad are sensitive to issues of calumny and wish to protect reputations. The alacrity with which the injunction was sought and granted reflects a certain level of efficiency that is to be admired!

Free speech is an inalienable right, recognised in our Constitution as a fundamental right. Since no right is absolute, it is subject to certain reasonable restrictions: sovereignty, integrity of India, security of State, public order, decency, morality, contempt of court, defamation or incitement to an offence. So, the Constitution provides for a remedy in filing for both criminal and civil defamation as provided for in law. A gag order is no justification when seeking relief for defamation.

It may be possible, in certain extreme circumstances, for the court to order a gag on free speech for fear of inciting communal violence or if such speech were to jeopardise the security of State, say, a call for a revolt against the established order. In such circumstances gag orders seek to protect possible unwary, innocent victims of violence. ‘The Wire’ report against Jay Shah hardly fits into any of these exceptions. I have yet to see a court pass a gag order against abuse, fake videos intended to incite communal discord and violence.

The present political dispensation is particularly sensitive to any form of criticism. The BJP’s trolls in opposition to actor Vijay’s movie ‘Mersal’ criticising GST and Digital India, is a reflection of both the level of intolerance and paranoia that consumes it. With prime minister Narendra Modi’s popularity slipping, his bhakts will probably become insufferable. A tolerant India is being injected with venom jeopardising our civilisational values. If courts start protecting assaults on free speech there will be none else to turn to. Ex-parte injunctions of the kind seen in the case of Jay Shah are an aberration. Courts cannot afford to be on the wrong side of the law.

Jay Shah, I believe, has claimed Rs 100 crores for defaming him. If his claim succeeds the website will close down. If not, the intent of the claim was to intimidate those exercising their right to free speech. There is an inherent contradiction in making such a claim. The extent of damages sought suggests that Jay Shah is a public personality. But he distances himself from his father and claims that as a private person his business transactions should not be questioned.

The fact that several ministers publicly came to his defence, though uncalled for, suggests that he is a public personality because of his proximity to the powers that be. So is Baba Ramdev for the same reason. The favours, if any, granted by cooperative banks, or a public sector undertaking need to be questioned. The honest thing for him would be to do is to disclose his transactions for scrutiny. Otherwise the needle of suspicion will continue to haunt him.

The writer, a senior Congress leader, is a former Union minister.

Courtesy: Article is published in The Indian Express dated 30th October 2017

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