Delhi High Court
His Holiness Shamar Rimpoche vs Lea Terhune And Ors. on 2 December, 2004
Equivalent citations: AIR2005DELHI167, 2005(79)DRJ465, AIR 2005 DELHI 167
Author: Mukul Mudgal
Bench: Mukul Mudgal
JUDGMENT Mukul Mudgal, J.
1. Issues which generate public debate often lead to articles and books which may be found defamatory and offensive by some and yet be held out to be the truthful assertion by the author. The question in dispute which gives rise to the present suit is as to who is the real 17th Karmapa of Karmo Kargu Sect of Tibetan Buddisim.
2. According to the plaint the plaintiff is the 13th Incarnate of the Shamarpa, an important lama of the Karma Kgyu sect of the Tibetan Buddhism. The plaintiff came to India with the 16th Gyalwa Karmapa in the year 1959 and stayed in Rumtek, Sikkim
3. The suit is founded on the following pleas
a) the defendant No.1 Lea Terhune, the author was said to be the Secretary of Tat Situ Rimpocha (TSR) who still remains banned from entering Sikkim by the Government of India and the book in question ''KARMAPA THE POLITICS OF REINCARNATION' and efforts to publish it in India have led to the filing of the present suit. Thus the defamatory allegations of which the plaintiff seeks an expunction Along with reply to the averments by defendant No.1 is reproduced as under:
S.No. Defamatory Allegations Reply in the written statement of defendant No.1
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1. Father of the plaintiff died of alcohol. ''When he was a year and a half old, his father died, helped along by alcohol, which he used to numb his ncreasing frustration and despair'' The statements are based on an unpublished autobiographical account of the plaintiff.
2. Mother married again to a CIA agent. ''Several months after his father's death, Shamarpa's mother married again, a man named Yeshe Raru, who joined the CIA supported guerilla group ''Four Rivers Six Ranges''. Characterized as ''a pan-khampa resistance movement'', it took its name from an ancient name from Kham. Raru was trained by the Americans, parachuted into Tibet, and wasn't heard from again. It later came out that he was shot during some nighttime warfare; he drew on a cigarette and was sighted by a sniper and killed'' There is no reply to this by the defendant No. 1 in her WS.
3. Depiction of the plaintiff as a clever, diplomatic and of dishonest character, who asked everybody to read Machivelli's ''The Prince''. ''One book he asked to read was Machiavelli's The Prince. It was amusing to see him walking around the Woodstock center, a copy of Machiavelli in hand'' Based on personal knowledge andobservation.
4. Plaintiff has been greasing the palms of the bureaucrats and officials of the Intelligence Bureau in Indian Government. ''In India ''Speed money'' is a euphemism for bribes required to get things done quickly, or get thing done period. Supports of the Seventeenth Karmapa, such as members of Sikkim's Joint Action Committee, which was formed to bring the Seventeenth Karmapa ack to Rumtek, feel that the ban order against Tai Situpa came from greasting the palms of susceptible bureaucrats and agents in the intelligence bureau. Hard evidence of this kind of activity is difficult to come by, of course, especially if the recipients of largesse are in India intelligence, where Shamarpa is said to have his strongest allies.'' The statements are allegedly based on articles by the Manvendra Singh and Isabel Hilton.
5. The plaintiff sold the Karmapa's monastery in Bhutan. ''One thing that shook Rumtek Tibetans was when Topga and Shamarpa ''sold'' the Karmapa's monastery in Bhutan, Tashi Choling, for the reported sum of forty lakhs rupees, about 120,000 U.S. Dollars at that time''. No rebuttal to this para. Rebuttal is to para at page 164.
Further, the defendant says that this does not relate to the Plaintiff. If this is the case, then why has the name of the plaintiff mentioned here?
6. Relatives of the plaintiff prospered and hotels came up by the members of plaintiff's family. Plaintiff sought to substitute his name in the place of Karmapa in some documents related to the Karmapa's properties. Wholly vague reply, stating that the statements were based on personal interview with the members of the Remtek community.
4.The plaintiff has thus contended that apart from defendant No.1's vague and bald assertions of law comments and or justification the respondent No.1 has not disclosed any material which established that the defamatory statements and the personal life of the plaintiff are matters of public interest, or has referred to any other material in any manner corroborating the allegations in the book are based on any reasonable verification of the facts forming part of the defamatory statements.
