On Defamation, Macaulay Has the Last Laugh on India

Justice Deepak Mishra’s judgment on May 13, refusing to de-criminalise defamation in the Subramanian Swamy case, is a disaster that empowers the powerful to fight each other and to oppress the press and civil society.

Subramanian Swamy. Credit: PTI

Subramanian Swamy. Credit: PTI

It is said “Friday” combined with the 13th of a month is inauspicious. Justice Deepak Mishra’s judgment refusing to de-criminalise defamation in the Subramanian Swamy case was delivered on Friday, May 13. This was the second attempt to decriminalise defamation. In the first round, N. Ravi, a former editor of The Hindu, filed a writ petition in 2004 challenging the continuation of the criminal defamation provisions in the statute book. As chief minister of Tamil Nadu, J. Jayalalithaa had pulverised her critics, including The Hindu, with criminal defamation charges. In all of these cases, sanction to prosecute was quickly given. This is a requirement of the law to protect critics but is so easily granted to politicians in power or with influence. N. Ravi’s case was stifled by a statement in 2007 that all cases against The Hindu and its editor stood withdrawn except for the Junior Vikatan case. That too, Justice Sabharwal, the last great juristic judge of the Supreme Court, recorded would also “hopefully be withdrawn”. Though the court said it would still hear the decriminalising issue, this did not happen for the usual mysterious reasons. The batch of petitions from 2015 which the court finally considered included 22 cases of criminal defamation.

The present batch of cases became a cause celebre because the list included well-known politicians like Rahul Gandhi, Arvind Kejriwal, Jayalalithaa and others. We know that Nitin Gadkari is no stranger to using the law of defamation. Arun Jaitley has also joined this list with a vengeance. Jayalalithaa loves to have the power to harass even those mildly critical of her. Unfortunately, while this present batch was being heard, the media became more interested in the big names rather than the bigger issue of criminal defamation  – which besets the everyday life of journalists and editors. The attorney general was, of course, less the AG and more on the side of politicians (his politicians, that is). He made the usual arguments that no right is absolute. (Question: who said it was?). There were amici appointed in this case. K. Parasaran, full of Sanskritic wisdom, invoked dharmasastric concepts of dharma to say there was a duty not to commit defamation because reputations under the life and liberty provisions in Article 21 were protected and this trumps free speech. In fact, what was required was harmonious construction. No one claimed the right to defame but the right to free speech and not to go to jail for statements branded defamatory at the instance of powerful politicians, magnates and others. Ratan Tata claimed privacy rights because he was embarrassed by the Niira Radia disclosures –inviting Open magazine into crippling legislation.

The other amicus, T. R. Andhyarujina, a former solicitor general and self-proclaimed protégé of the legendary Nani Palkhiwala, made a reference to the American New York Times Case (1964) which effectively laid down that even untrue statements may not be defamatory if the journalist had shown due diligence in investigating and verifying her sources. Justice Mishra avoided the implications of the New York Times case. Even the English Derbyshire case, along the same lines, which was recognised by Indian courts, was ignored in Justice Mishra’s discourse although emphatically placed before him.

Incidentally, the principle in the New York Times case is the reason why Morarji Desai lost his case in the US against Seymour Hersh, who had alleged that the former Indian prime minister had been a CIA agent. Hersh had traced all sources up to the Pentagon. He acted honestly and diligently. Curiously, apart from a casual reference to the New York Times case by an amicus, Justice Mishra did not delve into this aspect of defamation law which alone makes it constitutionally palpable. Andhyarujina did find India’s criminal defamation law wanting, including its chilling effect, because fair comment was not covered. If so, the criminal defamation provisions should have been struck down. But Andhyarujina was also a bit wishy-washy in his emphasis, knowing that judges cannot legislate. So, Justice Mishra heard what he wanted to hear and ignored the vast contours that he should have explored in his judgment of 268 pages.

The script is excessively wordy, going all over the place. I have no grouse that he did not really do justice to my comprehensive submissions. He was not to know I would weep juristic tears on reading his judgment, and, like my guru Professor J. D. M. Derrett, reacting to the Hindu Law judgment of our Supreme Court, would not eat for two days.

