Sameer Wankhede Vs Nawab Malik Defamation Suit- "Public Have Right To Examine And Comment On Actions Of Public Officials, After Reasonable Verification Of Facts": Bombay HC

On Monday, the court refused to temporarily restrain Malik from making public statements or social media posts against NCB's Zonal Director Sameer Wankhede and his family.

Justice Jamdar held that for a public official to make out a case for damages, he must prima facie show the defendant failed to reasonably verify facts.

"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 a reasonable verification of the facts….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," the court held.

The court noted Malik's counsel's arguments that evidence produced by the Minister has helped the government machinery to take corrective steps and a vigilance inquiry is now pending against him. Malik alleged that despite being born a Muslim, Wankhede entered the Indian Civil Services under the category of Scheduled Caste.

While the court refused to restrain Malik for posting against the Wankhede's, Justice Jamdar cautioned that Malik seems to have tweeted only after his son-in-law's arrest and subsequent bail in an NDPS case.

"It cannot be said that the Defendant(Malik) has 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 the Defendant are totally false."

"The factual position on record show that the Defendant has raised very important issues concerning the acts and conduct of Plaintiff's son - Sameer Wankhede who is public official."

The court refused a blanket injunction to Dhyandeo. However, the court directed Malik to publish writing, speaking with media including electronic media and the social media or publishing in any manner whatsoever any content/material which is defamatory of the Plaintiff and/or his family members only after carrying out reasonable verification of the facts."

Defamation Suit Maintainable

Significantly, referring to Nawab Malik's posts against Dhyandev Wankhede, Justice Jamdar observed that prima facie the suit appears to be maintainable.

"In the present case it is the allegation that Plaintiff's name is Dawood and not Dnyandev and therefore, allegations are made against Plaintiff himself. Apart from that prima facie even if allegations are made against Plaintiff's son, in the facts and circumstances of this case the Plaintiff is also defamed in the process. Therefore, at this ad-interim stage although I am not dealing with the said contentions in detail, however, prima facie the suit as filed appears to be maintainable in the facts and circumstances of this case."

Sameer Wankhede a public Officer

The court observed that even as the Wankhedes had the right to protect their privacy, allegations were made against the son who is a public officer and the public has the right to examine and comment on actions of public officials after verification.

"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."

Right to Privacy vs Freedom of Expression

Justice Jamdar culled out the legal position on the right to privacy versus freedom of speech and expression based on the Judgement in Justice K. S. Puttaswamy (Retd.) vs UOI, Subramanian Swamy Vs. Union of India, R Rajgopal vs Tamil Nadu.

The court thus held:

1. "Reputation being an inherent component of Article 21, 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.
2. "Reputation" of one cannot be allowed to be crucified at the altar of the other's right of free speech.
3. Right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a "right to be let alone". A citizen has right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among other matters.
4. None can publish anything concerning these matters whether truthful or otherwise without citizen's consent.
5. 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.
6. 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.