Tag: criminal defamation

Gujarat HC Refuses to Stay Rahul Gandhi’s Conviction, Sentence in Defamation Case

Justice Hemant Prachchhak said that no injustice would be caused to Gandhi if the conviction is not stayed.

New Delhi: The Gujarat high court on Friday (July 7) refused to stay the conviction of and two-year sentence given to Congress leader Rahul Gandhi in a defamation case. The sentence – the maximum possible for defamation – resulted in Gandhi’s disqualification from the Lok Sabha.

Justice Hemant Prachchhak said that no injustice would be caused to Gandhi if the conviction is not stayed. “At least 10 criminal cases pending against him. Even after the present case, some more cases filed against him. One such is filed by grandson of Veer Savarkar. In anyway, conviction would not result in any injustice. The conviction is just and proper. There is no need to interfere with the said order. Therefore, the application is dismissed,” the court said, according to Bar and Bench.

Congress MP Jairam Ramesh tweeted that the party is studying the judge’s reasoning, and lawyer and party leader Abhishek Manu Singhvi will speak to the media at 3 pm. “The judgement only redoubles our resolve to pursue the matter further,” he added.

A stay on conviction would have paved the way for Gandhi’s reinstatement as a member of parliament.

On March 23, a Surat court had convicted Gandhi in a criminal defamation case and sentenced him to two years of imprisonment.

Following the verdict, Gandhi, elected to the Lok Sabha from Wayanad in Kerala, was disqualified as MP under the provisions of the Representation of the People Act.

The disqualification order was issued by the Lok Sabha Secretariat on March 24. The disqualification, however, came into effect from March 23, the day the Surat court had pronounced him guilty.

On April 3, Gandhi moved a sessions court seeking a stay on his conviction, which was rejected on April 20. However, he was granted bail on April 3 till the disposal of his appeal.

The case is based on a complaint filed by Bharatiya Janata Party leader Purnesh Modi, based on a speech Gandhi had given in Kolar in 2019 in which he said, “I have a question. Why do all these thieves have Modi in their names whether it is Nirav Modi, Lalit Modi or Narendra Modi? We don’t know how many more such Modis will come out.”

The complainant held that Gandhi had defamed all people whose surname is Modi. He reportedly “welcomed” Friday’s Gujarat high court order.

Gandhi is also facing similar charges in another state. Earlier this week, the Jharkhand high court exempted Gandhi from in-person appearances before a Ranchi court where he is facing defamation charges for the same remarks.

Speaking at Stanford University in May, Gandhi had said he had not thought it possible that he would be the first person ever to receive the maximum possible sentence for defamation.

“To be the first person to be given the first maximum sentence on defamation and maximum sentence to get disqualified. I didn’t imagine that something like this was possible,” he said. “But then I think it’s actually given me a huge opportunity, a much bigger opportunity [than] I would have [had] in Parliament. That is the way politics works.”

Criminal Defamation Law Is a Weapon of Political Warfare

Even though the colonial-era Parliament building is being replaced with much fanfare in India, the criminal defamation law, along with many other colonial laws, like seditious libel, enacted by the British raj in the 19th century, is still in effect. 

The “mother of democracy” – India – stands out as a glaring outlier among the world’s major democracies when it comes to criminalising speech on matters of public and political interest. Political and journalistic speech are among the most protected species of free speech in most of the liberal democratic world, but India’s archaic criminal libel laws disproportionately impede public discourse.

India is one of the last major democracies that continue to criminalise speech. At the turn of the century, the UK repealed all four forms of criminal libel – seditious libel, obscene libel, blasphemous libel and defamatory libel. The US Supreme Court abolished common-law criminal libel way back in 1966 in a case called Ashton v Kentucky. Since then, the criminal defamation laws in 38 US states and territories (US territories are directly controlled by the federal government) have either been repealed or struck down as unconstitutional.

Even smaller countries like Ireland, Malta, Romania, Jamaica, Mexico (federal level), Montenegro and Macedonia have completely abolished defamation as a criminal offence.

However, even though the colonial-era Parliament building is being replaced with much fanfare in India, the criminal defamation law, along with many other colonial laws, like seditious libel, enacted by the British raj in the 19th century, is still in effect.

Not only has India persisted with criminal defamation, its laws also allow the power of the state and criminal courts to be used to prosecute private complaints of reputational harm. Some of the other disproportionate and unreasonable aspects of the law include an overly broad definition of the offence of defamation, high burden of proof and limited exceptions for the defendant, accompanied with prohibitive legal costs.

Also read: Rahul Gandhi’s Defamation Conviction, Disqualification as MP Pushes the Limits of Indian Law

Truth is not an absolute defence. Even sarcastic comments might be considered defamatory, and family members or even the representatives of the “defamed” person can file legal action. A prima facie defamatory statement is enough to get the process issued by the court. The procedure itself serves as punishment because the higher courts hardly ever stay or dismiss a case. Big corporations and influential politicians institute proceedings in jurisdictions of their convenience, which are often hundreds of kilometres away from the place of residence of the defendant.

In 2016 a two-judge bench of the Supreme Court of India upheld the constitutionality of the offence of criminal defamation, stating that it constitutes a reasonable restriction on the right to freedom of expression. The court failed to see the indissoluble and essential relationship between free speech and democracy.

The ruling opened the floodgates for defamation law to be used as a potent tool of political warfare. It is frequently used by politicians and public officials, especially members of the ruling BJP and its affiliate organisations like the RSS.

In contrast, the higher courts in the US, England, South Africa and Australia have consistently applied the standards of high tolerance for criticism directed at politicians, public officials, constitutional functionaries, judges and even big corporations.

The US Supreme Court has provided greater protection to political speech by creating different categories of plaintiffs in civil libel suits (common-law criminal libel is already abolished). Public officials (New York Times v Sullivan, 1964) and public figures (Associated Press v Walker, 1967) have a greater burden of proof than private individuals in civil defamation suits.