The verbosity of the judgment was certainly excessive, containing references to Salmond on Torts (on civil defamation), the Chambers dictionary, obscure American state rulings (obviously extracted from a Digest), the Bhagwad Gita, Holy Quran, Shakespeare, various international covenants, English courts (effectively ignoring the really relevant ones, or the fact that England had decriminalised defamation), American law (once again ignoring the relevant jurisprudence which was assiduously brought to his notice), a lot of Indian cases on free speech and the right to reputation (ignoring either the relevant cases or the relevant parts of judgments), the constituent assembly debates (ignoring the fact that his emphasis on reputation being part of Article 21, the right to life and liberty, was not considered by that august assembly), material on statutory construction, an old book by Bury History of Freedom of Thought (1913) and his own judgment in the Obscenity case. Having cited all this, he came to the conclusion that “freedom of speech and expression is a highly treasured value under the Constitution [but]… it is not absolute [and]… subject to reasonable, restrictions.” It is amazing that all these pages finally result in this inane repetition of an already well-settled proposition of law.

The right direction

The next roller-coaster ride is on the meaning of “reasonableness” in so far as it applies to fundamental rights. Why on earth are we referred to speeches of the radical Patrick Henry of the US and the conservative Edmund Burke of England, who were poles apart? I suppose it shows the cosmopolitan erudition of the judge. Justice Mishra concludes: “…in the name of freedom of speech and expression should one be allowed to mar others’ reputation as is understood within the ambit of defamation of criminal law [sic].” It is not surprising that there are extensive case citations on balancing fundamental rights. The balance can be summarised as such – “The reputation of one cannot be allowed to be crucified at the altar of the other’s right to free speech”.

Who said it should be? Is that the balance? What about “free speech is not to be sacrificed to over-zealous protection of privacy on matters in the public domain and in the public interest”? Is this latter formulation of mine not a better formulation? We are concerned with matters in the public domain and public interest. I wish the learned judge had read the New York Times case, as adopted and explained by Justice Jeevan Reddy in Auto Shankar’s case on civil defamation. He had a splendid opportunity to gauge the balance in Justice Shetty’s judgments in the Oru Oru Gramathile Case (S. Rangarajan, 1989) which says:

“The problem of defining the area of freedom of expression when it appears to conflict with the various social interests enumerated under Article 19(2) may briefly be touched upon here. There does indeed have to be a compromise between the interest of freedom of expression and special interests. But we cannot simply balance the two interests as if they are of equal weight. Our commitment of freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered.” (emphasis added).

This is in the right direction. That is why Justice Nariman relied on the judgement in the Shreya Singhal case (2015). Indeed, Justice Nariman’s judgment was wholly misconstrued by Justice Mishra. We have once again lost the wood for the trees, also because criminal defamation is not about incitement to violence. It is really a private cause of action criminalising the punishment. There is a longish discussion on ‘fraternity’ and its coming to the fore in the French Revolution. Justice Mishra includes corporates in the fraternity. Justice Mishra is clear: “a company… has its own reputation.” But material was put before him that corporates are powerful litigants that pressure people (including journalists) to give up their just cause. The court should read Paranjoy Guha Thakurta et al’s: Sue the Messenger: How Legal Arm Twisting by Corporates is Shackling Reportage and Undermining Democracy in India (2016), in addition to the material I had placed before the court on SLAPP cases (Strategic Litigations against Public Participation). The world is not flat but unequal with the powerful using litigation to silence and chill people. This is the true pathology of litigation, which V.R. Krishna Iyer so brilliantly encapsulated in his judgments.

But Justice Mishra disregards the fact that in criminal defamation, ‘truth’ is not a complete defence and requires showing public interest to the satisfaction of the magistrate or the judge in addition to truth. He also comes to the astounding conclusion that the provisions of criminal defamation are not vague. That is precisely the point. Its indeterminacy is not balanced in democracy’s favour. According to the judge, reasonableness must be judged according to the object of the legislation. But it is precisely the object of the legislation which was challenged, namely criminalising defamation with presumptions against free speech. The judgment ends with the hope that magistrates will scrutinise complaints properly and that challenges can be made to the high court. Few except the rich can afford more, expensive litigation.

