Criminal defamation: A noxious colonial law and its subversive effects

The Macaulay-authored law must be consigned to the dustbin of history.

Congress party activists during a protest against the disqualification of Congress leader Rahul Gandhi from the Lok Sabha, in Kolkata on March 25. | Photo Credit: Swapan Mahapatra/PTI

From the standpoint of democracy as well as justice, the conviction, sentencing, and quick-fire disqualification of Rahul Gandhi as a Member of Parliament have exposed, as never before, the toxic and subversive nature of the Indian republic’s colonial-era law of criminal defamation¹, the damaging effects of a flawed decision of the Supreme Court of India on disqualification of sitting members of a legislature², and naked authoritarianism, the three combining to make a dystopia come true.

The facts, which are on record, speak for themselves. At an election rally in Karnataka on April 13, 2019, Rahul Gandhi made a jibe against the background of the Rafale deal controversy: “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.”

None of the three Modis named bothered to take the Congress leader to court, then or later, over the wisecrack. But three days after the speech was given, Purnesh Ishvarbhai Modi, a BJP MLA and former Gujarat Minister who was not even remotely in the picture, filed a complaint in the court of the Chief Judicial Magistrate (CJM) in Surat against Rahul Gandhi for criminal defamation, claiming that the entire “Modi community” had been defamed and that his reputation had suffered grievously. Never mind that Rahul Gandhi did not refer to Purnesh Modi even obliquely and had possibly never heard of him. Never mind that Rahul did not say, or make any imputation, that every Modi was a thief. Never mind there is no identifiable “Modi community”—as a caste, class, ethnic, or corporate group—except as a figment of the complainant’s imagination or, more accurately, invention.

The strange events that unfolded in Gujarat during the on-again, off-again criminal prosecution of Rahul Gandhi over a period of four years have been described in some detail elsewhere³. They feature Purnesh Modi approaching the High Court of Gujarat at Ahmedabad for a stay of the trial proceedings in the court of A.N. Dave, the CJM of Surat, who would not grant it; the High Court granting the stay; the complainant waiting it out until CJM Dave was transferred out of Surat before withdrawing his petition with permission from the High Court so that the trial could resume before a new CJM, H.H. Verma; the complainant pulling the trigger in February 2023, which happened to be when Rahul Gandhi’s political campaign against the Adani-Modi nexus was at its peak. All this could form the stuff of a dystopian novel.

Surreal events

The chain of events leading to the disqualification might seem surreal on the surface. The general political expectation is that the legal consequences of the strange happenings in Surat over this four-year period will be transient. This is because it is hard to imagine a scenario where the higher judiciary will fail to stay, if not quash, fairly quickly the bizarre conviction and harsh sentencing of Rahul Gandhi for making a wisecrack at an election-eve rally held far away from the place where the prosecution has been staged by a political adversary with zero locus in the matter.

But these sensational developments must not be allowed to divert us from going to the root of the mischief—the Macaulay-authored law of criminal defamation entrenched in Sections 499 and 500 of the Indian Penal Code (IPC). Seemingly protected by Article 19(2) of the Constitution, which provides for “reasonable restrictions” on the fundamental right to freedom of speech and expression guaranteed by Article 19(1)(a), this draconian law is inherently incompatible with, and hostile to, that fundamental right. It has been repeatedly shown by constitutional scholars, lawyers, and others, especially journalists, that it is not a question of misuse or abuse of the law—but its direct and inevitable effect. Every Indian journalist knows that irrespective of the outcome of a criminal defamation case, “the process is the punishment”; and this knowledge brings into play a chilling effect on media freedom.

The objections against the law of criminal defamation are easily summarised. It is a colonial law meant to protect the British empire and its officials from the effects of robust criticism and opposition and has no place in a sovereign, democratic republic. Freedom of speech and expression is vital to democracy and if this freedom is curtailed by resort to a draconian colonial law, the cherished value of free speech under the Constitution is imperilled.

