Stale’ case in Indian court; not so stale in US court – VII

By: V SUNDARAM

http://newstodaynet.com/col.php?section=20&catid=33

Wednesday, 11 June, 2008 , 04:28 PM

I have been presenting different parts of the brilliant affidavit filed by Kornstein Veisz Wexler & Pollard, LP, New York, the Attorneys for Narain Kataria and Arish Sahani, in the libel case filed against them by INOC Inc. in the Supreme Court in the State of New York, USA. Today I am going to deal with some of the statements relating to Sonia Gandhi and her family in the full-page advertisement that appeared in New York Times on October 6, 2007 and against which a Libel Petition has been filed by INOC Inc. in the New York Supreme Court.

Statement No.5

`Before entering India, she [Sonia Gandhi] was an au-pair with modest means’. (INOC’s Amended Complaint SI 14).

The Affidavit filed by Kornstein Veisz Wexler & Pollard, LP, New York states that Sonia Gandhi’s authorized website biography shows this to be true. Her statement on soniagandhi.org opens with the phrase `born into a family of modest means’. Further the same affidavit also says `Describing Sonia Gandhi as a former `au pair’ is consistent with the Times of London on May 17, 2004 reporting that she `took work babysitting’. Ex. K. Such a description does no harm to INOC’s reputation. The statement does not expose INOC — never mind Sonia Gandhi — to hatred, contempt, or ridicule. Courts will not strain to find a defamatory meaning where none exists. Cohn v. National Broadcasting Co., 50 N.Y.2d 885, 887, 430 N.Y.S.2d 265, 265 (1980)’.

Dr Subramanian Swamy has declared, `The truth is that Sonia Gandhi has never studied in any college anywhere. She did go to a Catholic nun—run seminary school called Maria Ausiliatrice in Giaveno [15 kms from her adopted home town of Orbassabo]. Poverty those days had forced young Italian girls to go to such missionaries and then in their teens go to UK to get jobs as cleaning maids, waitresses and au pair. The Mainos were poor those days. Sonia’s father was a mason and mother a share cropper [now the family is worth at least $ 2 billion: Sonia thus went to the town of Cambridge UK and first learnt some English in a teaching shop called Lennox School [which has since 1990 been wound up]. That is her `education’— enough English language to get domestic help jobs’.

Statement No.6

`Her son Rahul projected as next Prime Minister of India, was also detained by FBI with large unaccounted cash at Boston in 2001′. (INOC’s Amended Complaint SI 15). Kornstein Affidavit makes it clear that the ad in New York Times on October 6, 2007, does not say that Rahul Gandhi committed or was charged with a crime, that the FBI detention was proper, or that there was anything wrong with his having the cash referred to. The word `unaccounted’ is too vague to carry a defamatory meaning —it is not a word like `stolen’ or `illegal’. Steinhilber, supra, 68 N.Y.2d at 292, 508 N.Y.S.2d at 905 (language not defamatory where it has no `precise meaning which is readily understood’ but is instead `indefinite and ambiguous’). The most the statement suggests is a need for an investigation, perhaps to `account’ for the cash — an investigation in which Mr. Gandhi could be exonerated. See Brian v. Richardson, supra, 87 N.Y.2d at 53, 637 N.Y.S.2d at 3 52 (purpose of Op-Ed piece was to advocate for governmental investigation into alleged wrongdoing). Moreover according to Kornstein Affidavit the Statement No.6 was based upon a contemporaneous report in The Hindu for September 30, 2001. Ex. L. The story was more recently covered by the Indo-Asian News Service on March 8, 2005. Ex. M. These stories are discussed more fully in the Kornstein Aff. If 21-22.

INOC Inc. in their Libel Complaint Petition have alleged that the following statements relating to the Indian National Congress Party contained in the full page ad in New York Times in question are defamatory in nature. Even at the outset the Kornstein Affidavit makes it known that the statements made about `the Indian National Congress Party itself’, are also protected by the categories of truth, opinion, hyperbole and lack of defamatory meaning. Let us examine those statements.

Statements about the Indian National Congress Party

1. `The ad allegedly states that the Indian National Congress Party is `pro-terrorist’. (INOC’s Amended Complaint SI 17)’.

Kornstein Affidavit states that there is nothing defamatory in the above statement. The ad does not say that the Congress Party is `pro-terrorist’ but speaks of `pro-terrorist policies’. `Pro-terrorist’ implies that one hopes that terrorists will prevail; `pro-terrorist policies’ are those that benefit terrorists, even if unintentionally. The ad backs its opinion with information —which the INOC complaint does not challenge — about India’s high number of terrorist victims and Congress’s support of clemency for a participant in an attack on India’s parliament called Afzal Guru. Any statement of opinion as to whether being `pro-terrorist’ or following `pro-terrorist policies’ would receive complete protection under settled American Law.

