Sunday, June 08, 2008

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

V SUNDARAM | Sat, 07 Jun, 2008 , 02:25 PM
Kornstein Veisz Wexler & Pollard, LP, New York, the Attorneys for Narain ataria and Arish Sahani, have legally met all the complaints/objections/criticisms/ attacks of INOC Inc. in this remarkably frivolous case.

Let me present today’s story in the order in which these Attorneys have presented it in the affidavit submitted to New York Supreme Court.

Statements About Sonia and Rahul Gandhi
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’.

INOC Inc. has objected to this description of Sonia Gandhi. The Attorneys for the Defendants have clarified that asserting that Ms.Sonia Gandhi’s violence is not only political and physical but also ‘spiritual’ removes all doubt that the claim about violence is not fact but protected opinion and hyperbole. ‘Whether a statement is fact or opinion depends to large measure on ‘context’, and courts must begin ‘by looking at the content of the whole communication, its tone and apparent purpose’ rather than by ‘first examining the challenged statements for express and implied factual assertions, and finding them actionable unless couched in loose, figurative or hyperbolic language in charged circumstances. In doing so, the court should take into account that a statement is likely to be protected opinion when the ‘reasonable reader’ can tell that its author is voicing no more than a highly partisan point of view, something a reader would surely expect from a highly critical political advertisement such as the one under attack here’ (Kornstein Affidavit).

Even a cursory perusal of the disputed advertisement that appeared in New York Times on 6th October 2007 will show that it was meant and inserted as a political advertisement in a free country. The statement at issue (and the others) represented the opinion of the authors and that its specific charges were allegations not demonstrable fact. The statements that have been made the basis for this baseless libel case were made in a paid political advertisement. They should be viewed like letters to the editor or comments at a public hearing, or an Op-Ed article; in short just as ‘a medium, which is typically regarded by the public as a vehicle for the expression of individual opinion rather than the rigorous and comprehensive presentation of factual matter’.

All political ads of this kind are meant to represent the viewpoints of their authors and therefore are bound to contain considerable hyperbole, speculation, diversified forms of expression and opinion. This kind of total political freedom within the framework of Constitutional Law was guaranteed and enshrined in the First Amendment. It guaranteed not only freedom of speech but also freedom after speech. The INOC libel petition wants to snatch away both these freedoms by filing an infantile petition in the Supreme Court of New York! In India, the Supreme Court and all other Courts of Law are private estates of Sonia Gandhi and her family. Perhaps it is this fact, which inspired Sonia and her Party to use the INOC (a Congress Party Subsidiary in America) for filing this ludicrously lawless libel case, imagining that the Supreme Court of New York will be no different from the Supreme Court of India!

During the time of assembly elections in Gujarat in December 2007, Sonia Gandhi (a political imposter from Italy) had the temerity of describing twice elected Chief Minister Narendra Modi as ‘Mouth ka Saudagar’ [which means a ‘merchant of death’]. Having exercised this kind of political freedom in Gujarat, Sonia Gandhi and her goons in India would like to deny that very political freedom to the American Indians who inserted a political advertisement about her known deeds of political wickedness in the New York Times of 6th October 2007. The Advertisement was inserted only to make the people of America aware that Sonia Gandhi has nothing to do with Mahatma Gandhi and that she is only masquerading as Mahatma Gandhi to gain maximum political mileage everywhere. The very fact that a massive political protest against Sonia Gandhi being honoured at the UN, took place in New York will serve to confirm the fact that the political

The above advertisement appeared on 6 October 2007 in New York Times.Courtesy: Dr. Subramanian Swamy (visiting Professor, Harvard niversity)

advertisement was inserted to synchronize with this public agitation. Political attacks on Sonia Gandhi and her party have to be met by them directly on political platforms and not through flimsy/silly cases, not sustainable in any legal or constitutional manner, in Courts of Law.

In Statement No.1 above it has been stated that, ‘Sonia locked the then Congress President with party goons in a toilet and declared herself Party President’. I know this to be a fact. Sitaram Kesari, the then old and tottering Congress President was violently removed by Sonia Gandhi and her goons. This was reported widely in all the English and Language Newspapers in India. In ‘The Hindu’ Newspaper of October 26, 2000 (using the term ‘goons’), it was stated that Ms. Sonia Gandhi’s predecessor was ‘locked in the toilet’. According to the Kornstein Affidavit, free use of the word ‘goons’ is precisely the kind of hyperbolic expression that receives absolute protection under the First Amendment. Statements ‘couched in loose, figurative or hyperbolic language in charged circumstances’ have been held to be rhetorical hyperbole and therefore non-actionable opinion. [Ref. Renco Group, Inc. v. Workers World Party Inc., 13 Misc. 3d 1213(A), 824 N.Y.S.2d 758, 2006 WL 2739006]

2. ‘From the time Sonia entered India, she has looted the country on a large scale’.

