India’s 160-year-old Defamation Law: Yet another tool for the system to shun dissent and criticism?

Usually, when an institution tries to evade criticism and accountability, they try to gag the voice of the dissenters by using numerous loopholes in the legal system. In India, however, where we get distinguished as the world’s largest democracy, certain laws themselves are loopholes to reduce the credibility of the entire framework. One such law is the criminalization of “defamation’’ (मानहानि in Hindi).

In the legal context, “defamation” is a term that gets used to penalise a group of people or an individual for deliberately slandering another person’s (usually, a famous and respectable individual) or a community’s reputation with the aim of personal benefit or to cause economic and social disadvantage to the concerned authority or individual. 

While the Constitution of India enshrines the Right to Speech and Expression under Article 19, the Indian Penal Code (IPC) has two sections: 499 and 500, that limit the justifiable extent of the aforementioned fundamental right of the citizens. Though there are sufficient reasons for an anti-defamation law to function in India, they often get used as a shield against justified criticism.

“Defamation suits” have emerged as another political tool to bully and coerce dissenters into taking down their criticism of either the Government or a powerful individual, a wealthy conglomerate. Today, the situation has been exacerbated beyond any reasonable extent as certain factions inside the Indian judiciary bear double standards while delivering judgments concerning the Modi Government.

Despite the Indian Constitution enshrining “equality before the law” (Article 14) as a rudimentary yet fundamental right of each Indian, the apparent difference in how the fate of ‘defamation suits’ get determined based on the political identity of the plaintiff and the defendant is too apparent to get ignored. Let us decipher the issue with its various nuances.

When the Government is the accused on Defamation Suits

Silly Souls Defamation Case, Smriti Irani

On July 2022, Congress leaders like Jairam Ramesh, Pawan Khera, and Netta D’Souza caused great turbulence in the BJP high command when they came up with documentation regarding an alleged “illegal bar” operated by Union Minister Smriti Irani and her daughter. The Congress made the allegations after Goa’s Excise Commissioner Narayan Gad issued a notice to the bar-cum-restaurant named “Silly Souls.” 

Pawan Khera, Congress bulwark, claimed that the licence for the bar was procured against the name of a person who had died a year ago. This person “coincidentally” happened to be Smriti Irani’s husband’s business partner. Later, Smriti Irani clarified her stance via a press conference, where she accused the Congress of deliberately trying to malign her and her party’s reputation through these allegations.

Despite videos and footage of her daughter promoting the bar-cum-restaurant, Smriti Irani denied both her and her daughter’s stake in “Silly Souls,”. Eventually, the Delhi High Court ordered Congress to take down tweets and other social media posts regarding the allegations against Smriti Irani’s daughter.

Delhi Lt. Gov. Vinai Kumar Saxena (BJP) Case

On September 27th, 2022, the Delhi High Court passed an order to prevent the Aam Aadmi Party (AAP) from posting ‘defamatory content’ against Delhi’s Lt. Gov. Saxena on social media platforms.

The AAP alleged that while serving as the Chairman of the Khadi and Village Industries Association, Saxena had laundered currency notes worth Rs. 1400 crores after demonetization. Delhi High Court followed up with the preliminary examination of the allegations by AAP through attached FIRs and legal orders. 

The Delhi HC deduced that these allegations were unjustified based on the lack of substantial evidence and ordered the AAP to drop its charges. Delhi HC even reprimanded the AAP representative by saying that the charges were “made in a reckless manner, without factual verification.”

When the accused belongs to the opposition:

The Rahul Gandhi (INC) defamation case

When Rahul Gandhi was making fiery speeches in the Lok Sabha regarding the alleged nexus between Prime Minister Modi and Gautam Adani, there came a decision from Surat Court’s Justice H. H. Verma, in which Gandhi got disqualified from his MPship (Member of Parliament).

Rahul Gandhi got disqualified due to his alleged insult to the OBC Category, having the surname “Modi” during an electoral rally in Karnataka in 2019. During his speech, taking a dig at PM Narendra Modi, Lalit Modi, and Nirav Modi, Gandhi called them “thieves.” 

After Rahul Gandhi’s speech, BJP MLA from Gujarat, Purnesh Modi, filed a defamation case against Rahul Gandhi, alleging that he (Rahul) had insulted the entire OBC “Modi” community by calling each of them “thieves.” Eventually, the Surat Court bench, headed by Justice H. H. Verma, dictated the maximum punishment to Rahul Gandhi by sentencing him to two years in prison. Due to this, Rahul Gandhi got disqualified from Lok Sabha.

