The recent conviction of, and two year sentence for, Congress leader Rahul Gandhi by the chief judicial magistrate in Surat brings to the fore the decades-long controversy over criminal defamation in the country. The Supreme Court (SC) may have upheld the constitutionality of criminal defamation (Section 499 and 500, Indian Penal Code or IPC) in 2016 in Subramanian Swamy v Union of India, but debates surrounding its use and misuse persist.
The offence of defamation was included by Lord Thomas Macaulay for the first time in the draft IPC in 1838 and codified in law in 1860, based on prevailing English law. Defamation was criminalised in both the United Kingdom (UK) and India with a view to protect the aristocracy and the ruling class, safeguard the interests of the British Raj, and for concerns related to security and public order. It was not intended as a vehicle to serve the interests of the people or to promote public debate and free discussion in a constitutional democracy. That is why its retention in the statute book is anachronistic, even if legal.
The Rahul Gandhi case brings to light three issues with the law. First, the ease with which someone can initiate the criminal process for what is essentially a speech offence. The offence of defamation is extremely broadly worded — it is defamation to make an “imputation” about an [identifiable] “collection of persons”; or to “indirectly” lower the “moral or intellectual character” of a person; lower his “credit”; or cause it to be believed that the body of a person is in a “disgraceful” state.
If this low bar is met, then a magistrate can summon the person accused, without having to give a detailed and reasoned order. Moreover, once summoned, an accused cannot present a defence to challenge the summoning order — their defence can only be considered at the time of trial. In this manner, the process becomes the punishment, since an accused has to come to court regularly, file bail applications, undergo trial, and most importantly, face the threat of possible deprivation of liberty through imprisonment and conviction.
Second, the issue of who can file a defamation complaint. Under the law, defamation complaints must be filed by a “person aggrieved”, and not the person defamed. The SC has interpreted the twin requirements of “person aggrieved” and “collection of persons” to mean that the collection of persons allegedly defamed must be identifiable in the sense that one could say with certainty that a group of particular people has been defamed, as distinguished from the rest of the community (Sahib Singh Mehra v State of Uttar Pradesh, 1965). Thus, the government prosecuting staff of Aligarh or members of the Rashtriya Swayamsevak Sangh have been held to be an identifiable community, with a proper organisation or charter, which provides them with the locus standi to file a defamation complaint.
However, when there is a generic or indeterminate class of persons — without any personal imputation or identifying characteristic — then members of such a class of persons cannot file a defamation complaint. Thus, courts have held that lawyers as a class of persons are incapable of being defamed.
Similarly, the Kerala high court clarified that mere membership of the Syrian Christian community does not make a “person aggrieved”. Only if a statement can be shown to refer specifically to a particular individual, then alone an action for defamation may lie. In fact, it is a well settled proposition that “If a man wrote that all lawyers were thieves, no particular lawyer could sue him unless there is something to point to the particular individual which there is not here.” Thus, it bears questioning whether an individual with the name “Modi”, who was not specifically referenced in Rahul Gandhi’s speech, can legally claim to be defamed.
The third and final issue relates to the chilling effect that inheres as long as defamation remains an offence under the statute, which is exacerbated in cases of such convictions and sentences. Our courts have recognised this and the consequent stifling of free speech caused by the threat of invocation of penal provisions such as defamation against citizens (particularly journalists, activists, and politicians) and the resultant undermining of the constitutional protection to free speech guaranteed by the Constitution.
Rahul Gandhi’s case got a lot of attention because he is one of the most prominent Opposition leaders, but there are countless cases where the defamation law is being misused to settle personal scores or to intimidate a weaker party.
There is definitely a need for a defamation law to ensure that reputations are protected. However, the answer lies in strengthening civil defamation and redress provisions, as in the UK which has outlawed criminal defamation. We need to ask ourselves whether there is any public interest in allowing the undesirable restraints on free speech imposed through the mere existence of criminal defamation, or whether we need to give speech breathing space to survive.
Vrinda Bhandari is a lawyer practising in Delhi
The views expressed are personal