Anil Ambani’s Reliance Group is on a mission to crack down on any reportage alluding to wrongdoing on its part in relation to the much criticized Rafale deal.
To this end, the company has filed civil defamation suits against three publications – NDTV, The Citizen, and The National Herald – seeking damages amounting to a whopping Rs. 22,000 crore.
Given the clamour surrounding the Rafale deal in the political arena, Reliance has also filed similar suits against individual members of the Congress and the Aam Aadmi Party. As per reports, suits seeking damages of Rs. 5,000 each have been filed against nine members of the Congress party, and one AAP member.
This brings the total amount of damages sought by one of the biggest companies in India to an astronomical Rs. 72,000 crore, one hundred times more than the cost of the Rafale deal, and more than the net worth of RIL itself.
In the suit filed against NDTV in the Ahmedabad City Civil Court, Reliance Infrastructure Limited has claimed that a program aired by the channel on the Rafale deal contains false, frivolous, factually incorrect, and baseless allegations with a view to increasing their TRPs.
The suit states that the program questioned, among other things, the eligibility of the defence manufacturing wing of the company (Reliance ADAG) to be partners with Dassault Aviation for the Rafale deal. It is also stated that the programme alluded that the company received undue favours from the government.
In this light, the suit claims that Dassault Aviation, out of its own free will, chose to partner with Reliance and established a joint venture company. The suit further states that NDTV presented in a distorted manner a statement made by former French President Francois Hollande regarding how Reliance was given the contract.
Similar claims have been made in the suits filed against the other two publications.
Land of the Fee
A relevant question to be asked is why RIL filed the suit in Ahmedabad, when it could be argued that the cause of action arose in NDTV’s New Delhi studio, where the programme was recorded?
According to the suit, the programme, which was also broadcast on the internet, was available for access in Ahmedabad. It is contended that the programme falls under the meaning of “electronic record” under the Information Technology Act, and therefore can be said to have been published at any place. Thus, it is claimed that part of the cause of action arose in an area under the jurisdiction of Ahmedabad courts.
On this point, it is pertinent to note that the 2016 Kerala High Court judgment in G Madhavan Nair v. Union of India clearly states that just because information was accessed through a website does not mean any court would have jurisdiction over a case.
“the mere fact that the petitioner was made aware of Exhibit P1 & P2, only through the website, at Kerala would not be sufficient to confer jurisdiction. To assume jurisdiction on such a pleading would be specious, since then, with the accessibility to the website through the internet, the petitioner could as well plead that the same was accessed anywhere in India to confer jurisdiction in any High Court within the territories of India.”
A more relevant reason to file the suit in Ahmedabad could be found in the Gujarat Court Fees Act, 2004. Usually, the court fee for pursuing litigation is a percentage of the damages sought for the alleged violation. This is supposed to act as a deterrent for claiming damages that are exorbitant.
However, the 2004 Act caps the court fee for cases filed in Gujarat at Rs. 75,000. In effect, a plaintiff in the state may seek an unlimited amount of damages for a relatively measly sum of Rs. 75,000. Another case in point is Jay Shah’s Rs. 100 crore defamation suit against The Wire. In contrast, the court fee for initiating litigation in Delhi courts is capped at Rs. 2 crore.
A SLAPP in the face of press freedom?
For quite some time now, India’s defamation laws, or more specifically the chilling effect of the same on press freedom, has been called into question. The Supreme Court in 2016 had a chance to change the same with respect to criminal defamation, but failed to do so.
In the suit filed against NDTV, Reliance Group reserves the right to claim further damages over and above the “minimum estimate” of Rs. 10,000 crore. This is nothing but a strategic lawsuit against public participation (SLAPP), posing a serious threat to freedom of the press. The ostensible power imbalance in this case cannot be ignored. Defendants will find it extremely difficult to defend their cases owing to the sheer drainage of resources that is characteristic of a long-drawn court battle. The ultimate effect of a SLAPP is that the defendant caves in to the plaintiff’s demands, unable deal with the possibility of paying such exorbitant damages.
Time for change?
With the Supreme Court refusing to weigh in on the issue, it is incumbent upon Parliament to bring a semblance of sanity to the defamation process. In 2016, BJD MP Tathagata Satpathy introduced a Bill to change defamation laws, titled The Protection of Speech and Reputation Bill, 2016.
Among other things, the Bill seeks to introduce a limit to the amount of damages that can be sought. It calls upon the court to consider the following factors, among others, while deciding damages to be awarded:
(a) the potential of a chilling effect caused which may limit the ability of the publication or any of the defendants to ordinarily conduct business;
(b) the publication of any correction, retraction, or apology published by the defendant, and the nature, extent, form, manner, and time of that publication;
(c) any statement of explanation or rebuttal, or of both explanation and rebuttal, in relation to the matter that is the subject of the proceedings, and the nature, extent, form, manner, and time of that publication; and
(d) delay between the publication of the matter in respect of which the proceedings are brought and the decision of the court in those proceedings, being delay for which the plaintiff was responsible.
It remains to be seen whether the Bill will see the light of day, or whether any other attempt will be made by Parliament to balance the right to personal reputation with the right to free speech, and more specifically, freedom of the press.
For now, massive corporations will continue to price out the Fourth Estate by claiming unquantified damages in courts.