My Comment: To be very frank, I find this argument of the AAP of defamation case against Kejriwal being a public, not private, issue completely frivolous. How can anybody file a public defamation case against anybody when defamation per se is an infringement of privacy rights of a person. If Mr. Sisodia is saying that it was Delhi government through Kejriwal, not Kejriwal personally, who allegedly defamed Jaitely then Jaitely ought to have filed this case against the Delhi government, and Kejriwal ought to have taken this objection at the outset in the suit for misjoinder of parties through his lawyer Jethmalani. The fact he didn’t and nor did it seems Jethmalani adviced him to do so, now precludes him from taking such an objection, for pleadings can’t be amended after the trial has commenced. In fact, by raising such an argument, Sisodia might be committing another defamation…ironically of Jethmalani this time for not rendering proper advice. BTW, an interim bill of Rs 3.8 crores to defend a defamation case of Rs 10 crores is anyways a very poor decision of the Delhi government touching upon corruption. I am surprised the Delhi government is entering into this controversy when the local body elections are round the corner. Incredible!
P.S. I think it would be necessary to explain how defamation is infringement of privacy. Infringement of privacy of a person occurs when a public statement is made against the person sans occasion. Privacy can be any of the following: constitutional right, statutory right, common law right. In India, it is a negative fundamental/constitutional right against the State (till now at least). It is also a statutory right under some statutes both against the State and private persons, but there is no comprehensive statute dealing with infringement of privacy. And, most prominently, it is a common law right under the law of torts. Defamation is a tort. In many common law jurisdictions, privacy per se has been recognized as a tort as a right to be forgotten, but I don’t think there are any precedents of such a right in India. However, defamation is nevertheless a species of the generic tort of privacy — it is actually ironical that under common law, the species is recognized before the genus, but that’s normal in common law jurisdictions because common law has grown organically and gradually through precedents.
Defamation is publication of false information. Had the information been true, there would have been an occasion to publish it because as already stated the right to be forgotten doesn’t exist in India, and thus the occasion exists to make a publication of true information, however much it may lower the image of the person concerned — if a girl is a prostitute, you can call her that sans the fear of law of defamation. But, as per law, any publication made against a person is prima facie defamatory. The onus of proving that the publication was true lies on the publisher. So, it is in the above perspective, it becomes extremely important to think twice before making any statement against anybody because even if you might be speaking the truth, you might not be able to prove it in the court. So, don’t call a journalist a prostitute; don’t call a politician a pimp; don’t call a policeman a thulla (Ok…this you can do because the judges don’t know the meaning of thulla).
Also, if you have been clever enough to run a defamation campaign against a person artificially lowering his reputation — by constantly calling all journalists prostitutes, you make the image of a journalist as that of a prostitute — you don’t cause any loss to the reputation even if you defame the person because he never had any reputation to lose. Unfortunately, law of torts only compensate you for your damages, not your injuries, so even though you may have suffered an injury by the defamatory statement made against you, you may still not have suffered any damage as you already had a bad reputation and had nothing to lose (Injuria Sine Damno). So, all those journalists who have come to terms with being called prostitutes, wake up and make sure the minister who started it has to quit immediately else you will never be compensated in any court ever for being called a prostitute.
BTW, in the Kejriwal matter, Jethmalani was trying precisely this in Jaitely’s cross examination, but I am surprised a senior lawyer like him would be playing so brash as to get an admission of no reputation from a consummate lawyer like Jaitely in his cross examination. We will have to see what Kejriwal has in evidence to lead against Jaitely to prove the truthfulness of the statements made by him because making a judge believe that Jaitely never had any reputation is next to impossible. I don’t think the citizens of Delhi are willing to pay Rs. 3.8 crores to Jethmalani for this legal misadventure. I would rather advice Kejriwal that if he can’t prove the truth , it’s better to settle this matter with Jaitely and respectfully fold his hand before Jethmalani — that’s what I saw a destitute Nepali do in a bus ride in Dehradun when he didn’t have any money to pay the bus fare; can’t remember if he said “Bharat Mata Ki Jai” also, but no harm in saying it because this one thing never fails to work in India, whatever the occasion.
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