The enabling power in Article 19(2) to impose “reasonable restrictions” on the right conferred by Article 19(1)(a) is provisioned to safeguard the interests of the general public and the state, and not any individual. Consequently, Article 19(2) cannot be regarded as the source of authority for Section 499 of the Indian Penal Code, which makes defamation of any person a criminal offence. Defamation of an individual by another individual can only be a civil wrong or tort and the common law remedy for this is the award of damages, and not imprisonment. The right to one’s reputation, which has been held by the Supreme Court to be a facet of the right to life and personal liberty protected by Article 21, is essentially to be exercised vis-à-vis the state and therefore Article 19(2) cannot be invoked to serve the private interest of an individual.

The concept of “reasonableness” incorporates the doctrine of proportionality and the content, scheme, and language of Sections 499 and 500 of the IPC betray gross disproportionality and excessive infringement of the fundamental right to free speech. “Reasonableness” is not a static concept and what is considered reasonable at one point of time may become arbitrary and unreasonable at a subsequent point of time.

Section 199(2) of the Code of Criminal Procedure (CrPC) provides a different procedure for a privileged category of persons and this classification offends the fundamental right to equality before the law guaranteed by Article 14. What is more, this section provides for use of the state machinery to launch prosecution through the Public Prosecutor, thus enabling the state to take a different route to curb the fundamental right of citizens to freedom of speech and expression.

A law that does not countenance the plea of “honest mistakes” as a defence and even makes speaking the truth about a person an offence punishable with imprisonment (unless it can be shown that the truth has been spoken for the “public good”, which is a vague term), must be struck down as unconstitutional.

All these arguments were made before the Supreme Court of India in Subramanian Swamy vs Union of India⁴ but, as we shall see below, to no avail.

But this is not all. “Much of the law,” Rajeev Dhavan, the senior lawyer and constitutional scholar, argues, “is dependent on the way litigation employs it.” “Litigation,” he argues, “determines the kind of use that is made of the law and can virtually transform its meaning and use in terms of its existence as a social reality.⁵” Once this truth is recognised, it is easy to understand how the law and, in varying degrees, the courts can be gamed by the rich and the powerful to suppress dissent, criticism, and investigative exposure of wrongdoing; how they have been gamed over the years by various political and corporate actors to the detriment of free speech, liberty, and equality; and how they are increasingly being gamed for anti-constitutional and highly divisive political ends with the “second coming” of Hindutva.

Unfortunately, when a promising opportunity arose and some of India’s best legal minds advanced a battery of persuasive arguments challenging the constitutionality of the law of criminal defamation, the Supreme Court bench comprising Justices Dipak Misra and Prafulla C. Pant failed completely to appreciate the free speech, liberty, and equality issues at stake, falling back instead on stale, conservative, and regressive reasoning. The accountability of the country’s top court for keeping “the 1860 provision, with its 17th century roots, entirely intact⁶” in the 2016 judgment⁷ that has been characterised by legal scholars as “shoddy and almost completely unintelligible⁸” and as a “disaster that empowers the powerful to fight each other and to oppress the press and civil society⁹” is heavy indeed. So is the accountability of Parliament over 75 years of Independence for not doing anything to abolish the obnoxious law.

Highlights

• The conviction, sentencing, and quick-fire disqualification of Rahul Gandhi as a Member of Parliament have exposed the toxic and subversive nature of the Indian republic’s colonial-era law of criminal defamation
• The root of the mischief is the Macaulay-authored law of criminal defamation entrenched in Sections 499 and 500 of the Indian Penal Code (IPC).
• The law must be consigned to the dustbin of history and since there is little prospect of Parliament doing this, it is perhaps time for a challenge before a constitutional bench of the highest court in the land.

Muzzling the press

The chain of events leading to Rahul Gandhi’s sensational disqualification must not be allowed to obscure the fact that over the long term it is the Indian press that has been the prime target of the defamation law, criminal and civil. Let us look at the press’s direct experience, or rather encounter, with the law of criminal defamation.

