Defame fatale: How criminal defamation hurts everybody, not just journalists

How does Rahul Gandhi explain that the Congress made no attempt to decriminalise defamation for all these decades?
Defame fatale: How criminal defamation hurts everybody, not just journalists
Defame fatale: How criminal defamation hurts everybody, not just journalists
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As far as court judgments go, those often don't make sense to an ordinary reader. And not without reason, for they are often mired in dense legalese, or the subjects of the orders themselves don't matter a bit to ordinary people—there's a disconnect somewhere. Moreover, writings about such nebulous subjects often get lost in translation (from legalese to simple language). The Supreme Court judgment of May 13, refusing to decriminalise defamation, is one such instance.

Much of the debate on the subject, both in the run-up to the petitions that challenged Sections 499 and 500 of the Indian Penal Code (that make defamation a criminal offence) and when submissions were still being made, as well as after the court pronounced its verdict, have been so academic in nature that people tend to perceive it as yet another matter that has little or no bearing on the lives of common citizens. Unfortunately, this judgment actually touches the lives of the citizenry, and has a bearing on the democratic process as a whole. Yes, in more ways than one. That's because the law indeed moves in mysterious ways.

The May 13 judgment of the Supreme Court was long-winding and steeped in an overdose of legal jargon, but one crucial element that emerged from the verbiage was that it refused to acknowledge the assertion of the petitioners that criminal defamation causes a 'chilling effect' in society. It is a relatively new subject area, and as the Wikipedia entry on the matter notes, "A chilling effect may be caused by legal actions such as the passing of a law, the decision of a court, or the threat of a lawsuit; any legal action that would cause people to hesitate to exercise a legitimate right (freedom of speech or otherwise) for fear of legal repercussions." In simple words, everyone else clams up when one particular person is dragged to the courts on criminal charges of defamation.

The subject had been a matter of concern among activists, journalists and lawyers who either face the brunt of criminal defamation or need to fight the cases in courts. The concern rightly found resonance in a consultation paper on media laws of the Law Commission in May 2014. The commission, even while expressing concern that the practices of fake sting operations and media trials were nothing short of irresponsible journalism, had remarked, "Threats of legal action with punitive damages under the laws of defamation lead to a ‘chilling effect’ on the publication of free and independent news articles and puts undue pressure on journalists and publishing houses. "

All these assertions cut no ice with the court. Whether the petitioners were unconvincing in their submissions or the judges were themselves unable to understand the import may be a matter of debate, but what is equally true is that the issue of the chilling effect is lost on ordinary people as too. Most of the documentation on the subject is qualitative in nature, and unless you boil down the issue to scare-mongering numbers, a campaign on the subject is unlikely curry favour with the masses. It is therefore a no-brainer that the debate on the issue of criminal defamation did not pique public interest and become a subject of furious discussions over tea sessions.

But does a lawsuit, or even the threat of filing one, result in a chilling effect? To answer that let me share our own personal experience. After we, the three authors of Gas Wars: Crony Capitalism and the Ambanis, were sent legal notices in April-May 2014 by Reliance Industries Limited (RIL) and the Anil Dhirubhai ambani Group (ADAG), the mainstream media went mute. Forget positive or flattering reviews, the media did not even trash the book. It was as if the work did not exist at all. And when a discussion on the subject of the book was held at the Mumbai Press Club later that year, the venue was packed to the brim. However, not one trickled out to the public because not one word found any mention in the mainstream media. It was as chilling as that.

Now, there is a concept that describes such legal measures: strategic lawsuits against public participation (SLAPPs). University of Denver professors Penelope Canan and George W Pring, who coined the term, had enough reasons and numbers to zero in on the word. Their 1996 book SLAPPs: Getting Sued For Speaking Out grew out of the university's Political Litigation Project, an inter-disciplinary project of the Department of Sociology and the College of Law, which had been studying and reporting on such lawsuits for more than ten years. Canan and Pring found a pattern and felt there was a need for a new term. Since then, the term has caught on, and so has the concept. Sadly, public awareness about this news age threat is nothing worth writing home about.

Contrast this with the successful public campaigns and subsequent battle in the courts against Section 66A of the Information Technology Act. The Supreme Court had in March 2015 struck down the “draconian” provision that had led to the arbitrary arrests of many people for posting content on the Internet that were deemed by complainants to be allegedly objectionable. The reason why at least the privileged Internetatti set social media ablaze at that time was that there was a perceptible connect with the subject at hand, and it was immediate. On the other hand, we don't have ordinary people randomly and rampantly filing complaints against strangers in faraway lands on basis of Section 499 and 500 of the IPC. At least, not yet.

Also, it is not that the campaign against criminal defamation is arguing against defamation in itself: the argument is about doing away with a Victorian leftover that has no place in a modern society. Any individual is of course entitled and should be entitled to take recourse to law if there is an attempt to defame her or him. But to jail an accused for saying something with allegedly malicious intent or even inadvertently is a primeval response. Say, if you were to call me an idiot for writing this piece and I were to allege in court that you have done irreparable harm to my reputation and honour by saying so, would you like to be dragged in handcuffs to the nearest lockup by your unfriendly neighbourhood cop, or even be jailed for the same, well, offence?

Criminal defamation is, of course, a weapon; it is a weapon that no one wants to relinquish. That should have been evident from the list of some petitioners who fought this case in the Supreme Court: Arvind Kejriwal, Rahul Gandhi and Subramanian Swamy. So, why does the Aam Aadmi Party (AAP) file defamation cases as a political entity but its own supremo wants criminal defamation to go? How does Gandhi explain to the people that it is his own Congress party which made no attempt to decriminalise defamation for the many decades that it was in power? How does Swamy counter the contention that the Union government run by his own Bharatiya Janata Party (BJP) vehemently asserted in court that criminal defamation needs to stay? That's because political parties don't want to let it go: it is a potent political weapon, only when it is your hands.

The political personalities needless to say fought the case for political reasons, but there were others who had subsequently joined the original petition: the Foundation for Media Professionals (FMP), for instance. The FMP's arguments were similar to the ones that this article seeks to make: about SLAPPs and the chilling effect that they arguably produce. What's obvious from the outcome of the court proceedings is that more research needs to be conducted into this rather intangible concept called chilling effect. And people need to know about a diabolical tool that is used to stifle public participation in a democracy by silencing informed discussion on matters of public interest.

With the apex court refusing to decriminalise defamation, it will now be up to political parties to amend the law in Parliament. But will they? You and I, of course, know the answer.

(Subir Ghosh is a Bengaluru-based journalist-researcher, and lead author of 'Sue the Messenger: How legal harassment by corporates is shackling reportage and undermining democracy in India'.)

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