The history behind defamation

The first argument made against criminalising defamation was that this was a colonial legislation drafted by Macaulay in 1837 and included in the statute book from 1860 onwards. Its purpose was to defend the empire and its officials. Recall that Rajiv Gandhi tried to bring in the infamous Defamation Bill in 1988, which was withdrawn due to strong protest. Bihar and Orissa’s bills are still around. True, as Justice Mishra puts it, just because the legislation is old does not mean that it is bad. But Macaulay’s effort was flawed in specific ways. These design faults were placed before the court:

(i) Macaulay proceeds on the assumption that “terror… produces public good”. He also said that Indians and Europeans should be treated differently and flogging is humane. This is the theory of punishment of the Penal Code.

(ii) Criminal defamation would not be linked to breach of place but is justified because an “imputation on the courage of an officer in a private letter seen by one or two people is a venial offence.”

(iii) He also deviated from English law by making slander (oral speech) a criminal offence. This targets everyday public discourse in democratic India.

(iv) Truth by itself is not a defence in criminal defamation

(v) Various defences are undermined by the insufficiency of truth not being an absolute defence.

These faults were placed before the court and ignored. The point was not that the constitution-makers continued these laws. The point was: are these laws (including criminal defamation) invidious?

This leads to the second pillar of the learned judge’s argument. The constitution-makers included defamation as a possible restriction on free speech and expression. This foundation is weak for two reasons (i) civil defamation would remain as an option so that decriminalising defamation would not nullify the civil defamation option; (ii) at the same time, by including defamation in the list of restrictions, the constituent assembly did not imply there must be a law of defamation. It implied that if a law of defamation exists or is made in future, it must meet constitutional requirements. Invalidating criminal (or even civil) defamation per se does not amount to a constitutional infraction. The legislatures must draft proper laws. Indeed, Lalu Yadav in Bihar (1990) and Rajiv Gandhi (1988) took a cue from Macaulay’s defamation to extend it further.

Third, the learned judge traces the opposition to decriminalising defamation to the right to reputation drawn from the life and liberty provisions of Article 21. Since the judge relies so much on the intention of the constitution-makers, Article 21 as conceived by them did not include either reputation (the view of life and liberty was limited) or invocation of due process (by permitting any procedure established by law). This original intention doctrine (as done by Justice Scalia in the US) is a highly conservative approach. Indian judges rely on the constituent assembly debates, but have progressively radicalised constitutional interpretation. For the court to crawl back into any version of the original intention theory does rank injustice to the genius of judges like Subba Rao, Krishna Iyer, Bhagwati, Chandrachud, Chinnappa Reddy and others who adapted old statutes and ideas into new forms suited to contemporary democratic times.

If ‘reputation’ is a right, it is really no more than a negative right resulting from the inclusion of defamation in the table of restrictions. The right to reputation is also not an absolute right. It must also yield to free speech. The compromise in civil defamation in India and elsewhere in the world is that diligent journalism acting in good faith must be allowed to speak even if its truth is not established. The idea that reputation trumps free speech that is so important to discourse in democratic India sounds more like Donald Trump than good constitutional doctrine. The remedies further suggested by the court for magistrates to be careful and allowing recourse to the high courts are problems looking for a solution. More ruinous litigation is not the answer. The judgment has shaky foundations.

A good part of the world has decriminalised defamation: Macaulay’s England and even Sri Lanka. Further, on April 16, 2012, the UN Human Rights Committee, in Adonis v Philippines Communication No.1815/08, held that criminalising libel was incompatible with Article 19 (3) of the ICCPR. On November 11-18, 2003, the UN’s special rapporteur said:

“I strongly believe that defamation should be decriminalised completely and transformed from a criminal to a civil action, considering that any criminal lawsuit, even one which does not foresee a prison sentence, may have an intimidating effect on journalists. Furthermore, criminalising defamation limits the liberty in which freedom of expression can be exercised. I would also like to draw attention to the fact that if an economic penalty is applied through criminal law, it will most likely also be followed by civil economic reparation to the victim, thus imposing a double economic sanction.”

These are, with respect, binding on India on an elaboration of the Vishaka principle referred to in the defamation judgment. India is thus in breach of treaty obligations.

The judgment in the Subramanian Swamy (a-man-for-every-cause) case is flawed and lacks juristic rigour and imagination. Justice Deepak Mishra displays a great sense of humour in his demeanour in court. Alas! This judgment is not a joke but a disaster to empower the powerful (including politicians) to fight each other and to oppress the press and civil society. Oliver Wendell Holmes once said “the life of law is not logic but experience.” This seems to have escaped the attention of Justices Mishra and Pant.

Rajeev Dhavan is a senior advocate.