‘Court order on NSE’s lawsuit upholds media’s freedom to report without being needlessly harassed’: Sucheta Dalal

Moneylife Managing Editor points to key passages in the Bombay High Court order that uphold free speech.

WrittenBy:Manisha Pande
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The Bombay High Court order on the National Stock Exchange’s (NSE) defamation suit is in many ways not just a win for Moneylife but journalists as well. The court order upholds the media’s right to report (responsibly) and states that “defamation law is not to be used to gag, to silence, to suppress, to subjugate”.

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In a quick email exchange, Moneylife Managing Editor Sucheta Dalal tells me more about the order and fighting the good fight.

This is a big win for Moneylife. Your thoughts on the Bombay High Court order?

The case is not yet resolved. This was just the Notice of Motion [NoM] for an interim order. The law suit can still go on and this order can also be appealed. So, this is just one battle – the war is still to be won.

We are naturally delighted and humbled by such a strong order and costs in the NoM stage. But it would be inappropriate to say more at this stage.

Do you think the order sends out a message to those who may be using defamation laws to silence journalists or prevent them from reporting on a particular story?

I think the order does send out a strong message upholding the media’s freedom to report without being needlessly harassed. However, it would be incorrect to generalise. I think the facts and circumstances of the case are also very important. What Justice Patel’s order says in the context of ordering costs probably explains the situation.

Here’s what the order notes: “There are, however, in my view exceptional circumstances in which an action that is entirely and deliberately mala fide in its intent ought to receive an award of costs, if nothing else then at least as a matter of conveying to such a Plaintiff that Courts do not view these matters lightly. To any protest that an award of costs is unjustified because these costs represent ‘public funds’, the answer is simply that so do the considerable legal costs and court fees incurred by the NSE. Our Courts are not to be treated as playgrounds for imagined and imaginary slights for those who command considerable resources.”

What about journalists? Any key takeaways for them?

Here again, we can do no better than quoting what Justice Patel has said in the context of muzzling free speech.

He says: “More and more, in the name of security or reputation, we are increasingly too eager to surrender this [free speech], and its sister, freedoms. When we do so we forget: we forget that these freedoms are vital to our survival and our existence as a nation, as a people. We forget that these freedoms have not come easily. They have not come cheap. They were hard won after years of sacrifice and toil and struggle. They have not been given. They have been forged. We surrender them at our peril. 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 over-simplification. It is fashionable these days to deride every section of the media as mere papparazzi, 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.”

You waited for nearly five months before publishing the story — waiting all the while for a response from NSE? Did you then expect NSE to take you to court?

No. I did not wait for five months for NSE’s response. I was working on verifying the story. Only when I was satisfied that the whistle-blower’s letter was correct, did I write to SEBI [Securities and Exchange Board of India] and NSE for their response.

A Rs 100-crore defamation suit can be intimidating. Did you at any time worry about losing the court battle? Tell us a bit about how such lawsuits affect media organisations, especially the smaller, independent ones?

I would not like to dwell on this, since the war may still have to be fought if good sense does not prevail. But I can tell you just this. It is tough. Very tough for a tiny publication like ours, where Debashis [Basu, editor and co-founder, Moneylife] and I do the work of several people.

While we did appear ourselves, we are truly grateful for the unstinting support of several well-wishers who backed us and supported us in this fight. While we cannot mention many of them, we certainly owe a lot to Dr Subramanian Swamy for his encouragement and for helping us put together our original response with all the cases that we needed to look up and research!

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