By Vineet Malik | February 22, 2022 | London, England
Gloomy day for Press Freedom as the builder intimidate and restrain a home-buyer, anybody acting on their behalf and print or electronic media through a 'blanket ban'.
In consequence to an alleged defamatory video posted by one Malka Irani, an aggrieved home-buyer in Brigade Atmosphere, a residential project developed by the Brigade Group, located in Devanhalli, Bengaluru in South India has led to a scathing legal battle in the court of law.
A Bengaluru City court presided by the Additional City Civil and Sessions Judge (LXVII ACC & SJ), on 3 February passed an ex-parte injunction order.
Who is the Builder
The Brigade Group was founded by MR Jaishankar in 1986. Jaishankar is the Chairman and Managing Director (MD) of the Brigade Group. He was ranked 27th amongst the top 100 CEOs of India and second in the Real Estate and Construction sector by the BT-PwC India study as claimed by the builder on twitter. It is one of India’s leading property developers with over three decades of presence. It has developed many landmark buildings and transformed the skyline of cities across South India by completing more than 250 buildings amounting to over 70 Million square feet of developed space across a diverse real estate portfolio.
Video posted by Home-buyer on YouTube
The punchline of the video says “Beware- scandal exposed : Brigade collecting bills in violation of law and to their convince only!”
Allegations levelled against the Builder
Irani has alleged that the builder has committed
· Negligence
· Deficiency of Service
· Violated the Real Estate Regulatory Act, (RERA)
· Illegally transferred electricity in gross contravention of Section 12, Part IV of the
Electricity Act, 2003 in absence of receiving full Occupational Certificate (OC)
The electricity connection of Brigade Atmosphere was disconnected on 1 December
2021
· Illegally raised bills towards the residents
· Illegally started construction of Phase Two without seeking approval from RERA
Why is Occupation Certificate Important
OC is an evidence of the construction and completion of the building as per the approved plan and in compliance with the local laws. It is also called a Completion Certificate (CC). It is issued by local bodies like the city corporation or the municipality. The law says that a builder cannot allow the possession of the building to its owners, for any purpose whatsoever, unless he has acquired an OC for the same.
In simpler terms, the OC proves that the building is erected according to set standards and is fit for use.
KVJ Rao, a resident of Mumbai fighting a battle with a city builder says “The video posted by Ms. Irani on YouTube speak volumes about the alleged wrongdoings of the builder as it is explicitly supported by evidence/documents. The builder cannot stifle the home-buyers voice and restrain media from publishing the facts. Also, the Hon’ble court did not even wait to ascertain facts from the respondent. This is a sad day for every citizen of India."
The Revelation through its sources found out the name of the Judge who has passed the ex-parte injunction order.
Judge Kashim Churikhan passed the gag order dated 3 February.
Justice Dhananjaya Yeshwant Chandrachud of the SC in October 2021 said “It is the basic right of the Citizens to know what goes on in the Court.”
An attempt made by the Brigade Group to intimidate People at large and the Press
Falguni Fernandes (name changed on request) says “On 11 February, the Brigade Group posted a tweet with a clear message to bully and intimidate people at large to not use derogatory language against the builder, whereas no such derogatory language has been used. People have all the right to know that this builder has filed a 100 Million Strategic Lawsuit Against Public Participation (SLAPP) against a home-buyer."
What is a SLAPP
SLAPP is a form of legal harassment, wilfully filed by wealthy and influential against journalists, civil society organisations and whistle blowers aimed at intimidating and eventually silencing those who speak out on issues that are of political or societal significance. It is an abuse of the legal system through lengthy litigation that drains targets' resources and chills critical voices.
In April last year, Coalition Against SLAPPs in Europe (CASE) took a vow to unite in global fight against SLAPPs by launching its website through outlining initiatives to protect such rights defenders.
Julie Majerczak Head of Brussels, Reporters Without Borders (RSF) in an interview given to the Author in April last year said "We believe that a European directive would be the most effective instrument to combat the use of gag lawsuits by providing legally binding common standards to protect SLAPP victims."
