Earlier this year, in February, PTI reported on a judgment of a Delhi court, delivered on January 23, ordering a TV channel to pay Rs. 20 lakhs in damages in a suit for defamation filed by three policemen who had been convicted of killing two innocent persons in 1997 in the infamous Connaught Place shootout case. As is always the case in India, all the newspapers which published the PTI report abided by the Omerta code and did not name the TV channel in question.
Turns out that the TV channel was Zee TV and the offending programme was a documentary drama featured on ‘India’s Most Wanted’ about the Connaught Place shootout case. The judgment can be accessed over here on this link. The policemen in question mistook the civilians for a dreaded gangster that they had been tracking. After the killing, when the policemen discovered their mistake, they dressed up the crime scene and planted weapons in an effort to claim that the firing had happened in self-defence.
Ten policemen involved in the encounter were tried for culpable homicide and were found guilty by the trial court and sentenced to life imprisonment. Both the High Court and Supreme Court upheld the verdicts on appeal. The Supreme Court’s judgment from 2011 can be accessed on this link.
The docudrama which was broadcast by Zee TV on March 17, 1998 as part the channel’s ‘India’s Most Wanted’ programme. Hosted by Suhaib Ilyasi, the programme was one of the first crime shows which focussed on criminals wanted by the police. You can view samples of the show on YouTube links over here and here. Some episodes feature dramatizations of the alleged crime in the form of documentaries. The Connaught Place shootout was featured in one such episode.
Policemen claimed that some scenes were totally fictitious
Prior to the broadcast, the family of the police officers issued legal notices to Zee TV warning them against broadcasting the show. Zee TV ignored the notices and proceeded to broadcast the documentary, shortly after which it was sued for defamation by three of the policemen.
The main contentions of the policemen were that some of the scenes in the docudrama had no relation to the actual events and that such scenes depicted them as cold-blooded killers. For example, two of the contentious scenes were that the policemen’s vehicle smashed into the civilian’s car from behind, after which their car was surrounded by the policemen who then indiscriminately opened fire. Earlier, in the judgment it was also mentioned that the civilians were kicked and injured in the leg before being dragged out of the car and shot again.
Since the facts of the documentary as mentioned in pages 19-24 aren’t very clear, it is not entirely possible to lay out the entire chain of facts but it does appear that the judge came to a finding that some of the scenes were clearly false since the facts were never mentioned in the charge-sheet and were thus never proved in court.
The contentious facts in question depicted the encounter as a wilful cold-blooded killing which was contrary to the defence put forth by the policemen that the killings were the result of a mistaken identity. This was probably the main reason for the lawsuit.
Before discussing the reasoning of the judgment which resulted in the guilty verdict, it may first help to understand the correct position of law when it comes to defamation cases involving the acts of public officials.
Public officials and defamation
Traditionally, civil defamation law under common law (judge-made law) has been quite punishing because the only defence allowed under this standard is: the truth or fair comment. The intent of the defendant was never looked at. This is an onerous standard because factual errors or inaccuracies could result in a finding of defamation by a court.
This standard evolved in many countries after courts began reconciling the harsh realities of defamation law with the fundamental right to free speech. Gautam Bhatia in his excellent book on free speech – Offend, Shock, or Disturb – traces the evolution of this standard in various countries.
The most important of these cases is the famous case of New York Times v. Sullivan (1964) where anti-segregation activists had published advertisements in the NYT highlighting the atrocities being committed in the South of the US against blacks. Some of the ads had factual inaccuracies with respect to the alleged brutalities of the American police.
The commissioner of the one of the police forces sued the NYT and the state courts found in favour of the police and ordered NYT to pay hefty damages. When this case was appealed,the United States Supreme Court set aside the lower court’s judgment. The US Supreme Court laid down a new standard under which public officials could not claim damages in cases of defamation unless there was a finding of ‘actual malice’.
The court reasoned that for the fundamental right of free speech to be an effective right, it was necessary to pardon or ignore erroneous statements – the court also expressed concern that critics of the government would refrain from speaking out against the government if they could be hauled to court for defamation in case of inaccuracies in the statement.
The Indian Supreme Court had approvingly cited the US Supreme Court in the famous Auto-Shankar case where police officials and bureaucrats in Tamil Nadu had sought to restrain the publication of the serial killer’s biography on the grounds that it was defamatory and violative of their privacy. It also carved out an important exception in existing defamation law for reporting on public officials.
In the pertinent part, the Court had held “it would be enough for the defendant (member of the press or media) to prove that he acted after a reasonable verification of the facts; it is not necessary for him to prove that what he has written is true. Of course, where the publication is proved to be false and actuated by malice or personal animosity, the defendant would have no defence and would be liable for damages.” The standard to prove defamation for public officials was thus increased to the level of having to prove ‘actual malice’.
In more recent judgments such as the Bombay High Court’s order in the Money Life case, this standard has been extended to even private entities discharging a public role. Simply put, it is virtually impossible for a public official to win a case of defamation.
The judgment of the Tiz Hazari court
The judgment delivered by the Addl. District Judge in January, 2016 is severely flawed on several counts, most of which are listed as follows:
(i) The biggest problem with this judgment is the fact that the District Judge fails to grasp the true import of the Supreme Court’s ruling in the Autoshankar case (R. Rajagopal v. State of Tamil Nadu). Rather than form the centrepiece of the discussion on defamation, the judgment discusses the case only once at page 89 and even then seems to misinterpret the Supreme Court’s ruling. Under the actual malice standard laid down by the Supreme Court, the police officers would have to prove that Zee TV’s docudrama was motivated by malice – there is no discussion on this point since the judge appears to have followed the old standard whereby a person could be held guilty of defamation even for factual inaccuracies, irrespective of intent.
(ii) A second problem is that the judge manufactures new jurisprudence linking defamation to an alleged fundamental right to reputation. At para 28, the judge states “The first question which now arises for determination is whether Right to Reputation is a Fundamental Right under the Constitution of India or not?”. This is wholly irrelevant to the discussion because defamation law is meant to protect reputation regardless of whether it is a fundamental right or not.
(iii) The third problem with this judgment is that, starting from the first paragraph on page 1, the judgement speaks of the evils of media trials, whether such media trials affect judges and repeatedly castigates the media for failing to abide by journalistic ethics. None of this discussion on media trials is relevant to a lawsuit on defamation and it appears that the judge was thoroughly confused between the issue of reporting on sub-judice matters and the law ofdefamation. Without this discussion on media trials this judgment could have been half its length and perhaps more objective.
(iv) The fourth obvious problem with this judgment is the judge’s unwavering sympathy for the police inspectors who were found guilty of shooting dead innocent civilians and then attempting to cover up the killings by planting a weapon on the dead civilians. The judge,however, sympathises with the murderers claiming that “The plaintiff has given his sweat and blood to the Institution, Society andCountry and cannot be condemned for one unfortunate mistake for whichhe has already been sentenced to Life Imprisonment. The decorated policeofficer has suffered the legal consequences of this deadly mistake but to condemn him and his family forever and to shake the credibility of the entire police force is something which is clearly impermissible.”
The “one unfortunate mistake” led to the death of two innocent men. The levels of sympathy oozing through the judgment for convicted murderers is slightly disturbing and inappropriate for a judgment on defamation.
Prashant Reddy Thikkavarapu is a lawyer.