We can use The Hindu’s own experience, which goes back a long way, as a reasonable proxy for what the Indian press has been through over the long term. The 144-year-old newspaper’s editors and publishers have faced scores of defamation cases, civil and criminal, over the decades. In G. Narasimhan and Others vs T.V. Chokkappa¹⁰, a landmark case dating back to the early 1970s, a member of the Dravida Kazhagam brought a complaint of criminal defamation against the editors and publisher of the newspaper for a news item on a resolution passed at a conference. The magistrate accepted the complaint, recorded the evidence, and decided to issue process and proceed with the trial. On appeal, the Madras High Court ruled in favour of the complainant, holding his complaint of criminal defamation “competent”. However, the newspaper succeeded in its appeal before a three-member bench of the Supreme Court, which overturned the High Court order and quashed the proceedings.

More important than the outcome was the principle laid down in the judgment authored by Justice J.M. Shelat, an outstanding jurist: “The conference clearly was not an identifiable or a definitive body so that all those who attended it could be said to be its constituents who, if the conference was defamed, would, in their turn, be said to be defamed.” In other words, if an imputation against a “collection of persons” is to constitute defamation under Section 499 of the IPC, the collection must necessarily be “a determinate and an identifiable body” so that the defamatory words used would be defamation of the individual members who could then make a complaint under Section 500 of the IPC. This principle has direct application to the Rahul Gandhi case.

Three decades after G. Narasimhan and Others vs T.V. Chokkappa was decided in favour of the newspaper, it faced a bigger challenge from the high-handed and intolerant AIADMK regime of Jayalalithaa—20 criminal defamation cases filed mindlessly by the Public Prosecutor, under instructions from the Chief Minister, against the editors, publisher, and other journalists of the newspaper. An additional 100 cases were launched against other media organisations and opposition leaders. In retrospect, the content and range of news items, articles, and editorials that were targeted by the spate of defamation cases are a matter of amusement but at the time they posed a serious challenge to The Hindu and its journalists—and to media freedom in Tamil Nadu.

Undaunted, the newspaper challenged, in N. Ravi and Others vs Union of India and Others¹¹, the validity of Section 499 of the IPC before a two-member Supreme Court bench comprising Justices Y.K. Sabharwal and D.M. Dharmadhikari, praying that on constitutional grounds the provision was inapplicable to statements made in relation to the official conduct of public servants and functionaries. It seemed a promising moment in the fight to decriminalise defamation but as Rajeev Dhavan notes, the case was “stifled” by an affidavit filed by an official of the Tamil Nadu government stating that all the complaints had been withdrawn (barring one case against a Tamil magazine, which was withdrawn soon after).

Recognising the far-going constitutional importance of the issues at stake, the two-judge bench noted in its Order of December 17, 2004: “Strictly speaking, on withdrawal of the complaints, the prayer about the validity of Section 499 has also become academic, but having regard to the importance of the question, we are of the view, in agreement with the learned counsel for the petitioners, that the validity aspect deserves to be examined. In this view, we issue rule, insofar as prayer (a) is concerned.” However, as Dhavan observes wryly, “this did not happen for the usual mysterious reasons¹²”.

What is needed today is the understanding, spirit, political and media outrage, and coordinated unity of action that gave short shrift to the Rajiv Gandhi government’s infamous Defamation Bill of 1988¹³ after it had been adopted by the Lok Sabha. To the then Prime Minister’s credit, he withdrew the Bill when its widespread unpopularity became apparent. The Macaulay-authored law of criminal defamation must be consigned to the dustbin of history and since there is little prospect of Parliament doing this, it is perhaps time for a challenge before a constitutional bench of the highest court in the land.

N. Ram, former Editor-in-Chief of The Hindu and Frontline, is currently a Director in The Hindu Group Publishing Private Limited. He is the recipient of several journalism awards, of the Padma Bhushan (for journalism), 1990, and the Sri Lanka Ratna, 2005.

