In its order refusing to prohibit Maharashtra minister Nawab Malik from making social media posts about the religious identity of Indian Revenue Service office Sameer Wankhede but directing Malik to conduct due diligence before imputing anything defamatory about Wankhede or his family, the Bombay High Court performed a delicate balancing act between Malik’s right to freedom of speech and Wankhede’s right to privacy, writes PARAS NATH SINGH.
THE Bombay High Court on Monday refused to restrain Maharashtra’s Minister for Skill Development, Employment and Entrepreneurship, Nawab Malik, from sharing social media posts concerning the religious identity of the Zonal Director of the Narcotics Control Bureau (NCB), Sameer Wankhede. The Court, however, directed Malik to conduct reasonable verification of the facts before publishing, writing, or speaking in electronic and social media any content which is defamatory of Sameer Wankhede’s father and the rest of his family members.
A single-judge bench of Justice Madhav J. Jamdar was ruling on an interim application filed by the plaintiff, Dhyandev Kachruji Wankhede, the father of Sameer Wankhede, urging the court to “pass an order of injunction preventing and/or restraining the Defendant (Malik), 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.”
D.K. Wankhede has filed a civil defamation suit against Malik, the defendant in the case.
Justice Jamdar refused the interim relief in a 50-page long order. He, however, rendered prima facie findings against Malik that he had acted without a reasonable verification of the facts and that his tweets were actuated by malice or personal animosity since NCB had arrested his son-in-law, Sameer Khan.
The Supreme Court held that publication concerning these private aspects of life becomes unobjectionable if such publication is based upon public records, including court records. This is because once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by the press. Besides, public officials’ right to privacy or, for that matter, remedy of action for damages is not available with respect to their acts and conduct relevant to the discharge of official duties.
Justice Jamdar also refused to gag Malik from sharing information on social media because he prima facie found that the two allegations, namely “Sameer Wankhede is Muslim by birth and that he has secured the Government job by falsely claiming to be from scheduled caste and there is material to show that said Sameer Wankhede sought illegal gratification in cases filed by NCB”, are not totally false. Rather, Malik had raised very important issues concerning the acts and conduct of Sameer Wankhede, who is a public official, according to the court.
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What did Malik allege on social media, and what did the High court say about it?
Regarding the first allegation, that Sameer Wankhede is Muslim by birth and that he had secured his government job by falsely claiming to be from a Scheduled Caste, the High Court relied upon a letter dated November 15, 2021, issued by the Health Officer, E- Ward, Municipal Corporation of Greater Mumbai (MCGM). This letter records that on Sameer Wankhede’s birth certificate from 1979, his father’s name was mentioned as “Dawood K. Wankhede”; however, the same was corrected on May 4, 1993, as “Dnyandeo Kachru Wankhede”. The name of the plaintiff’s mother is “Zahida Bano”, the name of the newborn child is “Sameer”, whose date of birth is November 14, 1979, and the religion mentioned is “Muslim”.
[The order seemingly inadvertently refers to Zahida Bano as the plaintiff, that is, D.K. Wankhede’s mother, which is not correct. Bano is the wife of the plaintiff, and the mother of Sameer Wankhede.]
Regarding the second allegation concerning gratification charges against Sameer Wankhede, the High Court relied upon the affidavit released by Prabhakar Raghoji Sail, involved as a punch witness in the arrest of Aryan Khan. The affidavit says that Sameer Wankhede will have to be paid money out of the amount extorted as a bribe in connection to the Aryan Khan case, and has further claimed that he was made to sign 10 blank papers as a punch witness.
Justice Jamdar relied upon the Supreme Court’s decision in R. Rajagopal @ R. R. Gopal & Anr. cs. State of Tamil Nadu (1994), wherein it was held that the right to privacy is part of Article 21 of the Constitution of India. A citizen has the right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, childbearing and education, among other matters. However, it was further held that publication concerning these aspects becomes unobjectionable if such publication is based upon public records, including court records. This is so, the Supreme Court had said, because once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by the press, media and others.
