DO STING OPERATIONS AND NEWS PORTRAYED BY MEDIA AMOUNT TO DEFAMATION

As per Article 19 (1) (a) of the Constitution of India 1949 as amended thereof, every Individual has the fundamental right of freedom of speech. But there is a very thin line which when crossed will turn out to be defamation as it may hinder the fundamental right of other individual(s). So the major question that arises is what is defamation? What is the limit up to which the freedom of speech can be exercised so that it is not defamation?

These questions are often asked but remain unanswered. As per the current scenario of social media any one can be made hero or can be defamed by just one video. It may be a boon for some people but it is definitely a nightmare for those who are criticized or defamed.

Defamation as per the law is damaging a good name/ reputation of someone in public. For example sting operations done by the media are often defamatory as they show the concerned person in poor light. When such operations are done for the welfare of public at large it will not be considered as defamation. As per the recent Judgment of Delhi High Court in Indian Potash Ltd. V. Media Contents and Communication Services Pvt. Ltd. 2007 in which a sting operation was done against the Petitioners wherein one of their employees was caught on a hidden camera saying that the company mixed prohibited chemicals in the milk which was supplied by them in the Western UP.

The Media Company took a stand that the intention for broadcasting this video was not to defame someone but to bring out the truth to the public as to the malpractices followed by these companies to just fill their coffers. It was further contended by the Media Company that the story cannot be termed as defamatory as it was carried in good faith and for public good and is covered and protected by First, Second, Third and Ninth exception to Section 500 of Indian Penal Code, 1860 and that the defendants rely on the fair comment and truth as a defense. The thing which has to be noted was that the sting operation was not against the Company but the Individual. Strangely the Company instead of taking action against the employee filed a law suit.

It was stated by the Delhi High Court that:

“Sting operations, possible in the recent past, are an outcome of advancement in technology which permits video and audio recording, without the target person coming to know. Such sting operations occupy a place of their own and are today an important part of the society. Misdeeds are always clandestine, shrouded in secrecy and rarely proved owing to complexity of all involved therein, and with hardly any evidence. None indulging in such misdeeds admits thereto, least to journalists and media persons. The true picture is presented, by laying a trap. In the subject telecast also, the persons depicted have been recorded, by the journalists/media persons portraying themselves to be engaged in the business of milk and interested in availing services by adulterators or wanting tips therefor. The only way to bring the same in the public glare is through such sting operations which even though may not result in punishing the guilty but at least has the effect of stopping or suspending the misdeeds, even if for a short time.”

In Indian Express Newspapers (Bombay) Private Ltd. Vs. Union of India 1985), it was held that in today’s free world, freedom of press, is the heart of social and political intercourse; the press has now assumed the role of the public educator; the purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate cannot make responsible judgments; the authors have to be critical of the actions of the Government in order to expose its weaknesses; that such publications become an irritant or even a threat to power and the Governments naturally take recourse to suppress such publications in different ways but it is the primary duty of all the national courts to uphold the said freedom and invalidate all laws or administrative actions which interfere with it, contrary to the constitutional mandate. It was held that the Court represents the conscience of the community and exercises the power to keep alive and vital the higher values and goals towards which our society imperfectly strives.

Though the press and media are not immune/ exempted from the general law of defamation but as per the Constitution and restriction any news which is published for Public Welfare at large will not be construed as defamation.

So as per the Delhi High Court Judgment in the above mentioned case it was held that the sting operations done by the Media Reporters cannot be stated to be defamation on the grounds that the act done by them was not to cause any disgrace to the Company but it was for public knowledge and awareness regarding whether the food they are consuming is fit to be consumed or not.

So in the end we can be conclude that the information which is published by media person or any individual as long it is not with the intention of harming any person will not be considered as defamation. Defamation is a criminal offence and any person who alleges defamation must prove that there is mens rea or malafide intention in the allegation.

