Why did The Indian Express pull down its story on Ranbaxy?

One cannot be sure exactly when, but sometime around the stroke of midnight, while India was busy celebrating the 70th anniversary of its tryst with destiny, two crucial news reports quietly disappeared from the website of The Indian Express. The reports, part of a two-part series called ‘The Ranbaxy Ruling’, had appeared on the newspaper’s front pages on August 11 and 12.

That the reports did not show Ranbaxy or its former owners, brothers Malvinder and Shivinder Singh, in a good light would be an understatement. But why did Malvinder’s advocates issue a notice to The Indian Express, asking them to remove the reports? That Singapore International Arbitration Centre had told the Singh brothers to pay upwards of Rs 2,500 crore as fine (plus Rs 1,000 crore) to Daiichi Sankyo, who purchased Ranbaxy in 2008, was not breaking news — it had been reported widely in the first week of May, days after the judgement was delivered.

The reports, however, delve into the details of how the tribunal arrived at the decision. According to the clarification issued by The Indian Express, Malvinder’s advocates brought to the newspaper’s notice “orders of the Delhi High Court and Singapore Supreme Court. The Delhi High Court order says the award in the matter is to be kept in a sealed cover, to be produced on each date of hearing. The Singapore court barred public inspection of any judgement or order pronounced or delivered in the proceedings.”

The legal notice and the court orders refer to the 373-page arbitration report on which the two-part series is based — and quotes liberally from. The first part, titled ‘Singapore tribunal reveals how Ranbaxy ‘buried info on fraud, duped its owners”, talks about “a 2004 Self Assessment Report (SAR) prepared by Rajinder Kumar, then head of Ranbaxy’s R&D, for the company’s internal use”, which according to the report is “at the heart of the indictment”.

The concluding part consists of two reports based on the depositions of people who, at some point of time, were “Ranbaxy’s own”. The report titled ‘Should bury data, said Ranbaxy chief when R&D head revealed fudge: Tribunal order’ is based on what Brian Tempest, Chief Executive Officer (CEO) when SAR was submitted to the company’s science committee, told the tribunal. According to the report, Tempest recalled that Tejendra Khanna, the then chairman of Ranbaxy who went on to become the Lieutenant Governor of Delhi, had effectively suggested that “Ranbaxy should just bury the data”.

The other report, titled ‘Terrible… put patients at risk: Ranbaxy’s own on Ranbaxy’, is based on the testimonies of Richard Cooper, Ranbaxy’s expert witness, and W Warren Hamel, one of the company’s external lawyers. Cooper, for instance, is quoted as asking the tribunal how Ranbaxy was reporting stability data for its drugs to the United States Food and Drug Administration (USFDA) without having the resources to generate it, before answering his own question: “They have a standard operating procedure that authorises the discarding of data.”

So far, so good. Here’s the problem, though — instead of attributing the information to a ‘reliable source who wished to remain anonymous’, the reports cite chunks of the arbitration report, which according to court orders has to be kept out of the public domain.

According to the Arbitration and Conciliation Act, 1996, “all matters relating to the conciliation proceedings” are confidential, as is the “settlement agreement”. The latter, however, inevitably becomes public once it comes to court for enforcement or challenge. However, this confidentiality applies only to the parties involved in the arbitration, not the world at large — including media organisations.

According to this May 24 order of the Delhi High Court, “certified copies of the (Foreign) Awards dated April 29, 2016 and April 30, 2016 (judgement of the Singapore tribunal) and Agreement dated June 11, 2008 (signed by Daiichi with Ranbaxy) shall be filed in a sealed cover”, after which the soft copies would have to be deleted. “The sealed cover,” adds the order, “shall be produced on each date of hearing.”

Interestingly, it was Daiichi — and not Malvinder — that filed an application seeking that the arbitration tribunal’s award in the matter “be kept in sealed cover envelope or the relevant soft copy file must be encrypted with password”. The interlocutory application invoked Section 151 of the Civil Procedure Code, which deals with the inherent powers of the court “to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court”.

It is odd, then, that Singh brothers’ RHC Holdings holds Daiichi responsible for leaking the tribunal report to The Indian Express. But does the newspaper stand in contempt of court? 

Newslaundry showed the Delhi High Court order to some lawyers, who were of the opinion that reporting on the sealed report does not amount to contempt. This is so because the Delhi High Court does not stop anyone from reporting on these orders per se. It merely states that the orders shall be kept in a sealed cover. The Indian Express will stand in contempt only if it can be shown that the reporter accessed the copy of the award from the court’s records. That can only happen once one of the parties files an application to bring the news reports to the court’s notice.

Newslaundry could not access the Singapore Supreme Court order. The key to understanding why Express pulled down the reports perhaps lies in what that order says.

So, was The Indian Express unaware of the court orders when it published the reports? Or was it in the know and went ahead with the story anyway for the greater good? Remember that this particular story is not just about a dispute between two multinational companies. It is about pharmaceutical drugs that hundreds depend on and quite literally a matter of life and death.

Newslaundry got in touch with the newspaper’s chief editor Raj Kamal Jha, editor Unni Rajen Shanker and reporter Deepak Patel. While Jha did not respond to our mail, Shanker replied, “We have nothing to add to the statement that our legal team has issued.” Patel declined to comment.

With everyone being tight-lipped about what is a sensitive legal issue, one can only wait for August 22, the deadline for the Singh brothers to challenge the Singapore tribunal’s order. In the meantime, in case you missed the story when it first appeared, you can do one of many things: 1. Ask someone who subscribes to The Indian Express to give you hard copies of the August 11 and 12 editions. 2. Read one of the many, many, many follow-ups. 3. Use Google cache while you can. Come on people, this is the Information Age, and we are living in a Digital India.