Endnotes

1. For a deeply researched and conceptually and historically insightful examination of the harms done by India’s law of criminal defamation, see Rajeev Dhavan, “Private Lives and Public Reputations: Career and Prospects of the Law of Defamation in India,” Chapter Four in his collection of essays, Censorship and Intolerance in India (New Delhi, Tulika Books, 2008). The chapter also deals with the confusions and problems that arise in the civil law of defamation, including the proliferating resort to court injunctions or ‘gag orders’ and SLAPP (Strategic Lawsuits Against Public Participation) actions.
2. See P.D. T. Achary (a former Secretary-General of the Lok Sabha), “Making sense of the disqualification of a Lok Sabha MP,” lead article in The Hindu, March 27, 2023: https://www.thehindu.com/opinion/lead/making-sense-of-the-disqualification-of-a-lok-sabha-mp/article66665189.ece; and Kapil Sibal (senior lawyer and Member of the Rajya Sabha), “Rahul defamation case: Amend law to protect MPs, MLAs,” op-ed in The New Indian Express, March 27, 2023: https://www.newindianexpress.com/opinions/2023/mar/27/rahul-defamation-case-amend-law-to-protect-mps-mlas-2559784.html
3. Kapil Sibal, cited in footnote 2: https://www.newindianexpress.com/opinions/2023/mar/27/rahul-defamation-case-amend-law-to-protect-mps-mlas-2559784.html; and S.N. Sahu, “Twists and turns in Rahul Gandhi’s Defamation Trial,” NewsClick.in, March 24, 2023: https://www.newsclick.in/twists-and-turns-rahul-gandhis-defamation-trial
4. Subramanian Swamy v. Union of India, (2016) 7 SCC 221: https://main.sci.gov.in/judgment/judis/44579.pdf
5. Rajeev Dhawan in the book cited above, page 103.
6. Gautam Bhatia, “Why the Supreme Court ruling on criminal defamation bodes ill for the future of free speech in India,” Scroll.in, May 14, 2016: https://scroll.in/article/808115/why-the-supreme-court-ruling-on-criminal-defamation-bodes-ill-for-the-future-of-free-speech-in-india; and “A blow against free speech,” The Hindu, May 16, 2016: https://www.thehindu.com/opinion/lead/a-blow-against-free-speech/article14321176.ece1
7. Subramanian Swamy v. Union of India, (2016) 7 SCC 221: https://main.sci.gov.in/judgment/judis/44579.pdf
8. Gautam Bhatia, cited above: https://scroll.in/article/808115/why-the-supreme-court-ruling-on-criminal-defamation-bodes-ill-for-the-future-of-free-speech-in-india
9. Rajeev Dhavan, “On Defamation, Macaulay Has the Last Laugh on India,” The Wire, June 2, 2016: https://thewire.in/law/on-defamation-macaulay-has-the-last-laugh-on-india
10. (1972) 2 SCC 680: https://indiankanoon.org/doc/10089/
11. N. Ravi and Others v Union of India and Others, reported in (200) 15 SCC 631; also see https://www.casemine.com/judgement/in/58117f6a2713e1794791f68c
12. https://thewire.in/law/on-defamation-macaulay-has-the-last-laugh-on-india
13. See “Anti-defamation law: Rajiv Gandhi’s failed attempt at curbing Press freedom,” The Indian Express, April 3, 2018: https://indianexpress.com/article/research/fake-news-order-smriti-irani-narendra-modi-anti-defamation-rajiv-gandhi-press-freedom-5121884/; Joseph Maliakan & Lek Hor Tan, “Victory for press freedom,” Index on Censorship, 9/88: https://journals.sagepub.com/doi/pdf/10.1080/03064228808534528; and “Analyzing the Defamation Bill, 1988,” iPleaders blog, October 25, 2021: https://blog.ipleaders.in/analyzing-the-defamation-bill-1988/