On July 7, a Delhi Court issued a fresh summons to the British Broadcasting Corporation (BBC), the Wikimedia Foundation and the Internet Archive in a case concerning BJP leader Binay Kumar Singh’s plea seeking to restrain them from publishing the recent documentary against Prime Minister Narendra Modi or any other materials related to Rashtriya Swayamsevak Sangh (RSS) and Vishwa Hindu Parishad (VHP).
The court was hearing the issue of service of summons upon the defendants. The defendants argued that the service of summons was not proper as they are foreign entities based in USA and UK and that the service could only be effected through the prescribed procedure.
The court noted, “However, an objection was taken that the service was not proper as the defendants were foreign entities based in USA and UK. It was submitted that the USA, UK & India were all parties to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters concluded on 15.11.1965 (hereinafter referred to as the Hague Convention). As per Article 10 of the said Convention, the service upon a foreign entity can be effected only as per the procedure prescribed therein.”
The plaintiff’s counsel argued that the defendants have already appeared before the court. The defendants have engaged a counsel and submitted to the court’s jurisdiction. The counsel argued that due to aforesaid reasons, the defendants could not object that the service was not proper.
The defendant’s counsel argued that as the service has not been effected upon the defendants through the proper channel, the service cannot be deemed to have been effected upon the defendants. The defendant’s counsel further relied on the Bombay High Court’s decision in the Metro Ortem Ltd case wherein it has been held that merely because a lawyer has been appointed by a person to appear in the court, that shall not imply that the defendant has submitted to the jurisdiction of this court.
However, the court referred to the Bombay High Court’s ruling in the Metro Ortem Ltd case and said that the mere filing of Vakalatnama does not do away with the mandatory requirement of the service of summons upon the defendant as per the prescribed procedure.
“Mere filing of a Vakalatnama and appearance of the said Advocate could not have dispensed with/waived the requirement of service of summons. The said Vakalatnama cannot be considered to be a proof of service of summons,” the Bombay High Court had said in the Metro Ortem Ltd case.
“Hence, by virtue of the same, it is clear that as per the rules formulated under the Hague Convention and by the Government of India, the summons/ notices in foreign countries can be effected only through the Department of Legal Affairs, Ministry of Law and Justice, Government of India, which has admittedly not been done in the present case,” the court said.
The court added, “It is directed that the summons be issued afresh to the defendants on filing of PF within 7 days to be served through the Department of Legal Affairs, Ministry of Law & Justice, Govt. Of India, as per rules.”
Background
The suit states that the allegations made in the documentary against the RSS and the VHP are motivated by malicious intent to defame the organizations and their members. Furthermore, it was alleged that the documentary had created an atmosphere of terror and fear and had the potential to trigger violence and jeopardize public order across the nation.
“The allegations made against the RSS and VHP are motivated by a malicious intent to defame the organisations and its millions of members/ volunteers. Such unfounded allegations are not only baseless but also have the potential to damage the reputation and image of the RSS, VHP and its millions of members/ volunteers, who have committed themselves to upholding the cultural, social and national values of India,” the suit said.
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