To prove libel, a public official must show that the defendant acted with “actual malice”, that is, with the knowledge that it was false or reckless disregard for the truth. Public figures could recover damages under a finding of highly unreasonable conduct by reporters and publishers. Even in cases involving private individuals, the courts have accorded greater protections to speech involving matters of public interest.

In Australia, the court has read in the country’s constitution an implied right to freely communicate and publish materials discussing governmental and political issues, including the suitability and behaviour of MPs.

Also read: Defamation: The Weapon of Choice to Stifle Pursuit of Justice and Free Speech

In 2021 the Constitutional Court of Italy, which still criminalises defamation, ruled that judges can pass a sentence of imprisonment in criminal defamation only in cases of “exceptional severity”. The court also asked the Italian parliament to carry out a comprehensive reform of its defamation laws.

In their decisions, the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights have given broad consent to the right to freedom of expression enshrined in Article 13 of the American Convention. The Courts in the Inter-American system have given political speech and speech involving matters of public interest and conduct of public officials the status of specially protected speech.

In 2022 courts in England and Wales were granted new powers to dismiss lawsuits employed by wealthy claimants known as Slapps (strategic lawsuits against public participation). The courts now deploy a three-stage test to dismiss intimidatory legal action against reporters and publishers: if the journalistic activity is in the public interest, if the claimant is abusing the process and if the case has a realistic prospect of success.

You wouldn’t find a politician suing another politician for making a political speech anywhere in the western world.

From Canada, Australia and New Zealand to England, Europe and the US, it’s only the media, which is often sued in civil law by politicians, celebrities, corporations and, occasionally, even ganglords. Some of the recent high-profile defamation lawsuits include those filed by Prince Harry against the British tabloid Daily Mail, Australia’s attorney general Christian Porter against an ABC journalist, Russian warlord Yevgeny Prigozhin against a UK-based investigative journalist, Brexit supporter Arron Banks against a journalist from the Observer, and Dominion Voting Systems against Fox News.

Then there are the odd celebrity v celebrity defamation suits, such as Samantha Markle suing Meghan Markle and Johnny Depp suing Amber Heard for civil libel. But politicians being sued by fellow politicians for a political stump speech is unheard of in the west.

By contrast, politics in India has been repurposed through defamation cases.

Ashish Khetan is a former chairperson of the Dialogue and Development Commission of the Delhi government.

This piece was first published on The India Cable – a premium newsletter from The Wire & Galileo Ideas – and has been republished here. To subscribe to The India Cable, click here.

Rahul Gandhi’s Defamation Conviction, Disqualification as MP Pushes the Limits of Indian Law

Lack of jurisdiction and the absence of a ‘test of precision’ to identify the precise collection of individuals defamed are some of the issues which the appellate courts will likely take a hard look at.

Note: This article was updated at 1830 on March 24 to take note of Rahul Gandhi’s disqualification as an MP.

New Delhi: On March 23, 2023, the chief judicial magistrate, Surat, H.H. Varma, sentenced Congress MP Rahul Gandhi to two years imprisonment and also imposed a fine of Rs.15000 after convicting him for the offence of criminal defamation under Sections 499 and 500, Indian Penal Code.

The court suspended his sentence for 30 days but not his conviction, and granted him bail to enable him to move an appeal against its verdict.

On Friday, the Lok Sabha secretariat issued a notification disqualifying Gandhi as a member of parliament.

What did Rahul Gandhi say, for which he has been convicted?

During an election rally in Karnataka’s Kolar on April 13, 2019, Rahul Gandhi named three persons – the fugitive diamantaire Nirav Modi, the controversial cricket administrator Lalit Modi and Prime Minister Narendra Modi – and asked how it was that “all these thieves have the same name, Modi.” [The video of the remarks is available at 13’18’‘]:

“Accha, ek chhota sa sawaal, in sab ke naam, in sab choron ke nam, Modi Modi Modi kaise hai? Nirav Modi, Lalit Modi, Narendra Modi. Aur abhi thoda dhoondenge to aur bahut saare Modi niklenge.”

“I have a question. Why do all of them — all of these thieves — have Modi Modi Modi in their names? Nirav Modi, Lalit Modi, Narendra Modi. And if we search a bit more, many more such Modis will come out.”

A former Gujarat minister and BJP MLA, Purnesh Modi, subsequently lodged a complaint against Rahul Gandhi saying his remark had defamed the entire ‘Modi community’.

Why did the complainant himself seek a stay on the trial for over a year?

An unusual aspect of this particular defamation case is that Purnesh Modi sought a stay from the high court on Gandhi’s trial last year and was successful in delaying proceedings for nearly 12 months. Normally, it is the accused in a case who seeks to obtain a stay on proceedings.

The case was filed on April 16, 2019 and Rahul Gandhi appeared in the court of the then CJM, Surat, A.N. Dave on June 24, 2021, to record his statement in person. In March 2022, when the complainant’s request for Rahul Gandhi to be summoned again was rejected by the CJM who insisted arguments commence immediately, the complainant rushed to the high court and sought a stay on the trial’s proceedings. This was granted on March 7, 2022.

After a hiatus of 11 months, the complainant went back to the high court on February 16, 2023, seeking vacation of the stay, pleading that “sufficient evidence has come on record of the trial court and the pendency of the present matter delays the trial”. Though no new evidence had come on record since the stay and the “pendency of the matter” was entirely at his own instance, the complainant was granted the relief he sought.

Purnesh Modi’s decision to restart a trial he had himself put on hold for a year came barely a week after Rahul Gandhi had launched a sharp attack on Narendra Modi in parliament over his links to controversial businessman Gautam Adani.

The trial resumed on February 27, 2023, this time before another judge, CJM H.H. Varma.

In his arguments on March 8, 2023, Gandhi’s counsel submitted that Purnesh Modi had no locus to claim defamation as the target of the Congress leader’s impugned speech was Narendra Modi.