2. `The ad allegedly accuses the Indian National Congress Party of `religious intolerance similar to the Taliban’. (INOC’s Amended Complaint 31 18)’.

Here once again the amended complaint distorts rather than quotes. The ad never says that the Congress Party has shown `religious intolerance similar to the Taliban’. Instead it makes the very different statement that the party `has shown religious intolerance towards 900 million Hindus by blowing up Rama Sethu, an ancient Hindu heritage monument. This is similar to Taliban blowing up the Bamyan Buddhas’. INOC does not, and cannot, deny that the Congress Party supported the removal of Rama Sethu, a site that many Hindus consider as very sacred, a belief that goes back to the dawn of history. The ad’s opinion that this act showed religious intolerance and was similar to the Taliban’s destruction of a Buddhist monument is fully protected opinion.

3. `Congress was involved in the UN oil-for-food scam that helped Saddam Hussein’. (INOC’s Amended Complaint SI 19).

Kornstein Affidavit argues that this statement is true. The October 27, 2005 U.N. Report on the `Manipulation of the Oil-for-Food Programme by the Iraqi Regime’ listed the Congress Party in India as a `non-contractual beneficiary’. The ad relies upon the UN Report and INOC Inc. can send a Libel Notice to the UN as well, if they so desire. Many Newspapers in India and abroad have also alleged that the Congress Party was directly involved in this scandalous money-spinning programme of Saddam Hussain.

3. `Congress was involved in the UN oil-for-food scam that helped Saddam Hussein’. (INOC’s Amended Complaint SI 19).

Thus in the light of the detailed legal analysis done by Kornstein Veisz Wexler & Pollard, LP, New York, it becomes clear that all of the statements complained of are non-actionable. The Kornstein Affidavit has rightly concluded `This politically motivated libel action (by INOC Inc.) should be barred at the threshold. The statements at issue are not `of and concerning’ the plaintiff. As a matter of constitutional law, they were not made with `actual malice’. They are, moreover, either true, free of defamatory meaning, protected opinion or permissible hyperbole. Dismissal, now, at the start of this litigation, is amply justified and absolutely necessary, lest a bad precedent breed more such misguided libel cases. Early dismissal becomes even more essential when one considers the political context of this case. At bottom, this is a case about a U.S. subsidiary of a powerful political party in a large foreign country attempting to use our Courts to silence and intimidate its American critics in America. This is not only unacceptable; it is intolerable. We as a people have completely rejected the notion that a political party can `use the courts to destroy political opponents‘. [United States v. Helstoski, 442 U.S. 477, 493 (1979)]’. The Congress Party in India after our Independence, right from the days of Nehru till today, has always believed in using the Police, the Central Bureau of Investigation (CBI) and the Intelligence Bureau (IB) to silence or to blackmail or to intimidate its political critics and opponents. Nehru used the same method unsuccessfully against Guruji Golwalker. Along the same path, Indira Gandhi failed miserably against Jai Prakash Narain. Sonia Gandhi and her political goons in India and America seem to be under the delusion that they can influence the working of American Courts of Law in the same way in which they are able to manipulate all our Courts of Law, including the Supreme Court of India. The intellectual and moral bankruptcy of the Congress Party under the politically shameful leadership of politically shameless Sonia Gandhi has indeed today touched a nadir. How could the Congress Party have been successful in deceiving the general public in India for so long with its bogus secularism, Islamic appeasement and corruption? The answer to this question can be given in the words of Dr. Babu Suseelan: `The Congress Party has failed miserably in defending our borders, Hindus, Hindu culture, or to do anything more than protecting their own narrow political interests. As a party, the Congress has reduced its mind and heart to the level of intellectual and moral bankruptcy, outright dishonesty, corruption, ineptitude, nepotism, and inefficiency. These immoral practices have become the fallback mode of the Congress leaders. In the name of pseudo secularism, Congress moral relativists, atheists, and agnostics want to appease Muslims and want to overturn traditional Hindu culture and moral values. Now the Congress Party headed by the Italian Catholic Sonia is devising new cunning schemes to restrict our liberties. For several years, Hindu organizations around the world had exposed Congress leaders’ despicable behavior and corrupt practices. It is about time Indians realize Sonia Gandhi is a `plant’ by European Christian politics whose aim is to expand Christianity in India. From Hindu religious beliefs Christianity is not a religion in the true sense but a disguised politics of power. These people will kill, murder and annihilate any existing community to further their fanatical goals’.

(To be contd…)

(The writer is a retired IAS officer)