Friday, October 14, 2005

Dissecting IIPM's "First Notice of Legal Summons"

Yesterday, I had posted that a lawyer friend of mine, Amod Paranjape, had offered legal advice and help to bloggers in this IIPM vs Rashmi, Gaurav and Varna (I hope there are no more "judicially notarized" notices to anyone else) issue. I had also mentioned that I was trying to get Amod to take a look at IIPM's notice and dissect it for us.

Well, he has. Unlike most lawyers, he doesn't spout legalese (he does a bit, but not much beyond quoting the law where absolutely necessary) and has explained the ramifications and implications of IIPM's legal notice to Gaurav and Varna (having no access to the one sent to JAM, it's not covered here) in a language that most of us can understand. He has also explained briefly what the constitution has to say regarding the fundamental rights granted to Indian citizens. And he also explains the defamation law, and its implications, in this case.

It all sounds like a lot, but what he really has to say is not much because there is not much to say. You'll be through it all in a few minutes.

His analysis and take on the notice follows.

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I have been following the recent developments on this issue on your blog and I feel that as a student of Law I should clear some points. I am presenting my analysis and opinion in four sections for you. Bloggers may not agree with what I have to say in section four, but do give it some thought.

Now since we are dealing with an overly sensitive party at the other end, let me make a disclaimer at the outset. Let me clarify that the views and opinions expressed in what follows are my own and unless so expressly stated none of the organizations or associations that I am involved with necessarily subscribe to those views.

Also some people may agree with me and some may disagree with what I have to say. They may do so vehemently and in an aggressive manner. That is alright. This is India, a democratic state and in a democracy it is not necessary for everyone to sing the same song.

Section 1:

In this section we'll look at two things: Freedom of speech and expression and Defamation.

Now many people have this misconception that all freedoms enshrined in the constitution are absolute. Let me make that clear that the freedoms are not absolute but they are subject to reasonable restrictions.

Article 19 (1) governs the freedom of speech and expression. This freedom means the right to express one's convictions and opinions freely, by word of mouth, writing, printing, picture, or electronic media, or in any other manner (addressed to the eyes or the ears).

This is an indispensable right for the operation of the democratic system and for self development and setting up a homogenous egalitarian society. That means that you can have a view or opinion that is quite contrary to my opinion and say so to my face. However this right is subject to the following restrictions:
  1. Sovereignty and Integrity of India.
  2. Security of the State.
  3. Friendly relations with foreign states.
  4. Public Order
  5. Decency or Morality.
  6. Contempt of Court.
  7. Defamation.
  8. Incitement to an offence.
That brings us to Defamation. Defamation under Indian codified law is defined by Section 499 of the Indian Penal Code.

Defamation is defined as:
Whoever by words spoken or intended to be read, or by signs, or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing, or having reason to believe that such imputation will harm, the reputation of such person is said, except in the cases excepted, to defame that person.
Defamation under Indian Law includes both libel and slander. What defamation broadly constitutes can be stated as follows:

An intentional false communication, either published or publicly spoken, that injures another's reputation or good name, holding up of a person to ridicule, scorn or contempt in a respectable and considerable part of the community, it may be both criminal as well as civil.


The Legislature, in its wisdom, has made certain exceptions, which do not constitute defamation:
  1. Imputation of truth which public good requires to be made or published.
It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation shall be made or published. Whether or not it is for the public good is a question of fact.
  • Public Conduct of Public Servants.
  • Conduct of any person touching any public question.
  • Publication of reports of proceedings of Court.
  • Merits of Case decided in court or conduct of witnesses and others concerned.
  • Merits of Public performance.
  • Censure passed in good faith by person having lawful authority over another.
  • Accusation preferred in good faith to authorized person.
  • Imputation made in good faith by person for protection of his or other's interests.
  • Caution intended for good of person to whom conveyed or for public good.
I have not provided any explanation for the above points (2-10), as it's not necessary.

Also, In India, it is true that unless expressly barred by statute you are allowed to bring a suit for civil or criminal action. You are only warned that you may do so at your peril.