“In the entire complaint, there is only one allegation that is not against Narendra Modi,” the Times of India quoted Gandhi’s lawyer as arguing, which was ‘How come all [these] thieves have the same name, Modi?’. “For this too, Purnesh Modi has no right to complain as the allegations are not against any caste or community… And even if the allegations are against those with Modi surnames, then there is no association of those holding Modi surname,” the lawyer said.

Arguments concluded the following week and CJM Varma reserved judgment. On Thursday he pronounced his ‘guilty’ verdict and sentenced Gandhi to the maximum punishment of two years imprisonment.

Was the Surat judge right in proceeding against Gandhi without a preliminary inquiry?

Rahul Gandhi’s legal arguments initially focused on the key question of jurisdiction under Section 202 of the Code of Criminal Procedure, which specifies the process a court must follow if it is proceeding against someone outside its usual territorial jurisdiction.

While upholding the constitutional validity of criminal defamation (Sections 499, 500 IPC), the Supreme Court in Subramanian Swamy vs Union of India held that there is a heavy burden on the trial court judge to scrutinise the complaint from all aspects.  The judge must also keep in view the language employed in Section 202 CrPC, which deals with how to proceed when the accused is resident at a place beyond the area in which the trial court exercises its jurisdiction. “Application of mind in the case of a complaint” is imperative in deciding whether the ingredients of Section 499 IPC are satisfied, it added.

Section 202 deals with the issue of process by a magistrate. As amended in 2005, this provision says that it is mandatory for a magistrate to postpone the issue of process against an accused person who is residing outside the territorial jurisdiction of the magistrate till such time he concludes an inquiry into the charges.

“Rahul Gandhi is a resident of Delhi, which is outside the jurisdiction of this court,” his lawyer submitted before the CJM on March 7, “For such an accused, the law requires the witnesses to be examined, and the matter enquired. The court is then required to give the reason on whether to issue the summons or not. No such thing was followed,” the Times of India quoted him saying.

In Vijay Dhanuka and Others v Najima Mamtaj and Others (2014), the Supreme Court has held that, it is mandatory for the magistrate to conduct an inquiry or direct an investigation before issuing process when the accused person resides beyond the territorial jurisdiction of the magistrate.

The apex court went one step further in Birla Corporation Limited v Adventz Investments and Holding Limited (2019),  holding that the issuance of process should not be mechanical nor it should be made as an instrument of harassment to the accused. An issuance of process calling upon an individual to appear as an accused in a criminal case is a serious matter and if there is lack of material particulars and non-application of mind by the magistrate as to the materials, this cannot be brushed aside on the ground that it is only a procedural irregularity.

In Abhijeet Pawar v Hemant Madhukar Nimbalkar and Another (2017), the Supreme court held that if the mandatory requirement of Section 202, CrPC is not fulfilled by the magistrate before issuing process, it can direct him/her to take up the matter up afresh and pass appropriate orders in compliance with the provision.

Rahul Gandhi’s lawyers raised these questions before the CJM and in the appeal his team will file, his counsel have already indicated that one plank of appeal will be non-compliance with Section 202, CrPC.

Defamation of a group: What the Supreme Court’s guidelines say

While politicians in India often resort to making fun of names in order to score points against their opponents, Rahul Gandhi’s attempt at humour has landed him in trouble.

Explanation 2 to Section 499 IPC says that it amounts to defamation to make an imputation concerning a company or an association or collection of persons as such. However, in a key 2010 case, the Supreme Court has laid down the conditions under which a collection of persons can allege defamation.

In S. Khushboo,v Kanniammal, it ruled that though Explanation 2 is wide, the only way a collection of persons ca demonstrate the offence of defamation is if they are an identifiable body – so that it is possible to say with precision that a group of particular persons, as distinguished from the rest of the community, stood defamed.

In case the identity of the collection of persons is not established so as to be relatable to the defamatory words or imputations, the complaint is not maintainable.

In the Surat case, it is difficult to contend that those with the surname Modi constitute a community, which was distinct from others, and that Rahul Gandhi intended to defame such a community. In S. Khushboo, the Supreme Court held that in case a class is mentioned, the complaint cannot be entertained if such a class is indefinite. Furthermore, if it is not possible to ascertain the composition of such a class, the criminal prosecution cannot proceed.

In Subramanian Swamy, the Supreme Court relied on S. Khushboo and noted that the community allegedly defamed must be a determinate and definite body.  “It also lays accent on identifiable body and identity of the collection of persons.  It also significantly states about the test of precision so that the collection of persons have a distinction.  Thus, it is fallacious to contend that it is totally vague and can, by its inclusiveness, cover an indefinite multitude”, the court held.

Thus, the court observed that “where a writing weighs against mankind in general, or against a particular order of men, e.g., men of gown, it is no libel.   It must descend to particulars and individuals to make it a libel.  Thus, the accentuation is on ‘particulars’,” the bench held.

Had Rahul Gandhi asked why these thieves all wear the gown, it can’t be libel.  Similarly, the reference he made to the surname of three individuals – none of whom has alleged defamation – without elaboration of particulars, cannot constitute defamation, if Subramanian Swamy is an indication.

Can Rahul Gandhi be disqualified as a Member of the Lok Sabha following his conviction?

 In January this year, the Lok Sabha MP from Lakshadweep, Mohammad Faizal of the Nationalist Congress Party, was disqualified after he was sentenced to 10 years imprisonment by a district court in an attempt to murder case.  The Lok Sabha Ethics Committee decided to strip Faizal of his membership from the date of his conviction, i.e., January 11, 2023, in terms of the provisions of Article 102(1)(e) of the Constitution read with Section 8 of the Representation of the People Act, 1951. The Ethics Committee decided this after receiving communication from the district and sessions judge, Kavaratti, informing them about Faizal’s conviction.

