Arvind Kejriwal's Lawyer Says Retweeting Dhruv Rathee's Video Was Mistake, Supreme Court Stays Defamation Proceedings Till March 11

Today, a bench of Justices Sanjiv Khanna and Dipankar Datta adjourned until March 11 the hearing of Kejriwal's special leave petition challenging a February 5 ruling of the Delhi High Court refusing to quash the summons. After the AAP supremo admitted that the retweet was a mistake, the court allowed time to the complainant to decide whether he was agreeable to the case being closed. In the meantime, the trial court was instructed not to take up the matter.

During today's session, Senior Advocate Abhishek Manu Singhvi, representing the chief minister, argued that the complaint was based solely on a retweet and that the original complaint was withdrawn before being refiled nine months later. "It's a case of defamation just for retweeting on X. This complaint is followed immediately by pre-summoning evidence being recorded. After this, the complaint is withdrawn. When it is refiled, nine months after the incident, it was suppressed that the original complaint was withdrawn."

"It's an exact retweet. No addition, no deletion. Nothing," Singhvi added. The technical point of the complaint being refiled after initial withdrawal may not be sufficient grounds for issuing notice, Justice Khanna said, before raising a crucial point regarding retweets. He suggested that there may be two ways to interpret a retweet: as an endorsement or as sharing information found on the social media platform.

"When it comes to retweets, there may be two ways to look at it: One is an endorsement. If it is an endorsement, then it may have its own consequences. The other way to look at it is, you found something on the internet or on the website and you are just sharing that information."

"That's the precise point to be decided," Singhvi said, "Unfortunately, the high court has taken the first view of retweets as endorsements."

"Dr Singhvi, will that not be a matter of evidence in such a case? For a layperson, whether it is the first one or the second one, will be a matter that has to be determined based on evidence," Justice Khanna reasoned.

Singhvi indicated that he would be able to persuade the court to the contrary, but also expressed his client's willingness to admit that the retweet was a mistake. "There's no problem in admitting that this was a mistake if he had known that these would be the consequences."

In response to this submission, the bench asked the complainant if he would be amenable to closing the case in view of Kejriwal's admission that his retweet was a mistake. Advocate Raghav Awasthi, representing the complainant, sought instructions before agreeing to close the case.

Singhvi then requested an adjournment before the trial court, stating that they were prosecuting Kejriwal swiftly. "They are prosecuting him very fast. They are hotfooting it. We will request for an adjournment before the trial court. Let them agree..."

Awasthi replied, "We will be agreeable to an adjournment if the matter is listed next week."

Justice Khanna said that Kejriwal need not appear in court for now, given the office he occupied. Singhvi expressed gratitude for this assurance, but added, "I'm saying something else. In the context of elections, they are expediting the trial..."

Awasthi protested. "I don't think this motive can be imputed to me," he exclaimed.

Signalling an end to the exchange, Justice Khanna interjected, "He's not saying so. You also please appreciate that he has come forward and said what he has said. Don't be..."

The judge then directed the hearing to be adjourned until March 11, Monday, allowing the complainant's lawyer to 'seek instructions' on the issue of closing the case. Importantly, he also directed that the matter will not be taken up by the trial court in the interregnum. He pronounced, "Relist on Monday, March 11. Meanwhile, the matter will not be taken up by the trial court."

Background

Charges of defamation have been levelled against Kejriwal for retweeting a video by YouTuber Dhruv Rathee's tweet on 'X' (formerly, Twitter), claiming that that one Vikas Sankrityan alias Vikas Pandey offered Rs 50 lakh through a middleman to one Mahavir Prasad to withdraw allegations that the BJP IT Cell spreads fake news. Pandey, professedly a supporter of Prime Minister Narendra Modi and the founder of social media page 'I Support Narendra Modi' lodged a complaint against Kejriwal for retweeting Rathee's video.

Earlier this month, the Delhi High Court held that each retweet of defamatory content on social media constitutes 'publication' for the purposes of the offence of defamation under Section 499 of the Indian Penal Code, 1860. The extent of harm caused, the court said, would depend on the influence and reach of the individual. It was noted that if defamatory content is retweeted by an individual with negligible followers or limited influence, the impact on the complainant's reputation may be less severe.

While dismissing Kejriwal's plea, Justice Swarana Kanta Sharma affirmed criminal liability for retweeting and emphasised that it is up to the aggrieved person to determine which retweet caused more harm to their reputation and credibility within society. The court highlighted the wider impact of a chief minister's social media following, indicating that any retweet from such a figure amounts to a form of 'public endorsement or acknowledgment'. As a public figure with political standing, Kejriwal was also presumed to be aware of the potential impact of his retweets on public perception.

The court also underscored the difficulty in erasing reputational injury from public memory, highlighting the lasting impact of social media posts. It stressed that retweeting defamatory content, even with a minimal following, could attract penal action under Section 499 of the IPC. Furthermore, the judgment emphasised the responsibility of public figures in disseminating information on social media. It cautioned against retweeting defamatory posts without due diligence and care, noting the far-reaching consequences of such actions.

In response to the Delhi High Court's ruling, Kejriwal has taken his case to the Supreme Court, seeking redress against the judgment.