Strained democracy

The manner in which the Jayalalithaa government has filed defamation cases against political opponents and the media and gone about muffling dissent invites the Supreme Court’s criticism.

Published : Sep 14, 2016 12:30 IST

Chief Minister Jayalalithaa leaving an AIADMK executive committee meeting at the party’s head office in Royapettah, Chennai, on June 18.

Chief Minister Jayalalithaa leaving an AIADMK executive committee meeting at the party’s head office in Royapettah, Chennai, on June 18.

DESPITE the Supreme Court affirming on May 13 that defaming a person can be a criminal offence, the All India Anna Dravida Munnetra Kazhagam (AIADMK) government in Tamil Nadu has only itself to blame for its embarrassment vis-a-vis defamation cases. In five different occasions in the past one year, the Supreme Court has censured the Jayalalithaa government for its propensity to slap criminal defamation cases at the drop of a hat against political opponents and newspaper editors. The Supreme Court has made it obvious that it views these cases as bare-knuckled attempts to smother criticism of the government’s policies and to quell dissent.

On July 28, a Supreme Court Bench comprising Justice Dipak Misra and Justice Rohinton F. Nariman observed: “Although we had upheld criminal defamation [on May 13], it does not mean we will allow it to be misused as a political counter-weapon against criticism.” What provoked the bench’s broadside against the Jayalalithaa government was yet another defamation case filed on its behalf by a public prosecutor against Vijayakanth, the founder of the Desiya Murpokku Dravida Kazhagam (DMDK).

“Such criminal prosecution of political rivals has a chilling effect on democracy.... Criticism is a basic right in democracy.... Why has the Tamil Nadu government filed so many criminal defamation cases against political opponents?” the bench asked the State counsel. This was just 13 days after the court sought a personal explanation from the Chief Minister about a spree of criminal defamation cases filed against her political rivals.

Puzzled by the surfeit of criminal defamation cases filed by the AIADMK government, Justice Misra had on November 30, 2015, asked: “These kinds of cases are mostly coming from this State [Tamil Nadu]. Why?” A bench comprising Justice Misra and Justice Prafulla C. Pant had then told the Tamil Nadu government not to take criticism of its governance as a personal insult. The judges were hearing a petition filed by Vijayakanth seeking protection against a criminal defamation case filed against him by the State government.

What bothered the judges particularly was the government’s alleged use of the public prosecutor’s office as a post office to file these cases. In Chennai, Tiruvannamalai, Dharmapuri, Tiruppur, Virudhunagar and Nagercoil, it was public prosecutors who filed the criminal complaints on her behalf in the Sessions Courts.

“The public prosecutor is not a postman and his office is not a post office,” Justice Misra observed in an acidic tone on July 15 when Vijayakanth’s counsel, G.S. Mani, alleged non-application of mind by the prosecutor’s office in filing the complaint.

Solicitor General Ranjit Kumar, who appeared for the Centre in the case, pointed out to the bench that the public prosecutor’s office was the sanctioning authority to prosecute persons who criminally defamed a Union Minister or a State Minister or a public servant. The public prosecutor had a “significant and sacred role to play”, Ranjit Kumar said. He, however, conceded that a complaint of criminal defamation “cannot be filed in a routine manner to harass a citizen”.

After scanning the history of defamation cases filed by the State government in the previous five years, Justice Misra said again on August 23: “This shows the State’s control over the sanctioning authority and the prosecutor’s office in filing defamation cases against opponents, media and political rivals.”

The defamation cases first came to national attention on August 18, 2015, when Justice Misra and Jayalalithaa’s counsel traded verbal volleys on whether calling a Chief Minister “corrupt” would amount to criminal defamation. The exchange took place when Justice Misra and Justice Prafulla Pant were hearing a petition from Vijayakanth seeking decriminalisation of defamation after Jayalalithaa had filed a series of criminal defamation cases against him in different Sessions Courts.

When Jayalalithaa’s counsel and senior advocate L. Nageshwar Rao argued that “you can’t call a Chief Minister ‘corrupt’ and then say there is no defamation”, Justice Misra riposted: “Then there cannot be any criticism in this country.... Saying corrupt is all right.” Nageshwar Rao would not relent. He asked: “Why should this court give an exception to people who have come here to this court? Why show this exception to people who speak about somebody’s personal life? The comments in question range from accusation of sand mining to making Rs.100 crore of illegal benefits.... It is all right to criticise the government, but these comments are personal.”