This disqualification is now de facto on hold after the Kerala High Court suspended the conviction and sentence of Faizal, after his disqualification. In the case of Rahul Gandhi, the Surat court itself had suspended his sentence, to enable him to appeal.  Under Section 8(3) of the R.P.Act, an MP convicted and sentenced for two or more years invites disqualification. Although Faizal stands disqualified, the Election Commission withheld the Lakshadweep Lok Sabha by poll after the high court suspended his conviction and sentence. Although Faizal’s disqualification has ceased to have effect following the high court’s suspension of his conviction, there has been no formal revocation of his disqualification by the Lok Sabha speaker.

The question of the procedure by which Rahul Gandhi may be disqualified from the Lok Sabha arises in view of the Supreme Court’s 2013 judgment in Lily Thomas vs Union of India, declaring sub-section (4) of Section 8 of RPA unconstitutional.  Section 8(4) of the RPA said that disqualifications take effect only “after three months have elapsed” from the date of any conviction if, during that interregnum, the MP or MLA has not filed an appeal against the conviction or the sentence before a higher court. Section 8(4) extended immunity from disqualification even if the court had not disposed of such an appeal during that period of three months.

In Lok Prahari v Election Commission of India (2018), the Supreme Court held that once a conviction has been stayed during the pendency of an appeal, the disqualification which operates as a consequence of the conviction cannot take or remain in effect.

The effect of Lily Thomas and Lok Prahari will, therefore, be that the Ethics Committee of the Lok Sabha can take cognisance of Rahul Gandhi’s conviction and proceed to disqualify him from the Lok Sabha once   the Surat court sends them a communication to that effect.

Presumaby this is the basis for the Lok Sabha secretariat’s communication on March 24.

However, if and when an appellate court stays his conviction and sentence, the disqualification will cease to have effect.

The question to ask, however, is whether the Lok Sabha is right to disqualify Rahul Gandhi hastily without awaiting the outcome of his plea for stay of his conviction.  Is the Lok Sabha speaker right to ignore the Surat court’s suspension of his sentence, on the grounds that in Lily Thomas, a conviction which carries a sentence of two years and above is sufficient to attract disqualification?

In 2013, the United Progressive Alliance government had tried to circumvent the Lily Thomas ruling by enacting an ordinance. Ironically, Rahul Gandhi tore a copy of the ordinance at a press conference to express his protest against it, acutely embarrassing – and weakening – the then prime minister, Manmohan Singh.

An additional question is the procedure for disqualification of an MP specified in Article 103 of the Constitution:

103. Decision on questions as to disqualifications of members

(1) If any question arises as to whether a member of either House of Parliament has become subject to any of the disqualifications mentioned in clause ( 1 ) of Article 102, the question shall be referred for the decision of the President and his decision shall be final
(2) Before giving any decision on any such question, the President shall obtain the opinion of the Election Commission and shall act according to such opinion
Since Gandhi’s disqualification is pursuant to Article 102(1)(e) – “disqualified by or under any law made by Parliament” – it is the president of India who must sign off on the disqualification, on the advice of the Election Commission.
It is not clear that this constitutional provision has been complied with.

Note: This article was updated at 1830 on March 24 to take note of Rahul Gandhi’s disqualification as an MP.

 

 

Leena Manimekalai Moves Madras HC Challenging Order to Impound her Passport

Manimekalai’s passport was impounded on the grounds of a pending criminal defamation case against her, filed by director Susi Ganeshan after Manimekalai accused him of sexual assault during the 2018 #MeToo movement.

New Delhi: Filmmaker Leena Manimekalai has filed a writ petition in the Madras high court challenging an order to impound her passport, Bar and Bench reported on September 15.

Her passport had been impounded on September 9 by the regional passport officer, Chennai, under Section 10 (3) (e) of the Passport Act, 1967, which allows for a passport to be impounded if an offence committed by the passport holder is pending before a court.

The case pending against her is one of criminal defamation, filed in 2019 by director Susi Ganesan, following Manimekalai’s accusations of sexual assault against him during the #MeToo movement in 2018.

According to Manimekalai, she had received an email from the passport authority in February of this year issuing a show-cause notice and asking her to explain why her passport should not be impounded under the aforementioned section of the Passport Act.

Despite replying to the email in March, she said that she received another such email in August, once again issuing show-cause notice and that there was an adverse Police Verification Report against her. She replied to the email the next day, yet, the passport authority impounded her passport on September 9.

Manimekalai’s writ petition, filed through advocate V.S. Senthil Kumar, challenged the passport authorities order as being “arbitrary, unjust and unwarranted” since it did not take her replies to the notices into consideration, Live Law reported.

The petition further notes that it is a “well-settled principle” that the mere pendency of a case against an individual is not sufficient grounds for impounding a passport. Moreover, it notes that Manimekalai’s passport had been renewed in 2017 when there had been no case against her, therefore it cannot be claimed that she was “suppressing material facts”.

Manimekalai is part of a graduate programme in film at York University in Toronto and has been asked to rejoin the campus physically for research work. The course had been functioning online due to the COVID-19 pandemic but resumed physically in July.

The petition also claims that Ganesan criminal defamation case has only been filed to harass Manimekalai. 

In 2020, Ganesan had moved a plea under Criminal Procedure Code (CrPC) Section 104 (power to impound a document) in the Saidapet trial court to impound Manimekalai’s passport. The Saidapet magistrate had, however, closed the petition after Manimekalai filed an affidavit in which she assured the court that she would intimate it regarding her travel plans.

Manimekalai’s petition also notes that Ganesan had challenged the order before the Madras high court and that the court had remarked that it found “absolutely no ground to interfere” with the judgement of the lower court, according to the Bar and Bench report. 

According to the petition, the magistrate then reopened the case under a fresh petition filed by Ganesan and ordered the passport authority to impound Manimekalai’s passport and that the magistrate’s decision to review the order amounts to an illegality.

The petition seeks for the impounding order to be quashed by the Madras high court.

Defamation: The Weapon of Choice to Stifle Pursuit of Justice and Free Speech

Defamation laws as different from ‘ordinary’ attacks on free speech. They aim to shut down critical speech by intimidating critics and undermining their active public engagement.

