Libel is no crime

The Supreme Court’s recent judgment pronouncing defamation as a criminal offence is out of sync with the law in the democratic world, where it is essentially a private affair and entails damages in a civil suit.

Published : Jul 20, 2016 16:00 IST

IT is sad that at a time when the apex courts of democracies governed by the rule of law pronounce criminal libel to be unconstitutional, and pronounce it in simple, even elegant, prose, the Supreme Court of India pronounces to the contrary and does so in language that has to be read to be believed. The issue before the court was simple. Defamation is punishable in a civil court as a tort, a civil wrong punishable in damages. It is also punishable as a criminal offence, under Sections 499 and 500 of the Indian Penal Code (IPC) of 1860, punishable by a magistrate with imprisonment or a fine or both. Expressed in writing, it constitutes libel; in words spoken, it is slander.

In 1964, in the landmark case of New York Times vs Sullivan (376 U.S. 254; 11 L. Ed. 2nd 686 (1964)), the United States Supreme Court held that “the constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with knowledge that it was false or with reckless disregard of whether it was false or not”. The public official, therefore, stands on a lower footing than the private citizen.

In India, the law was amended in favour of the public official by inserting Section 198B in the Criminal Procedure Code (CrPC) of 1898, which found its way in the Code of 1973 as Sections 199(2)(3) and (4). It makes the offence triable straightaway by a sessions court, instead of the magistrate, on a complaint filed by the Public Prosecutor, without the case being committed to it by a magistrate.

On October 7, 1994, in the Nakkheeran case, Justice B.P. Reddy applied the NYT ruling as good law in India but, with becoming judicial restraint, said: “We may clarify, we have not gone into impact of Article 19(1)(a) (the fundamental right to freedom of speech and expression) read with clause (2) thereof on Sections 499 and 500 of the Indian Penal Code. That may have to await a proper case” ( R. Rajagopal & Anr vs The State of Tamil Nadu & Ors (1996) 6 SCC 632 at p. 649 para 23). Pray, which is more onerous, more punitive, and painful, payment of money as damages in a civil suit or time in prison after conviction in a criminal case?

That was a ruling by a Division Bench comprising two judges of the Supreme Court. In the instant case, it was the constitutional validity of Sections 499 of the IPC and 199(2) of the CrPC which was involved, an issue of great importance. It is unfortunate that this case was also heard by a bench of two judges instead of a Constitution Bench of five judges. It is even more unfortunate that the 268-page judgment, delivered on May 13, 2016, by Justice Dipak Misra, on behalf of himself and Justice Prafulla C. Pant, should have totally ignored the Sullivan case and other cases of relevance and upheld the constitutional validity of Sections 499 of the IPC and 199(2) of the CrPC.

The judgment reeks of every flaw possible in a judicial pronouncement—bad law, bad logic, bad English and a markedly illiberal outlook. Language is given to man to communicate , to persuade, to enlighten and, when required, to enliven or entertain. In the highest court of the land, its judges are expected to lay down the law on the basis of cogent reasoning in simple prose understandable by all, judges below, lawyer and even the literate layperson. If they can attain elegance of style, so much the better. It is, however, disastrous if in pursuit of wit or elegance, more worthwhile values are jettisoned.

Sample this: “The assertion by the Union of India and the complainants is that the reasonable restrictions are based on the paradigms and parameters of the Constitution that are structured and pedestaled on the doctrine of non-absoluteness of any fundamental right, cultural and social ethos, need and feel of the time, for every right engulfs and incorporates duty to respect other’s right and ensure mutual compatibility and conviviality [ sic ] of the individuals based on collective harmony and conceptual grace of eventual social order; and the asseveration [ sic ] on the part of the petitioners is that freedom of thought and expression cannot be scuttled or abridged on the threat of criminal prosecution and made paraplegic on the mercurial stance of individual reputation….” And so it goes on. The emphasis has been added throughout. The language in this and other quotes of his are Justice Misra’s.

Unlike rulings of real relevance, the Gita, the Quran, the Bible, Shakespeare, Socrates, Aristotle, Hazlitt, Edmund Burke and Patrick Henry are not quoted. Rulings of the U.S. Supreme Court—and one suspects also of English, Canadian, South African and of the European Court of Human Rights—are acknowledged as being of “great persuasive value”. But they are cited under this heading: “Perception of the Courts in the United Kingdom as regards Reputation ”. Evidently, he did not find them more relevant on freedom of speech.

