Rahul Gandhi's Defamation Conviction Sparks Debate on Freedom of Speech and Expression
Surat Court's Judgement puts Spotlight on the Challenges of Balancing Free Speech and Reputation Protection
“So foul and fair a day I have not seen” (Macbeth1.3.36).
Conviction of Rahul Gandhi in a Defamation Case
Today’s conviction and sentencing of the Congress leader and Wayanad MP Mr Rahul Gandhi to a 2-year imprisonment in a criminal defamation case by a Judicial Court in Surat, Gujarat has suddenly brought the law of defamation in India into the spotlight. The case, filed against Gandhi by a BJP MLA for his alleged “Modi surname” remarks, has triggered a cacophonous debate on the scope and application of criminal defamation in India. While Mr Gandhi was got an interim bail, pending his appeal, furore in the political arena was already begun with the opposition, lead by the Congress Party, alleging it to be an abuse of the process of law to stifle free speech and dissent.
In most countries, defamation is a civil wrong that involves the publication of a statement that harms the reputation of an individual or entity. In India, however, defamation is both a civil and criminal offence. The law of defamation is primarily governed by the Indian Penal Code, which provides for criminal sanctions against individuals who make allegedly defamatory statements.
Under the Indian Penal Code, defamation is defined as the act of making a statement that harms the reputation of another person, and is punishable with imprisonment and/or a fine. Criminal defamation is a non-cognizable offence, which means that the police cannot arrest a person without a warrant, and it is also bailable, which means that the accused person is normally entitled to be released on bail, during the trial.
Supreme Court on Defamation
The Supreme Court of India has delivered several landmark judgments in cases of criminal defamation. One such landmark judgment is Subramanian Swamy v. Union of India, (2016) 7 SCC 221.
In this case, the Supreme Court upheld the constitutionality of criminal defamation in India and held that it was a valid restriction on the Right to Free Speech and Expression under Article 19(2) of the Constitution. The Apex Court also held that the right to reputation was a Fundamental Right under Article 21 of the Constitution, and that criminal defamation was a necessary and proportionate means of protecting this right.
“Reputation, reputation, reputation! O, I have lost my reputation! I have lost the immortal part of myself, and what remains is bestial.” (Cassio 2.4.262–64, in Othello)
The Court also clarified that criminal defamation would only be made out if the defamatory statement was made with the intention to harm the reputation of the person, and that the defense of truth was available to the accused.
Furthermore, the Court held that a person who is accused of criminal defamation has the right to defend themselves and to put forward their case, including by cross-examining the witnesses presented by the prosecution.
This judgment has been widely cited in subsequent cases of criminal defamation in India and has provided guidance on the scope and application of the law in this area.
In India, civil damages or penalties for defamation are governed by the law of torts, and specifically, the law of defamation. A person who has been defamed can file a civil suit for damages against the person who made the defamatory statement. The purpose of a civil suit for defamation is to compensate the person for the harm caused to their reputation and not to punish the person who made the statement.
Simultaneous Civil and Criminal Proceedings
Civil and criminal proceedings for defamation can go on simultaneously in India. The person who has been defamed can file a criminal complaint against the person who made the defamatory statement, and also file a civil suit for damages. The two proceedings are independent of each other, and the outcome of one does not affect the other. However, it is important to note that the remedies available in civil and criminal proceedings for defamation are different. In a criminal case, the person who made the defamatory statement may be punished with imprisonment and/or a fine, whereas in a civil case, the person may be ordered to pay compensation to the person who was defamed.
"Reputation is an idle and most false imposition; oft got without merit, and lost without deserving." - Othello (Act 2, Scene 3)
It is also important to note that while the law of defamation provides for both civil and criminal remedies, the standards of proof required in each are different. In a criminal case, the burden of proof is on the prosecution to prove beyond a reasonable doubt that the statement was defamatory, whereas in a civil case, the burden of proof is on the plaintiff to prove on a balance of probabilities that the statement was defamatory.
What is “defamation”? Comprehensive definition
Although the British-era section 500 IPC has been criticized on various grounds, from strictly a perspective of drafting clarity, it is really a perfect example of what the statute should be like. It elucidates the offence with numerous explanations, illustrations and exceptions. Nothing better than a leisurely but careful reading of these bare provisions, given below, to understand the the intention of the legislature.
499. Defamation.—Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.
Explanation 1.—It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives.
Explanation 2.—It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.
Explanation 3.—An imputation in the form of an alternative or expressed ironically, may amount to defamation.
Explanation 4.—No imputation is said to harm a person's reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.
Illustrations
(a) A says— “Z is an honest man; he never stole B's watch”; intending to cause it to be believed that Z did steal B's watch. This is defamation, unless it fall within one of the exceptions.
(b) A is asked who stole B's watch. A points to Z, intending to cause it to be believed that Z stole B's watch. This is defamation, unless it fall within one of the exceptions.
(c) A draws a picture of Z running away with B's watch, intending it to be believed that Z stole B's watch. This is defamation, unless it fall within one of the exceptions.
First Exception.—Imputation of truth which public good requires to be made or published.—It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact.
Second Exception.—Public conduct of public servants.—It is not defamation to express in good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further.
Third Exception.—Conduct of any person touching any public question.—It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further.
Illustration
It is not defamation in A to express in good faith any opinion whatever resepting Z's conduct in petitioning Government on a public question, in signing a requisition for a meeting on a public question, in presiding or attending at such meeting, in forming or joining any society which invites the public support, in voting or canvassing for a particular candidate for any situation in the efficient discharge of the duties of which the public is interested.
