Apar GuptaWhat if speaking out can lead to imprisonment? Let us be honest. This thought has crossed many minds since the conviction of Rahul Gandhi by a criminal court in Surat for the offence of defamation. Critics might summarily dismiss such a concern, reasoning that the case is coloured by political interests and ordinary Indians are not likely to be convicted for defamation. But fear exists and Rahul Gandhi’s conviction has increased people’s worries.
A recent report by Common Cause and Lokniti-CSDS, based on a state-level survey, reveals, “nearly two out of three respondents are scared to post their political or social opinions for fear of legal action”. Today, Indians seem to have an intuitive understanding of the risks of voicing their opinions – they fear the letter of the law, in all its severity, will be weaponised against them and used as a tool to restrict their fundamental rights. Can reform on defamation be attempted in an environment of fear and social tensions?
At present, the criminal offence of defamation is contained under Section 499 of the Indian Penal Code, 1860 and the civil law that provides for damages and injunctive relief. On May 13, 2016, a legal challenge to criminal defamation failed with the Supreme Court expressing its anxiety about maintaining the standing of individuals. It held that, “the right to reputation is no less important a right than the right to freedom of speech”. This legal reasoning had the effect of changing the relationship between defamation and the right to freedom of speech — from an exception to the right to freedom of speech, defamation became a competing right.
Around the same time, a group of professionals from the fields of law, journalism and policy realised that fundamental rights need to be protected by urgent legislative action. Working together with Tathagata Satpathy, then Member of Parliament from Dhenkanal in Odisha, they drafted The Protection of Speech and Reputation Bill (“Speech Bill”) that was introduced on March 10, 2017, in the Lok Sabha. It was filed as a private member’s bill and there was little hope it would pass into law — the last such measure that became a law was the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Bill, 1968 in 1970.
The Speech Bill was not a romantic one, but a principled defence of constitutional rights leading to endorsement by 54 organisations and 2,043 Indians that included most, if not all, major publishing houses that operate in India, leading digital media companies, journalists and senior advocates.
The Bill tried to honestly confront the reality that an unconditional repeal of criminal defamation is likely to fall short of public policy objectives. Our republic requires the reform and consolidation of civil law to ensure that proportional and actual remedy is available to repair reputational damage. This was attempted in 30 sections across eight chapters that contemplate the entire life cycle of a dispute. The proposed legislation drew from a deep comparative study of international best practices. At present, civil defamation cases are prone to abuses that capitalise on long case pendency in the judicial system with forum shopping and exaggerated claims for damages. Moreover, civil law is scattered across judgments and not contained to the precision of a legislative enactment. This creates more uncertainty and often results in the pendency of a case or, at best, an interim relief that injuncts the defendant from further publication. At times, a reluctant apology is extracted to achieve a settlement. Does this genuinely serve the ends of justice? Do our defamation laws protect free expression or repair a person’s reputation?
Admittedly, the provisions of the Speech Bill were not perfect. But they could contribute to the making of a model law. The Bill lapsed with the dissolution of the Lok Sabha on May 25, 2019. Thereafter, there has been little, if any, movement towards legal reform. These have been limited to a few election manifestos of political parties calling for the repeal of criminal defamation.
Till Rahul Gandhi’s conviction, there were no serious or sustained efforts towards these objectives. This is understandable as there are a plethora of issues of national interest requiring urgent legislative attention. But the lack of action does indicate the absence of sustained political advocacy on issues of free expression. Why have our political parties across the spectrum failed to articulate popular narratives and build constituencies of support for the repeal of colonial laws that were used against our freedom fighters? Why have they failed to address the fears of the public? On the contrary, workers of many political parties continue to use the colonial era law as a weapon against their opponents and journalists. This marks a race to the bottom that is won by an individual or group that holds office or power at a point in time rather than the merits of a case.
One hopes there is a modicum of realisation that using the law of defamation may advance personal interest in the short-term but it contributes to a society that is ruled by fear and is likely to extract a heavy cost in the years, if not decades, to follow. So, can reform on defamation be attempted in the present environment? Yes, and the time is now.
This article was originally published in The Indian Express on April 4, 2023.