What is slapp litigation and how corporates use it against media houses and whistle blowers in India?

Strategic litigation against public involvement is big businesses’ go-to threat against journalists and activists who expose their unethical practices. A recent ruling by the Supreme Court upholding the IPC’s defamation laws is a blow for those who promote free speech. Any editor who is well-informed will tell you that publishing journalism that focuses on the wealthy and powerful is hazardous and invariably results in a prolonged court battle.

In addition to being pressured to delete reports and apologize, the journalist in question must defend himself against a number of legal actions and defamation notices.In other words, individuals who dare to reveal high-level corruption wear the crown of unease.The malicious whistleblower | The Indian Express

Strategic Lawsuit Against Public Participation, or SLAPP, is the abbreviation meaning a SLAPP lawsuit often has no validity since it “is meant to frighten and silence” a party from exercising their right to free expression by making them pay for a legal defense up until the point when they stop criticizing or opposing the plaintiff.

The idea of a SLAPP case originated in the US, when it was discovered that certain lawsuits were brought against individuals or groups of litigants who publicly expressed their concerns about significant or essential societal issues. Such lawsuits were filed with the intention of silencing the defendants from exercising their right to free expression while also placing a financial burden on the individual or group plaintiffs via the cost of fighting the litigation.

Libel, slander, defamation, abuse of process, malicious prosecution, conspiracy, invasion of privacy, and tortious interference with contracts or commercial ties are common grounds for SLAPP lawsuits. The most typical SLAPP lawsuits have included a large firm suing local residents for speaking out against it. Although there is no comparable federal law, 26 US states have passed anti-SLAPP legislation in response to the increased frequency of these lawsuits. There are three sorts of legislation that have been adopted by the various states in the US: limited, moderate, and wide.

In addition to these US states, several other jurisdictions across the world have banned SLAPP lawsuits. There isn’t a formal law on the topic in India, though. Rarely have the Indian courts been challenged regarding SLAPP lawsuits. Given the obvious lack of regular determination of lawsuits to acquire the character of a SLAPP action, Indian jurisprudence may not have much to say on the subject.

The provisions of Order 7 Rule 11 of the Code of Civil Procedure, 1908 (CPC) may be interpreted broadly enough in the Indian context to imply that the anti-SLAPP concept is contained inside a legislative statute. The CPC’s Order 7 Rule 11 deals with the rejection of a complaint, and the court is required to do so if the complaint fails to identify a cause of action.

According to the judicial interpretation of the aforementioned clauses, the court must solely rely on a simple and intelligible reading of the complaint to reach a conclusion about the absence of any cause of action in the complaint. 3 However, the defense must establish a convincing case that the plaintiff failed to disclose a reason simply by reading the complaint.167 Whistleblower Human Role Illustrations & Clip Art - iStock

JUDICIAL Background

Due to the lack of specific legal provisions addressing anti-SLAPP, Indian courts haven’t had much opportunity to examine the idea. According to Order 7 Rule 11 of the CPC, judgments on the rejection of a complaint have not addressed the application of the anti-SLAPP doctrine. However, the concept is now increasingly being brought up in Indian courts. In relation to SLAPP actions, the Delhi High Court has rendered two rulings, both of which were rendered in 2009.

In Crop Care Federation of India v. Rajasthan Patrika (PVT) Ltd & ors [2009], the Delhi High Court was presented with the following facts.

The plaintiff was a business with shareholders and members who were authorized to manufacture insecticides. The newspaper Rajasthan Patrika was the first defendant, and the other defendants were newspaper staff. The plaintiff filed a complaint with the High Court alleging that the defendants’ several articles on the purported quantities of pesticides the firm employed and the alleged negative impact these had on plant and animal life in Rajasthan Patrika had wronged her.

The lawsuit claimed that all pesticide and insecticide firms, which effectively comprised all of the plaintiff’s members and stockholders, were generally tarnished in these publications. The plaintiff in a defamation lawsuit must be an individual or a specific entity, according to the defendant’s application under Order 7 Rule 11 of the CPC. It was contended that the plaintiff could not be regarded as a determinate entity since it was an association of different firms, corporations, and individuals from all throughout India and that a defamation lawsuit would not be viable as a result.

After carefully examining the arguments, the court concluded that it would be incorrect to claim that any reference to the plaintiff had been made in order to hold that defamation had occurred because both parties had agreed that there was no direct reference to the plaintiff and/or any of its members in the impugned articles. According to the court, a defamation lawsuit could not be sustained if the allegedly defamatory words did not relate to a specific or identifiable class of people.Help, I'm a whistleblower! Tips when speaking up |

The court further determined that the lawsuit met the requirements for a SLAPP lawsuit, which is used to suppress, intimidate, and silence opponents. It was noted that the current lawsuit was a step in that direction and that the term “SLAPP suit” can be interpreted more widely to encompass lawsuits involving speech on any public subject. It was determined that the plaintiff was attempting to stifle the expression of such opinions by bringing the current lawsuit in Delhi about publications in Rajasthan on topics that were of public significance but required debate.