Asif Khan

Associate

The Indian Lawyer


[1] CS (OS) No.1717/2007

UNITED NATIONS SECURITY COUNCIL DESIGNATES MASOOD AZHAR AS A GLOBAL TERRORIST

In an unprecedented move, the United Nations Security Council (UNSC) has recently designated Masood Azhar, the Chief of Jaish-i-Mohammed (JEM), an extremist group based in Pakistan, as a global terrorist on 01.05.2019. UNSC is an important Organ of the United Nations that is responsible for maintaining international peace and security. It comprises of 15 members including 5 permanent members, i.e.  China, France, Russian Federation, the United Kingdom, and the United States.

UNSC designated Masood Azhar as a global terrorist on the grounds that he has been associated with Al-Qaida through JEM for “participating in the financing, planning, facilitating, preparing, or perpetrating of acts or activities by, in conjunction with, under the name of, on behalf of, or in support of”, “supplying, selling or transferring arms and related material to”, “recruiting for”, “otherwise supporting acts or activities of”, and “other acts or activities indicating association with”Al-Qaida, Osama bin Laden, and the Taliban, which, in turn, are terrorist organizations. Reportedly, he is said to have ordered many other terrorist attacks in India, including terror strike on Parliament House, Pathankot Air Force Base, Pulwama, etc.

Now, as a result, the UNSC would impose the following sanctions and targeted measures on Masood Azhar (Designated Terrorist):

  1. Arms embargo

Hereunder, all states would be required to prevent the direct or indirect transfer, sale and supply, from their respective territories or by their nationals outside their respective territories, or use of their flag vessels or aircraft, or use of arms and related material, spare parts, and technical assistance, or training related to military activities, etc to the Designated Terrorist.

2. Assets freeze

Hereunder, all states would be required to freeze the finances, funds and other financial assets, etc of the Designated Terrorist, without delay.

3. Travel ban

Hereunder, all states would be required to prevent the Designated Terrorist from entering into or allowing transit through their respective territories.

A number of countries committed towards zero tolerance against terrorism, including India, have welcomed this move of the UNSC and this move may also compel Pakistan to act against the Designated Terrorist.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

CENTRAL INFORMATION COMMISSION HELD THAT ELECTRONIC VOTING MACHINE IS ‘INFORMATION’ UNDER RIGHT TO INFORMATION ACT 2005

The Chief Information Commissioner (CIC), Mr. Sudhir Bhargava, in the case of Razaak K Haidar vs. CPIO, Election commission of India, New Delhi has held on February 12, 2019 that Electronic Voting Machine (EVM) falls under the definition of ‘information’ within the meaning of Section 2(f) of the Right to Information Act, 2005 as amended thereof (the Act).

In the above case, Appellant had filed an RTI Application with the Election Commission of India (ECI) seeking an EVM. In response, the Central Public Information Officer (CPIO) the Respondent herein refused the Appellant’s Application seeking EVM stating it does not qualify to be ‘information’ within the meaning of Section 2(f) of the Act.

The Appellant who attended the hearing through video-conference submitted that the Respondent had wrongfully denied the information under Section 6(1) of the Act. The Appellant contended that as per Section 2(f) and 2(i) of the Act, the definition of ‘information’ and ‘record’ includes model or any sample. Hence, an EVM qualifies as ‘information’ and should be provided to him under Section 6(1) of the Act.

Aggrieved with the decision of the ECI, the Appellant approached the CIC and contended that, according to Section 2(f) and 2(i) of the Act EVM qualifies as ‘information’ and so it should be provided to him under Section 6(1) of the RTI Act. The Respondent, ECI under-Secretary Shri Soumyajith Ghosh argued that ‘the model/samples of the EVM available with the ECI, are only kept for training purposes and are not saleable to the general public’. The Respondent further stated that the software installed in the EVM is an Intellectual Property of a third party, the disclosure of which would harm the competitive position of the third party concerned. Therefore, the said information is exempted from disclosure under Section 8(1)(d) of the Act.

CIC relying upon the definition under Section 2(f) of the Act held that the EVM which is available with the Respondent in a material form and also as samples, is ‘information’ under the RTI Act. The Commission also notes that as per the Respondent, the software installed in the EVM is an Intellectual Property of a third party, the disclosure of which would harm the competitive position of the third party concerned.

However, in favor of the Appellant, the CIC held that the Respondent had denied the information sought by the Appellant erroneously, under Section 6(1) of the Act. The Commission, therefore, directed the Respondent to provide an appropriate reply, as per the provisions of the Act to the Appellant within four weeks from the date of receipt of a copy of this Order.