Besides, it was held in that case that public officials’ right to privacy or, for that matter, remedy of action for damages is not available with respect to their acts and conduct relevant to the 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 Supreme Court had held.
Balancing of competing rights
The Supreme Court in Subramanian Swamy vs. Union of India, while upholding the validity of the Section 499 and 500 of the Indian Penal Code (IPC) concerning criminal defamation discussed the concept of balancing of fundamental rights. A two-judge bench comprising Justice Dipak Misra and Justice Prafulla C. Pant held that in the name of freedom of speech and expression, the right of another cannot be jeopardised. The Court was of the view that the reputation being an inherent component of Article 21, it should not be allowed to be sullied solely because another individual can have its freedom. Thus, the Court felt that the balance between the two rights needs to be struck.
“Reputation” of one cannot be allowed to be crucified at the altar of the other’s right of free speech”, the Supreme Court had said in the Subramanian Swamy case.
The High Court sought to balance the fundamental right to privacy of Sameer Wankhede’s family and the right to free speech of Nawab Malik. It is in this context, the high court considered the following aspects in deciding the interim application:
- Whether the tweets, media content, videos, press conference and so on, 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, social media content, videos, and press conference, among other things, contain allegations which are in reckless disregard for the truth, that is, totally false?
- Whether the said publications are proved to be false and actuated by malice or personal animosity?
- Whether the defendant acted after a reasonable verification of the facts?
Insofar as the first issue is concerned, the high court found the two allegations clearly related to the discharge of the official duties of Sameer Wankhede.
Regarding the second issue, the High Court rendered prima facie findings that the allegations are not “totally false”.
On the issue of malice or personal animosity, the High Court returned findings against Malik. It held that it was important to note that “admittedly the Defendant’s son-in-law was arrested on 13/01/2021 by NCB in NDPS case and he was released on bail on 27/09/2021 and the tweets media content, videos, press conference etc. has started from 14/10/2021. Thus, it is obvious that the tweets media content, videos, press conference etc. are actuated by malice or personal animosity”.
Regarding the last issue pertaining to reasonable verification of the facts, the High Court rendered findings against Malik.
The Bombay High Court found that “the Plaintiff has produced voluminous documents to show that his name is “Dnyandeo” and he belongs to Mahar caste recognised as scheduled caste. Most of the above referred documents are part of the public record. The document at Page 42 of the plaint which the Defendant has produced is stated to be from the record of MCGM. However, there are interpolation on the said document. There is doubt regarding authenticity of the same. Thus, it is clear that the Defendant has not reasonably verified the facts”.
Malik had tweeted the birth certificate of Sameer Wankhede, which is available on the record of the MCGM. The court found that there is ‘interpolation’ on the said document: the name “SAMEER” is clearly interpolated, and is in different handwriting. There are some other interpolations also. The court, thus, said the allegation was primarily made on the basis of said document, clearly showing that Malik had not acted after a reasonable verification of the facts.
Besides, the High Court noted that the plaintiff and father of Sameer Wankhede produced several documents to substantiate his contention that his name is ‘Dnyandeo’ and he belongs to the “Mahar” caste recognised as a scheduled caste.
Justice Jamdar has tried to strike a delicate balance between two competing rights. He clearly found two allegations – based on public records – against Wankhede relevant to the discharge of his official duties. Wankhede, being a public official, cannot escape public scrutiny of the documents on the basis of which he was offered a job in the Indian Revenue Services (IRS). The High Court’s direction is in conformity with the Supreme Court’s direction in R.Rajagopal in which it was held that publication relating to family and marriage is unobjectionable if it is based on public records, including court proceedings. At the same time, the High Court has sought to ensure that Malik does not make reckless allegations against Wankhede and his family without due verification of facts.
(Paras Nath Singh is a Delhi-based lawyer. The views expressed are personal.)