After that detailed, but necessary background, here's my interpretation:

First and foremost let me make it clear that even though I have spent nearly 5 years in trial courts I am a student of law and will hopefully continue to remain so for the rest of my life. The Law, as we lawyers like to say, is a sea and therefore subject to as many interpretations as the numbers of lawyers.

In my opinion, a corporation, an institution or a company cannot bring a suit for defamation unless certain things are complied with. Unless and untill a corporation or a company can specify whether the said article (in this case the said article refers to: JAM's article on IIPM and Gaurav and Varna's posts on their blogs) resulted in tangible business losses and provide evidence for the same, it has no grounds to proceed for defamation.

Once a defamation suit is filed, the claims made in the said article will be checked for veracity by the court. (Need I say anything further?)

Section 2

Let's take a closer look at the notice now. I am only taking the relevant parts of the notice here and not reproducing it again in its entirety.

As per the IT Act, 2000 the notice purported to be allegedly sent by IIPM to Mr. Gaurav and Ms. Varna is undoubtedly an electronic document. But it's supposed to be a notice and a legal notice has to bear a digital signature. This one has no digital signature.

I found the notice highly objectionable and am setting down some of my objections.
First Notice of legal summons to you
Warning: This email has been judicially notarized and has been tagged to validate receipt and response
Now I may be wrong (very unlikely) but summons all over India are issued by courts or authorities created by statute. Now unless the Legal and Compliance Cell at IIPM has been given the authority of a competent civil court, they cannot issue summons to anyone. That is the purview of the courts of the land.

I am similarly flabbergasted by the term "judicially notarized." For Notaries come under the purview of the Notaries Act and are appointed by their respective state governments to administer oaths, sign and verify documents, and enter the same documents so notarized in a register maintained by them for that purpose specifically.

The term judicially means, and I am quoting the law lexicon here: A standard of conduct and freedom from bias or interest which are the true attribute of a Judge.

What IIPM is trying to say with "judicially notarized" is that a judge approved of the "summons."

From IIPM's notice I can only conclude that IIPM has the Judiciary in its ranks.

The other content and jargon of the notice are as they would be, which is quite normal to us lawyers.

As for validation and response the point became moot when Mr. Sabnis himself posted the notice on his blog.
Notice: IIPM/DZI1/2005/44

Date: 4th October 2005
Subject: False articles released by you on IIPM on blogspot.com (reference blogger.com)
This means that the articles are posted on blogspot.com and blogger.com.
Well, I searched both sites (these are not the exact URLs of the posts published by Gaurav and Varna) and found no evidence of any article on both sites relating to IIPM. Google owns, and is responsible for blogspot.com and blogger.com.
I am the head of the legal and compliance counsel at The Indian Institute of Planning & Management (IIPM) New Delhi, India.
This notice is with respect to your releasing totally false articles about IIPM on the website blogspot.com (reference blogger.com) that has your clear reference and that has been released by you with proven deliberate and fraudulent intentions to harm the image of IIPM and related businesses. The articles have caused unfathomable damage to the reputation of IIPM and to its various operational areas. The articles further have affected innumerable future operations of IIPM. We have legally notarized and logged all the releases and are sending you this email to you as the first notice of proposed legal, judicial and criminal action against you that has already been approved & cleared by the Post Graduate Fellow Programme committee at IIPM.
I fail to understand what legal, judicial and criminal action means. Let me clarify.

All civil and criminal action comes under the purview of the term legal, which is fair enough. But Judicial, again quoting the evidence act, means an act involving the exercise of judicial power (Section 114).
And, Judicial, quoting the Law lexicon, means belonging to a cause, trial or judgement belonging to or emanating from a judge as such: the authority vested in a Judge.