Sidharth Sudheer

5th year, Mar Gregorios College Of Law, Kerala

Legal Intern, The Indian Lawyer

With

Suchit Patel

Associate

The Indian Lawyer

SUPREME COURT OF INDIA REFUSES TO GRANT STAY ON BAN IMPOSED BY THE MADRAS HIGH COURT ON TIKTOK APP

The Chinese-owned TikTok video app (App) enables the users to create short videos with music in background and then edit, speed up or slow them down. It also uses artificial intelligence to track user’s interests and thus displays personalized content too.

Recently, in India there have been concerns about the negative impact that the App may potentially have on children. For instance, a 19-year-old boy in Delhi lost his life while posing for the TikTok video where his friend shot him with a country made pistol. In a similar instance, a student from Tamil Nadu was also killed while riding a scooter when he along with his friends were trying to make a TikTok video. Many other such instances have occurred across other states in India.

On 1st April 2018, Advocate and Social Activist, Mr. Mathu Kumar, filed a Public Interest Litigation before the Madras High Court seeking ban of TikTok App because of its pornographic content and its potential to expose children to sexual predators. The Madras High Court had demanded the Centre to ban TikTok App and also, had prohibited any broadcast of media content created on TikTok App.

Although TikTok App has raised the issue that such videos and other content can also be accessed and shared by people on other social media platforms including Facebook, Instagram, YouTube, WhatsApp, etc, therefore, such selective actions solely against the App is morally and legally wrong. Further, being an intermediary under the Information Technology Act, 2000, as amended thereof, they are not responsible for the contents posted by the third party using the App, as they only provide the technology to make such videos.

In response to the Order of the Madras High Court dated 3rd of April, 2019, the TikTok App has removed six million videos that didn’t comply with community guidelines. On 15th April, 2019, the Supreme Court refused to grant a stay on the ban ordered by Madras High Court vide Order dated 3rd of April, 2019. As a result, the App was removed from the Apple App Store and the Google Play Store on 18th of April, 2019.

So far, the Indian Government has not yet raised any issue of potential threat to national security through the App. In fact, the ban mostly revolves around the issue about unsuitable content that can be uploaded, downloaded and shared by users of the App and that post ban, the existing registered users of the App could still access the App and share the videos.

Thus, in this case, the Apex Court has directed the Madras High Court to decide in an ex parte ad-interim order, by 24th of April, 2019, with regard to the ban imposed by its Order dated 3rd of April, 2019, failing which the ban imposed on the App would be overturned.

Asif Khan

Associate

The Indian Lawyer

SUPREME COURT OF INDIA HOLDS THAT NOTICES DEMANDING LOAN AMOUNT ARE NOT INVALID UNDER THE NEGOTIABLE INSTRUMENTS ACT, 1881.

The Supreme Court of India in the case of Vijay Gopala Lphar vs Pandurang Ramchandra Gharpade & Anr., passed a judgement dated 05.04.2019 holding that the notice demanding ‘Loan Amount’ is not invalid if it is same as the ‘Cheque Amount’ under Section 138 of Negotiable Instruments Act, 1881 (“the Act”) as amended thereof.

In the above case the Appellant had taken a hand loan of Rs. 50,000/- (Rupees Fifty Thousand only) from the Respondent/Complainant with a promise that he would return the amount within six months. The Complainant issued 2 cheques of Rs. 25,000/- (Rupees Twenty Five Thousand only) each to the Respondent/Complainant for a legally enforceable debt. The cheques where deposited by the Respondent/Complainant which were dishonoured due to “Funds Insufficient”. The Respondent/Complainant then on 04.03.2008 issued two notices to the Appellant and further filed two separate complaints under Section 138 of the Act each notice with the amount of Rs. 25,000/- (Rupees Twenty Five Thousand only). The Trial Court held the notices defective because the Respondent/Complainant mentioned loan amount and not cheque amount, which according to the Court were contrary to Section 138 of the Act.