5. The main plea of the plaintiff thus is:
i)that the plea of fair comment and justification should not be available for the mere asking but should be only available in the context of supporting material in respect of such allegations.
ii)Since no material is said to exist an injunction is sought; that Khushwant Singh v. Menaka Gandhi was founded on the following consideration which made it distinguishable.
a) past publication of the offending portion without protest. Relevant extracts from Khushwant Singh (supra) case are as under:
''11. Appellant No.1 has further claimed that public interest outweighs any claim of the respondent towards her reputation or rights or privacy and has contended that the right of privacy and has contended that the right of privacy, under Art. 21 of the Constitution of India, is enforceable qua the State and not against private individuals. It is further averred that the statements in question are matters of public knowledge and have been in public domain for several years. Another material aspect which is averred by appellant No. 1 is the fact that the matters by which the respondent is now aggrieved were published in April, 1992 issue of India Today which had wide circulation. Not only this the subject-matter has also been discussed in Mrs. Pupulaykar's book 'Indira Gandhi' and the book 'Rajiv Gandhi' by Mr. Ved Mehta. It is stated that at no stage had the respondent raised any objections or initiated any proceedings when such publications were brought out and by her silence had acquiesced and accepted the same. It is further stated that the respondent had never made any grievance about the extracts of autobiography published in India today on 31st October, 1995 nor did she speak to appellant No. 1 about the same. Though only averment has been made about certain statements of Mathai in relation to late Pandit Jawahar Lal Nehru and late Smt. Indira Gandhi, appellant No. 1 contends that he had not only not endorsed the statements but had even denounced Mathai for making such statements. This is stated to have been done in his column in Hindustan Times in the following terms:
'' It was after Mathai had been stripped of the Nehru Feathers that he revealed his truly mean nature and dishonoured the confidence that the Nehru family had reposed in him. Nehru, being a generous man, was willing to forgive and take him back. When this was suggested to Mathai he snarled : ''Only a dog returns to his vomit.'' For eighteen years after his dismissal Mathai chewed the cud of bitterness. After Nehru was dead and Indira Gandhi out of power, Mathai felt safe enough to spew out venom against the family whose salt he had eaten.''
19. Mr. Sundaram, learned senior counsel for the appellant further submitted that the statements of which the respondent is aggrieved are primarily in nature of public domain as they have been published or commented upon earlier on numerous occasions including by the India Today. Pupul Jaykar's book and in Ved Mehta's book. Not only this the respondent is stated to be instrumental in some of the comments which have arisen at the behest of the respondent at the relevant stage of time. There is further no allegation of malice in the plaint........''
(b) the non adjudication on the touchstone of defamation of the offending statements. Relevant extracts from Khushwant Singh (supra) case are as under:
60. The right to publish and the freedom of press, as enshrined in Art. 19(1)(a) of the Constitution of India is sacrosanct. This right cannot be violated by an individual or the State. The total matter of the book is yet to be published, including the chapter in question. The interim order granted by the learned single Judge is a pre-publication injunction. The contents of subject matter had been reported before the author stands by the same. In view of this we are of the considered view that the respondent cannot make a grievance so as to prevent the publication itself when the remedy is available to her by way of damages. We are not examining the statements attributed to appellant No. 1 on the touchstone of defamation. It would not be appropriate to do so for us at this stage but what we do observe is that the statements are not of such a nature as to grant injunction even from publication of the material when the appellants are willing to face the consequences in a trial in case the same are held to be defamatory and the pleas of the appellants of truth are analysed by the trial Court.
c) the allegedly defamatory comments already being in public domain.
iv)There was no 'public interest' underlying the publication unlike the former Prime Minister of the country which was the subject matter of Khushwant Singh (supra) case;
v)incorrect facts unbecoming of a religious leader constitute the book's allegations;
vi)no prior publication of the allegations have taken place in India;
vii)the publication of the book may lead to such repercussions as communal tension and ethnic violence involving the karma kegyu sect. The plaintiff being a religious leader constitutes a class different from that in Khushwant Singh's case where the subject matter of the injuncted publication was a political leader who was thus a public figure;
viii)it is only the controversy relating to plaintiff which figures in the defamatory remarks. In the case of Khushwant Singh (supra) the allegedly defamatory remarks were also in the public domain apart from the controversy regarding the published matter.
6. Apart from the above extracted portion from the judgment relied upon by the plaintiff, the following observations from the judgment of Khushwant Singh (supra) are also relevant and deserve to be reproduced..
