(G.N.S) Dt. 15
The Supreme Court bench of Chief Justice Dipak Misra, Justice D. Y. Chandrachud and Justice A. M. Khanwilkar on Thursday directed the Additional Chief Metropolitan Magistrate not to proceed with the criminal defamation proceedings against The Wire filed by Jay Shah, son of BJP President Amit Shah in respect of an article published in Wire until the next hearing before the apex court on April 12.
A bench headed by Chief Justice Dipak Misra asked Jay Shah and others, who have filed the complaint against the scribes, to respond within two weeks to the plea filed by the journalists against the Gujarat High Court’s order, refusing to quash summons issued against them by the trial court.
The bench, also comprising Justices A M Khanwilkar and D Y Chandrachud, observed that the media should be more responsible and said it cannot write whatever it feels about anyone.
The chief justice, while repeatedly stressing that he was not commenting on the case before it, also said that sometimes journalists write in a way that amounts to “sheer contempt of court”.
“I have told many times about Freedom of Speech and Expression. We are not going to gag the media. The question of gagging the media does not arise. But the press should be more responsible,” he said.
“How can anyone write whatever they feel about anyone. There are limits,” the chief justice observed. “… they are writing sometimes which amounts to sheer contempt of court,” he added.
The Petitioners have raised the following questions;
- Can publication of matters intended by law to be in the public domain constitute a criminal offence of defamation?
- Can such a publication amount to an imputation merely because it raises questions about the conduct of public figures?
III. Is the truth of public record or the public interest inherent in the conduct of public sector companies too a matter only to be seen at the trial by way of a defence of Exception to S.499 IPC?
- What is the threshold a questioning or even criticism must cross before it can be termed an “imputation” under S.499 IPC so as to warrant issue of summons?
- Is the law of criminal defamation such that even publication of matters based on public record, and in this case, confirmed by the complainant, will require the truth to be proven only at a criminal trial as an Exception?
- Can a court refrain from looking at public record for assessing a complaint of defamation before it issues process in relation to a publication based on record?
VII. What is the evidentiary burden that a complainant has to fulfill before issuance of process for the offence of defamation?
VIII. What is the legal burden on a complainant to establish a prima facie case of defamation for the purpose of issuance of process?
- Whether the possibility that defamation may yet be proved to have occurred sufficient for initiation of criminal process, without any pre summoning evidence to establish the same?
- Whether the High Court has erred in not recording any finding regarding the sufficiency of the Ld. Trial Court’s satisfaction about the basic ingredients of defamation?
- Whether defamation can be prima facie inferred simply on the basis of a witness’s statement claiming defamation, that is, whether the Ld. Magistrate has to accept such a statement without any further application of mind?
XII. Whether defamation can be claimed where there is no evidence to show that the complainant’s reputation has been hurt?
XIII. Whether a witness’ statement that others (not him personally) have may be led to think ill of the complainant can be acted upon not be hit by the rule against hearsay and conjecture?
XIV. Whether a Magistrate is bound to indepenantly assess the complaint and evidence under Section 202 of the CrPC to judge whether there is a prima facie case of defamation before issuance of process?
Jay Shah alleged before the Additional Chief Metropolitan Magistrate’s court in Ahmedabad that The article dated October 8, 2017, titled ‘The Golden Touch of Jay Amit Shah’, contains inter alia the following imputations-
“…Turnover of a company owned by Shah’s son increased 16,000 times over in the year following election of PM Narendra Modi…Firm of Amit Shah’s son, whose business is chiefly stock trading, turns to windmill generation with PSU loan…The internal sub-heading — ‘Loans from a cooperative bank, and a PSU’…Do a story on Amit Shah’s son’s ‘honest, legal, bonafide’ businesses and ‘he shall reserve right to prosecute you’, his lawyer warns The Wire…”
The Gujarat High Court had on January 8 rejected a petition filed by the news portal, seeking quashing of a criminal defamation case filed against it by Jay Shah over an article related to his company.
The high court rejected the petition on the grounds that the article, “The Golden Touch of Jay Amit Shah”, is per say “defamatory” and the trial court should proceed with the case.
Jay Shah had moved the lower court alleging criminal defamation by the petitioners after the article published by the website claimed his company’s turnover grew exponentially after the BJP-led government came to power at the Centre in 2014.
After the suit was filed on October 9, 2017, the court initiated proceedings against them under CrPC’s section 202 (to inquire into a case to decide whether or not there is sufficient ground for proceeding).
The suit has been filed against the author of the article Rohini Singh, founding editors of the news portal Siddharth Varadarajan, Siddharth Bhatia and M K Venu, managing editor Monobina Gupta, public editor Pamela Philipose and the Foundation for Independent Journalism. The foundation publishes The Wire.
Jay Shah has separately filed a civil defamation suit of Rs 100 crore against the website over the article.
Jay Shah had rejected the charge made in the article, insisting the story was “false, derogatory and defamatory”.
The journalist had tweeted, “Is it true that Justice Muralidhar who decided the Karthi petition today was a junior under PC (Senior Counsel P. Chidambaram, and Karthi Chidambaram’s father)?”