Our law of defamation is based on English law. Civil law is based on English and Indian cases. It is not codified. Criminal law is codified to an extent in Section 499 of the IPC. Case law is drawn on to appreciate its import.

The famous Q.C. Geoffrey Robertson wrote in his excellent work Freedom, the Individual and the Law : “Criminal libel is an ancient offence which is unlikely to be invoked against the media by prosecuting authorities. The Law Commission has recommended its abolition, and Lord Diplock has pointed out that its provisions conflict with the European Convention on Human Rights.” This logic would apply, no less, to the validity of Indian law vis-a-vis our fundamental rights.

He continued: “There have been only two modern instances in which it has been invoked by private individuals as part of a vendetta against their journalistic tormentors. One was in 1977 by Sir James Goldsmith against the editor of Private Eye . Another was in 1982. Goldsmith wisely settled up. The other failed dismally.”

The Law of Libel Amendment Act, 1888, provided a safeguard (Section 8) which was absent in the Criminal Procedure Code 1898—leave from a High Court judge prior to a prosecution of the press. As Robertson explained: “The Judge must be satisfied that there is an exceptionally strong prima facie case, that the libel is extremely serious, and that the public interest requires the institution of criminal proceedings.” There was no procedural safeguard in the CrPC of 1898. (Robertson Q.C. and Andrew Nicol Q.C. Mudra Law , 2002. Lord Diplock in Greaves vs Deakin (1980) AC 447 at 483.) The U.K.’s Defamation Act, 2013, has further liberalised the law. None of this finds even a mention in the judgment.

The issue is, Can defamation itself be a crime? Criminal intimidation (Section 503), intentional insult with intent to provoke breach of the peace (Section 504), and statements conducing to public mischief (Section 505) are offences under the Penal Code because the words affect society. Democracies regard defamation by itself to be essentially a private affair but one in which the aggrieved person should have a remedy in law—damages in a civil suit. The amount awarded can be a deterrent.

Individual rights and society

With respect the judgment rightly says: “A crime affects the society. It causes harm and creates a dent in social harmony. When we talk of society, it is not an abstract idea or a thought in abstraction. There is a link and connect between individual rights and the society; and this connection gives rise to community interest at large. It is a concrete and visible phenomenon. Therefore, when harm is caused to an individual, the society as a whole is affected and the danger is perceived.”

Stephen, an acknowledged authority, opines: “A crime is an unlawful act or default which is an offence against the public , rendering the person guilty of such act or default liable to legal punishment.”

Justice Dipak Misra cites rulings by the Supreme Court, ending with one in which it was observed that “criminal law primarily concerns with social protection, prescribes rules of behaviour to be observed by all persons and punishes them for deviation, transgression or omission”. Having said this, he adds immediately thereafter: “From the aforesaid discussion, it is plain as day that the contention that the criminal offence meant to subserve the right of inter se private individuals but not any public or collective interest in totality is sans substance.” He proceeds to cite the laws against sexual harassment of women at workplace, prohibition of child labour, the Protection of Civil Rights Act, 1955, laws on noise pollution and environment protection and even the Press Council Act, 1978—all laws of manifest concern to society unlike defamation.

Justice Misra holds otherwise: “We have referred to this facet only to show that the submission so astutely canvassed by the learned counsel for the petitioners that treating defamation as a criminal offence can have no public interest and thereby it does not serve any social interest or collective value is sans substratum. We may hasten to clarify that creation of an offence may be for some different reason declared unconstitutional but it cannot be stated that the legislature cannot have a law to constitute an act or omission done by a person against the other as a crime. It depends on the legislative wisdom. Needless to say, such wisdom has to be in accord with constitutional wisdom and pass the test of constitutional challenge.”

Judgments on freedom of speech are quoted but their effect is overlooked. The Constitution is clear on the point. The state is entitled to impose by law only “reasonable restrictions” on the fundamental right to freedom of speech and expression in the interests inter alia of “defamation” (Article 19(2)). Article 21 says: “No one shall be deprived of life or personal liberty except in accordance with procedure laid down by law.” The words “personal liberty” undoubtedly include reputation and personal dignity. But fundamental rights restrain state action. How does Article 21 control relations between persons? It can only curb the state’s recourse to defamation of the citizen, an abuse with which we are familiar.

