"You are an MLA, spokesperson of a national party, should be more careful:" Bombay High Court to Nawab Malik

A higher degree of due diligence is expected of a people's representative like a Member of Legislative Assembly (MLA) or a minister when making statements against someone, the Bombay High Court told Maharashtra minister and Nationalist Congress Party (NCP) leader Nawab Malik on Friday..Vacation judge Justice Madhav Jamdar was hearing a defamation suit filed by Dhyandev Kachruji Wankhede (plaintiff), father of Narcotics Control Bureau (NCB) zonal director Sameer Wankhede against whom Malik had made allegedly defamatory statements.The suit arose after Malik shared Sameer Wankhede’s purported birth certificate on his twitter handle which allegedly stated that Wankhede’s father, the plaintiff in the present suit, was a Muslim and his name was ‘Dawood’..On Court's directions, the plaintiff had submitted a 20-page affidavit consisting of 28 documents to show that his name had always been ‘Dynandeo’ and he was from the ‘Mahar’ caste of Hindu as per the caste certificate..During the hearing today, the Court pointed out that it seemed there was a change in handwriting like an interpolation in the birth certificate tweeted by Malik.Citing the Supreme Court judgment in the case of Puttuswamy which laid down right to privacy, Justice Jamdar stated that verification of information to ascertain is correctness is essential if a statement has to be held as non-defamatory.The Court stated that as a representative of the people, an MLA, it was crucial for Malik to have verified documents before uploading the same on his social media handle.“You are a member of assembly, spokesperson of national political party and a public representative. You should be more careful,” Justice Jamdar said..Senior Advocate Atul Damle appearing for Malik, replied that the plaintiff could have always produced the original to prove that the birth certificate uploaded by Malik is wrong. The plaintiff admittedly does not have the original, it was contended.He added that since it was a document procured from public office like Brihanmumbai Municipal Corporation (BMC) it was not expected to have any kind of manipulation necessitating further verification and hence, Malik uploaded the same as it is. Damle also showed the photograph of the official register from where the certificate was allegedly taken..Damle took the defence of exception under Section 499 of the Indian Penal Code where statements in good faith are not defamatory.To this, the Court responded by asking whether statements regarding a document can be considered as having been made in good faith, if the document seems to be prima facie interpolated.“Apparently there is interpolation, can it be said that the remarks made are in good faith? Were the remarks made after due care? What is the due care (taken)?” Justice Jamdar asked..“For concluding that there is interpolation, no rocket science is required. Hence due care and attention was required. Verification is of some importance. ...The verification of an MLA has to be of a different level. The document itself shows interpolation is there. There is a higher degree of verification required from a public servant… if there is apparent interpolation then there is no due care,” Justice Jamdar stated..Advocate Arshad Shaikh, appearing for plaintiff, responded to the birth certificate submitted by Malik. Shaikh submitted that the documents were uploaded without verification and Malik had tried to “mud sling with whatever (documents) he had”. He contended that Malik could have applied for a certified copy through an RTI application..Shaikh referred to the one-page affidavit filed by Malik in which it was stated that the documents had been “reasonable verified”.However as per the Puttuswamy judgment, publication of content pertaining to marriage, religion, caste etc will amount to violation of privacy, it was argued.He argued that the plaintiff was not a public servant, neither was his daughter and hence discussion on them of any sort was defamatory..Additionally, if there were any statements made against a public officer (Sameer Wankhede), the same should be limited to the aspect of discharge of his public duties.In light of these observations, whatever publication was made pertaining to Wankhede birth certificate and his nikahnama was not part of his duties and hence was defamatory, it was claimed..Shaikh submitted that the other statements and posts made by Malik were made with malice and there was insinuation.“What I believe happens is, he makes allegations, then finds an affidavit to justify. What happens is that if you cast aspersions, then that has a stronger effect of tarnishing my image than direct allegations,” Shaikh submitted..Before concluding, Shaikh stated that Malik's statements were in retaliation to the arrest of his son-in-law by the NCB “For hitting back and tainting the actions of Wankhede, this tirade started," it was submitted. .After hearing the parties for over five hours, Justice Jamdar reserved the application for orders on the prayer seeking interim relief of temporary injunction restraining Malik from making any statements in the future about the plaintiff.