The lawsuit was not filed by a manufacturer who was truly wronged and who alone may have had grounds for action, but rather by a trade organization that was incorporated as a corporation limited by guarantee. There was a clear attempt to silence the discussion on the use of pesticides and insecticides. Whether such usage or misuse of pesticides over time will impact plant or human life is a topic of debate, but it is not one that can be put to rest by a SLAPP lawsuit that is meant to intimidate.

In light of the foregoing arguments, the court ruled that the plaint was dismissed in accordance with Order 7 Rule 11 of the CPC because, taken as a whole, it could not be considered to have disclosed a cause of action, revealing any defamation.

The Wire withdraws its Supreme Court petition in the Jay Shah defamation case, saying it will go to trial.

For an article published in October 2017, Jay Shah filed two lawsuits against the website: one for criminal defamation and the other for a civil action of Rs 100 crore. The petitioners decided to appeal to the Supreme Court in July after the Gujarat High Court declined to throw out the defamation charge.

The story claimed that within a year of the ruling Bharatiya Janata Party taking office in 2014, his company’s earnings had increased dramatically. The BJP’s national head, Amit Shah, wasn’t a member of the Union Cabinet at the time. The journalist who broke the story, Rohini Singh, the founding editors of The Wire, Siddharth Varadarajan, Siddharth Bhatia, and MK Venu, as well as managing editor Monobina Gupta, public editor Pamela Philipose, and the Foundation for Independent Journalism—which owns The Wire—had all been named in the complaint.Whistleblowing - How to Avoid Retaliation in the Workplace

Anil Ambani vs. Mukesh Ambani in 2008

Anil Ambani filed a lawsuit against his brother Mukesh for defamatory allegations made by the latter during an interview with the New York Times, seeking damages of Rs 10,000 crore. Additionally, the American magazine and a few Indian periodicals that published this were designated as responders. After the brothers’ truce a few years later, the case was withdrawn.

2014: Veritas vs. Indiabulls

Veritas Investment, a Canadian investment company, sued Indiabulls in Ontario for allegedly defamatory press releases and announcements that led to the termination of its India research services. Veritas Investment sought $11 million (Rs 70 crore) in damages. Indiabulls prevailed in the Delhi High Court to get an interim restraining order. A few months later, it also filed a lawsuit against Veritas and its analyst, Neeraj Monga, seeking damages of Rs 200 crore for their contributions to the Ontario claim.

Whistleblower Protection in India

The umpire or judge who calls out a foul or other error in the game is referred to as the whistleblower. According to this reasoning, whistleblowers do the same task; they inform the public at large and governmental authorities who should be informed of such illegal or dishonest activities by the persons, organizations, institutions, or any other public or private entity engaged in wrongdoing. This method of whistleblowing entails speaking out against a certain organization’s bad intentions and deeds. Whistleblowing enables the government to keep track of unlawful work and corruption, which are on the rise these days.

Internal Whistleblowers

These are whistleblowers who only alert or report to the higher authority of the organization when a wrongdoing is about to be committed, and only the superior of the business or organization has the right to check such action. Typically, the investigation and process to stop the illegal work are not handled by the government.

External Whistle-blowers

External whistleblowers are people who alert external parties to ongoing criminal activities in a certain organisation or business, such as media reporters or concerned government authorities. Since it contains the sort of content that might not be advantageous to the broad public, the public’s safety and benefit are the main reasons for reporting it to the outside authorities. The organization’s lackadaisical reaction to fraud or other criminal activity may be other grounds for exposing it to outside authorities.Whistleblower lawsuits, settlements and awards |

Corporation-wide frauds

Fraud at the Ranbaxy Company

Dinesh Thakur, a whistleblower who worked there, brought this scam to the public’s attention. He raised this issue with the proper authorities since he didn’t believe the business he worked for was engaged in anything illegal. But soon after that, due to serious charges regarding his troubles with medication development, production, and testing data, he was forced to leave the firm. He quit his job and went to work for the US Food and Drug Administration. It was at this time that he was able to reveal the illegal activities carried out by the Ranbaxy Corporation. Only because he chose to be protected by the US whistleblower protection program was this feasible.

The rules and existing gaps make it clear that there have been significant problems with the actual application of the laws affirmed for whistleblowers. Being a whistleblower and going up against any company to expose the truth and defend those who need to be protected by the proper application of the laws created requires a lot of guts. Nowadays, corruption and dishonesty exist in practically every business or institution, whether it is public or private.

