By: V SUNDARAM
http://newstodaynet.com/col.php?section=20&catid=33&id=8082
Thursday, 05 June, 2008 , 03:27 PM
‘A Man cannot justify a libel by proving that he has contracted to libel’
— Justice Oliver Wendell holmes (1842-1935) The INOC Inc. had originally filed a complaint in the Supreme Court in New York on March 11, 2008. Later INOC, Inc. filed an amended complaint on May 23, 2008.
The amended complaint sets forth one cause of action for libel based on a full-page political advertisement placed by an organization called the Forum for Saving Gandhi’s Heritage in the New York Times– of October 6, 2007. A copy of that advertisement has been presented above.
Plaintiff INOC is alleged to be a New York domestic not-for-profit corporation and a ‘wholly-owned subsidiary organization’ of Congress. The three named individual defendants, Americans of Indian heritage, are allegedly associated with the Forum for Saving Gandhi’s Heritage. The amended complaint alleges that two of the three individual defendants — Narain Kataria (incorrectly named in the complaint as Narendra Kataria) and Arish Sahani — live in New York City, and one — Srinivasa K. Murthy — lives in California. The amended complaint also names the Indo Caribbean Council NY Inc., and ‘John Does 1-100’ as defendants. The two New York individual defendants — Kataria and Sahani – have moved a motion in the court to dismiss the complaint of Plaintiff INOC Inc.
In the amended complaint, INOC claims it was defamed even though it is not named in the New York Times advertisement (ad) presented above, and even though the advertisement does not refer to anything that could possibly be ascribed to INOC. By way of relief, plaintiff has now sought huge compensatory and punitive damages of $100 million from Narain Kataria and Arish Sahani.
Kornstein Veisz Wexler & Pollard, LP, New York, in their Counter Affidavit filed on behalf of defendants Narain Kataria and Arish Sahani, have stated that the New York Times Advertisement (ad) has nothing to do with INOC. It concerns instead Congress’s Italian-born chair, Sonia Gandhi, widow of former Indian Prime Minister Rajiv Gandhi, but Ms. Gandhi is not a plaintiff in this case. The ad is, in essence, a protest against Sonia Gandhi. It states that she is ‘NOT related to Mahatma Gandhi’ and that, ‘She is attempting to misappropriate his name for political mileage and international legitimacy’. The ad goes on to state that the U.N. has declared October 2, Mahatma Gandhi’s birthday, to be International Non-Violence Day, but disagrees with honoring Sonia.
I have very carefully gone through the brilliant Counter-Affidavit filed by Kornstein Veisz Wexler & Pollard, LP, New York (Firm of Attorneys) which gives a fitting reply to Sonia Gandhi, operating through her chosen political manipulators and marauders in America. I am presenting below the facts and other details presented by the Attorneys in this Counter-Affidavit, using as far as possible the language of the Affidavit and paraphrasing suitably (for purposes of greater clarity and emphasis) wherever necessary.
The amended complaint dated 23rd May 2008 gives no reason for INOC’s choice of Kataria and Sahani as defendants. INOC have arbitrarily chosen Kataria and Sahani, imagining that they are responsible for the advertisement’s content within the text.
The ad in question explicitly stated that Sonia Gandhi is ‘not a representative of Gandhian values’. The ad’s headline gives its theme: ‘How Can Sonia Possibly Represent Mahatma Gandhi on International Non-violence Day’?
The rest of the ad, in a series of bullet points, gives more of the authors’ opinions and refers to a protest at the UN. According to the ad, the lives of Mahatma Gandhi and Sonia Gandhi are represented by two opposing values: ‘Truth vs Falsehood, Non-violence vs Aggression, Sacrifice vs Self Aggrandizement, Honesty vs Dishonesty, Tolerance vs Intolerance’. The ad then proceeds to list criticisms of Sonia Gandhi, her son Rahul Gandhi — who is not a plaintiff either — and Congress, their political party — also not a plaintiff. All the comments in the ad are based on official documents and previously published reports, some of which are even identified in the ad above. (See Kornstein Aff. 11 4-3 6).
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| The above advertisement appeared on 6 October 2007 in New York Times.Courtesy: Dr. Subramanian Swamy (visiting Professor, Harvard University) |
Kornstein Affidavit makes it clear that the amended complaint of INOC, instead of complaining about statements made by the Defendants concerning INOC, only identifies six allegedly ‘false statements regarding the professional activities of Ms. Sonia Gandhi, chair of the Indian National Congress Party, and her son, Mr. Rahul Gandhi’.
The six statements identified by INOC in their Amended Complaint (interlopers and impersonators on behalf of Sonia Gandhi and her grisly political gang in India) are as follows:
1. ‘Sonia’s violence spans political, spiritual and physical spheres. Sonia locked the then Congress President with party goons in a toilet and declared herself Party President’.
