A recent order of the Bombay High Court in the Times Now vs Justice P.B. Sawant defamation suit has asked Times Global Broadcasting Co Limited to deposit Rs 20 crore in cash and Rs 80 crore as bank guarantee in the court. This has sent shock waves within the entire Indian media industry, and is being observed very closely. It will not only have a far reaching effect on the media industry, but will also reflect on all pending defamation cases across the country, which could be from any field - political, social or economical.
In this order, the Bombay High Court has asked Times Global Broadcasting Company to deposit the amount over a defamation suit filed against it by retired Supreme Court judge and former chairman of the Press Council, Justice Parshuram Babaram Sawant.
Times Global Broadcasting Company Ltd runs a leading 24-hour English News channel Times Now, and is a sister concern of Bennett, Coleman & Co, which publishes The Times of India and The Economic Times. Times Global had appealed to the Bombay High Court against a district court order of Pune which had directed the channel to pay Justice (retd) P.B. Sawant a sum of Rs 100 crore by way of unliquidated exemplary damages.
The two member division bench of the Bombay High Court comprising Justice B.H. Marlapalle and Justice Nishita Mhatre admitted the plea on behalf of Times Now on September 28, 2011 and ordered: “We have considered the arguments advanced by the parties and the enunciation relied upon. We allow the application subject to the condition that an amount of Rs 20 crore is deposited by the applicants-defendants with the registry of this court within six weeks from today and a bank guarantee of a nationalised bank for the remaining amount of Rs 80 crore is furnished to the registry of this court within a period of 10 weeks from today. The deposited amount shall be invested in a fixed deposit initially for a period of one year with a nationalised bank.”
N.K. Singh, general secretary of Broadcast Editor’s Association (BEA) expressed his concern over the court order imposing a fine of Rs 100 crore in this defamation case. “The BEA will discuss the matter and seek legal opinion, since this issue has implications on the entire body of TV journalists in particular and also on the freedom of speech and expression in general,” Singh told TSI.
The big question here is whether the media possesses the right to appeal or not. A top official of Times Now expressed his concern over the matter. Without disclosing his identity, the official said: “Depositing such a large amount of money, before the hearing on the plea will not be possible for any media house. This trend will, therefore, seriously affect the entire media industry in the future.”
However, advocate Niloy Dasgupta of Delhi High Court says: “People have the statutory right to appeal against a money decree. The normal trend is that the upper court asks the appellant to deposit the specified amount in the court, subject to the decision of the case. But since this is a heavy amount, one can take the option of filing a review petition before the same court to make some concession in the amount.”
What was the case?
Former chairman of Press Council of India, Justice P.B. Sawant had sued Times Now in a civil court in Pune for inadvertently displaying his photo in a provident fund scam related news report. The “provident fund scam” report was shown allegedly involving the then sitting judge of the Calcutta High Court Justice P.K. Samanta, but it ran the photo of Justice P.B. Sawant inadvertently for about 15 seconds on September 10, 2008 in its 6.30 pm news bulletin. Passing a decree in favour of of Justice P.B. Sawant, the Pune Civil court had ordered the channel with damages of Rs. 100 crore as demanded by Justice P.B. Sawant. After being intimated by his secretary for the display of his photograph in the “provident fund scam” news, Justice P.B. Sawant called the channel through his Secretary Mr. Kamat on the same day. But according to Sawant’s advocate, despite this telephone call, the channel did not take any corrective steps.
This was in spite of the fact that Times Now had on its own withdrew the said photograph and it was not carried out in any of its repeat news telecast. Justice Sawant had addressed a letter to the channel on September 15, 2008 after which Times Now telecast a clarification news on September 23, 2008. According to Justice Sawant’s petition, despite serving a notice to the channel, it issued a retraction only about eight days later on its scroll and expressed regret.
“This order in appeal against the decree of Pune district court passed by Bombay High court shall have far reaching effect on all the civil litigation pending for damages for defamation. In my opinion, only injunction cases on the defamatory articles were being taken seriously,” said advocate Anjani Kumar Singh of Bombay High Court, who is also the founder of Lex Remedeum, an advocates firm.
He defends the order by saying that: “The media is in the habit of not taking seriously such mistakes. The media is casual in settling the mistakes and /or enforcing their own terms because of their dominance and reach in society. Media takes glamour larger than life image under the enjoyment of the ever truthful image, therefore the individual litigants lose interest after some time of their damage caused under the belief that media house may hire bright team of lawyers and can dominate in the court proceeding. Further, there is general loss of faith or lack of confidence in the judicial system only due to the long list of pending cases in the court.”
“You can not give such a harsh order, until and unless somebody has done the defamation with proven mala fide intention. How will you prove his intention was mala fide in this case, when he is making apology? In other countries also, only malicious publications are punished. The Pune Court order (if implemented) will be the first of its kind in the history in India,” senior advocate and former Rajya Sabha MP R.K. Anand told TSI. It can be contested in the Supreme Court, Anand added.
On the other hand, in a section of legal circle, this case is being scene as a ray of hope for the voice of individuals. Advocate Anjani Kumar Singh, who supports the view, said, “The said order shall make media more responsible and sensitive towards reporting on such events.” He also said that “the principles of the conciliation in the defamation law broadly states that the person who has been defamed with the space on the print media and time duration consumed in the electronic media may conciliate or settle for the equal proportion of the space for clarification in the print and equal proportion of time consumed in the electronic media. But, as a matter of present practice damage were being caused on the full page story in print or for half an hour of the programme in the electronic media and corrections, clarifications or apology thereto may be in the space of 2x2 cm area in print media and only running a scroll in the bottom on the electronic media. Therefore, this judgment of Pune court and order of Bombay High Court will have far reaching effects and ramification.”
“As far as civil defamation is concerned, this case should have been sent to High Court by the Pune District Court,” said Supreme Court advocate S.A. Khan. “This is a harsh order. It’s unthinkable. Since Justice Sawant belongs to Maharashtra, the Pune Court has given such harsh order without proper assessment of the real damage,” he added.