MUMBAI: Observing that Nationalist Congress Party (NCP) senior leader’s tweets against Narcotics Control Bureau zonal director Sameer Wankhede are "actuated by malice and or personal animosity", Bombay high court on Monday however, said that at this stage, a blanket relief to restrain Maharashtra minister Nawab Malik from making allegedly defamatory tweets and posts in media cannot be granted as sought.
The ad-interim order--urgent initial orders-- was in response to an interim application filed by Dnyandeo Wankhede, father of Sameer Wankhede to restrain Malik, his party members or others under his instructions from posting publicly in any media including social media, any defamatory content against his family.
Justice Madhav Jamdar said that though the tweets--the few that he perused-- raised very important issues concerning the acts and conduct of Sameer Wankhede who is public official, there has to be a balancing of right to privacy of the NCB officer’s family with Malik’s freedom of speech, both fundamental rights under the Constitution.
The HC order said, "The right to privacy is implicit in right to life and liberty guaranteed to the citizens of this country by Article 21. A citizen has right to safeguard his privacy, however, the Defendant has made allegations against the Plaintiff’s son – Sameer Wankhede, who is presently posted as Zonal Director of Narcotics Control Bureau, Government of India and, therefore, he is public officer. The public have right to examine and comment on actions of public officials. However as held by the Supreme Court it has to be done after reasonable verification of the facts."
The HC said, "It cannot be said that (Malik) acted after reasonable verification of the facts, however, at this prima facie stage and on the basis of material on record, it cannot be said that allegations made by him are totally false."
"However, it is necessary to direct the Defendant (Malik) that he should conduct reasonable verification of the facts before publishing, writing, speaking in media including electronic media and the social media or publishing in any manner whatsoever any content/material which amounts to defamatory of Plaintiff or his family members," said Justice Jamdar in a 50-page order. He sought a reply from Malik to Wankhede’s plea within two weeks and posted the matter for further hearing to December 20.
Malik through senior counsel Atul Damle had argued that Sameer Wankhede was a "Muslim" at birth and argued that the defamation suit is not maintainable.
While senior counsel Arshad Shaikh for Wankhede said that Malik has not done due verification before tweeting “defamatory” content. The HC also said, "it is It is very important to note that" Wankhede produced several documents to substantiate his contention that his "name is Dnyandeo and he belongs to “Mahar” caste recognised as scheduled caste.’’
"Prima facie there is substance" in Shaikh’s contention that Malik did not act after reasonable verification of facts.
The HC also said, "In the present case it is true that( Wankhede) has come up with the case that his family consisting of his daughter, son and daughter-in-law is defamed but he has also come up with positive case that he himself has been defamed." Prima facie the suit filed by Wankhede appears to be maintainable, said the HC.
The HC went into the concepts of privacy, right to speech and reputation and said, “Reputation being an inherent component of Article 21 (right to life), it should not be allowed to be sullied solely because another individual can have its freedom. Therefore, 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 HC said, "Right to privacy is implicit in the right to life" and it is a "right to be let alone". But when records are public and include court records "right to privacy no longer subsists and it becomes legitimate subject for comment by press, media and others."
The HC said, "However, publication concerning the aforesaid aspects becomes unobjectionable if such publication is based upon public records including Court records. This is so as once a matter becomes the matter of public record, the right to privacy no longer subsists and it becomes legitimate subject for comment by press, media and others."
"In case of 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 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," said the HC. It added, "In matters not relevant to discharge of his duties, the public official enjoys the same protection as any other citizen. 13.8. Right to privacy as an independent and distinctive concept originated in the field of Tort law, under which a new cause of action for damages resulting from unlawful invasion of privacy was recognised."
Justice Jamdar said his prima facie findings after viewing only a few tweets are that, "The factual position on record show that the Defendant (Malik) has raised very important issues concerning the acts and conduct of Plaintiff’s son - Sameer Wankhede who is public official."
What Justice Madhav Jamdar said:
* It is Nawab Malik’s case that his tweets and press conferences are to highlight to the public that (a) Sameer Wankhede is Muslim by birth and that he has secured the Government job by falsely claiming to be from scheduled caste and (b) that there is material to show he sought illegal gratification in cases filed by NCB. These relate to official duties of Sameer Wankhede.
* It is also very important to note that Malik’s son-in-law was arrested on January 13 by NCB in NDPS case and released on bail on September 27 and the tweets etc. started from October 14. Thus, it is obvious that the tweets etc are actuated by malice or personal animosity.
* Sameer Wankhede is a public officer. The public have right to examine and comment on actions of public officials. However as held by the Supreme Court it has to be done after reasonable verification of the facts.
* It is necessary to balance Wankhede’s right to privacy and Malik’s right of freedom of speech and expression. Therefore, although the Plaintiff is not entitled for blanket injunction as sought, But when his tweets are actuated by malice he should be directed to publish only after carrying out reasonable verification of the facts
* Prima facie there is substance in the contention of (Arshad) Shaikh—Wankhede’s counsel-- that the Defendant (Malik) has not acted after reasonable verification of facts.
* Without going into the correctness and authenticity of the documents produced by Malik, it is clear that while making tweets etc about allegation No.1 (that he is a Muslim by birth and secured job falsely) has not carried out reasonable verification of facts.
* The documents now sought to be produced on November 16 are obtained after the matter is reserved for orders on 12/11/2021 and in any case has been obtained by Malik after making tweets, other media content
* Malik should have reasonably verified the facts before making allegations.
Shaikh submitted statement of Deputy Director General of the central agency Mutha Ashok Jain published on 22/10/2021 by ANI:- “Following Maharashtra Minister Nawab Malik’s claim that Narcotics Control Bureau (NCB) zonal director Sameer Wankhede visited Dubai to extort money, the Deputy Director General of the central agency Mutha Ashok Jain on Thursday said there was no application from Wankhede for going to Dubai.” “After joining NCB, there was no application from him (Sameer Wankhede) for going to Dubai. He sought permission for going to Maldives with his family.” Jain told mediapersons here.”
Justice Jamdar said: "Thus, these aspects also show that the Defendant (Malik) has not taken due care and has not conducted reasonable verification.
However at the same time it has to be seen that very serious allegations are made against Plaintiff’s son-Sameer Wankhede by Panch-Prabhakar Raghoji Sail in his affidavit of October 23, 2021.