2. ‘From the time Sonia entered India, she has looted the country on a large scale’.
3. ‘She violated multiple laws of the country with impunity’.
4. ‘Sonia claims to have a degree from Cambridge University, U.K., despite not studying beyond high school’.
5. ‘Before entering India, she [Sonia Gandhi] was an au-pair with modest means’.
6. ‘Her [Sonia Gandhi’s] son Rahul projected as next Prime Minister of India, was also detained by FBI with large unaccounted cash at Boston in 2001’.
The Amended Complaint asserts that the ad ‘also makes direct accusations of misconduct against the Indian National Congress Party itself’. INOC contends that the ad ‘calls the Indian National Congress Party ‘pro-terrorist’’. INOC have also complained against following statements in the ad:
1.’that the Indian National Congress Party has shown religious intolerance towards the Hindus of India similar to the Taliban’.
2.‘that the Indian National Congress was involved in the UN oil for food scam that helped Saddam Hussein’.
Kornstein Veisz Wexler & Pollard, LP, New York in their Affidavit have stated that, ‘Nowhere in the amended complaint does plaintiff (INOC) allege that these statements about Congress are false. Even though none of the statements described as defamatory in the amended complaint refers to plaintiff, plaintiff nevertheless claims that its reputation was somehow injured’. According to Kornstein Affidavit, on this simple ground alone the petition of plaintiff has to be dismissed. In this context, I am reminded of the following brilliant ruling of Justice Oliver Wendell Holmes in Weston vs. Barnicoat Mass. 454, 458 in 1900:
‘A man cannot justify a Libel by proving that he has contracted to Libel’. In my view, perhaps Justice Holmes had organizations like INOC Inc. of today in view, when he gave the above ruling!
The following paragraphs from the Affidavit presented by Kornstein Veisz Wexler & Pollard, LP, New York will go to prove the words of legal truth and wisdom of Justice Holmes above:
ArgumentA.
‘SINCE THE AD DOES NOT NAME. AND IS NOT ‘OF AND CONCERNING’ INOC, PLAINTIFF HAS NO STANDING AND FAILS TO STATE A CLAIM FOR LIBEL
‘The amended complaint’s fatal flaws start in its caption: INOC is not a PROPER PLAINTIFF.
An essential element in a libel claim is that the allegedly defamatory statements are ‘of and concerning’ the plaintiff. 2 Where the statements are not ‘of and concerning’ the plaintiff, a libel claim must be dismissed.3 The test for determining whether a statement is ‘of and concerning’ the plaintiff is ‘whether a reasonable reader would conclude that the challenged statements convey facts about the plaintiff’. (Ref. Silverman v. Clark, 35 A.D.3d 1, 14, 822 N.Y.S.2d 9, 19 (1st Dep’t 2006). The plaintiff must be ‘clearly identifiable’. [Ref. Algarin v. Town of Wallkill, 421 F.3d 137, 139 (2d Cir. 2005)].
The plaintiff here, INOC, has not met and cannot possibly meet this requirement. The ad in question is not about INOC. INOC does not and cannot allege that the ad made any statement, let alone a defamatory statement, about INOC. On its face, the ad is unambiguously about Sonia Gandhi, Rahul Gandhi and the Indian National Congress Party’.
‘It makes no difference that the ad may have been directed against INOC’s alleged corporate parent and the parent’s leaders. For purposes of libel analysis, a corporate parent and subsidiary are separate, stand-alone entities. There is no such thing as ‘vicarious defamation’’.
‘Stated generally, defamation is personal; . . . allegations of defamation by an organization and its members are not interchangeable. Statements, which refer to individual members of an organization, do not implicate the organization. By the same reasoning, statements, which refer to an organization, do not implicate its members’.
Perhaps Sonia Gandhi and her hired political goons in India thought that the New York Supreme Court could also be manipulated in the same way in which she and her gangster gangs are twisting the Courts of Law in India from the level of the Supreme Court to the level of the District Munsif. In India the terms Congress Party, Sonia Gandhi, and Benami are interchangeable political condoms. This point of view has been upheld with aplomb in the highest judicial tribunal in India. This principle is not valid or relevant in America. INOC or for that matter, any other organization outside India, cannot legally impersonate for Sonia Gandhi and her family in a Libel case. Their personal physical security can no doubt be ensured by hiring a few security officers, whenever and wherever required. But they have to come out openly as Petitioners with a complaint petition in a Court of Law in a Libel case in USA to defend their fame and honour and this legitimate task belonging to them cannot be undertaken as a surrogate stealthy operation. They have to be physically present in a Court of Law in USA (No interloper can replace them!) to set a due legal Libel Process in motion.
(To be contd…)
(The writer is a retired IAS officer)e-mail the writer at
vsundaram@newstodaynet.com
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