It has been more than two weeks since Priya Ramani was acquitted in a defamation suit filed by former Union minister and journalist, M.J. Akbar. It was followed, expectedly and deservedly, by collective celebrations and resounding applause, but it’s time that the euphoria gave way to more profound questions about why she was standing in the court as an “accused” in the very first place. Wasn’t she the victim – of sexual harassment and unconcealed, blatant abuse of masculine privilege by Akbar?

Akbar had brought Ramani to court alleging that, in recounting her experience of how he had harassed and tormented her sexually, Ramani was trying to “defame” him and harm his reputation. The acquittal verdict at the very least vindicates Ramani’s story of sexual harassment, humiliation and intimidation. It shouldn’t have needed legal validation, but it did. And we are all glad, relieved and a little celebratory that the validation came.

Celebrations are due and celebrate we must for it is not just her personal victory but a victory for innumerable women who either suffer the ignominy of sexual harassment silently, or who lose their battles even when they muster the courage to speak up. But amidst all the celebrations, there are two uncomfortable truths about this victory that we need to pause and consider.

First, we need to ask: what are we really celebrating? The acquittal of a “victim”? There’s something horribly wrong with a legal system that renders a victim of sexual harassment vulnerable to further damages, then proceeds to “acquit” her and save her from those damages. The truth is that the legal system has an archaic, defunct law, a tool in the hands of the rich and powerful really – the “defamation law” (for short) – that can enable an accused to turn the tables and make a culprit out of a victim? Our celebrations need a reconnaissance that defamation law still exists and will find newer victims tomorrow.

Also read: In a Small Courtroom, a Big Victory for India’s #MeToo Movement

The second truth is that Priya Ramani could well have lost this battle. Had she not been backed by the brilliance of her lawyer, Rebecca John, by the testimonies and stories of other Akbar-victims (Ghazala Wahab, Pallavi Gogoi, to name two in a long list), by the media, by the stirrings of the “collective conscience”, the judgment could have gone another way. Recall how screenwriter, Vinta Nanda’s rape charges against Alok Nath panned out. Nanda’s searing account of rape resulted in a counter move by actor Alok Nath, who filed a defamation suit against Nanda. The defamation law enabled the accused to hound his victim further – this time legally. The trigger effect was that in January 2019, the sessions court ruled that the rape case against Alok Nath was lodged on the basis of a “defamatory” and “false” report of complainant Vinta Nanda, and that it’s a case of “personal vendetta”.

There is something deeply discomforting when the discharge of justice looks like a lucky break. The more justice appears as an outcome of conjunctures and fortuitous constellations, the less sure we should feel about its future trajectory. Till a law like the defamation law remains intact, the conduct of free and fearless speech will always be in peril each time a victim of sexual harassment, a journalist, an activist, a motivated citizen speaks truth to power.

Journalist Priya Ramani and #MeToo accused M.J. Akbar. Photos: PTI

The Indian defamation law (covered under IPC Sections 499 and 500 and Sections 199(1) to 199(4) of the CrPc) fall under the rubric of what is globally referred to as SLAPP (strategic law against public participation) suits. A SLAPP suit is intended to intimidate and silence a party from speaking freely and fearlessly. The strategy is to exhaust resources and morale, generally including exorbitant claims for damages and allegations designed to smear, harass and overwhelm activists and/or civil society organisations.

Certain lawsuits, like defamation suits, are filed in order to target individual or group litigants who voice their concern over important or considerable social issues in the public arena. Examples include the defamation suit filed by Jay Shah against The Wire for carrying a story alleging that revenues of Shah’s company had grown massively within a year of the ruling BJP coming to power in 2014. Or against Newslaundry by the Times Group for allegedly defaming the editors of the Times Now channel. SLAPP suits like the Indian defamation laws are like the sword of Damocles hanging over the heads of those who dare to speak out.

Also read: Backstory: Watch Out for That SLAPP

There are three disturbing effects of defamation like SLAPP-suits. The first, there oftentimes is a disparity of power and resources between the complainant and the defendant. Second, the goal of a criminal defamation charge may not necessarily be to actually win the lawsuit, but to drag critics to court and bury them under a pile of attorneys’ fees, litigation costs, harassment and embarrassment until they wear down and withdraw.

As journalists, academics, legislators and bloggers across the country have recognised, such lawsuits are increasingly used by corporations, businesses, public officials as a weapon to silence, intimidate and control what constitutes the truth. We know how hard it is to face up to defamation suits when a sitting chief minister, Arvind Kejriwal, had to retract DDCA-corruption allegations under the protracted burden of a defamation suit filed by his powerful detractor, then finance minister, the late Arun Jaitley. One of the oldest and most respected journals of India, the Economic and Political Weekly, succumbed to threats of a defamation suit for carrying an article on the Adanis.

freedom of press, media, indian media, gauri lankesh

Journalists and social activists attend a protest against the killing of Gauri Lankesh, a senior Indian journalist who according to police was shot dead outside her home by unidentified assailants in southern city of Bengaluru, in Ahmedabad, September 6, 2017. Photo: Reuters/Amit Dave/File Photo

Third, SLAPP lawsuits like defamation suits have a chilling and prohibitive effect on public participation and conduct of free speech. They enable power and means to gang up and ensure that they nab you in your thoughts, warn you of dire consequences, chill you into silence and make you your own censors. They are a form of “lawfare” that pose a threat to freedom of expression and seek to intimidate, silence and “mutefy” citizens and citizen bodies.

We have to understand defamation laws as something different than an ‘ordinary’ attack on free speech. Defamation lawsuits aim to shut down critical speech by intimidating critics and undermining their active public engagement. As a New York Supreme Court judge famously said in reference to SLAPPs: “Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined”.

More law is seldom an answer to growing societal anomalies, but there appears to be a strong case emerging for an anti-SLAPP law in India. Recognising the value of free speech, 26 states in the US, together with Australia and Canada have instituted highly developed anti-SLAPP statutes that include measures like penalising the abuse of the legal system, reimbursing the cost of the litigant and so on.