Fourth Exception.—Publication of reports of proceedings of courts.—It is not defamation to publish substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings.
Explanation.—A Justice of the Peace or other officer holding an enquiry in open Court preliminary to a trial in a Court of Justice, is a Court within the meaning of the above section.
Fifth Exception.—Merits of case decided in Court or conduct of witnesses and others concerned.—It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a party, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further.
Illustrations
(a) A says—“I think Z's evidence on that trial is so contradictory that he must be stupid or dishonest.” A is within this exception if he says this in good faith, inasmuch as the opinion which he expresses respects Z's character as it appears in Z's conduct as a witness, and no farther.
(b) But if A says—“I do not believe what Z asserted at that trial because I know him to be a man without veracity”; A is not within this exception, inasmuch as the opinion which express of Z's character, is an opinion not founded on Z's conduct as a witness.
Sixth Exception.—Merits of public performance.—It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance, and no further.
Explanation.—A performance may be submitted to the judgment of the public expressly or by acts on the part of the author which imply such submission to the judgment of the public.
Illustrations
(a) A person who publishes a book, submits that book to the judgment of the public.
(b) A person who makes a speech in public, submits that speech to the judgment of the public.
c) An actor or singer who appears on a public stage, submits his acting or singing to the judgment of the public.
(d) A says of a book published by Z—“Z’s book is foolish; Z must be a weak man. Z's book is indecent; Z must be a man of impure mind.” A is within the exception, if he says this in good faith, inasmuch as the opinion which he expresses of Z respects Z's character only so far as it appears in Z's book, and no further.
(e) But if A says “I am not surprised that Z's book is foolish and indecent, for he is a weak man and a libertine.” A is not within this exception, inasmuch as the opinion which he expresses of Z's character is an opinion not founded on Z's book.
Seventh Exception.—Censure passed in good faith by person having lawful authority over another.—It is not defamation in a person having over another any authority, either conferred by law or 110 arising out of a lawful contract made with that other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates.
Illustration
A Judge censuring in good faith the conduct of a witness, or of an officer of the Court; a head of a department censuring in good faith those who are under his orders, a parent censuring in good faith a child in the presence of other children; a schoolmaster, whose authority is derived from a parent, censuring in good faith a pupil in the presence of other pupils; a master censuring a servant in good faith for remissness in service; a banker censuring in good faith the cashier of his bank for the conduct of such cashier as such cashier- are within this exception.
Eighth Exception.—Accusation preferred in good faith to authorised person.—It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation.
Illustration
If A in good faith accuses Z before a Magistrate; if A in good faith complains of the conduct of Z, a servant, to Z's master;if A in good faith complains of the conduct of Z, a child, to Z's father-A is within this exception.
Ninth Exception.—Imputation made in good faith by person for protection of his or other's interests.—It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good.
Illustrations
(a) A, a shopkeeper, says to B, who manages his business—“Sell nothing to Z unless he pays you ready money, for I have no opinion of his honesty.” A is within the exception, if he has made this imputation on Z in good faith for the protection of his own interests.
(b) A, a Magistrate, in making a report to his own superior officer, casts an imputation on the character of Z. Here, if the imputation is made in good faith, and for the public good, A is within the exception.
Tenth Exception.—Caution intended for good of person to whom conveyed or for public good.— It is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good.
500. Punishment for Defamation.—Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.
"Good name in man and woman, dear my lord,
Is the immediate jewel of their souls.
Who steals my purse steals trash; 'tis something, nothing;
'Twas mine, 'tis his, and has been slave to thousands;
But he that filches from me my good name
Robs me of that which not enriches him,
And makes me poor indeed." (Othello)
Filtering out the noise and the way forward.
The politics in the aftermath of this judgment will surely play out and the political parties will be locked in fierce public and TV debates in a totally partisan manner, but as a Nation we need to use this event to dispassionately and objectively review the criminal law of defamation in the country. The law of criminal defamation is a complex and sensitive issue and it requires a very careful consideration. While it is important to protect the reputation of individuals and entities, it is equally important to ensure that the right to freedom of speech and expression is not unduly restricted. There is a pressing need to strike a balance between protecting the right to reputation and upholding the right to free speech.
It is also important to shift the focus to exemplary and stiff civil penalties, and to make the civil procedure more expeditious. Civil penalties, such as compensation and damages, can be an effective way to provide relief to individuals who have been defamed. The current civil procedure in India can be time-consuming and expensive, which can discourage individuals from pursuing civil remedies.
Both the government and the courts have a role to play in addressing these issues. The government can take steps to review and amend the laws governing defamation and civil penalties, in order to strike a balance between protecting the right to reputation and upholding the right to free speech. The courts, on the other hand, can play a proactive role in ensuring that civil cases are expedited, and that individuals are able to obtain timely and effective relief.
In conclusion, it is important to ensure that the law of defamation in India comes to be in sync with the international practices in democracies across the world. It is an arduous, if not a tortuous path but we should at least begin. There are plenty other issues to play politics with.
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First pic: Rahul Gandhi outside the Surat Court today: Courtesy, Indian Express.
Second Pic: #AIart generated by the author using “Dream Studio”
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The author superannuated as Special Chief Secretary, Punjab in July, 2021, after nearly 37 years of service in the IAS.
He can be reached on kbs.sidhu@gmail.com