The Respondent/Complainant appealed in the High Court at Bombay, which held that, there was no failure on the part of the Respondent/Complainant in making a demand for the payment of amount by issuing the notices. The High Court held that the term ‘loan amount’ should not have been mentioned but however the High Court was convinced that the Respondent/Complainant demanded the payment of Rs. 50,000/- (Rupees Fifty Thousand only) which was the original initial amount that was supposed to be claimed. The High Court reversed the Trial Court’s judgement and convicted the Appellant.

The Appellant further appealed in the Superme Court of India. The Appellant relied upon the clause (b) of the provision of Section 138 of the Act stating that the demand by notice should be only for the cheque amount and not on the loan amount. The counsel for Appellant relied upon the judgement in the case of Suman Sathi vs Ajay K. Churwal & Anr. (2000) 2 SCC 380, Rahul Builders vs Arihant Fertilizers & Chemicals & Anr. (2008) 2 SCC 321 and in support of his claims that the notices under Section 138 of the Act can be issued only for the cheque amount and not for any other amount. The Apex Court upon examining the above mentioned judgements held that, there is no question that the notices issued under section 138 of the Act has to be exclusive for the cheque amount. In the judgements referred above, the notices issued under Section 138 of the Act refer to the loan amounts which were much higher than the cheque amount. Whereas, in the present suit, the loan amount and the cheque amount is the same i.e. Rs. 50,000/- (Rupees Fifty Thousand only). Therefore, the above referred judgements cited by the learned counsel for the Appellant are not applicable to the current case. Hence, the Apex Court dismissed the appeal.

B Suchit Patel

Associate

The Indian Lawyer

ELECTION COMMISSION OF INDIA AND PRESS COUNCIL OF INDIA ISSUE GUIDELINES PERTAINING TO MEDIA COVERAGE DURING ELECTIONS 2019

The Election Commission of India (ECI) and the Press Council of India (PCI) had issued certain guidelines to regulate the media coverage with regard to elections and exit polls, etc in order to ensure fair elections. It is also necessary for the media to adhere to the principle of fair and objective reporting of the election campaign and the candidates.

The ECI has recently notified on 07.04.2019 (Sunday), the period between 7.00 A.M on 11.04.2019 (Thursday) and 6:30 PM on 19.05.2019 (Sunday) (Prohibited Period) as the period during which the conduct of exit poll, publication or publicity of the result of any exit poll in print or electronic media or in any other manner, in connection with General Elections to Lok Sabha and other Legislative Assemblies, has been prohibited. Further, any kind of predictions of results of election, etc by astrologers, tarot readers, political analysts or by any other persons and telecast or publication of any such predictions during the Prohibited Period has also been forbidden in order to ensure free, fair and transparent election.

Further, the PCI also requires that the Press should endeavour to inform the public in an objective manner, about appropriate electoral matters, political parties, candidates, voting processes, etc, but not indulge in unhealthy election campaigns, exaggerated reports about any candidate/party or incident during the elections and other such activities as listed below:

  1. That the Press should avoid reports which tend to promote communal or caste related feelings, amongst public.
  2. The Press should refrain from publishing false or critical statements about any party or candidate and also not accept any kind of financial or other offers to promote a candidate or party.
  3. The Press should not publish any advertisement about the achievements of a candidate or party at the cost of public exchequer.
  4. The Press should follow the ECI Guidelines regulating media coverage during Prohibited Period and otherwise.
  5. The print or electronic media should not be used as a forum for distortions and manipulations of the elections.
  6. The news channels should disclose any political affiliations, either towards a party or candidate.

It is believed that the Press should behave with a sense of responsibility while reporting news related to elections, so that it enables the citizens to exercise their vote based on a well-informed choice.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

JOB POST: Hiring lawyers with an experience of minimum 3-4 years @ The Indian Lawyer [Delhi and Hyderabad]

Organization Name

The Indian Lawyer

Job Description

  1. We are looking at hiring lawyers with an experience of minimum 3-4 years for our Delhi Office
  2. We are looking at hiring lawyers with an experience of minimum 3-4 years for our Hyderabad Office

Eligibility/Qualifications

  • Candidates should possess good knowledge of law and strong communication skills in English.
  • Candidates should be enrolled with Bar Council and should have passed the All India Bar Examination

Salary

Depending on educational qualifications

How to apply

  • The cv file should contain the candidate’s name
  • Interested candidates may please mention the preferred location, Delhi or Hyderabad, for which they are applying.
  • Interested candidates may please mention their number of years of experience in the cover letter and cv.

