DATE OF THE JUDGEMENT
21st November 2021
Justice Madhav J. Jamdar
Plaintiff- DhyandevKachruji Wankhede
Defendant- Nawab Malik
The Bombay High Court while deciding on Sameer Wankhede v. Nawab Malik defamation case held that the public have the right to examine and comment on actions of public officials, after reasonable verification of facts.
Article 19(1)(a) of the Indian Constitution gives all the citizens right to freedom of speech and expression.
Article 21of the Indian Constitution guarantees protection of life and personal liberty to all the citizens.
- The plaintiff, who is a retired senior police inspector and father of the public official Sameer Wankhede filed this defamation suit. It was contended that that the tweets, media content, posts uploaded by the defendant on his social media accounts are highly defamatory, slanderous as well as libellous, as it contains incorrect facts and conclusions, communicates misinformation and incomplete information, and is a deliberate, calculated move on the Defendant’s part to knowingly and maliciously defame, inter alia, the Plaintiff and his family.
- The plaintiff submitted the tweets and social media contents that were defamatory according to him. It was contended that this began after Sameer Wankhede, son of the plaintiff, arrested the son-in-law of the defendant under NDPS Act, 1985. According to the plaintiff, the defendant is satisfying his personal vendetta with extortive and provoking threats, in public and also on national televisions, to the Plaintiff’s son with malafide aim to pressurise him to succumb to his high-handed political tactics so that the Plaintiff’s son would not efficiently and efficaciously do what he was supposed to legally do and for what he was (is) known for.
- Allegations by the defendants-
- Mr.Sameer Wankhede is Muslim by birth and that he has secured the Government job by falsely claiming to be from scheduled caste.
- There is material to show that said Sameer Wankhede sought illegal gratification in cases filed by NCB.
- The counsel for plaintiff made it clear that the Plaintiff is only pressing for ad-interim relief in terms of prayer clause 5 (c) of the interim application. The clause wanted the court to “pass an order of injunction preventing and / or restraining the Defendant, his agents, servants, authorized representatives, his party members and all others acting under and on his instructions from publishing, writing, speaking in any media, including electronic media and the social media handles, or publishing in any manner whatsoever any content / material which is defamatory about the Plaintiff and / or his family members.”
Following issues were framed by the court to be taken into consideration-
- Whether the tweets, media content, videos, press conference, etc. which are subject matter of the present suit are concerning acts and conduct of the public official, namely Sameer Wankhede, relevant to discharge of his official duties?
- Whether the said tweets media content, videos, press conference etc. contain allegations which are reckless disregard for truth i.e. totally false?
- Whether the said publications are proved to be false and actuated by malice or personal animosity?
- Whether the Defendant acted after reasonable verification of the facts?
- The court observed that there is a need to balance fundamental rights of the plaintiff and of the defendant as Plaintiff and his family members have a right to privacy which is part of Article 21 and the Defendant has the right to freedom of speech and expression subject to the restrictions imposed under Article 19(2) of the Constitution of India.
- After analyzing the allegations made by the defendants, the court came to the conclusion that they are relating to the discharge of the official duties of said Mr. Sameer Wankhede.
- On the question of whether the allegations are totally false, on the allegation of him being a muslim by birth, the court has observed that it is clear that the defendant has not reasonably verified the facts. The court held that “it is clear that the Defendant while making tweets media content, videos, press conference etc. regarding allegation No.1 has not carried out reasonable verification of facts.”
- For the second allegation also, it was said that defendant has not taken due care and has not conducted reasonable verification. However, the court noted that the evidence provided by the defendant has led to Sameer Wankhede facing a vigilance enquiry and the allegations are being investigated by vigilance team of NCB and SIT formed by the Maharashtra police.
- The court held that the public have a right to examine and comment on actions of public officials keeping in mind that the facts should be reasonably verified as said by the Apex Court. It was observed that “it is in the facts and circumstances of this case prima facie found that the Defendant’s actions are actuated by malice or personal animosity, it is necessary that the Defendant be directed to publish writing, speaking with media including electronic media and the social media or publishing in any manner whatsoever any content/material which is defamatory of the Plaintiff and/or his family members only after carrying out reasonable verification of the facts”
- The court said, “in case of public official’s right to privacy or for that matter, remedy of action for damages is not available with respect to their acts and conduct relevant to discharge of official duties, it is to be established that such publication is totally false and that the same has been done without reasonable verification of the facts.”
- The court held that the defamation suit seems to be maintainable as in this case allegations are made against the plaintiff himself. And even if the allegations are made against his son, he is also getting defamed in the process.
- The court held that that the Plaintiff cannot seek prayer clause (c) in blanket manner as prayed. It was noted that the Defendant has raised very important issues concerning the acts and conduct of Plaintiff’s son - Sameer Wankhede who is public official.
- Keeping in mind the facts, it cannot be said that both the allegations are totally false, said the court. It was observed that- “it is obvious that the tweets media content, videos, press conference etc. are actuated by malice or personal animosity. However, at this stage, it cannot be said that the same are totally false”
- The court refused to restrain the defendant from posting against the petitioner and his family. Ad-interim relief was not granted. The court, however, directed the defendant in accordance with the principles set by Apex Court in R. Rajgopal case to conduct reasonable verification of the facts before publishing, writing, speaking in media or publishing on social media.
In this sensational case, the court has tried to establish a balance between the fundamental rights of the two parties. While right to privacy is the constitutional core of human dignity, right to freedom of speech is an intrinsic right provided to us by our constitution. None of the two can be compromised. However, in this case it was held that a citizen has a right to question a public official provided that they verify their facts first. Questions in regard to discharge of official duties are not the same as defaming individually. The court here came to a conclusion that the allegations may have been made with a malicious intent to defame, but cannot be said to be totally false.
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- What is defamation?
- In which article is right to privacy enshrined?