But Justice Misra holds: “Reputation being an inherent component of Article 21, we do not think it should be allowed to be sullied solely because another individual can have its freedom. It is not a restriction that has an inevitable consequence which impairs circulation of thought and ideas. In fact, it is control regard being had to another person’s right to go to court and state that he has been wronged and abused. He can take recourse to a procedure recognised and accepted in law to retrieve and redeem his reputation. Therefore, the balance between the two rights needs to be struck. ‘Reputation’ of one cannot be allowed to be crucified at the altar of the other’s right of free speech. The legislature in its wisdom has not thought it appropriate to abolish criminality of defamation in the obtaining social climate.”

Parliament has not only not abolished some repressive laws of the colonial era but has also added some of its own—“in its wisdom”. The judge’s reference to “the obtaining social climate” explains a lot. Is public discourse in the U.S. or the U.K. less robust than in India? Or are we so backward that we need protective laws? Where does this logic end? Curbs on democracy for a “backward” India?

He holds: “Once we have held that reputation of an individual is a basic element of Article 21 of the Constitution and balancing of fundamental rights is a constitutional necessity and further the legislature in its wisdom has kept the penal provision alive, it is extremely difficult to subscribe to the view that criminal defamation has a chilling effect on the freedom of speech and expression.” The logic is not very evident in this non sequitur.

Even the Preamble to the Constitution (“fraternity”) and a Directive Principle (Article 51A, on promotion of harmony and striving towards excellence) are quoted to precede this laudable admonition. “It is also the duty of every citizen to strive towards excellence in all sphere of individual and collective activity.”

Bar a few pages earlier, the judgment touches the core issues only from page 216 onwards with the instructive heading. “ Anatomy of the provision and its field of operation : Having dealt with this facet, now we shall focus on whether Section 499 of IPC either in the substantive sense or procedurally violates the concept of reasonable restriction. We have to examine whether it is vague or arbitrary or disproportionate” (italics as in the original).

Colonial interests

The Indian Penal Code, 1860, and the Criminal Procedure Code, 1898, were drafted with full concern for colonial interests. As noted earlier, the law in India was made more stringent than the one in England. Under Section 499 of the Penal Code, the truth of the imputation alone is no defence. It should have been made also “for the public good”.

Opinion on 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” will, if it is defamatory, require proof of “good faith” as a defence. Section 52 of the Penal Code defines these words to mean something done or believed only with “due care or caution”.

This shows the tilt of the law. For, as applied to the conduct of public servants themselves when faced with legal action for their wrongs, Section 3(22) of the General Clauses Act, 1897, says that “a thing shall be deemed to be done in ‘good faith’ where it is in fact done honestly, whether it is done negligently or not”. Negligence is no offence in the rulers. It is in a citizen if he exposes the public servant’s misdeeds.

Tilted as was the very definition of the offence in the Penal Code, the procedural law, the Criminal Procedure Code, treated the citizen and “public servants” (the expression includes Ministers) on a par with citizens as far as criminal cases of defamation were concerned. They were protected enough by a provision for sanction by their superior if they were prosecuted by the citizen for dereliction of duty. But the law made no difference when they prosecuted the citizen for defamation.

A radical change was made by the Criminal Procedure Code (Amendment) Act XXVI of 1955. It inserted Section 198-B into the CrPC of 1898. Its equivalent in the CrPC of 1973 is Section 199 (2), (3), (4) and (5). Briefly, it provides that when any offence of defamation, falling under Chapter XXI of the Penal Code, is alleged to have been committed against a person who “at the time of such commission is” the President, Vice President, Governor, Minister, or any other public servant… in respect of his conduct in the discharge of his public functions, a Sessions Court can take cognisance of it. Committal proceedings before a magistrate, the norm in session cases, are dispensed with. So also the rule that a “person aggrieved” alone can prosecute for defamation. Instead, a complaint by the Public Prosecutor will suffice after the previous sanction of the government concerned, Central or State.

Those who fought for India’s freedom found the seat of power very comforting. They took over colonial laws, no matter how repressive they were. Justice Misra goes through the exceptions, added to Section 499, and finds them unexceptionable following earlier rulings of the Supreme Court.