Also read: We Need an Anti-SLAPP Law To Encourage and Protect Free Press

A thriving, self-confident democracy has no place for a retrograde law like the defamation law. We need to recognise, as The European Court on Human Rights did – that a “democratic society should tolerate ideas that offend, shock or disturb the State or any sector of the population”.

Rajshree Chandra is a political scientist.

#MeToo: M.J. Akbar’s Defamation Case Against Priya Ramani Sent to Same Judge

An Additional Chief Metropolitan Magistrate had earlier this month sought a controversial transfer.

New Delhi: A criminal defamation complaint, filed by former Union minister M.J. Akbar against journalist Priya Ramani, was on Thursday sent back to the judge who was hearing the matter.

An Additional Chief Metropolitan Magistrate (ACMM) trying the case had earlier this month sent the matter to Principal District and Sessions Judge seeking transfer of the matter to another court on the ground that his court was designated to hear cases filed against lawmakers.

Principal District and Sessions Judge Sujata Kohli, however, sent the matter back to the ACMM.

Additional chief metropolitan magistrate, Rouse Avenue Court, Delhi, Vishal Pahuja made a startling announcement before the proceedings began in Mobashar Jawed Akbar v Priya Ramani recently – that his court is not competent to hear the case in view of the Supreme Court’s order in Ashwani Kumar Upadhyay v Union of India. As per this order, special courts were created for the trial of cases against MPs and MLAs.

Bengaluru Police Book Officials of Channel That Aired Corruption Sting on Yediyurappa Family

On the basis of a complaint by the director of a construction firm who was cited by the channel as a source of information, the police registered a case against Power TV’s managing director-editor. 

New Delhi: The offices and homes of officials from a private television channel, Power TV, that ran a series of programmes last month alleging corruption by some members of Karnataka chief minister B.S. Yediyurappa’s family, were raided by the Bengaluru Police on Monday.

The channel had shown sting audio clips of its managing director-editor, Rakesh Shetty, with a member of the chief minister’s family. It had also used WhatsApp chats between a construction firm official and another member of Yediyurappa’s family and documents showing large deposits in banks accounts of firms linked to one of this family members to claim that members of the chief minister’s family were involved in money laundering, according to a report in the Indian Express.

The sting was televised even thought a BJP worker, C. Nagaraja Gowda, had obtained a temporary injunction from a senior civil judge for prohibiting the broadcast of “allegations against the Chief Minister of Karnataka, his family members and the BJP on the basis of false, fabricated and concocted stories”. The ex parte injunction was granted on September 2.

Following a complaint by the director of a construction firm, who was cited by the channel as a source of information on the alleged corruption, the Bengaluru police began investigations into the case.

In the complaint filed on September 24, Chandrakanth Ramalingam, a director in Ramalingam Construction Company Limited (RCCL), that undertakes construction and irrigation projects in Karnataka, claimed that Shetty had recorded his conversation after coercing him to say that he had paid political persons.

Ramalingam said it was in June that Shetty approached him claiming that he had connections to the Union home minister Amit Shah and could bag big contracts from RCCL from the Centre and in the states.

Also read: In Response to MIB’s Show Cause Notice, Sudarshan News Defends ‘UPSC Jihad’ Show

The complaint, a copy of which was also presented in the Karnataka assembly by law minister J.C. Madhuswamy, also stated that Shetty had obtained details of RCCL’s projects in Karnataka and offered to get an outstanding amount of Rs 140 crore from the Bengaluru Development Authority for a housing project in return for a 5% commission.

Ramalingam’s complaint had, however, given details of the case. It stated that the company paid the channel official Rs 25 lakh after receiving a payment of Rs 7.79 crore from BDA in August.

On the basis of the complaint, the police registered a case of criminal intimidation, forgery, extortion, cheating, and criminal conspiracy against Shetty and others.

On its part, Power TV claimed on Monday that it was the RCCL official who approached it for help to get projects cleared and accused the state government of registering a complaint against its officials.

Police teams on Monday searched the offices of Power TV and Shetty’s residence. They also questioned an anchor of the news channel.

The sting had stirred a political cauldron with the opposition Congress seeking Yediyurappa’s resignation and an investigation into the alleged scam by a sitting judge of the Supreme Court or a Special Investigation Team (SIT) monitored by the chief justice of the Karnataka high court.

The charges were denied by Yediyurappa, who said that the opposition must first prove them to be true. He also refused to speak on the investigation, saying “the matter is in court”. Law minister Madhuswamy had earlier on Saturday also asked the Congress to state how it could rely on “baseless charges” in a sting operation to accuse the government of corruption.

Last week, a criminal defamation notice was issued on behalf of Yediyurappa’s younger son B.Y. Vijayendra to Power TV accusing it of targeting him after he refused a channel official’s request to transfer a deputy commissioner of police.

Bhushan Contempt Case: SC’s Ruling Will Have a Chilling Effect Beyond India’s Borders

Previously, lawyers in Sri Lanka cited Indian precedents to make their case. They may now look to India for cautionary and not inspirational guidance.

The recent judgement by the Indian Supreme Court which held prominent advocate Prashant Bhushan guilty of contempt of court will have a ‘chilling effect’, a term used authoritatively by the Warren Court to protect First Amendment rights of speech and expression in the US, beyond India.

It has grave resonance in countries like Sri Lanka which have a history of stifling dissent through the device of contempt.

Bhushan was found guilty of ‘scandalising the court’ on a suo motu consideration of two tweets, the first highlighting the chief justice riding a motorcycle belonging to a politician of the ruling party without wearing a mask, while the apex court was under lockdown for three months. His second tweet remarked that the court had a role in destroying democracy in India during the last six years, ‘without the formal declaration of an Emergency’ and the role of the last four CJIs in this regard.

