By Poonam I Kaushik
It’s the season of the defamation whereby any innuendo equals disqualification and becomes a ticket to jail. Perhaps little did Congress’s Rahul’s know his comment of “Why do all thieves have Modi as the common surname,” at a poll rally in Karnataka 2019 would land him in legal trouble 2023 when ex-Gujarat Minister Purnesh Modi filed a case in Surat court that his comments had defamed entire Modi community.
True, the Court suspended Rahul’s two years sentence but within 24 hours Lok Sabha disqualified Rahul under RPA’s Section 8(3) even though Court gave him 30 days to appeal. Basing its decision on a 2013 Supreme Court judgment which avers stay on conviction and not sentence was the only way that could protect Rahul’s MPship.
Accordingly, Rahul stands disqualified from Parliament for his jail term period and an additional 6 years, unless a higher court suspends his conviction. Ironically, the 2013 ordinance which Rahul tore up would have allowed a convicted MP/MLA to continue in office till his appeal was disposed of, has returned to haunt him.
Rahul, on his part is defiant and seems to follow the three Cs principle: Conviction, Courage and Commitment. Working on the premise of ‘Converting’ the defamation challenge to an opportunity of the ahead, making it the fourth C. The political rainbow is his conviction has bandied the Opposition together as its leaders could be next.
Questionably, is India heading towards an era of political intolerance and criminal defamation? Is the polity afraid of clash of ideas in public life? Why are politicians’ discourses becoming more and more venomous and toxic? Is Government, Centre or State crushing free expression, suppressing dissent? Underscoring the narrow-minded climate of political discourse we live in.
Either way, there are two important takeaways from the Surat court’s conviction of Rahul — and neither is about whether he will be disqualified as MP, even though a 2013 Supreme Court judgment is explicit on the outcome. It held any MP, MLA, MLC found guilty of crime and sentenced to more than two years would lose their House membership.
One, whether the Court ruling will reopen discussion on one of the most controversial penal provisions of the Indian Penal Code: Section 499 and 500 which spell out a “simple imprisonment for a term which may extend to a maximum of two years and a fine or both for spoken, read, gestured words with the intention of harming a person’s reputation is to be considered defamation and attract legal punishment.”
Despite experts arguing that it is disproportionate to harm caused and prone to misuse due to the vague language used, specially in a milieu of competitive democracy during the heat and dust of frenzied electioneering where leaders of every colour, caste and creed try to whip up voters sentiments via speeches based on lies, deceit, toxicity, slander, toxicity. Elections over these are forgotten and dumped in political raddi.
Till date there was an informal compact whereby political speeches made in the heat of campaigning were largely exempt from domain of criminal defamation cases, not by law but practice. It remains to be seen whether Rahul’s conviction and subsequent disqualification shatters this convention and opens doors for Parties, leaders and groups to file defamation charges against political adversaries and the route taken by judiciary to decide these cases.
Specially as 6 high voltage Assembly elections are scheduled this year prior to general polls in 2024. Raising a moot point: Will poll campaigns now be peppered with criminal defamation litigation? Will it prompt netas to be more restrained? Will courts evolve a new doctrine in adjudicating such complaints? Given the vagueness of the criminal defamation statute.
The law completely fails to clarify what harm to a person’s reputation means. Its explanation of harm as lowering ‘moral or intellectual character’ or lowering the ‘credit of that person’ in the ‘estimation of others’ only convolutes the provision further.
It is difficult to sustain the argument that all those with the surname, and not merely the three individuals including Prime Minister Modi who were referred to, can be aggrieved persons. Also, it is not clear if the complainant had shown that he was aggrieved by the alleged slur either personally or as a member of the ‘Modi’ group.
Two, is the impact this move will have as it generates a debate on the criminal act of defamation and whether such a draconian law is required at all when civil remedies for defamation exist. But it has resisted legal challenges twice. The offence arises from the interplay of Article 19 which allows free speech with reasonable restrictions and Article 21 which assures the right to live with dignity.
However, notwithstanding reservations the British era provisions remain on books due to a Supreme Court 2016 ruling rejecting pleas from politicians and intellectuals that it was an outdated idea that undermined Article 19.(1) (a) which grants a citizen the right to freedom of expression. Instead, it held that a person’s right to reputation was part of a person’s fundamental right to life.
The provision is also peculiar because it essentially uses criminal law to prosecute a private wrong committed by an individual against another and not society at large. Consequently, only a person or group can bring a charge of criminal defamation against someone, not the State. The reason why many countries have dispensed with the law.
It is for these reasons that the Apex Court asked magistrates to be careful while adjudicating cases and ensure that the allegedly defamatory statement is not generic or based on subjective understanding of a remark and contains specific ingredients that make up a defamation charge. It is questionable whether attacking an indeterminate set of people with a general remark will amount to defamation, and even if it did, whether it is so grave as to warrant the maximum sentence.
It remains to be seen if the nautanki on the political firmament catalyses another challenge to this statute. Will it open more such suits? Recall, Tamil Nadu’s AIADMK Jayalalitha used criminal defamation as a tool between 2002-2006 filing over 100 criminal defamation cases against the media.
ClearLy, there is no place for criminal defamation in a modern world. A democracy should not treat defamation as a criminal offence at all. It is a legacy of an era in which questioning authority was considered a grave crime. In contemporary times, criminal defamation acts as a tool to suppress criticism of public servants and corporate misdeeds.
In the ultimate, when we do a cost-benefit analysis, we need to answer a simple question: Is this toxicity really worth the price the country will pay? Who will bear the cross? Our leaders must dial down on coarse political speeches and desist from using narrow-mindedness and prejudices as pedestals to stand on to be seen. The aim should be to raise the bar on public discourse, not lower it. Parliament and Courts have plenty to do. They need to pay heed before it’s too late. —- INFA