The court was treated to some fearful worst-case scenarios to establish the wisdom of the archaic Exception 1 to Section 499 which makes truth alone no defence unless it is also proved that it was for the “public good” as well. What, it was told, if there was an imputation of impotence, incest, victim of rape, or birth out of wedlock. “We have set out the examples cited by the learned senior counsel only to show that there can be occasions or situations where truth may not be sole defence. And that is why the provision has given emphasis on public good.” The Bombay High Court held nearly a century ago that vulgar abuse does not constitute libel. It is not really an “imputation” but sheer abuse.

The major premise in Justice Misra’s thinking emerges at page 246. “One cannot be unmindful that right to freedom of speech and expression is a highly valued and cherished right but the Constitution conceives of reasonable restriction. In that context criminal defamation which is in existence in the form of Sections 499 and 500 IPC is not a restriction on free speech that can be characterised as disproportionate. Right to free speech cannot mean that a citizen can defame the other. Protection of reputation is a fundamental right. It is also a human right. Cumulatively it serves the social interest.”

No one suggests that the law should not provide a remedy if a person’s reputation is attacked. The sole question was, is the criminal law, as distinct from civil law, a “reasonable” remedy in this day and age? An illiberal approach is not the only blemish. Notorious abuses are ignored and glossed over without so much as an advice for reform, let alone censure. “In the course of hearing, it has been argued that the multiple complaints are filed at multiple places and there is abuse of the process of the court. In the absence of any specific provisions to determine the place of proceedings in a case of defamation, it shall be governed by the provisions of Chapter XIII of the CrPC—Jurisdiction of the Criminal Courts in Inquiries and Trials.”

“Thus, CrPC governs the territorial jurisdiction and needless to say, if there is abuse of the said jurisdiction, the person grieved by the issue of summons can take appropriate steps in accordance with law. But that cannot be a reason for declaring the provision unconstitutional.” A law that is so unreasonable and indifferent to the citizen’s plight stands condemned. Public Prosecutors do not enjoy any security in India unlike their counterparts in the U.K and the U.S. The press has reported instances of their change of stance with the change of regime. The judgment merely recalls the court’s admirable dicta on their independence.

Section 199(2) of the CrPC is upheld. “Filing of a complaint before the Court of Sessions has three safeguards, namely, (i) it is filed by the Public Prosecutor; (ii) obtaining of sanction from the appropriate government is necessary, and (iii) the Court of Sessions is a superior court than the magistrate to deal with a case where a public servant is defamed.” It is a matter of public knowledge that these “safeguards” are illusory; worse, they protect the state but bind the citizen to seek the sanction of the wrongdoer itself—the state. Colonial rulers needed such “safeguards”. Independent India does not. The law as it stands exposes India to ridicule; it is so out of sync with the law in the democratic world on all the major points in issue.

New York Times vs Sullivan case

Let us begin with the New York Times vs Sullivan case decided half a century ago. On March 29, 1960, as the civil rights movement began to gather momentum in the south, a full-page advertisement appeared in The New York Times signed by 64 people. It charged that thousands of black southern students, then engaging in non-violent demonstrations to obtain their constitutional rights, had to face an unprecedented wave of terror by those who would deny and negate that document (the Constitution) which the whole world looks upon as setting the pattern for modern freedom.

There were some grave factual errors in the advertisement. L.B. Sullivan, Commissioner of Public Affairs, in Montgomery, Alabama, seized on them and sued The New York Times and the four black clergymen who had signed the advertisement for $500,000 for libel. A jury in the city awarded him the full amount. The Supreme Court of the U.S. reserved it unanimously. Justice William J. Brennan spoke for the court. “As Madison said, ‘Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true than in that of the press’. 4 Elliot’s Debates on the Federal Constitution (1876) p. 571….

“That erroneous statement is inevitable in free debate, and that it must be protected if the freedom of expression are to have the ‘breathing space’ that they ‘need … to survive,’ N. A. A. C. P. v. Button , 371 U.S. 415.