The news was received with incredulity in Colombo primarily due to our bewildered wonderment as to how tweets, generally thought to be the medium of less intelligible conversation, could be adjudged of such an awful impact by the Indian Supreme Court as to “shake the very foundation of constitutional democracy”. But after the initial amazement subsided, serious questions regarding the substantive impact of this ruling were raised.

Justifiably alarmed, lawyers in India are calling for a repeal of criminal defamation and contempt laws, arguing that these stem from colonial legacies criminalising dissent. These discussions are of great interest in Sri Lanka which repealed criminal defamation provisions in the Penal Code in 2002 after protests by media and civil society over arbitrary convictions of senior editors who had incurred the displeasure of the government.

On contempt, we have pressed for a law prescribing inter alia that substantial prejudice must be caused to the administration of justice for contempt to ensue rather than what may be offensive to one or more individuals, even a chief justice as the case may be. Indeed, lawyers in Sri Lanka had commonly cited Indian precedents to make their case, including the seminal Mulgaonkar case in 1978 concerning the citation of contempt against the Indian Express for criticism of decisions during the Emergency.

Also read: Contempt, the Press and the Judiciary: A Tale from Another Time

In declining to proceed, Justice Krishna Iyer’s words for the majority were prescient:

“Justice is not hubris; power is not petulance and prudence is not pusillanimity, especially when judges are themselves prosecutors and mercy is a mark of strength, not a whimper of weakness…”

Yet the Bhushan ruling sets that thinking awry. Despite enacted law limiting judicial discretion and using its constitutional power to move in contempt, the bench seems to have concluded that Bhushan had levelled a “malicious, scurrilous, calculated attack” with extraordinary ease, distinguishing the Mulgaonkar principles as not applicable.

Bhushan’s defence that he had critiqued individual judges and not the administration of justice was dismissed on the basis that the tweets were directed against the institution of the court and the office of the chief justice. The bench remarked that Twitter was used by millions of people and that the impact of his tweets was considerable. If this reasoning is adopted elsewhere in the region, Twitter users who robustly comment on the conduct of judges will need to be wary. There will not be only a “chilling effect” but a positively freezing inhibition on public scrutiny of the judiciary.

Of equally grave note was the court’s decision to stop the attorney general in his tracks during the hearing when the attorney general attempted to establish that not only Bhushan but even judges of the Supreme Court themselves, had made adverse remarks about the court. This is not reassuring at all.

The Sri Lankan Supreme Court Complex. Photo: Wikimedia Commons, CC BY-SA

Indeed, there is a sense of anguish as I observe the outrage over this case across the Palk Straits. We have also asked that familiar question: where does a citizen treated unjustly go for redressal when the Supreme Court itself commits the injustice?

On one occasion, the chief justice of Sri Lanka, with an unprecedented political controversy swirling around himself, sentenced a lay litigant to one-year rigorous imprisonment for speaking loudly in court while reading the provisions of the constitution. Having no scope for review since this was the chief justice’s decision, I took the case to a committee of international jurists on the individual communications procedure under the Optional Protocol to the International Covenant on Civil and Political Rights.

Also read: The Prashant Bhushan Contempt Case is About Power and Politics, Not Law

As Sri Lanka had ratified the protocol, resort to that procedure was possible when the apex court was alleged to have infringed upon the covenant. The committee decided – in Fernando vs State of Sri Lanka, Contempt of Court, Communication No 1189/2003, 31, March, 2005 – that the court had overreached its authority and concluding that both, the process followed and the finding of contempt, violated international law. But to go beyond one’s own judiciary to plead for relief is no happy circumstance.

For these questions do not concern individuals but the most basic of constitutional liberties; the right to criticise, sometimes even rudely, caustically and satirically. And the concern here is not about a single lawyer – however esteemed he may be in the defence of civil liberties as Bhushan is in India.

Freedom of expression does not mean gently tiptoeing around fierce public controversy. The court is more than the individual judge who believes himself or herself to be unfairly maligned. It is for that precise reason that the enormous power of contempt should not be, as Lord Denning remarked, used by judges to ‘uphold their own dignity… that must rest on surer foundations.’

Truly there is sadness on our part in the wake of the Bhushan ruling. Sri Lanka may now look to India for cautionary and not inspirational guidance.

Kishali Pinto-Jayawardena is a civil liberties advocate, a columnist for The Sunday Times, Colombo and served on a Bar Council nominated committee in 2011 which drafted a Contempt of Court Act for Sri Lanka   

Mahua Moitra Moves Delhi HC Challenging Stay on Defamation Lawsuit Against Zee Editor

In July, Moitra filed a criminal defamation case against Sudhir Chaudhary after he alleged that her speech in parliament was plagiarised.

New Delhi: Trinamool Congress MP Mahua Moitra has moved the Delhi high court challenging the stay of defamation proceedings against Zee News editor-in-chief Sudhir Chaudhary, according to a report in Bar and Bench.

The stay order was passed by additional sessions Judge Rakesh Syal in a revision petition preferred by Sudhir Chaudhary.

In July, Moitra had filed a criminal defamation case against Chaudhary at the Patiala house court in New Delhi after he alleged that her speech in parliament on the ‘early signs of fascism’ was plagiarised from an article written by Martin Longman on US President Donald Trump. He said Moitra’s views were not her own and were “copy-pasted” from this article.

Chaudhary then approached the courts by filing an application under Section 340 CrPC to initiate criminal action against Moitra for her “false” criminal defamation case and for “playing fraud” with the court. This case is currently pending.

Also read: Mahua Moitra Wins Round Two as ‘Plagiarism’ Charge Falls Flat

The metropolitan magistrate Preeti Parewa had posted the case for orders on the issue of summons.

Raising objections before the sessions court, Chaudhary said that the metropolitan magistrate had proceeded with the defamation case without hearing his application under Section 340. Following this, the sessions court stayed the proceedings before the metropolitan magistrate.

According to the report in Bar and Bench, Moitra, challenging the stay, argued that the order of the sessions court was incorrect as it had no power to stall pre-summoning proceedings under a revision jurisdiction.