NV Ramana The Chief Justice of India (CJI) recently emphasized that a healthy democracy needs 'a fearless and independent press.' "Journalists are like judges in one sense. You must report only facts, with a view to give a complete, accurate picture. Speaking truth to power and holding up a mirror to society is an immense responsibility. In the contemporary world, performing your duty as a journalist is akin to dancing on razor’s edge. Some of those in powerful positions, both political leaders and bureaucracy, mafia of all shades and those on the wrong side of the law — none of them are comfortable with a professional journalist.”
Shilpi Thard, a Mumbai based, anchor of “Awaz Teri Meri, Our Voice” a YouTube channel that promotes advocacy campaigns with more than 10,000 followers says “Freedom of Speech and Expression is not just our fundamental right but our responsibility too. It should not at all allowed to be snatched by the rich and powerful.”
In April 2020, Justice Gautam Patel of Bombay High Court slammed the injunction prayer pleaded by Lodha Group, a Mumbai based builder in a landmark 1000 Million defamation case filed against a home-buyer and another. Lodha Group has now changed its name to Macro Developers.
Justice Patel most fascinatingly stated in the order that, “Calling out someone, with fair comment and justification, is not defamation. To put it differently : to say the emperor has no clothes is not defamation. It never has been." Therefore, I would not be making an order of take-down against YouTube.
Article 19(1 )(a) of the Constitution of India Embodies the Freedom of the Press
The SC of India has time and again emphasized that, Freedom of Speech and Expression is Sacrosanct. Most pertinently, it is protected by Article 19(1) enshrined in its Constitution and unfettered exceptions of defamation. It just cannot be gagged or ordinarily interfered with.
Freedom of the press flows from the citizens’ right to know, which is conceived to be paramount. The SC, through several of its judgments on fundamental rights, has developed this jurisprudence.
The courts have always been of the opinion and champion of the concept that censorship, since it necessarily restricts freedom, has always been and will continue to be unpopular with those who, from principle, perversity or for profit, insist on unbridled freedom.
In India, there are a plethora of cases which have held that prior restraint orders against media shall not be passed. While hearing a Public Interest Litigation (PIL) filed by the NGO Common Cause in 2017 praying for regulating the content of the media, the SC had opined that pre-broadcast or pre-publication censorship is not the business of the Court and that all grievances against objectionable content will be dealt with in accordance with the law of the land after its publication.
Rohit Gaikwad (name changed on request), a resident of New Delhi says “These days, builders use defamation case as a weapon to muzzle the voice of reason. Apparently, the video posted by Ms. Irani should not be censored from people in any circumstances and the allegations levelled against the builder must be legally understood by one and all without any prejudice.”
The United Nations' 1948 Universal Declaration of Human Rights states
"Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference, and to seek, receive, and impart information and ideas through any media regardless of frontiers.”
The 10 Exceptions of Defamation Law
· First Exception.— Imputation of Truth. Imputation of truth which public good requires to be made or published – It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact.
· Second Exception.— Public conduct of public servants. It is not defamation to express in good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far his character appears in that conduct, and no further.
· Third Exception.—Conduct of any person touching any public question. It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further.
· Fourth Exception.—Publication of reports of proceedings of Courts. It is not defamation to publish substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings.
· Fifth Exception.—Merits of case decided in Court or conduct of witnesses and others concerned. It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a partly, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further.
· Sixth Exception. —Merits of public performance. It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance, and no further.
· Seventh Exception.—Censure passed in good faith by person having lawful authority over another. It is not defamation in a person having over another any authority, either conferred by law or arising out of a lawful contract made with that other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates.
· Eighth Exception.—Accusation preferred in good faith to authorised person. It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation.
· Ninth Exception.—Imputation made in good faith by person for protection of his or other's interests. It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good.
· Tenth Exception.—Caution intended for good of person to whom conveyed or for public good. It is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good.
Bar & Bench published an intriguing Column on 3 May 2019 with comprehensive description on “How Indian courts have ruled on Press Freedom over the past year.”
The Revelation reached out to MR Jaishankar Chairman and MD of the Brigade Group for his comments. An e mail was received from the builder after publication of this story. The news story is accordingly updated in all fairness.
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