So I guess what IIPM means is that the Post Graduate Fellow Programme Committee at IIPM is empowered to act in a judicial capacity.
Even though the damage caused by your deliberate and fraudulent intentions cannot be calculated, the proposed filing would involve an immediate damage claim from you of Rs.125 Crores; apart from other various losses (including, but not restricted to opportunity losses, sales losses, legal costs and associated expenses). Corollary claims and subsequent parallel criminal and civil actions are being notified further on.
If the damage cannot be calculated, how was and on what criteria the claim for Rs. 125 crores arrived at?
We are also providing your details to respective national and regional police authorities for undertaking and implementing immediate arrest warrants against you. We are also providing your details to various corporations within India and abroad to inform them about the judicial, legal and police action against you; thus ensuring that your details are well documented.
In my interpretation, this means that IIPM will make it quite hard for Gaurav and Varna to get a job. Now I feel that Gaurav and Varna have enough grounds to proceed against IIPM for infringing on their fundamental right to practice any trade, profession of their choice.

Section 3:

Now what does all this this impact me? Amod Paranjape, the individual. What does it mean to each of us as individuals?

Ask any lawyer practicing law in India and he will tell you that there is nothing more sacred to him in the constitution (Ok, maybe not all lawyers, but most of them would say that).

Last time I looked, In India that constitution guaranteed all of us some freedoms.
The freedom to feel elated when Rahul was made captain,
The freedom to feel dejected when Sachin failed to find form.
The freedom to read any book not banned by law.
The freedom to say that I liked it.
The freedom to say that I hated it.

The freedom (and the right) to call any claim "crap" if I find and feel that the claim is false.

What Gaurav and Varna are being told by the notice is that they have no freedom of speech and expression.

Section 4:

The desi blogosphere, as you guys like to call, it has existed for quite a few years now, if I am not mistaken.

Bloggers have also done tremendous work, in times of crisis (the tsunami, July 26 cloudburst, and now the South Asia quake) and I commend you for that.

You all are a fairly large group. Some of you attend blogger meets and have tons of good conversation and coffee.

What amazes may is that you are still not organized, that you do not have a association.
I know that most of you guys will not like to be part of any establishment, but lets us be honest. In numbers lies your strength.

Desipundit has become the rallying point for you all in this issue. But it is not an association.

And maybe, it's time that you all think of having one that'll fight for your rights, ward off attacks, protect your interests and become an advocacy group for you all.

Give it a thought.

And do not worry about such "summons."

Cheers,
Amod

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That's about it folks. A big thanks to Amod for taking some time out of his (not so) busy schedule and clarifying IIPM's notices for us. If you have any doubts on this issue, leave a comment, and I'll get him to answer it. You can also email him directly at: amodparanjape [at] gmail [dot] com.

Do visit Desipundit for the latest on this issue.

And while you are at it, check out Huree Babu's six things that the Indian Institute of Ponytail Management could use in its war against bloggers.

My earlier posts on this topic: here, here, and here.

5 comments:

Nirav said...

I think this is excellent work... Thanks to you and Amod. Also, could you ask Amod one more thing? What are the possibilities, and likely outcomes of filing a PIL against the intitute?

Thejesh GN said...

Thanks for the analysis. I had thought on similar lines. But its good to hear from a lawyer. Specially I liked section 2...because even I thought on similar lines.

mandar talvekar said...

Hi Nirav,
A PIL is the first thing that crosses our minds nowadays -- so much seems to be happening through them. PILs are in fashion nowadays. When this issue hit the blogosphere, this was amongst the things that I discussed with Amod. Would a PIL have any impact on this case?

What he said made a lot of sense. PILs, due to their proliferation, have become incresingly known as Publicity Interest Litigations. The courts tend to frown upon them, unless they have been really good grounds to file one.

Also courts prefer the PIL to come from a third party -- someone who is interested in the issue but not in anyway party to it. That would leave the desi bloggers out -- as most have blogged about it and made it clear where their support and interests lie. This is not saying that a desi blogger cannot file a PIL in this case, but it would be infinitely better if somebody else (apart from the bloggers who received the notice and other bloggers) files it. One, of course, cannot predict the way the courts will go on in any case. Suffice to say that a case where fundamental freedoms and rights are involved would be highly discussed and analyzed even by the courts and might take ages.

More simpler for everyone would be if an IIPM student wakes up and decides to file a case asking rebate for the alleged misleading claims made by the institute.

ponytail said...

http://indianinstituteofponytailmanagement.blogspot.com

Ashok said...

My dig at IIPM ads. And my unbiased valuation of the episode.