Advocate Nitya Ramakrishnan, appearing for Moitra, also said that the order challenged before the sessions court was an order which had deferred further hearing on Chaudhary’s Section 340 application. Moitra’s lawyers further argued that the high court had the power to deal with instances of erroneous jurisdiction under the writ of certiorari.

Chaudhary’s advocate Mudit Jain argued that the writ petition was not applicable and that the Section 340 application ought to be decided first.

Also read: It is Time to Get Rid of the Law of Criminal Defamation

Chaudhary’s lawyer also claimed that Chaudhary had moved an application seeking perjury action against the MP for allegedly concealing relevant facts in her defamation complaint and consequently, the Sessions court had stayed the proceedings.

The court then directed Chaudhary to file his response to the petition before October 14.

The matter is listed for further hearing before the Additional Sessions Court on October 18.

The Wire Withdraws its SC Petitions, Will See Jay Amit Shah in Trial Court Now

Founding editor Siddharth Varadarajan said that by fighting things out in a trial, the Wire would prove it had “meticulously followed every journalistic norm”.

New Delhi: The Wire has told the Supreme Court that it is withdrawing its two petitions for the quashing of cases against the website and its editors by the son of BJP president Amit Shah.

Alleging that he had been defamed by an October 8, 2017 news report in The Wire on his business affairs, Jay Amit Shah had filed a criminal defamation case as well as a civil defamation case in which he seeks Rs 100 crore in damages.

The Wire will now defend itself in the trial court in Gujarat. Both matters had been stayed by the Supreme Court until now.

Speaking to reporters, The Wire‘s founding editor Siddharth Varadarajan said that by “fighting things out in a trial, we will clearly and precisely establish on evidence that we meticulously followed every journalistic norm, that we only published what we could defend” and that “we will establish at the trial that our article is true”.

An unexpected development

“We have decided to withdraw the matter,” senior advocate Kapil Sibal, appearing on behalf of The Wire, told the bench of Justice Arun Mishra, Justice M.R. Shah and Justice B.R. Gavai as soon as the case was called out on Tuesday afternoon.

The decision clearly took the bench, and Jay Shah’s counsel, by surprise. “We were ready to decide this matter… Nowadays, all kinds of important matters are being withdrawn before they can be decided,” Justice Mishra said. “We need to consider whether it is permissible to just send some questions to a person and without giving them time to reply, rushing out with a story”.

He said he was concerned about the harm done to the “institution” by the “fashion” of serving notice to a person for explanation and then publishing an article “within five-six hours”, before it can be answered. Justice Mishra did not specify which institution he was talking about.

For its story, in fact, The Wire sent Jay Amit Shah a questionnaire early in the morning of October 6 and ran its story on the morning of October 8, i.e. two days later. During this time, Shah’s lawyer sent a detailed reply and did not ask for more time to furnish additional answers.

The published story incorporated all of the responses Shah’s lawyer had provided. In addition, the lawyer’s full response was published as a separate article.

The petitions in question

The Wire moved the Supreme Court in January 2018, after the Gujarat high court refused to accept its plea that the criminal defamation case be quashed.

The Wire‘s petition stated that the basic ingredients of criminal defamation had not been made out by Shah. A second petition was also filed in 2018, when an injunction against the further publication of material on the business affairs of Jay Amit Shah – that the trial court had imposed ex parte, and then vacated – was restored by the Gujarat high court.

Both matters came up before the bench of the former Chief Justice of India, Justice Dipak Misra, sitting alongside Justices A.M. Khanwilkar and D.Y. Chandrachud. The bench suggested the two sides reach a compromise, but nothing came of it as Shah’s lawyers demanded an apology.

Before the case could be taken up in any substantive manner, Justice Misra retired. The matters remained unlisted for several months – until they were recently assigned to Justice Arun Mishra’s bench.

Shortly after Tuesday’s hearing, The Wire issued a short statement explaining why it was withdrawing its petitions and proceeding straight to trial:

“Circumstances have arisen as per which we believe it is best if we make use of the opportunity to justify everything we have stated in our article at the trial. We are therefore withdrawing.

“We believe the fight for media freedoms will have to be advanced at all levels. Our article was factual, based not only on record but on facts admitted by Jay Amit Shah. Though it is still very much our belief that neither a criminal case nor an injunction is legally justifiable, we intend to face trial in Gujarat secure in the knowledge that the constitutionally mandated rights of the media will eventually prevail.”

Though the bench had had no occasion to hear either side on the merits of The Wire article on Jay Shah, Justice Arun Mishra and Justice R.B. Gavai complained in open court for several minutes – after Sibal said the petitioners were withdrawing – about the lack of time given to people to respond to media queries, describing this as “yellow journalism”.

Screenshot of questionnaire sent to Jay Amit Shah

At one stage, Justice Mishra turned to solicitor general Tushar Mehta, who was also in court, and asked whether a case could be withdrawn in this manner, and whether the Supreme Court ought to not consider the larger questions involved.

Mehta concurred, without revealing his own conflict of interest in the matter. In October 2017,  he sought and received permission from the Law Ministry to represent Jay Amit Shah in any matter arising out of The Wire‘s reporting on the BJP leader’s son.

While allowing The Wire to withdraw its petitions, Justice Mishra initially said the defamation trial should be concluded in six months. When Sibal asked what was special about this case which warranted a great rush, the judge changed his order to say the trial should be conducted “expeditiously”.

Jay Shah’s cases name seven persons/entities as respondents – investigative reporter Rohini Singh (the author of the article ‘The Golden Touch of Jay Amit Shah‘), the three founding editors of The Wire (Siddharth Varadarajan, M.K. Venu and Sidharth Bhatia), the Foundation for Independent Journalism (the not-for-profit company which publishes The Wire) as well as two individuals unconnected to the publication of the original article – The Wire‘s managing editor Monobina Gupta, who oversees op-eds and not news, and its public editor Pamela Philipose, who is a post-publication ombudsman whose role is to consider reader reactions to articles once they are published on the website.