The Hindu : Corporates versus the people

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Friday, May 16, 2003

Opinion

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Corporates versus the people

By Rajeev Dhavan

Criminal defamation cases intimidate so that the process becomes the punishment. Civil defamation cases silence through `gag' orders.

REMARKABLE JUDGMENTS from lower courts deserve to be noticed. Judge (Mrs.) Roshan Dalvi of the Mumbai City Civil Court has written such a judgment in the Maheshwar Dam `defamation' case. Over the past few years, the defamation law is constantly being used by the rich and the powerful to intimidate and `gag' activists and the media.

In 1983, Charanjit Singh got an injunction against Arun Poorie of India Today against an article to be published. Jagmohan successfully prosecuted a journalist for criminal defamation about demolitions during the Emergency. In 1989, Reliance gagged The Indian Express through the Supreme Court during one of its `rights' issues. Kuldip Nayar's book, `India House', was injuncted by the Delhi High Court at the instance of the Supreme Court Bar Association — and published only after deletions. In the same High Court, Justice Ramamoorthy stopped the publication of Khushwant Singh's memoirs. The injunction was lifted years later. Madhu Kishwar was stopped from exposing alleged `malpractices' in Dr. Manchanda's clinic. In 2002-03, Jayalalithaa has been most liberal in using the State machinery to file criminal defamation cases against opponents and newspapers. Criminal defamation cases intimidate so that the process becomes the punishment. Civil defamation cases silence by `gag' orders.

The Maheshwar Dam case is remarkable by any standards. The dam was eventually privatised in favour of the `S. Kumar' group whose Shree Maheshwar Hydel Power Corporation (SM-HCL) runs the project. That the project has dislocated lives and people is not directly in issue. The Narmada Bachao Andolan (NBA) which had opposed the dam concentrated its attention on three issues: (a) the rehabilitation policy (b) the cost of power and (c) financial dealings — all legitimate public interest concerns. A defamation suit was filed in the Mumbai Civil Court to `gag' the NBA.

How does one `gag' an `andolan' (that is, an entire movement)? That, too, from a City Court in Mumbai. Curiously, on October 23, 2001, the City Civil Judge granted an ex parte injunction (without hearing the other side) preventing the `Andolan' from making any defamatory `statements, declarations, utterances, writings or publications' during the life of the case. Even more remarkably, the second part of the injunction was directed not just against the two named defendants — Chitraroopa Palit and Suresh Verma — but all the other activists of the NBA against "issuing defamatory press statements... or holding demonstrations with defamatory material or leading or participating in, morchas and agitations against the plaintiff (Maheshwar Corporation)". What an injunction! How totally limitless! An entire andolan (movement) was gagged — without even being heard! That, too, for a relatively indefinite period! Who was to tell what was defamatory; and what was not! Ambiguity was added to court censorship.

It took a courageously clear judgment of Judge Dalvi to set the issues right. The judge accepted that the NBA was right to raise the first public interest issue that land was not given for oustees. The corporation owed an explanation. The second public interest issue was no less important. Relying on reports of the Madhya Pradesh State Electricity Board, the NBA showed that in terms of the `cost of power', the country was possibly faced with another Enron. The Maheshwar project, with its installed capacity of 400 MW, would possibly have a firm power production of 92 MW initially or even 49 MW finally, depending on water flows. Given the Power Purchase Agreement (PPA) the increase in outlay from Rs. 465 crores to Rs. 2,233 crores, lean seasons and other losses, the `cost of power' could be Rs. 4 to 5 per KWh bus bar. Or, even more. This was surely a public interest issue. If the NBA or someone else could not discuss this, what was the point of the `freedom of speech' guarantee which the Constitution protects.

But, the third issue which related to the financial dealings of the Maheshwar Corporation was even more revealing. Serious questions were — and are still — being raised. Were the public properties given to the corporation paid for? Were Rs.86.11 crores yet to be paid? Was the IFCI's Report that Rs.19.3 crores were given to the parent company correct? Had the Corporation in another case in Mumbai admitted that Rs.36 crores were yet to be brought back? Had there been a `siphoning of funds within the meaning of the Reserve Bank's circular? Had the promoter brought in the 11 per cent in accordance with the Ministry's of Power's Notification of October 22, 1991? Was it true that there were allegations of wilful default against the group — no less than in the light of an IFCI report of June 10, 2002?

Could the 1998 and 2000 Reports of Comptroller and Auditor General be ignored? Was the State of Madhya Pradesh enabling more funds? Were the project properties attached to enable recovery of the debts? Each of these questions emanate from public documents. Are these not public interest questions? If so, can they be gagged?

From October 23, 2001, to 29th March 29, 2003, an amazingly over-broad order injuncted all forms of protest including morchas and protests of all activists associated with the Andolan.

Judge Dalvi addresses all these issues — mindful that Indian democracy sets a premium on free speech and that the public voice on public interest issues cannot be shut out. This is a refreshing change from the `gagging' orders issued in India. The principles that emerge from Judge Dalvi's orders need to be noted.

Firstly, `gagging' orders should be given reluctantly since the proper remedy for defamation is damages. This is good `English' law since 1891 — something Indian courts seem to overlook. Second, no `gagging' will take place where defendants (in this case the Andolan) bonafide promise to show that they will be able to `justify' that their comment was `true' or `fair comment' in the public interest. Third, the public interest cannot be cheated by injunctive `gagging'. Judge Dalvi puts it nicely when she says: "(P)ublic funds... bear the burden of public accountability''.

Fourth — and this is a refreshing angle — even civil courts must bear in kind that `free speech' is a guaranteed constitutional right deserving the highest premium. Fifthly, `gagging' orders stifle the public's right to know. Skilfully distinguishing many cases from Mumbai and elsewhere, the judge discharged the injunction and liberated the Andolan to pursue the public interest.

After the Auto Shankar case (1994), Indian defamation law deserves to go through a sea change. In that case, the Supreme Court adopted the American principle from The New York Times case that bonafide free speech on public issues is neither defamatory nor to be stifled — as an English judge put it in 1982 "... not even for a single day".

In Morarji Desai's American case, Seymour Hersch was able to prove that he bonafide thought the former had CIA links on the basis of Pentagon records. In any view, an entire andolan or movement cannot be gagged for one and a half years. This turned out to be classic battle of corporate versus peoples' power. In the end, bonafide public activism won. But, we are still left with a defamation law which is stiff, sultry and in urgent need for reform.

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