Going by precedent

As reported by Medianama, on 14th February, 2013 the Department of Telecommunications (DOT) passed directions to internet service licensees to block certain internet websites. Since such orders are not publicly disclosed by the DOT a leaked copy of the direction containing a total list of 78 URLS was made available. This list has been analyzed by Medianama and the Center for Internet and Society to contain articles and content which is critical of Arindam Chaudhuri or IIPM.

Given that Arindam Chaudhuri and IIPM have as early as 2011 obtained an injunction from a court in Silchar to similarly take down an article on the Caravan magazines web portal I anticipated that even these blocks were the result of an interim injunction. Subsequently, a MINT story confirmed that such an Order was indeed passed by a district court situated in Gwalior. Beyond the Caravan Case, there exist other instances where IIPM has taken to the legal process to prevent publications of content critical of the institute or its founder. Through this article I will examine such cases and the litigiousness of IIPM pointing towards certain trends.

Notices for Defamation

According to press reports IIPM has filed defamation notices however it has not followed it up with legal proceedings in some cases. A common feature of such notices is that they contain exceedingly high amounts claimed as damages for defamation for instance in the legal notice sent to Gaurav Sabnis the amount of damages claimed was Rs. 125 Crores. This is a regular feature of defamation notices these days with such high amounts often not corresponding with the eventual filing of the case. The amount in a sense pressures the author into compliance and also chills other speech. Its valuation in a sense is rationalized on the filing of a actual case since many State stamp duty enactments contemplate ad-volerm payment of fees. Higher the amount claimed in relief, higher the court fee. Hence there is some rationalization when parties eventually file civil cases.

Reliance on Criminal Law

The recent web blocks in the Gwalior and even the case against Caravan in Silchar, Assam was a result of a civil case for defamation. However Sections 499 and 500 of the Indian Penal Code, 1860 also recognize the offence of defamation where it can lead to criminal sanctions, IIPM has explored this legal route as well. My analysis below is limited due to the limited data set, where there is no centralized database for criminal complaints and often decisions in criminal matters is only reported in legal journals when the accused approaches a State High Court, seeking quashing of a criminal proceeding or bail. Hence, even the data and the takeaways from them are at best, only representative.

IIPM v. Outlook (Delhi)

The first criminal case to which is relevant is that of Mr. Rajan Bihari Lal Raheja v. Planman Consulting India (reported as 185 (2011) DLT 154), in which the Respondent, i.e. Planman Consulting India (which is described as the sister concern of IIPM), filed a criminal complaint aggrieved by an article titled as “Racket Game Lobs” which was published on 30th June, 2008 in Outlook Magazine. Since the proceedings were preferred not only against the authors and the editors of the magazine but also the owners of the magazine, the Owners approached the Delhi High Court asking for them to be quashed.

The Delhi High Court while making references to established principles of criminal liability quashed the proceedings against the owners of the magazine. It is important to note that this was in exercise of an extraordinary power, where the criminal trial itself had not begun. The law treats this as an exceptional remedy and hence in the same proceedings it refused to interfere which the pending criminal proceedings against the Publisher and the Author. There are some other criminal proceedings as well including SLP (Criminal) 9655/2011 which are related to these proceedings and are pending in the Supreme Court of India however due to an absence of pleadings available publicly I do not know which Order/Judgment they are challenging.

IIPM v. Careers 360 (Dehradhun)

The second criminal case titled as, Pathfinder Publishing Pvt. Ltd. v. The State and Anr. (MANU/UC/1013/2010) concerned a series of articles run by Careers 360, titled as, “IIPM makes yet another claim — Over to you Mr. Sibal”, “IIPM best only in claims” etc. The articles concerned the alleged tie up of IIPM with the University of Buckingham whereby on the basis of inputs from the University, the articles debunked the claims by IIPM. The second article also contained a reference to the UGC notice dated 31.07.2010 which stated that IIPM is not recognized to grant degrees by the UGC. Aggrieved by such publication a criminal defamation complaint was filed against the Publication, the Editor and the Author in Dehradhun. To avoid the rigors of criminal trial, the Accused approached the Uttaranchal High Court, with a much tougher plea.

Rather than seeking to quash the case on a technicality they argued on the pith and substance of the articles was not defamatory. This is a much harder plea to make since even if there is an element of doubt as to the satisfaction of legal ingredients of defamation the court directs the accused to go through a process of trial and evidence. However, in the instant case the court categorically held that the impugned articles were not defamatory and fell within the public interest. I am quoting below two paragraphs of the stinging rebuke to IIPM:

“26. The entire edifice of our justice system rests on the principle of truth! The exercise in a Court is nothing if it is not a pursuit for truth and justice. The common expression in a Court room is “Satyamev Jayate” — Truth shall triumph. Truth is also the best defence in a case of defamation. A truth spoken for public good can never be called defamatory. When the author of the disputed article stated in the article itself, in no ambiguous terms, that what he has stated is true and has been verified from Buckingham University and the Berkeley University that they have no arrangements with IIPM, then the first question the learned Magistrate should have asked the complainant was — “Do you have the authority to grant this degree from Buckingham University? If yes, show the proof? This was not done. In fact even this Court not once but repeatedly asked this question to the counsel for the Respondent Sri Manoj Desai, as to his authority to grant such degree and if they have they must show it to the Court, the petition would then be liable to be dismissed. But no such evidence was shown, even to this Court! The learned Counsel kept on repeating that the complainant has “arrangements” with Buckingham University and that they send their students to Buckingham and that they outsource lecturers from Buckingham, etc., etc., but no proof of their claim that they grant degree from Buckingham University!

