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Wednesday, December 08, 2021

For the Record: Watchdogs respond to whistles and whistles need whistleblowers

The NSE complains that an article published on June 19 by Sucheta Dalal and Debashish Basu on moneylife.in is per se defamatory.


Updated: September 23, 2015 12:10:31 am
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On Monday, the Bombay High Court ordered a two-week stay on a judgment by it that has implications for cases of defamation. Edited excerpts of the original September 9 judgment by Justice G.S. Patel in ‘National Stock Exchange vs Moneywise Media, Sucheta Dalal and Debashish Basu’ are below:

The NSE complains that an article published on June 19 by Sucheta Dalal and Debashish Basu on moneylife.in is per se defamatory.

I do not believe that a defamation action should be allowed to be used to negate or stifle genuine criticism, even pointed criticism or criticism that is harshly worded; nor should it be allowed to choke a fair warning to the public if its interest stands threatened in some way. It is to me a matter of great dismay that the NSE should have attempted this action at all. Every criticism is not defamation. Every person criticised is not defamed.

Defamation law is not to be used to gag, to silence, to suppress, to subjugate. Dalal and Basu are I think correct generally when they say that of all the freedoms guaranteed by Article 19 of the Constitution, the freedom of speech and expression is arguably the most volatile, the most sensitive to assault, and the most precious. Its restrictions, and defamation law is indeed such a restriction, are to be narrowly construed. Defamation is a very thin red line. It must not be crossed, but it is not actionable only because it is approached, however closely. It is indeed protected fair comment when questions are raised in the public interest after due care is shown to have been taken to elicit a response. It is no answer at all to then say that no question of muzzling free speech arises, or to simply allege that there might indeed yet be an answer, and it matters not that that answer, or what passes for it, was not provided when an opportunity presented itself, and the fact of that answer being sought is so wholly concealed.

More and more, in the name of security or reputation, we are increasingly too eager to surrender this, and its sister, freedoms. We forget that these freedoms are vital to our survival and our existence as a nation, as a people. To suggest, as the plaintiffs do, that because they are a much-vaunted public body, they are, only for that reason, immune from all error and wrongdoing is, I think, a grotesque oversimplification. It is fashionable these days to deride every section of the media as mere paparazzi, chasing the salacious and steamy. We forget again. None of the scams and the leaks of the past two decades would have been possible without journalists, editors, newspapers and television news anchors. We have grown accustomed to mocking them. We deride their manner, describing them as loud, brash, obnoxious, abrasive and opinionated. We forget. We forget that but for them the many uncomfortable questions that must be asked of those in authority and those with the sheer muscle power of money would forever go unasked and unanswered. We forget that it is these persons we are so wont to mock who are, truly, the watchdogs of our body politic, the voice of our collective conscience, the sentinels on our ramparts. They may annoy. They may irritate. They certainly distress and cause discomfort. That is not only their job. It is their burden. Watchdogs respond to whistles and whistles need whistleblowers; and between them if they can ask what others have not dared, if they can, if I may be permitted this, boldly go where none have gone before; if they can, as they say, rattle a few cages, then that is all to the good.

Today, all our institutions face the crisis of dwindling public confidence. Neither the NSE nor the judiciary are exceptions to this. It presents a very real dilemma, for the existence of our institutions is posited on that very public confidence and faith and its continuance. The challenge is, I think, in finding legitimate methods of restoring that public trust, that balance. Hence the cries for transparency and accountability everywhere; and I see no reason why the NSE should be any exception to this. Quelling dissent and doubt by strong-arming seems to me a decidedly odd way of going about restoring that public faith. It is not a move that, from a public institution, readily commends itself.

For public bodies and figures, I would suggest that the legal standard is set higher to demonstrated actual malice and a wanton and reckless embracing of falsehood though countered at the first available opportunity. I do not think it is reasonable to propose a legal standard of utter faultlessness in reportage or public comment in relation to such bodies or persons. If there is indeed a factual error, can it be said to have been made in good faith, and in a reasonable belief that it was true? The “actual malice” standard seems to me to suggest that one or both of these must be shown: intentional falsehood, or a reckless failure to attempt the verification that a reasonable person would. In this case, I do not think that the plaintiffs have met that standard, or demonstrated either intentional falsehood or a failure to attempt a verification. The burden of proof in claiming the qualified privilege that attaches to fair comment can safely be said to have been discharged.

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