''67. We are unable to accept the contention advanced on behalf of the respondent by Mr. Raj Panjwani that if the statements relate to private lives of persons, nothing more is to be said and the material must be injuncted from being published unless it is with the consent of the person whom the subject matter relates to. Such pre-censorship cannot be countenanced in the scheme of our constitutional framework. There is also some force in the submission of the learned counsel for the appellant that the prior publication having occurred much prior to the suit being filed, the principle denying the relief for interlocutory injunction where the plaintiff has been dilatory in making the application, as observed in the Indian Express Newspaper's case (supra) would also apply to the present case.
68. As stated above, one aspect is very material a categorical assertion of the author to stand by his statement and claim to substantiate the same. In such a situation interlocutory injunction restraining publication should not be granted and we are in agreement with and duly approve the views of the learned single Judge of this Court in Sardar Charanjeet Singh's case (supra).
69. People have a right to hold a particular view and express freely on the matter of public interest. There is no doubt that even what may be the private lives of public figures become matters of public interest. This is the reason that when the controversy had erupted there was such wide publicity to the same including in the two editions of India Today. As observed in Silkim v. Beaverbrook Newspapers Ltd. (supra), the test to be applied in respect of public life is that the crank, the enthusiast, ay say what he honestly thinks just as much as the reasonable man or woman who sits on a jury.''
7.This court is fully bound by the judgment of the Division Bench in Khushwant Singh's case (supra). The sum and substance of the said judgment is that in a case of an article/publication of an allegedly offending and defamatory nature, pre publication injunction of restraint should not be granted in case the defendant who supports the publication cites truth as a defense and pleads justification. In such a case as per Khushwant Singh's case, damages are the appropriate remedy.
8. However, a judgment of the learned single judge of the Bombay High Court in Shree Maheshwar Hydel Power Corporation Ltd. v. Chitroopa Palit and another has been cited before me which appears to take a view different from the view taken by the Division Bench of this Court in Khushwant Singh's case. The said judgment of the Bombay High Court is based on what according to the Bombay High Court constituted an all India position of law. The relevant portion of the learned single judge's judgment of the Bombay High Court reads as under:
''49. After having heard the learned counsel for both the parties at length and after perusal of the impugned judgment and order and also the various judgments cited by both the parties, it is clear that in any event, the principles of law in England and in India with regard to grant of interlocutory reliefs in a civil action for Libel are different. In England, the principle of law is that in case of an action for defamation, once the defendants raise the plea of justification at the interim stage, the plaintiff will not be entitled to an interlocutory injunction. To put in other words, in England, a mere plea of justification by the defendant would be sufficient to deny the plaintiff any interim relief. As far as India is concerned as has been clearly held by this Court in the judgment referred to hereinabove, specially the judgment of this Court in the case of Dr. Yaswant Trivedi v. Indian Express Newspapers (Bombay) Private Ltd. dated 21st March 1980 and the judgment of appellate Bench dated 2th June 1989 with regard to the same matter in appeal. The judgment of this Court in Purshottam Odhnvji Solanki v. Sheela Bhatta dated 3rd December 1990, judgment of this Court in the case of Mrs. Betty Kapadia v. Magna Publishing Co. Ltd. dated 22nd July 1995, it is clear that in India a mere plea of justification would not be sufficient for denial of interim relief. The defendants apart from taking a plea of justification will have to show that the statements were made bona fide and were in public interest, and, that the defendants had taken reasonable precaution to ascertain the truth, and that the statements were based on sufficient material which could be tested for its veracity. Therefore, in India, the Court is very much entitled to scrutinse the material tendered by the defendants so as to test its veracity and to find out whether the said statements were made bona fide and that whether they were in public interest. Therefore, in India, even at the interlocutory stage, the Court is very much entitled to look into the material produced by the defendants for the plea of justification, so as to tests its veracity with regard to the allegations, alleged to be defamatory.' (underlining supplied)
9.Shri Tripathi, the learned senior counsel for the plaintiff has very fairly stated that all the judgments noted above by the Bombay High Court were only of the Bombay High Court. In this view of the matter apart from the fact that I am fully bound by the judgment of the Division bench of this Court in Khuswant Singh's case (supra). which takes a view in direct variance to that taken by the learned Single Judge of the Bombay High Court, nevertheless I respectfully find myself unable to agree with what is said to constitute the position of law across the Country. The position of law summed up in the above judgment is at best that of 4 judgments of the Bombay High Court, which can not be said to constitute the All India view particularly when the Bombay High Court in its judgment , does not even notice the Division Bench Judgment of the Delhi High Court delivered in the year 2002 and . Furthermore, the judgment of the Hon'ble Supreme Court in S. Rangarajan v P. Jagjivan Ram is to the following effect:
' ... .... when men differ in opinion, both sides equally to have the advantage of being heard by public. (Benjamin Franklin). If one is allowed to say that policy of the Government is good, another is with equal freedom entitled to say that it is bad. If one allowed to support the Government scheme, the other could as well say, that he will not support it. The different views are allowed to be expressed by proponents and opponents not because they are correct or valid but because there is freedom in this country for expressing even differing view on any issue.''