Sheer number

From May 16, 2011, to July 28, 2016, the Jayalalithaa government had filed 213 criminal defamation cases against political rivals, newspaper and magazine editors, their reporters, and so on. Of the 213, only a few were filed by Ministers—O. Panneerselvam, B.V. Ramana and M.C. Sampath. The rest were filed by Jayalalithaa.

The main target of the 213 cases was the Dravida Munnetra Kazhagam (DMK), the main opposition party. Besides four cases filed against its president and former Chief Minister M. Karunanidhi, DMK functionaries had to battle 69 defamation cases. There were three cases against M.K. Stalin, DMK treasurer and now the Leader of the Opposition in the State Assembly. As many as 28 cases were filed against Vijayakanth and 24 against his party men. There were nine cases against the Pattali Makkal Katchi (PMK) and its founder Dr S. Ramadoss, five against Bharatiya Janata Party leader Subramanian Swamy, and one each against State secretary of the Communist Party of India (Marxist) G. Ramakrishnan, and Marumalarchi Dravida Munnetra Kazhagam (MDMK) founded by Vaiko.

The Tamil magazines Ananda Vikatan and Nakkheeran faced 10 defamation cases each. There were eight against the DMK organ Murasoli , five each against TheTimes of India and the Tamil daily Dinamalar , three against The Hindu, four cases against Captain TV and one each against NDTV, India Today, CNN and the Tamil television channel Puthiya Thalaimurai. The cases were filed under Section 499 (defamation) and Section 500 (punishment for defamation) of the Indian Penal Code (IPC).

The grounds cited for defamation ranged from reports in the media that yagna was performed at Jayalalithaa’s residence in Paiyanur near Chennai; reports that she had dropped Minister K.A. Sengottaiyan from her Cabinet under pressure from another person; allegations by her political rivals, quoted by the press, that Jayalalithaa was holidaying in her Kodanad tea estate in the Nilgiris when Chennai was affected by “cholera”, that she was apparently inaccessible to government officials as she stayed at Kodanad for several weeks; to rumours about her health as tweeted by Subramanian Swamy and written about in an article in an online news portal. Cases were filed against Ananda Vikatan for publishing in the issue dated November 25, 2015, a critique of her performance as Chief Minister and against some newspapers for reports that the AIADMK government’s delay in the decision to open the sluice gates of the Chembarambakkam reservoir had led to the deluge in Chennai in November-December, 2015.

Allegations in Murasoli that the Tamil Nadu government had a hand in the delay of the release of the film Viswaroopam featuring Kamal Haasan were used to file defamation cases against Karunanidhi and S. Selvam, editor of Murasoli . NDTV had to face the music for its telecast of a programme called “Kamal Haasan ban—the inside story”. The programme’s script grossly defamed the Chief Minister, it was said.

On August 24, a Supreme Court Bench led by Justice Misra was surprised to find that criminal defamation cases had been filed for even publishing reports about Jayalalithaa’s health. Justice Misra said: “This is not the sign of a healthy democracy. This shows the State’s control over the sanctioning authority and the prosecutor’s office in filing defamation cases against opponents, media and political rivals.”

Vexatious litigation

An advocate who has an informed view of the matter argued that there was no contradiction between the judgment of Justice Misra and Justice Pant upholding the constitutional validity of criminal defamation (May 13, 2016) and their plea that voices of dissent should not be viewed as “unpalatable criticism”. “The Supreme Court’s stand is that bona fide criticism or criticism done in good faith should be tolerated in a democratic set-up. It is obvious that the apex court is against vexatious and frivolous litigation using the defamation law. It seems to say that there should be a magnanimous approach towards fair criticism,” the advocate said. The message that the Supreme Court wants to send across to the AIADMK government, the advocate said, was that while the defamation law would continue to exist in the statute books, its misuse would not be tolerated.

A. Saravanan, advocate and DMK spokesperson, argued that the government filing a slew of defamation cases showed that “it cannot withstand criticism which is the cornerstone of democracy”. Let alone criticism, the government was not willing to look at a dissenting idea, he said. “While this is one dimension of the issue, another dimension is that it [the government] wants to use the criminal defamation law to muffle press freedom. This is a clear sign of intimidation. When you keep filing defamation cases against journalists, there comes a time when journalists will think twice before writing against the AIADMK government. When more and more cases are slapped against them, they will altogether stop writing [against the government],” Saravanan said.

None of the cases progressed beyond the stage of issue of summons, he said. “No case has attained finality. It clearly shows that the intention of those who file these cases is not to seek justice for defamation but to victimise people who criticise or expose them,” he said.