Numerous legal experts are dubious of the Surat Court’s intent as the verdict lied on the alleged insult to the OBC community, whereas, according to the National Commission for Backward Classes, out of the names mentioned by Rahul Gandhi, none were registered under the OBC category. 

According to Defamation Law 101, if a reference gets made against a generic class of people, the accused cannot be held accountable unless there is substantial proof by the plaintiff that proves that the words uttered got directed explicitly towards him/her. In this case, even the petitioner, Prunesh Modi, refrained from saying that Rahul Gandhi’s speech was directly against him.

Thus, Justice H. H. Verma’s abrupt verdict has gathered much disapproval from all the opposition parties. Instead of undergoing strict scrutiny, Justice Verma got promoted as the Chief Judicial Magistrate of the Surat Court, his second promotion in two-and-a-half months!

Kailash Gehlot (AAP) Defamation Case

Recently, the Delhi High Court, while hearing a petition from the Aam Aadmi Party, refused to entertain a defamation charge by the Delhi Transportation Minister Kailash Gehlot. Gehlot was accused by BJP MLA Vijendra Gupta of corruption charges related to the illegal procurement of a thousand buses. Gupta took to Twitter to ‘expose’ Gehlot’s alleged corruption.

While turning down the defamation appeal of the AAP politician, the Delhi court said that both the plaintiff (Gehlot) and defendant (Gupta) were public representatives, and since the accusation was regarding Gehlot’s “discharge of public functions,” the outrage by Vijendra Gupta stood justified.

Now, when we draw a comparison between the Delhi court’s stance on the Vinai Saxena Case vs. the Kailash Gehlot Case, we shall discover that the course of judgement by the Delhi High Court on Gehlot differed vastly from that on Lt. Gov. Vinai Saxena’s. If Gehlot’s “defamation” could get justified on the ground of his “discharge of public function,” why did Lt. Saxena get exempted from a similar verdict? 

As per the allegations, Lt. Saxena, too, had misused his designation as the chairman of the Khadi and Village Industries Association (a public office) and had used it in a malevolent way. The apparent disparity in the Delhi HC’s stance in two similar matters has taken numerous exponents of the Indian Legal System by surprise.

Take Away from the above cases:

In India, the provision dealing with the “criminalization of defamation” got put in the Indian Penal Code (IPC) in 1860, during the bygone colonial era. The Britishers used this law when there was no popular opinion on decrees on the necessity of “freedom of speech and expression.” 

Even Britain has done away with the laws on sedition and decriminalised defamation back in 2006. In India, however, the freedom of speech and expression continues to get squashed under this obsolete 160-year-old law. 

If we took notice:

• Arvind Kejriwal (AAP) has 33 cases of “defamation” lodged against his name.

• Rahul Gandhi (INC) has 12 cases of “defamation.”

• In 2014, Madhya Pradesh’s Chief Minister Shivraj Singh Chouhan filed a defamation case against Congress leader K. K. Mishra when the latter spoke about the CM’s involvement in the MP Professional Board Scam.

• Congress Leader Renuka Chowdhury has threatened to file a defamation case against PM Modi for his “Shurpanakha” jibe at her.

For politicians, dealing with defamation cases is child’s play as they have both the wealth and the ‘connections’ that are needed to keep them aloof from lengthy court proceedings. However, for an ordinary citizen, a small organisation, or an independent journalist, the implications of such cases are extreme.

Recently, Newslaundry (an independent digital media organisation) faced an Rs. 100 crore defamation case from Vineet Jain’s “Times Now.” Newslaundry got dragged to court for their satirical and comedic bits on Times Now’s star anchor Navika Kumar and former employee Rahul Shivshankar. Thus, even independent journalists are not immune from using their platforms to voice their individual opinions.

The Way Ahead

In 2022, UNESCO published a report expressing dire concerns against the criminalization of defamation in 160 countries. The report opined that in all the vibrant democracies of the world, one must look at “defamation” through the optics of freedom of speech and expression.

In 2016, the Honourable Supreme Court made a clear stance against the weaponization of “defamation suits” for political advantages. The ordinary people of India must comprehend the damage that can get done by powerful authorities against dissenting voices through the legal precepts of defamation. Else, the voice of democracy will keep getting gagged by legal notices and defamation suits.