10.The above judgment of the Hon'ble Supreme Court clearly reiterates the freedom of expression available in this country to ventilate divergent views. I am, therefore, unable to agree at all with the judgment of the Bombay High Court for its reasoning inter alia founded on the premise that the view taken by the Bombay High court constituted the All India view. Significantly both the judgments of the Delhi High Court and the Bombay High Court were reported in All India Reporter. I am also bound fully by the view of the Hon'ble Supreme Court in S. Rangarajan's case (supra) which permits different view to be expressed in this country. This in my view is the all India position of law since the law laid down by the Hon'ble Supreme Court binds all courts in India as per Article 141 of the Constitution of India.
11. In my view as contended by Shri Chandhiok, learned Senior Counsel for the defendant, the position of law which governs this Court is set out in paragraphs 67 to 69 of the judgment in Khushwant Singh's case (supra) where it has been clearly held once the categorical assertion of the author to stand by his statement and claim to substantiate the same has been made, then as per the position of law laid down in paragraph 68 in Kushwant Singh's case, any interlocutory injunction restraining publication should not be granted. The Bombay High Court's view was;
(a) Unlike England in India a mere plea of justification of the offending publication is not sufficient to deny interim relief to the plaintiff.
(b) The statement challenged must be shown by a defendant pleading justification to have been made bona fide and in public interest.
(c) The challenged statements were made after reasonable precautions had been taken to ascertain the truth; and
(d) the statements are required to be based on sufficient material which could be tested for its veracity.
12. Relying on the above principles laid down by the Bombay High Court the learned counsel for the plaintiff justified the continuation of the interim order in its favor restraining publication of the offending publications.
13. The plea of the plaintiff is that no material was disclosed which shows that defamatory statements of personal life of the plaintiff were matters of public interest or that the public interest said to be underlying the impugned publication was based on any reasonable verification of the assertion forming part of the defamatory statement. This on its own cannot lead to a departure from the law laid down by the Division Bench in Khushwant Singh's case (supra) and I am bound by statement of law in he aforesaid paragraphs 67 to 69 of Khushwant Singh's case (supra) and am unable to agree with the plea of the plaintiff which is largely based upon the principles laid down by the Bombay High Court in Shree Maheshwar Hydel Power Corporation Ltd. (supra). Similarly, the plea of the plaintiff that there must be supporting material in respect of such allegations loses sight of the statement of law particularly when the Division Bench has held that the plea of justification is sufficient to oust the interlocutory injunction. The very fact that the plaintiff is said to be the religious leader of KARMA KGYU sect of the Tibetan Buddism shows that he cannot claim to be a wholly private person. Furthermore, the plaintiff himself asserts that communal tensio and ethnic violence involving the karma kegyu sect may take place upon the publication of the book and thus on his own plea, it cannot be said that the plaintiff was a private figure if such consequences result as per the plaintiff's pleas.
14. It is no doubt that past publication of the offending portion without protest was a factor which also weighed with Khushwant Singh's judgment. Similarly the learned counsel for the plaintiff is also right in submitting that as observed by the Division Bench of this Court in paragraph 68 of Khushwant Singh's judgment that the offending publication was not examined or the touchstone of the defendant. However, this factor, far from supporting the case of the plaintiff in fact goes against it. If the publication of an publication challenged by the defendant has been permitted by the Division Bench on the plea of justification without testing it on the touchstone of defamation, I can not embark on a course contrary to that laid down by the Division bench of this Court. However, the above factors cited by the learned counsel for the plaintiff were not the governing factors in view of the law laid down in paragraph 67 of the Khushwant Singh's judgment.
15.Consequently the interim order dated 26th May 2004 which records the statement of learned counsel for defendant No.1 on behalf of defendant No. l that the book shall not be published or distributed in India, cannot be continued in favor of the plaintiff and will stand vacated with effect from 16th December 2004 With the above observations, IAs stand disposed of. CS(OS) 505/2004 List the suit for further proceedings on 15th March 2005 before the Joint Registrar.