Saravanan alleged that while Jayalalithaa and her party colleagues “took a moral high ground by filing defamation cases”, the AIADMK organ Namadhu MGR kept publishing “obnoxious” stories against political opponents.

G. Ramakrishnan of the CPI(M) said it was significant that Justice Misra had commented on August 24 that “if somebody criticises the policy of the government, if the person criticised is a public figure, he has to face it instead of using the state machinery to choke criticism”. He added: “They are a whiplash on the AIADMK government which uses the state machinery to smother democratic voices. The criminal defamation law is being invoked against those who criticise the AIADMK government. For, it is not prepared to tolerate even a slight criticism from journalists and the opposition parties of its functioning.”

Bold reaction

In a bold reaction on November 25, 2015, R. Kannan, Editor of Ananda Vikatan , declared that the magazine was prepared to legally confront the criminal defamation case against it. He said the magazine had published an article entitled “What did Jayalalithaa do?” in its issue dated November 25, 2015, as part of a series of articles it had been publishing for 30 weeks on the performance of AIADMK Ministers. “From then on, the AIADMK’s official daily, Namadhu MGR , unleashed a broadside against Ananda Vikatan . On behalf of Jayalalithaa, a defamation case was filed in the Principal Sessions Court, Chennai, against Ananda Vikatan ’s Editor-Publisher, and Printer. Vikatan is not new to such cases. We are prepared to legally face this case as well,” Kannan said. He alleged that some police officials had threatened the magazine’s correspondents and asked shop owners and agents not to sell the magazine.

Kannan added: “Even the Facebook account of Ananda Vikatan had been blocked from the evening of November 23. About 60 lakh people followed Vikatan on Facebook, Twitter and YouTube. There is no word from the Facebook administration on this.... We cannot help suspect whether there is any link between these political happenings and Vikatan ’s Facebook account being blocked. Whatever be the obstacles, the majestic work of Vikatan in informing the world about the truth will continue.”

Stalin said the Supreme Court’s censure of the AIADMK government came at a time when its “intolerance and repressive measures are traversing beyond limits” and when it had foisted cases of sedition [against folk singer Kovan]. In a statement on December 1, 2015, he said: “The [AIADMK] government filing 190 defamation cases [until then] is a manifestation of its inability and intolerance to face even constructive criticism. It is using the defamation law as a weapon to screen its non-performance and make political leaders and journalists run from pillar to post.”

Jayalalithaa, however, justified, in the Assembly on April 23, 2013, the filing of the defamation cases against political leaders, including Vijayakanth. According to her, it was the only way to restrain those making baseless allegations and derogatory remarks against her and the government. If no action was taken against a person who made derogatory remarks against a Chief Minister of 7.28 crore people, she argued, it would amount to admitting that the allegations were true.

Confrontation in the Assembly

The Assembly has also become an arena of confrontation between the ruling party and the opposition. The elections held in May 2016 saw the return of the AIADMK to power with 134 legislators in the 234-member House. Of the rest, 89 belong to the DMK, eight to the Congress and one to the Indian Union Muslim League (IUML), which contested as allies. The AIADMK members have been no match for this united opposition.

Tension began to build up in the House in the Budget session, which began on July 25, with DMK members complaining that Speaker P. Dhanapal was not giving them enough opportunity to speak about various issues, including the problems faced by the people in their constituencies.

Besides, they had a grievance that while Dhanapal, on several occasions, had retained AIADMK members’ references ridiculing the DMK despite their objections, he readily expunged repartees from DMK members. For instance, when an AIADMK MLA described the DMK legislators as “89 scarecrows in paddy fields”, the Speaker stood firm despite DMK members insisting that the description be expunged. But when Stalin retorted with a description of the ruling party legislators, Dhanapal would not allow it to go on record.

What brought the situation to a head in the Assembly on August 17 was a remark from AIADMK member S. Gunasekaran belittling Stalin’s campaign called “Namakku Naame” ahead of the Assembly elections in which he travelled the length and breadth of the State to meet people and to listen to their grievances. Gunasekaran was caustic in his remark that “those who made a lot of noise by embarking on the Namakku Naame” programme had “failed to capture power”. This angered DMK members who demanded that the Speaker expunge this remark. But Dhanapal declined to do so because Gunasekaran, Dhanapal said, had not named anybody. K. Duraimurugan, Deputy Leader of the Opposition, retorted that everyone knew who undertook the “Namakku Naame” tour. Noisy scenes soon engulfed the Assembly. Stalin, who was not in the House then, came in hurriedly. He said he had no objection to Gunasekaran’s remarks because it only helped to turn the focus on “Namakku Naame”. The Chief Minister herself had referred to the “Namakku Naame” tour elsewhere, Stalin said. But Dhanapal expunged Stalin’s reference to the Chief Minister mentioning the tour elsewhere, saying that Stalin had referred to something that happened outside the House.