Contact info

Ph- 040-27424466

Official link

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SUPREME COURT OF INDIA ISSUES DIRECTIONS TO ELECTION COMMISSION OF INDIA TO INCREASE THE NUMBER OF ELECTRONIC VOTING MACHINES IN RESPECT OF WHICH VOTER VERIFIABLE PAPER SLIPS WOULD BE VERIFIED

In a recent case of N Chandrababu Naidu & Ors vs Union of India and another 2019, the Supreme Court has directed the Election Commission of India (ECI) to increase the number of Electronic Voting Machines (EVMs), in respect of which Voter Verifiable Paper Audit Trails (VVPAT) paper slips would be physically verified.

According to ECI, Electronic Voting Machine (also known as EVM) is voting using electronic means to either aid or take care of the chores of casting and counting votes. Whereas, VVPAT is said to be an electro-mechanical machine, that contains a paper roll, a motor to run it, a system to print and cut the VVPAT slip. As soon as voters press a button against a candidate on the EVM to cast their vote, the VVPAT machine displays a printed VVPAT slip, for approximately 7 seconds, that contains the candidate’s serial number, name, corresponding symbol, thereby, allowing the voters to verify their respective votes. The VVPAT paper roll is said to be designed for printing 1,500 ballot slips for each election.

Therefore, in general, VVPAT machines are designed for the purpose of verification of votes by the respective voters and thus, to ensure that there is transparency and credibility of the election process. But they are used by polling officers as well for the purpose of counting the VVPAT paper slips in order to verify the result obtained from the control unit of the EVM. Eventually, ECI made it mandatory to verify the counting of VVPAT paper slips in one randomly selected polling station in each Assembly Constituency/each Assembly Segment of Parliamentary Constituency.

In the aforesaid case, the Petitioners had sought for verification of VVPAT paper trail of 50% of the EVMs. But as per ECI, the verification of VVPAT paper trail of one EVM is done by a team of three Officers under the direct supervision of the Returning Officer appointed by ECI for smooth conduct of elections and that the whole process takes about an hour. But verification of VVPAT paper trail of 50% of the EVMs may delay the declaration of the result of election by 5-6 days.

The Supreme Court held that even if the number of EVMs, in respect of which VVPAT paper slips are to be verified and subjected to physical scrutiny, is increased from 1 to 5, the ECI would still be in a position to provide the additional manpower that would be required and as a result, there would be no delay in the declaration of the result of the election. This would help to attain a greater degree of satisfaction with regard to the accuracy of the election results. Thus, the Apex Court directed that 5 randomly selected EVMs would now be subjected to verification so far as VVPAT paper trail is concerned in each Assembly Constituency/each Assembly Segment of Parliamentary Constituency.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

SUPREME COURT OF INDIA HOLDS ONE-SIDED AND UNFAIR CLAUSES OF APARTMENT BUYER’S AGREEMENT TO BE NOT BINDING ON BUYERS

In a recent case of Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan 2019 and Pioneer Urban Land & Infrastructure Ltd. Vs. Geetu Gidwani Verma & Anr., the Supreme Court has passed a Common Judgment dated 02.04.2019 and held that a builder cannot seek to bind a buyer with one-sided and unfair contractual terms of an Apartment Buyer’s Agreement (‘Agreement’).

In the said case, the Buyer had deposited Rs. 4,83,25,280/- with the Builder for purchase of a flat in Araya Complex, Gurugram (the ‘Flat’), but the Builder had failed to obtain the occupancy certificate within the stipulated time period of 39 months with a grace period of 180 days and therefore, could not offer possession of the Flat to the Buyer within the time period agreed by them vide Agreement dated 08.05.2012.

As a result, the Buyer had approached the National Consumer Disputes Redressal Commission (NCDRC), whereby the NCDRC directed the Builder to pay compensation to the Buyer and also awarded interest for a part of the period of delay, vide Order dated 23.10.2018.