“Just as factual error affords no warrant for repressing speech that would otherwise be free, the same is true of injury to official reputation. Where judicial officers are involved, this court has held that concern for the dignity and reputation of the courts does not justify the punishment as criminal contempt of criticism of the judge or his decision. Bridges v. California , 314 U.S. 252.… This is true even though the utterance contains ‘half-truths’ and ‘misinformation’. … Such repression can be justified, if at all, only by a clear and present danger of the obstruction of justice. If judges are to be treated as ‘men of fortitude, able to thrive a hardy climate,’ … surely the same must be true of other government officials, such as elected city commissioners. Criticism of their official conduct does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputations. If neither factual error nor defamatory content suffices to remove the constitutional shield from criticism of official conduct, the combination of the two elements is no less inadequate.…

“A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions—and to do so on pain of libel judgments virtually unlimited in amount—leads to a comparable ‘self-censorship’. Allowance of the defence of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred. Even courts accepting this defence as an adequate safeguard have recognised the difficulties of adducing legal proofs that the alleged libel was true in all its factual particulars .…

“Under such a rule would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which ‘steer far wider of the unlawful zone’.… The rule thus dampens the vigour and limits the variety of public debate. It is inconsistent with the First and Fourteenth Amendments.

“The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.…”

This case establishes the following: (1) Factual error does not disentitle the citizen to the protection of his right of free speech nor entitles the state or anyone else to sue him for libel; (2) The same holds good for defamatory content; (3) The defendant is not required to prove the truth of his “factual assertions”; (5) The concept of a “chilling effect” on free speech was endorsed; (5) “Actual malice” must be proved by the plaintiff.

Misplaced concern

In the Pentagon Papers Case ( The New York Times Co. vs United States 403 U.S. 713; 29 L. Ed. 822), delivered on June 30, 1971, Justices Black and Douglas recalled Chief Justice Hughes’ remarks in Near vs Minnesota (283 U.S. 697 75 L. Ed. 1357) that “the fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with official misconduct”. Justice Dipak Misra’s concern for the “social climate” of the day is therefore misplaced; (6) The press is not obliged to verify in advance the accuracy of all the statements of fact on which the criticism is based.

Apart from the U.S. Supreme Court’s ruling in the Sullivan case the Privy Council has also endorsed this rule. Lord Bridge said: “In a free democratic society it is almost too obvious to need stating that those who hold office in government and who are responsible for public administration must always be open to criticism. Any attempt to stifle or fetter such criticism amounts to political censorship of the most insidious and objectionable kind. At the same time it is no less obvious that the very purpose of criticism levelled at those who have the conduct of public affairs by their political opponents is to undermine public confidence in their stewardship and to persuade the electorate that the opponents would make a better job of it than those presently holding office. In the light of these considerations their Lordships cannot help viewing a statutory provision which criminalises statements likely to undermine public confidence in the conduct of public affairs with the utmost suspicion… that it would on any view be a grave impediment to the freedom of the press if those who print, or a fortiori those who distribute, matter reflecting critically on the conduct of public authorities could only do so with impunity if they could first verify the accuracy of all statements of fact on which the criticism was based” ( Hector vs A.G. of Antigua (1990) 2 Appeal Cases 312 at 318).

(7) The public official. India is the only democracy to put him on a pedestal. In Derbyshire Country Council vs Times Newspapers Ltd & Ors (1993) A.C. 23, a local authority sued The Times for libel. The House of Lords held that it had no right to do so.

It bears quotation in extenso . Lord Keith said: “If the council were to succeed in this appeal, any governmental body with corporate status could bring libel proceedings against a newspaper or individual citizen alleged to have defamed its governing reputation. Such bodies would be able to wield the very sharp sword of libel proceedings to deter or suppress public criticism and information about what they do as the people’s representatives and public servants. They could do so using public funds and knowing that an ordinary individual citizen could not afford access to justice to defend his freedom of political expression against such a claim. This is not a hypothetical matter: the defendant in the Bognor Regis case [1972] 2 Q.B. 169 was completely ruined by the legal costs of defending a libel trial for having handed out a leaflet at a ratepayers’ association meeting in a village hall. Freedom of expression is an essential feature of citizenship and of representative democracy. Close scrutiny of possible threats to fundamental freedoms is called for.…

“The development of a tort of government libel, much more draconian than the crime of seditious libel, would have a chilling effect upon the freedom of expression of newspapers as well as of the individual citizen critic of government. The press is not above the law or entitled to some special privilege or immunity not enjoyed by the individual citizen: it has no greater or fewer rights than does the citizen for whom it is the surrogate.…