This led to pandemonium, and the Speaker ordered the eviction of DMK MLAs en masse. The marshals found it difficult to remove DMK members who sat in their seats and resisted eviction. DMK members, including Stalin, were ultimately bundled out of the House.

Suspension of MLAs

The House then adopted a resolution, moved by the Leader of the House and Finance Minister O. Panneerselvam, suspending 80 DMK legislators for seven working days of the Assembly. (In fact, only 79 DMK legislators were present in the House then.)

When Stalin came to the office of the Leader of the Opposition situated inside the Assembly precincts through gate number four the next day, the watch and ward staff refused to allow him to step inside his office. Moreover, gate number four, which led to his office, was locked. Stalin, Duraimurugan and other DMK MLAs staged a dharna for a couple of hours in front of the gate. Since gate four was closed, Stalin could not enter the Assembly library and the officials’ chambers.

When Congress member K.R. Ramasamy raised the issue in the House, the Speaker said provision 121(3) of the Assembly rules entailed that a member suspended under the rule should withdraw from the precincts of the House until the suspension expired.

Stalin smelt a conspiracy in the suspension. DMK MLAs were suspended for seven working days to prevent them from taking part in a discussion to be held on August 22 when Jayalalithaa would present the Home Department’s demand for budgetary grants, he said. (She holds the Home portfolio.)

Opposition party leaders, including those of the Congress, the Tamil Maanila Congress (TMC), the Communist Party of India, the MDMK and the Viduthalai Chiruthaigal Katchi (VCK), condemned the suspension of DMK members. They appealed to the Speaker to revoke the MLAs’ suspension, but he stood firm. “This adamant attitude of the Speaker is unacceptable,” G.K. Vasan, TMC leader, said. “When important Bills are to be passed, this obstinacy does not reflect people’s welfare. It does not go well with democratic traditions.... All elected representatives should be given equal opportunities to discuss the Bills,” Vasan added. M.H. Jawahirullah, leader of the Manithaneya Makkal Katchi, described the suspension as “murder of democracy”.

The suspension triggered a demand from several political parties for live telecast of the proceedings of the Assembly. Dr Anbumani Ramadoss, the PMK’s youth wing leader, said: “Live telecast of the proceedings will end all these bitter scenes because people will then come to know of the pathetic functioning of their representatives in the House.”

Stalin also argued that people would come to know what was happening in the Assembly if its proceedings were telecast live. The DMDK, in a statement, accused the AIADMK government of harking back to its old habits and recalled how action had been taken against DMDK legislators for criticising the government. “That is why we are asking for the live telecast of the Assembly proceedings, but the government always comes up with the excuse that costs will be prohibitive,” the statement said.

Mock Assembly

A mock Assembly held by the suspended DMK legislators, including Stalin, under a tree on the premises of Fort St. George, the seat of government, on August 19 grabbed the headlines. It saw Duraimurugan functioning as the “Speaker” and Stalin tabling a calling attention motion on the Cauvery water dispute between Karnataka and Tamil Nadu, and the farmers’ protests in Tamil Nadu. Speaking on the “motion”, Stalin sarcastically said: “Political leaders in Karnataka have shown unity and met the Prime Minister to apprise him about the problems that their State faced. But our Chief Minister merely writes letters.”

The AIADMK government was red-faced over the mock Assembly and the coverage it received in newspapers and television channels. Hundreds of policemen were massed around Fort St. George after that. The police registered cases against Stalin, Duraimurugan and other DMK legislators for staging a dharna and organising the mock Assembly. IPC sections 143 (punishment for being a member of an unlawful assembly) and 188 (disobedience to order duly promulgated by public servant) were invoked against them. R. Sakthivel, Deputy Commissioner of Police, Flower Bazaar (under which Fort St. George falls), was transferred to Ramanathapuram (about 600 km from Chennai) as Superintendent of Police, Coastal Security Group.

The DMK went to town by organising public meetings on “The plight of democracy in the Assembly”. Addressing a meeting in Madurai on August 25, Stalin said that when the Chief Minister spoke on the demand for budgetary grants for the Home Department, it looked as if she was addressing an empty maidan for there were no opposition members present in the Assembly then. “In the last five years [the AIADMK was in power from 2011-2016 also], law and order was in the ICU [intensive care unit]. It is now in a coma,” he said.

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