RESTRAINING

Supreme Court has delivered a cautionary note on the misuse of defamation law by thin-skinned politicians

IN MAY, THE Supreme Court had disappointed by upholding the validity of the law of criminal defamation, despite the perception of the Law Commission that it is having a “chilling effect” on free speech. Now, however, it has taken the welcome step of reprimanding the government of J. Jayalalithaa for trying to “throttle democracy” and to discourage criticism by misusing Sections 499 and 500 of the Indian Penal Code. In July, it had stayed non-bailable warrants issued by the Tamil Nadu government against DMDK chief Vijayakanth and his wife, objecting to the use of defamation law as a political weapon. This week, it has elaborated that public figures must take criticism in their stride, and not seek shelter in the lee of the law.

Tamil Nadu offers a particularly striking example of the misuse of defamation law. Statistics submitted to the court show that, on average, more than three defamation cases have been filed every month over the last five years. The chief minister is involved in 85 out of a total of 200 cases, and 55 are directed at the media. However, the Supreme Court’s reprimand to Tamil Nadu is a prophylactic tonic for the whole nation. It can even be read as a message to political players permanently locked in freestyle combat in Delhi.

The tug of war over criminal defamation has been marked by extreme stands. In May, the Supreme Court had read the right to reputation as a facet of the fundamental right to life, guaranteed by Article 21 of the Constitution. Making the connection suggested that defamation is an inherently criminal act, interfering with the right to life. This is at odds with the global trend in liberal democracies, which now prefer to treat defamation as a civil wrong, reparable by compensation. Without any sense of irony, the government has also argued for the retention of criminal provisions on the ground that the option of civil law is broken on account of tardiness, and only criminal prosecution can deliver justice in good time. Meanwhile, the perception that criminal defamation law is being used to launch SLAPP suits which deter democratic dissent is growing. The Supreme Court’s putdown to the Tamil Nadu government is therefore welcome, conveying the message that the judiciary will not countenance bare-faced misuse of the law. SEDITION AND PATRIOTISM seem to have become simplistic antonyms in the present Indian context — sedition means friendliness or tolerance towards Pakistan and patriotism means hostility. Prime Minister Narendra Modi’s Independence day speech openly invoked Balochistan, a sensitive issue and an internal matter of Pakistan. Recently, the Kannada actor Ramya (Divya Spandana) was accused of sedition and being “anti-national” for refuting Manohar Parrikar’s claim that Pakistan is like hell. It is obvious that freedom of expression does not extend to tolerant views on Pakistan and this becomes ironic when you consider the constitutional history of this right.

The first amendment to our Constitution was with respect to Article 19 (1) which guarantees freedom of expression to Indian citizens. What prompted the framers of the Constitution and then Prime Minister Jawaharlal Nehru to amend it were two cases which had caused them severe anxiety — Romesh Thapar vs. state of Madras and Brij Bhushan vs. state of Delhi. The verdicts in both cases called into question the foundational premises governing free speech.

The Brij Bhushan case was filed by the printer, publisher and editor of the journal Organiser in the Supreme Court in 1950, in response to an order passed by the chief commissioner of Delhi accusing it of publishing “highly objectionable matter”, a euphemism for anti-pakistan views. What was least desirable at that point of time for a country reeling from the bloodbath of Partition were inflammatory reports which could stoke the dying embers. The chief commissioner’s order asking for pre-censorship of the journal was seen by the state as a preventive measure implemented to maintain