Opinion

Supreme Court must review its decision on criminal defamation

By Vipin Pubby

The Editors Guild of India has expressed “deep disquiet over the continued misuse of the law that treats defamation as a criminal offence”. The Guild, which represents senior editors of the country, issued a release on Thursday to stress its concern over the misuse of defamation laws which are being used as “a coercive tool to dissuade and even threaten the media from carrying out its legitimate responsibilities”.

Although it did not name the latest victim of criminal defamation laws, it is obvious that the reference was to the defamation case filed against ‘The Wire’ for publishing a damning article against Jay Shah, son of the BJP chief, Amit Shah. The article had stated that the junior Shah’s company had made huge profits within a short timeframe but his lawyer had denied the allegations. The lawyer had claimed that the profits were made by legitimate means. After the publication of the article, junior Shah had filed a civil defamation case seeking Rs 100 crore in damages as well as a criminal defamation case.

The Guild said that it recognised the right of an aggrieved individual to approach a court of law to seek relief against defamation but that defamation should be treated as a civil offence. It said it disagreed with Supreme Court’s recent judgement that had upheld the criminality of defamation and requested it to review its decision.

The Supreme Court while upholding the constitutional validity of penal laws on defamation, had held that criminal defamation law doesn’t have any “chilling effect on freedom of speech”. It said that the “Right to free speech is not absolute. It does not mean freedom to hurt another’s reputation which is protected under Article 21 of the Constitution”.

It is well known that unscrupulous politicians and business houses use the provisions to gag the media and to tie it down with threats to file defamation cases. Some of the media houses wish to avoid contesting cases in courts and quietly bury the story. This is what is the intention behind sending notices or filing cases. Even in ‘The Wire’ case, the legal adviser of junior Shah has cautioned against publication of the story and had threatened a legal suit if it was done.

There are numerous instances in which criminal defamation cases claiming crores of rupees as damages have been instituted to silence the media. In one particular case the ‘damage’ was assessed at a whopping Rs 5000 crore. Former Tamil Nadu chief minister J Jayalalitha and her government, for instance, had instituted over 100 defamation cases against journalists and social organisations in her state.

It often takes several years, hundreds of hearings and thousands of mandays before a final verdict comes out in defamation cases. Often the cases are deliberately delayed by the lawyers to suit their own or their client’s convenience. The conviction rate is low but the punishment is in the process.

The Guild and other media and social organisations are not demanding scrapping of defamation laws or any special protection. They have no issue with civil defamation but are rightly demanding abolition of criminal defamation which is more open to misuse and abuse.

Even in the Western democracies, from where current Indian legal system derives its foundations from, there is no provision for prosecution in defamation cases under criminal laws. The victim is entitled to get damages for loss of reputation if a case is decided in his or her favour. However since loss of reputation is not a bodily harm, such cases are not tried under criminal law.

There is a distinctive increase in the recent past in instances of government and private agencies, as well as individuals, filing criminal defamation cases. It is not a good augury for flourishing of democracy and a free media. Supreme Court must review its judgements on the issue.

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