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The Patiala House Court at Delhi today issued summons to London-based lawyer Sarosh Zaiwalla in the defamation case filed against him by Senior Advocate and Congress leader Abhishek Manu Singhvi (Dr Abhishek Singhvi v. Sarosh Zaiwalla).
Advocates Jaiveer Shergill and Vijay Aggarwal appeared for Singhvi.
Singhvi had claimed that Zaiwalla, in his book titled Honour Bound, made defamatory remarks against his late father LM Singhvi in relation to the Bofors deal.
In his book, Zaiwalla made a reference that then External Affairs Minister Madhav Singh Solanki said that a certain Indian lawyer gave him an envelope containing a letter urging the Swiss government to close its inquiry into the kickbacks received by Indian politicians in the Bofors deal.
To debunk the rumours that the lawyer who handed the envelope was himself, Zaiwalla mentioned in his book that journalist Vir Sanghvi told him that the lawyer might have been LM Singhvi. Sanghvi later wrote a letter to Singhvi denying that he made any such comment.
Singhvi had subsequently sent a legal notice to Zaiwalla, claiming that the contents of the book have no iota of truth, and that there was a deliberate and malicious attempt to defame LM Singhvi, who was a Senior Advocate of the Supreme Court of India, a Parliamentarian in both Houses, and India’s longest serving High Commissioner to the United Kingdom.
The notice also refers to Zaiwalla’s interview with Times of India published on February 23. The headline of that interview was “I Learnt From Bofors Never To Act In A Case Involving Internal Indian Politics, Says Sarosh Zaiwalla”.
In that article, Zaiwalla had alleged that Dr. LM Singhvi had acted unfairly against his firm. The possible reason, as claimed by Zaiwalla, was that he was a member of an international arbitration tribunal that passed an order against the Indian government, which was represented by AM Singhvi. Zaiwalla had also claimed that his co-arbitrator in that matter, former Chief Justice of India RS Pathak, who was well know to Dr. LM Singhvi, was “clearly under pressure” to rule in favour of the Indian government.
In his legal notice, Singhvi demanded that Zaiwalla’s book be recalled and that the allegedly defamatory portions of the books be deleted. Zaiwalla has also been asked to tender an unconditional apology in the form of an affidavit sworn and attested before an executive magistrate.
Zaiwalla subsequently defended the comments made in his book and during the interview, stating that it was “the truth and nothing but the truth”. In a statement he made in response to the legal notice, he said,
"Dr Singhvi is attempting to misconstrue what I have said in my book. He is merely trying to bully with a press campaign.”
The Congress leader then filed a criminal defamation suit before the Patiala House Court in Delhi.
When the matter was taken up today, Metropolitan Magistrate Sumeet Anand allowed the plea, and issued summons against Zaiwalla.
At the outset, the Court noted that the offence of criminal defamation, as contained in Section 499 of the Indian Penal Code, has ten exceptions. However, at the stage of summoning there is no occasion for the court to consider the imputations made, it was noted.
The evidence led at the stage of pre-summoning by Singhvi and his witnesses has to viewed as if there is no exception appended to the section, the order states.
On the reference made to Vir Sanghvi in Zaiwalla's book, the Court noted,
"...as the proposed accused published a speculative information given by Vir Sanghvi, as claimed by him, in his book without verification about the truthfulness of the facts, this suggests that the accused made the imputation regarding the deceased with an intention to harm, or with knowledge, or having reason to believe that the same may harm the reputation of the deceased."
The Court went on to note that the three ingredients for defamation under Section 499 were fulfilled.
On the question of the locus to sue for defamation on behalf of a deceased person, the Court noted,
"A deceased person himself cannot come to defend his cause and reputation, however, this does not give unfettered liberty to anyone to impute anything upon a deceased which would harm his reputation if he were living. Even if a person dies his reputation remains alive in the eyes of members of general public, his family and near relatives.
Reputation of a person is something which others believe about the person. Hence, the testimony of the family members, or the testimony of a member of general public in whose eyes the reputation of the deceased still rests is sufficient to show that whether the imputation made by the accused has hurt the feelings of family members of the deceased or not."
On these and other grounds, the Court finally held,
"On the basis of the abovedone discussion this court is of the considered opinion that prima facie all essential requirements of section 499 IPC stand meted out in this case and there exist sufficient grounds for proceeding further. Accordingly, the writer of the book titled as, 'HONOUR BOUND ADVENTURES of an INDIAN LAWYER in the ENGLISH COURTS', namely Sarosh Zaiwalla is hereby summoned as an accused for commission of offence under section 499 IPC for trial."
Patiala House Court
When asked for a response on the court order, Zaiwalla wrote to Bar & Bench,
"It has been brought to my attention from a report in the Indian press, that Dr Abhishek Singhvi had yesterday obtained from Patiala Magistrates Court, Delhi a summons against me in respect of the alleged libel.
Once again, Dr Singhvi has acted in an unfair manner, firstly by failing to inform me in advance of the hearing in court of his intended application to the Patiala Court, and secondly, by immediately rushing to the press with the news of the Court summons (which could potentially do him more self-harm than good) before serving me with any such document.
It is apparent that the Patiala Magistrates Court were not made aware by Dr Singhvi of my defence of “truth”, for if that was done, no judicial officer would have agreed to issue summons.
Furthermore, it is clear to me that Dr Singhvi has made no attempts to investigate the true facts with both the Law Ministry and the External Affairs Ministry in India. Investigations should have also been carried out at the Indian High Commission in London, as their records for those years will validate what I have said in my book.
Additionally, I would add that in order to maintain accuracy and truthfulness of the facts stated in my book, the draft chapters relating to Dr LM Singhvi were personally sent by me to both the Indian High Commissioner and the Deputy High Commissioner in London before the draft manuscript was sent to the Publishers. My purpose for doing so was to give the Indian High Commission an opportunity to consider the contents of my book, and thereafter propose corrections. I did the same for other recipients also mentioned in my book. These include, The Lord Chancellor, former Prime Ministers John Major and Tony Blair, Lord Mackay of Clasfern – a former Lord Chancellor, The Chinese Ambassador, The Lord Chief Justice, The Law Society and others. Many of them made comments and pointed out some errors, which I incorporated into the final draft manuscript. By way of example I attach letters from the Chinese Ambassador, The Lord Chief Justice, Judicial Office and The Law Society of England and Wales. The Indian High Commission did not respond like others had done. They would have done so if they believed what I had said to be inaccurate.
I reiterate that what I have said in my book is the truth to the best of my knowledge and belief."
[Read the order]