New Delhi: The Wire has told the Supreme Court that it is withdrawing its two petitions for the quashing of cases against the website and its editors by the son of BJP president Amit Shah.
Alleging that he had been defamed by an October 8, 2017 news report in The Wire on his business affairs, Jay Amit Shah had filed a criminal defamation case as well as a civil defamation case in which he seeks Rs 100 crore in damages.
The Wire will now defend itself in the trial court in Gujarat. Both matters had been stayed by the Supreme Court until now.
Speaking to reporters, The Wire‘s founding editor Siddharth Varadarajan said that by “fighting things out in a trial, we will clearly and precisely establish on evidence that we meticulously followed every journalistic norm, that we only published what we could defend” and that “we will establish at the trial that our article is true”.
An unexpected development
“We have decided to withdraw the matter,” senior advocate Kapil Sibal, appearing on behalf of The Wire, told the bench of Justice Arun Mishra, Justice M.R. Shah and Justice B.R. Gavai as soon as the case was called out on Tuesday afternoon.
The decision clearly took the bench, and Jay Shah’s counsel, by surprise. “We were ready to decide this matter… Nowadays, all kinds of important matters are being withdrawn before they can be decided,” Justice Mishra said. “We need to consider whether it is permissible to just send some questions to a person and without giving them time to reply, rushing out with a story”.
He said he was concerned about the harm done to the “institution” by the “fashion” of serving notice to a person for explanation and then publishing an article “within five-six hours”, before it can be answered. Justice Mishra did not specify which institution he was talking about.
For its story, in fact, The Wire sent Jay Amit Shah a questionnaire early in the morning of October 6 and ran its story on the morning of October 8, i.e. two days later. During this time, Shah’s lawyer sent a detailed reply and did not ask for more time to furnish additional answers.
The published story incorporated all of the responses Shah’s lawyer had provided. In addition, the lawyer’s full response was published as a separate article.
The petitions in question
The Wire moved the Supreme Court in January 2018, after the Gujarat high court refused to accept its plea that the criminal defamation case be quashed.
The Wire‘s petition stated that the basic ingredients of criminal defamation had not been made out by Shah. A second petition was also filed in 2018, when an injunction against the further publication of material on the business affairs of Jay Amit Shah – that the trial court had imposed ex parte, and then vacated – was restored by the Gujarat high court.
Both matters came up before the bench of the former Chief Justice of India, Justice Dipak Misra, sitting alongside Justices A.M. Khanwilkar and D.Y. Chandrachud. The bench suggested the two sides reach a compromise, but nothing came of it as Shah’s lawyers demanded an apology.
Before the case could be taken up in any substantive manner, Justice Misra retired. The matters remained unlisted for several months – until they were recently assigned to Justice Arun Mishra’s bench.
Shortly after Tuesday’s hearing, The Wire issued a short statement explaining why it was withdrawing its petitions and proceeding straight to trial:
“Circumstances have arisen as per which we believe it is best if we make use of the opportunity to justify everything we have stated in our article at the trial. We are therefore withdrawing.
“We believe the fight for media freedoms will have to be advanced at all levels. Our article was factual, based not only on record but on facts admitted by Jay Amit Shah. Though it is still very much our belief that neither a criminal case nor an injunction is legally justifiable, we intend to face trial in Gujarat secure in the knowledge that the constitutionally mandated rights of the media will eventually prevail.”
Though the bench had had no occasion to hear either side on the merits of The Wire article on Jay Shah, Justice Arun Mishra and Justice R.B. Gavai complained in open court for several minutes – after Sibal said the petitioners were withdrawing – about the lack of time given to people to respond to media queries, describing this as “yellow journalism”.
Screenshot of questionnaire sent to Jay Amit Shah
At one stage, Justice Mishra turned to solicitor general Tushar Mehta, who was also in court, and asked whether a case could be withdrawn in this manner, and whether the Supreme Court ought to not consider the larger questions involved.
Mehta concurred, without revealing his own conflict of interest in the matter. In October 2017, he sought and received permission from the Law Ministry to represent Jay Amit Shah in any matter arising out of The Wire‘s reporting on the BJP leader’s son.
While allowing The Wire to withdraw its petitions, Justice Mishra initially said the defamation trial should be concluded in six months. When Sibal asked what was special about this case which warranted a great rush, the judge changed his order to say the trial should be conducted “expeditiously”.
Jay Shah’s cases name seven persons/entities as respondents – investigative reporter Rohini Singh (the author of the article ‘The Golden Touch of Jay Amit Shah‘), the three founding editors of The Wire (Siddharth Varadarajan, M.K. Venu and Sidharth Bhatia), the Foundation for Independent Journalism (the not-for-profit company which publishes The Wire) as well as two individuals unconnected to the publication of the original article – The Wire‘s managing editor Monobina Gupta, who oversees op-eds and not news, and its public editor Pamela Philipose, who is a post-publication ombudsman whose role is to consider reader reactions to articles once they are published on the website.