Meanwhile, the Builder obtained the Occupancy Certificate on 23.07.2018 and issued a Possession Letter to the Buyer on 28.08.2018. But the Buyer refused to accept the same as they were no longer interested to buy the said Flat and were looking for a flat elsewhere. Aggrieved by the Order dated 23.10.2018 of the NCDRC, the Builder filed an appeal before the Supreme Court (‘Appeal’).

In the said Appeal, the Supreme Court held the Builder liable for the following reasons:

1.The following clauses in the Agreement were found to be unfair and one-sided, as they were favouring the Builder:

i. The Builder was entitled to charge 18% interest from the Buyer for delayed payments.

But the Buyer was entitled to charge only 9% interest from the Builder for delay in handing over possession of the Flat to the Buyer.

ii. The Builder had the right to serve a termination notice to the Buyer for breach of his contractual obligations and also, cancel the Agreement if the Buyer fails to rectify the breach or default within 30 days of the termination notice and also forfeit the entire amount of earnest money towards liquidated damages.

Whereas, in the event of default or breach by the Builder, then if the Buyer fails to exercise his right of termination within the time limit provided in the Agreement, the Buyer cannot terminate the Agreement.

2. Such unfair and unreasonable terms of contract would not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder.

3. In accordance with the Consumer Protection Act, 1986 as amended thereof, the incorporation of such clauses in an agreement constituted unfair trade practice, as the Builder had adopted unfair methods or practices for the purpose of selling the flats.

4. The Builder cannot compel the Buyer to purchase the Flat after causing an inordinate delay of almost 3 years in handing over the possession of the Flat to the Buyer.

5. Therefore, the Builder cannot seek to bind the Buyer with one-sided and unfair contractual terms of the Agreement.

Thus, the Apex Court directed the Builder to pay compensation and interest to the Buyer for the entire period of delay caused in handing over possession of the Flat to the Buyer.

Harini Daliparthy

Senior Associate

The Indian Lawyer

SUPREME COURT RESCUES INSOLVENT COMPANIES FROM MANDATORY BANKRUPTCY

In a recent Judgment passed by the Supreme Court of India in the case Dharani Sugars and Chemicals Ltd v Union of India dated 2nd April 2019, the Supreme Court struck down the  Reserve Bank of India ( “RBI”) Circular dated 12.02.2018 as unconstitutional and Ultra Vires.

Pursuant to said Circular the Banks were vested with the power to initiate insolvency proceeding if the board-approved policy for the resolution of stressed assets failed. The Circular entailed banks to start the Resolution Process as soon as a borrower defaulted on a term loan of 2000 crore or more and could not cure it in 180 days.

The source of power for the said Circular was derived from Section 35 AA and 35 AB of the Banking Regulation Act, 1949 (as and when amended). The Section was challenged as it was de hors the Insolvency and Bankruptcy Code, 2016 and thus arbitrary.

The Supreme Court held that without authorisation of the Central Government, no such directions can be issued. The Supreme Court, however, held that the RBI is empowered to exercise its right under Section 35 AA and that the Section, along with Section 35 AB (which gives power to the RBI to issue directions on stressed assets), was not manifestly arbitrary.

The result of this Judgment is that the banks and financial institutions are now free to take an independent call with regard to resolution of debts. Such decisions would depend from  case to case depending on the nature of default made by the borrower. The Judgment now opens avenues to rescue sick Companies outside court rather than forced insolvency proceedings acting detrimental to the interest of the Companies.

The Judgment has resulted in declaring all cases in which borrowers have been proceeded against by Financial Creditors as per the RBI Circular to be declared non- est.

The Judgment came as a major rescue for all industries that were facing action from banks owing to mandatory insolvency vide the circular of the RBI. There were genuine cases where companies unable to resolve stressed assets in such a short period of 180 days even though they were seriously making the efforts. This Judgment comes as a breather to them to help in resolving stressed assets and putting their company back on its feet.

This Judgment, however does not in any manner effect all genuine insolvency proceedings that have been initiated by financial or operational creditors who have not taken action under the RBI Circular.

Sushila Ram Varma

Chief Consultant

The Indian Lawyer