Decriminalising Defamation

When the inimitable Subramanian Swamy added his name to a gallery of eminent Indian politicians who have been sued for criminal defamation, he could at least demand that he be taken seriously because he had suffered the mandatory rite of passage! I am not being facetious.

An allegation you make only matters if you matter. Who sues someone who no one believes? So when Rahul Gandhi says the RSS murdered Mahatma Gandhi, or Arvind Kejriwal says Nitin Gadkari is corrupt, enough people believe them to make suing them worthwhile.

But what if you speak the truth? Section 499 of IPC defines defamation as “any imputation either spoken or written concerning any person with an intention or having a reason to believe that such imputation will harm the reputation of the other person”.

This admits to ten exceptions. Your statements are not a crime if what you say is ‘for public good’, in good faith against a public servant or on a public question, while reporting court proceedings or rendering opinion on a court case, etc. Truth is not one of them. If you say something that is true, but you intend to, or know this will hurt the reputation of your target, basically, you are going to jail for two years.

On the face of it, this is a very strange law. You can’t call a crook a crook even if it’s true because you have an agenda. Kejriwal can never call anyone corrupt because it is not merely his intention: it’s his whole political platform! Bluntly put, he is guilty for what he said about Gadkari the moment he said it, whether or not it is true, because he believes saying it will get him votes.

The same holds true for Rahul Gandhi and for the same reason. I must confess I don’t quite know what to make of Subramanian Swamy who tweeted that asking Ms. Jayalalitha “to govern is like giving a garland of flowers to a monkey or asking a donkey to appreciate Kalpura incense aroma”. Does Swamy have reason to believe that a donkey doesn’t appreciate good aroma? Does anyone believe this highly successful much admired politician may be a simian? And does it matter? I mean, didn’t you respect Sugriva and Vali’s wives in Ramanand Sagar’s Ramayana?

The same is especially true of Arun Jaitley who can command millions in hourly fees for legal advice. With the money he is capable of legitimately making if he has a mind to, Kejriwal calling his leadership of the Delhi Cricket Board corrupt may be of little consequence, yet he has filed criminal proceedings against Kejriwal. Curiously, Kejriwal, who has the most to gain from an unqualified legal licence to shoot off his mouth from time to time, actually issued a circular in May 2015 directing all departments of the Delhi Government to criminally prosecute all ‘who damage the reputation of the Chief Minister’. For a guy who has been sued by Sheila Dikshit’s ex-political secretary Pawan Khera, Kapil Sibal’s son lawyer Amit Sibal, and lawyer Surender Kumar Sharma too, that is irony wrapped in absurdity. So what should we do with such a law?

It really is a bit of a no-brainer because of the peculiar way in which India manages its criminal administration of justice. We commonly add six names to a rape case and convert it into gang rape, sometimes because we want the rapist’s family to suffer torment as the girl did, and sometimes because the extortion opportunity is too good to miss. Likewise, if someone defames someone, we add more names and make others we hate suffer criminal trials even though they didn’t say a word merely by accusing them of criminally conspiring with the guy who did all the defaming. Indeed, this law makes it entirely possible to send those who speak ill of the dead to jail! Why that you may ask, considering that the dead truly have nothing to lose? As it turns out, politically speaking, a lot of the living live off the deeds of the dead. If the dead are defamed, the living lose political credibility too. Thus circa 2016, we are jumping hoops about whether Nehru was responsible for the mess in Kashmir, whether Shastri’s concessions in Tashkent were justified or not, and so forth.

The litany of woes does not end with the foregoing. We can conceive of situations where criminal prosecutions are entertained by criminal courts based on statements that are on their face intended to be ironic:  as for instance when ribbing a couple living together that they are “living in sin”. We can conceive of statements that are mere expressions of political ideology – like “the present government is funded by and therefore pursue the agendas of private enterprise alone” – which can lay the foundation for a criminal prosecution. We can conceive of situations where imaginary legal entities created by fictions of law that have no physical existence except in a register in some government office somewhere – and I mean departments, undertakings and companies – launch prosecutions because ‘they’, whatever that means, feel defamed. Bear in that mind that beyond a point, it does not matter if the accused comes out unscathed. Many of these prosecutions run for decades, compelling the accused to be present in court on every date, binding him hand and foot to this excruciating procedure, the sword of coercive process dangling over his head. If you have not had this experience, you do not truly understand its corrosive debilitation. All this is possible, even though what was said was true and did the target of the statement no harm at all. It’s ridiculous.

It is especially ridiculous because the Article 19(1)(a) of the Constitution guarantees us free speech subject of course to reasonable restricts. How free is our free speech? I have written extensively on this subject in the context of Section 66 of the IT Act (Please google “Freedom to Offend” and “India’s silenced daughters”). To cut to the chase, I would say India’s free speech liberal credentials always find their nemesis when confronting an opportunistic – or worse, mercenary – howling mob screaming for blood. At that point, free speech transforms into incitement and the country prioritises public order at the cost of all else, leaving Charlie Hebdo with not a leg to stand on.

Does that mean I am advocating that everyone should be free to smear everyone’s good name? Of course not! I am asking you how inviting the police to administer the limits to our constitutionally guaranteed right is an appropriate solution to the problem. Defamation is a well-established tort, i.e. a civil offence between people not bound by contract who are still legally obliged to act responsibly to one another. You file a case in a civil court, you pay your court fees, you prove damage was caused to you and you collect. If you were not defamed, or if you were and it was true, or if you were but you can’t prove it did you harm, you do not collect. This seems to me to be the eminently sensible way to handle it.

Of course there are several problems with this solution. You pay your court fees upfront and then you wait for a very long time for the court to decide your case. Let me not underplay the difficulty, but I can’t stretch it to defend the argument that where civil cases take a long time to conclude, we ought to convert our grievances to crimes and drag the defendant through a more onerous process. The failings of the law cannot become the privileges of the outraged.

The Supreme Court can certainly see the point. Since last year, it has accepted multiple pleas from multiple appellants, notably Kejriwal and Swamy, to examine the issue of decriminalisation of defamation. Much of the attack is grounded in our right to free speech, which is subject of course to reasonable and not excessive restriction, which of course is very quick to transform into incitement, which of course is inches away from a howling mob, which is where the cops are very interested in the subject.

As for me, on balance, I am on the side of the free speech liberals. My reason is very simple. Cops are great with crowd control but they are not trained to make keen judgements on ideological issues like how liberal India should be. Their default response is aggressive, pre-emptory and – how should I put it – not intellectually nuanced. That frequently makes it unjust. I have spent too much time battling the professional compulsions of overworked policemen and the enormous pressure they face to trust civil liberty to their discretion. For that reason alone, I’d rather scrap criminal defamation as an offence.

Originally Published on February 23, 2016 in Business Today


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