INOC have objected to this statement. Sonia Gandhi’s acts of Himalayan corruption have been graphically brought out by Dr. Subramanian Swamy in his website under the title ‘Know your Sonia’. If Dr. Swamy’s allegations were false, Sonia could have easily issued a legal notice regarding her defamation to Dr. Swamy in the same way in which INOC Inc. have issued to Narain Kataria and Arish Sahani. I propose to deal with this aspect in a more detailed and documented manner.

Keeping the above background in view, Kornstein Affidavit states: ‘Unchallenged statements about the well-known Quattrocchi scandal protect this opinion. Use of the word ‘looted’ is quintessential hyperbole and rhetorical expression absolutely protected under Milkovich, supra, 497 U.S. at 20. These opinions are supported by information, which the ad gives and the plaintiff does not challenge, about Ms. Gandhi’s close friendship with Ottavio Quattrocchi. Interpol and the CBI (India’s FBI) are still trying to capture Mr. Quattrocchi for bribing Indian officials in the 1980s. Ex. G (wanted poster for Mr. Quattrocchi). The opinions are also supported by information set out in the ad (which, again, plaintiff does not challenge) about large sums in a secret Swiss bank account. All the information in the ad merely reiterates what has been widely reported, including in India Today on January 30, 2006 (Ex. F), ‘American Thinker’ of September 21, 2005 (Ex. H), and The Swiss news-magazine Schweizer Illustrierte of November 11, 1991. This material is discussed more fully in the Kornstein Aff. S [g[10-14.’

3. ‘She (Sonia) violated multiple laws of the country with impunity’. Here again, the Plaintiff (INOC the complaint) does not challenge statements in the ad that Ms. Gandhi has been implicated in the Quattrocchi corruption scandal. Such statements provide the basis for and protect the opinion expressed. [Ref. Steinhilber, supra, 68 N.Y.2d at 289, 508 N.Y.S.2d at 552].
There are innumerable Court rulings in America to the effect that statement of opinion accompanied by facts on which it is based is not defamatory. American Courts have also held that going so far as to call a plaintiff ‘a criminal’, ‘engaged in criminal conduct’ who has ‘committed crimes’ and is ‘connected’ — statements that go beyond what was said here in this instant Libel case relating to INOC vs Narain Kataria and Arish Sahani, where the word ‘crime’ is never used—constitutes an opinion and is not actionable even where the statements merely refer to ‘arguable’ criminal activity. [Ref. See Galasso v. Saltzman, 42 A.D.3d 310, 311, 839 N.Y.S.2d 731, 732 (1st Dep’t 2007).

I have written innumerable articles in these columns to the effect that Sonia Gandhi is the only individual in India who is above the Law of the Constitution. She is not governed by either the CRPC or the Code of Criminal Procedure. In my article titled ‘Is Sonia above Law?’ published in ‘News Today’ on 28-4-2006 I had observed as follows:

‘Is not the honour of Sonia Gandhi more important and vital than the letter and spirit of the Indian Constitution? The people of India would like to know why the Election Commission has dropped Sonia Gandhi’s name. If Jaya Bachchan can be disqualified with retrospective effect, in what way is Mrs. Sonia Gandhi enjoying a special status above the law of the Constitution? The straight and simple course is for the Election Commission to apply the same law with the same effect in the sane manner along the same channel for the same reason and finally for the same result in respect of Sonia Gandhi as well. In Euclid’s geometry, one of the main axioms is that the shortest distance between two points is a straight line. That seems to have been made applicable to Jaya Bachchan by the Election Commission. But the Election Commission has not applied pari passu mutatis mutandis the same axiom in respect of Mrs. Sonia Gandhi…. In respect of Sonia Gandhi and the other members of her family, the shortest distance between two points IS NOT, NOT EVER, NOT A STRAIGHT LINE! This has been the despicable and condemnable attitude of all the public authorities in India like the Election Commission, Income-Tax Department, all Courts of Law including the Supreme Court during the last 35 years. All these public authorities are treating Sonia and her family as extraordinary factors above all laws governing this land—like the debauched Kings of France before the French Revolution of 1789 or like the dictatorial Czars of Czarist Russia prior to the October Russian Revolution of 1917’.

(To be contd...)
(The writer is a retired IAS officer)
e-mail the writer at


At 2:08 AM, Anonymous Anonymous said...

This article is true..PLz spread this in social media


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