Thus, the Whistleblower Protection Legislation, 2014, seeks to protect whistle-blowers against victimization as well, but the key item missing from the act is the ability to punish such behavior. In opposition to that, a Whistleblower Protection Act amendment bill that was passed in 2015 stated that whistle-blowers should not be permitted to reveal any confidential documents under the Official Secrets Act of 1923, even if the purpose is to reveal acts of corruption, the abuse of power, or criminal activity.

The 2014 Act’s entire purpose would be destroyed if such a law were to pass; hence, it must be rejected. The Whistleblowers Protection Act should be supported by the directors, workers, and other stakeholders of the company in order to be implemented effectively. To lessen fraud and illegal actions, corporate governance practises should be transparent and truthful.The increasing rise, and impact, of SLAPPs: Strategic Lawsuits Against Public Participation - The Foreign Policy Centre

The rules and regulations for whistleblower protection are very strict, but they should be applied correctly and include changes to the criminal code that target those who harm whistleblowers. Furthermore, the honesty of businesses and organisations is necessary for efficient implementation. Given the importance of whistleblowers in our society, the protection system for them should be enhanced, followed by measures to preserve and value democracy’s integrity.

Indian whistleblowers exposed fraud six times, making headlines each time.

1.Satyendra Dubey:

A project director for the National Highway Authority of India, Satyendra Dubey was one of the first whistleblowers in India. He worked with the Indian Engineering Services (IES). He was in charge of overseeing the construction of a portion of the Aurangabad-Barachatti section of the NH 2 (the Grand Trunk Road), a highway that was a part of the “Golden Quadrilateral Project,” a significant infrastructure undertaking by former prime minister Atal Bihari Vajpayee in the Koderma district of Jharkhand.It's Not Personal: 5 Ways Employers Can Avoid Claims of Workplace Retaliation | Corporate Compliance Insights

Dubey exposed the financial irregularities in the project’s operations and forced the contractor to suspend three engineers. After arriving in Gaya on November 27, 2003, Dubey was fatally murdered while travelling back from a wedding in Varanasi. The driver of Dubey discovered his body on the side of the road in A.P. colony.Dubey received the “Whistleblower of the Year” award posthumously from the London-based nonprofit Index on Censorship.

 Shanmugam Manjunath

Shanmugam Manjunath, a computer science engineer and grade “A” government employee at the Indian Oil Corporation (IOC), revealed the fraud at two gas stations in Lakhimpur Kheri, Uttar Pradesh. When the two gas stations under his control started selling contaminated fuel again after a month, he locked them off and carried out surprise raids. Manjunath was killed by six gunshots on November 19, 2005, in the Lakhimpur Kheri hamlet of Gola Gokarannath. His body was discovered in the backseat of his own automobile, which was being driven by two gas station employees.

 Lalit Mehta

Lalit Mehta, an engineer by trade, participated extensively in the “Right to Food” campaign activities in the Palamu area of Jharkhand. Mehta revealed fraud in the Mahatma Gandhi National Rural Employment Guarantee program’s administration. With the aid of economists, he conducted a social audit of the scheme but was assassinated before he could uncover the entire fraud. Mehta was attacked on May 15, 2008, while riding his bike through the Madhya Pradesh district of Chhatarpur.

IPS Singh, Narendra Kumar

A mining fraud was discovered in 2012 by Indian Police Service (IPS) inspector Narendra Kumar Singh in Madhya Pradesh’s Morena area, which is renowned for its high-quality sand for building. When Singh was sent to Morena in 2009, the sand mafia was extracting sand illegally from the district and transporting it to other areas of MP. Despite several threats, Singh continued to actively follow their actions. He learned that unlawfully mined stones were being transported by tractor on March 8, 2012. Singh was struck by the tractor and killed instantly as he arrived on the scene to step in.

 Sanjiv Chaturvedi

Sanjiv Chaturvedi is well known for revealing illicit tree felling by the contractors working on the Hansi Butana canal in Uttarakhand in 2002 while serving as an officer with the Indian Forest Service (IFS). He was promoted to Chief Vigilance Officer at the All India Institute of Medical Sciences (AIIMS) after serving in a number of positions.

At AIIMS, Chaturvedi initiated action against the medical professionals who reported unlawful operations involving higher-ups and made unapproved international excursions. During his time at AIIMS from 2012 to 2016, he looked at almost 200 corruption charges. He is currently employed in Uttarakhand’s Haldwani as the Chief Conservator of Forests.The silence of good people – Whistleblower protection in Hong Kong | CGJ HKCGI

 Vijay Pandhare

Within the Maharashtra Water Resource Department, Vijay Pandhare served as the Chief Engineer. He gained notoriety in 2012 for revealing corruption in the state’s irrigation programmes. While Rs 120 billion was spent on lift irrigation, Pandhare wrote to the Chief Minister about financial irregularities in the irrigation projects, noting that 99 percent of the state’s total of 227 projects were not operational. The letter prompted Ajit Pawar, the deputy chief minister, to quit.

edited and proofread by nikita sharma

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