“There are, however, features of a local authority which may be regarded as distinguishing it from other types of corporation, whether trading or non-trading. The most important of these features is that it is a governmental body. Further, it is a democratically elected body, the electoral process nowadays being conducted almost exclusively on party political lines. It is of the highest public importance that a democratically elected governmental body, or indeed any governmental body, should be open to uninhibited public criticism. The threat of a civil action for defamation must inevitably have an inhibiting effect on freedom of speech. In City of Chicago v. Tribune Co . (1923) 139 N.E. 86 the Supreme Court of Illinois held that the city could not maintain an action of damages for libel. Thompson C.J. said at p. 90: ‘The fundamental right to freedom of speech is involved in this litigation, and not merely the right of liberty of the press. If this action can be maintained against a newspaper it can be maintained against every private citizen who ventures to criticise the ministers who are temporarily conducting the affairs of his government.…

“‘While in the early history of the struggle for freedom of speech the restrictions were enforced by the criminal prosecutions, it is clear that a civil action is as great, if not a greater, restriction than a criminal prosecution. If the right to criticise the government is a privilege which, with the exceptions above enumerated, cannot be restricted, then all civil as well as criminal actions are forbidden. A despotic or corrupt government can more easily stifle opposition by a series of civil actions than by criminal prosecutions.…’

“After giving a number of reasons for this, he said, at p. 90: ‘It follows, therefore, that every citizen has a right to criticise an inefficient or corrupt government without fear of civil as well as criminal prosecution. This absolute privilege is founded on the principle that it is advantageous for the public interest that the citizen should not be in any way fettered in his statements, and where the public service or due administration of justice is involved he shall have the right to speak his mind freely.’

“These propositions were endorsed by the Supreme Court of the United States in New York Times Co. v. Sullivan (1964) 376 U.S. 254, 277. While these decisions were related most directly to the provisions of the American Constitution concerned with securing freedom of speech, the public interest considerations which underlaid them are no less valid in this country. What has been described as ‘the chilling effect’ induced by the threat of civil actions for libel is very important. Quite often the facts which would justify a defamatory publication are known to be true, but admissible evidence capable of proving those facts is not available. This may prevent the publication of matters which it is very desirable to make public .

“I regard it as right for this House to lay down that not only is there no public interest favouring the right of organs of government, whether central or local, to sue for libel, but that it is contrary to the public interest that they should have it. It is contrary to the public interest because to admit such actions would place an undesirable fetter on freedom of speech. In Die Spoorbond v. South African Railways , 1946 A.D. 999, the Supreme Court of South Africa held that the South African Railways and Harbours, a governmental department of the Union of South Africa, was not entitled to maintain an action for defamation….

‘I have no doubt that it would involve a serious interference with the free expression of opinion hitherto enjoyed in this country if the wealth of the state, derived from the state’s subjects could be used to launch against those subjects actions for defamation because they have, falsely and unfairly it may be, criticised or condemned the management of the country.’”

The concept of the “chilling effect” applies a fortiori to prosecutions for defamation by the government. No public official has any right whatsoever to claim special privileges of the kind in Section 199(2) of the CrPC when suing for libel.

In 1993, Prime Minister John Major sued New Statesman for libel for repeating the rumour that he had had an affair with Claire Latimer, a 10 Downing Street caterer. Accused of bullying, he retorted: “The press, though they often complain about the laws of defamation, are quick to raise an eyebrow and note pointedly that some one has not sued.” How many Indian politicians and businessmen sue for libel?

Thirty years ago, the European Court of Human Rights gave a ruling which is relevant because Article 10 of the European Convention on Human Rights is akin to Article 19(1) and (2) of the Indian Constitution. It said that “the limits of acceptable criticism are wide as regards a politician as such than as regards a private individual… the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance”.

Under the U.K.’s Defamation Act, 2013: 1. A statement is not defamatory unless its publication has caused or is likely to cause “serious harm” to the claimant’s reputation (Section 1). 2. That a statement is “substantially true” is a complete defence (Section 20). 3. Section 9 abolishes “libel tourism”. Suits against a person who is not domiciled in the U.K. are barred unless the court is satisfied that of all the places England and Wales “is clearly the most appropriate place” in which to file the suit. This can be adopted in India to foil unchecked abuses of the process of the court by persons filing complaints of defamation under Section 499, in say, Guwahati, to drag a writer resident in Kochi to answer the charge. Magistrates issue summons in such cases merely because a few copies of the journal were found in Guwahati. This must stop.

A Constitution Bench must review this judgment and overrule it—urgently enough.

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