28. On these facts, this Court is of the opinion that the criminal proceedings, which are presently pending against the Petitioners are nothing but an abuse of process and in order to meet the ends of justice, summoning order dated 12.10.2009 are liable to be set aside and are therefore set aside. The proceedings in Criminal Complaint Case №5020 of 2009 which is pending before the A.C.J.M, 3rd Dehradun are also set aside.”

It is important to note that URL №30 of the Blocking Order dated 14.02.2013 contains the article titled, “IIPM best only in claims” which was held prima facia not even capable of defamation by the Uttaranchal High Court. Seems as if IIPM is taking a second shot at abusing legal process.

Civil Suits

Indian Institute of Planning and Management v. Outlook Publishing (High Court of Delhi)

The first of the civil suits concerns the same article titled as, “Racket Game Lobs” published in Outlook in which a civil case for defamation was filed by IIPM against the Publisher. The reliefs which are requested in such civil cases are towards requiring specific conduct to be affected through an act or omission which is termed as a mandatory injunction or through monetary damages. We all know it takes quite sometime for a court to make such a determination and even courts recognize this. Hence. to prevent any further damage to the Plaintiff (the aggrieved party) while the case is pending in court, an order is passed to prevent the Defendant from engaging in certain conduct which would lead to damage or loss to the Plaintiff in the interim. This is called an interim injunction and this is what is at play in the civil cases before us.

The civil suit which came to be filed by IIPM v. Outlook in the Delhi High Court numbered as 442/2009 is presently pending adjudication. However, there appears to be an interim injunction in place which has been modified by an Order dated May 01, 2009. This modification is to another exotic type of interim injunction termed as an ex-parte ad-interim injunction. This is one in which even a notice is not sent to the Defendant and the injunction is passed for a limited time period till the defendant appears till the next date. Interestingly in all the cases IIPM presses for an ex-parte ad-interim injunction. Since the original copy of the interim injunction is not available the Order dated May 01, 2009 which modifies it cannot be relied on fully. In any case the modification is natural and allows further comment by Outlook giving a right to IIPM for rebuttal.

Kishorendu Gupta v. Delhi Press Publishing (Silchar District Court & Supreme Court of India)

This was another case for defamation and mandatory injunction filed in the district court Silchar which by its order dated 12.04.2011 passed an ex-parte ad-interim injunction against the Caravan Magazine and its publishers. The case titled is titled as Kishorendu Gupta v. Delhi Press Patra Prakashan, and as it suggests was not filed by IIPM directly but through one Kishorendu Gupta, who was in some way shown to be an affiliate of IIPM. In this case, the most problematic article beyond the egregious injunction was the of a territorial nexus between the party which was defamed, i.e. IIPM and Arindam Chaudhuri, and the forum in which the case was instituted. Both IIPM, Arindam Chaudhuri as well as the Defendants were ordinarily resident in Delhi however to make matters a little difficult the case was filed in a remote district which naturally lacked territorial jurisdiction.

Aggrieved by this Order the Publishers approached the Supreme Court in a Transfer Petition titled as M/s Delhi Press Patra Prakashan v. Kishorendu Gupta numbered as TP (Civil) 837/2011. As per statements of the Publishers, the Supreme Court has stayed the interim injunction and even transferred the case to Delhi. These links have been blocked as per the latest order which emanates from a Gwalior District Court. However, on the Supreme Court website the case is shown as pending. There are no orders available online to verify its status.

Anon IIPM Channel Partner v. John Doe (Gwalior District Court)

We now come to the case at hand which has resulted in the block orders. Not much is known about it except that it has not been filed by IIPM but by one of its affiliates and the forum of choice is Gwalior.

Procedurally, the actual block orders which were issued by the Department of Telecom under Rule 10 of the Information Technology (Procedure and Safeguards for Blocking of Access of Information by Public) Rules, 2009 were in pursuance to an interim injunction issued by a district court in Gwalior.

Again the choice of forum is quite exotic and again there was no notice which was given to the owners of the websites. Since a copy of the Order is not yet available online I will refrain specific comment on it. However, I would be interested in knowing who are the lawyers who wrote the compliance letter to the DOT. Also, whether in the pleadings whether the defamatory URL’s were identified alongwith the alleged defamatory content or this determination was left up to the Plaintiff as well. This case is also presently pending adjudication.

In my view the above cases are problematic. They push the boundaries of law and show the fallings of established procedure. Above all they demonstrate how pendency and interim orders can be combined to chill speech.

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