The law of criminal liability for defamation was introduced in colonial India by British rulers and has survived for decades without substantial change despite the fact that several developing and developed countries, including the United Kingdom, have since abolished it. In May this year the Supreme Court on the request of petitioners such as Subramanium Swamy, Rahul Gandhi and Arvind Kejriwal considered the validity of the law but ruled that it is Constitutional. In another case, later in the year, however the apex court slammed Tamil Nadu chief minister, Jayalalitha for misuing criminal defamation to “throttle democracy.”
Contradictory case laws and the real threat criminal defamation poses to free speech have prompted Biju Janata Dal MP Tathagata Satpathy to initiate a Private Member’s Bill that will abolish criminal defamation and strengthen civil remedies to protect the right to reputation. The Bill also intends to clarify the law with regards to nature and quantum of damages and territorial jurisdiction. The MP and his team have laid out the guiding principles behind this Bill on a website and are reviewing comments and suggestions from the public while also researching global best practices on defamation laws before drafting the final version of the Bill and introducing it in the Parliament. In this edited transcript of an interview, Satpathy tells The Wire about the motivations driving his Protection of Speech and Reputation Bill and the challenges it faces.
Why does criminal defamation need to go?
It needs to go because I don’t believe that anywhere in the world people should be jailed for speaking their minds. I don’t see any justification for that. Truth is inconvenient for a lot of people and this law is used to browbeat those who are attempting to speak truth to power. On a lighter vein, our jails are overfilled and we have deadlier criminals roaming free on the streets. That said, in a society that claims to be civil you do need a deterrent to careless speech and the speech bill through consultation will attempt to come up with effective protection for reputation that is not a criminal sanction.
We have civil remedies for defamation but why are they less than effective?
As far as I know, if you don’t like what I say you can proceed against me for a civil remedy as well as a criminal sanction and both will be judged separately and whichever judgment comes out first, will influence the other. Civil recourse is guided by multiple and conflicting case laws. There is no study on this but my assumption is that most people and entities which bring criminal defamation suits are from the economic and power elite of Indian society – not farmers, peons and daily wage laborers. In large parts of India there is little concept of privacy in day to day life, let alone the concept of defamation. Defamation came to us through our colonial masters.
The first three layers of the judicial dispensation before you come to the high court are manned by people who don’t necessarily come from the metropolitan towns or the elite class. They are used to dealing with regular criminal cases with clearly set out laws and precedents and lack the tools to deal with defamation which, if at all a crime, is an intellectual crime and needs an intellectual understanding of the circumstances. The Speech Bill will try to put in force a clear and applicable civil remedy against defamation.
What do you make of the SC’s refusal to strike criminal defamation down?
I feel the Supreme Court has not dealt with the issue keeping in mind societal concerns. It has dealt with it as if it is one more business related law. I read the rather long judgment in fancy English and found that it had on the one hand addressed a lot of issues that are not pertinent and on the other hand failed to go as deep as it was required to. Frankly, it is a farce of a judgment and needs to be reviewed.
Practically speaking the backlog in Indian courts has the ability to take the bite out of any legislative remedy. Does the Bill take this concern into account?
The Speech Bill as proposed has a pre-litigation process. Right now you can directly go to court if you have a grievance against someone. But this Bill mandates that if you have made a statement against someone who is offended by it they must send you a notice first, clearly stating what the statement is, why it is defamatory and if the offended entity is an organization the complainant has to clearly state what their role is in the organization. The notice will also state what the complainant seeks by way of apology or damages. We are in the process of working out the finer details of this provision but it will provide an opportunity for out of court settlement. This coupled with abolishing criminal liability and clarifying and strengthening civil liability should help address pendency.
In the present political climate with any number of emotive issues playing out in the news cycle is there a real possibility of being able to create consensus on substantive issues such as this?
No. It is hard to build public opinion on this because the common people of the country are not affected by this law. It is a law used by the elite, as I said earlier, and they will oppose it. For example, corporates and industries in this country have become successful by exploiting the natural resources of this country – land, minerals, water etc. Many of these big businesses own media houses. Given their dependence on the government for the sanctioning of natural resources it is in their interest that publications don’t carry articles that offend the government or hurt their interests. Editors and journalists are being dismissed for what they write or carry. These businesses can hardly be expected to support this Bill. But I am hoping that support will come from writers, poets, comedians, lawyers who are concerned and affected by this existence of this onerous law. I will work for the support.
There is no real political left versus right divide on the issue but it remains a low political priority.
Politicians from across the political spectrum have been affected by this law. There have been voices against it from across party lines – from Rahul Gandhi to Subramanium Swamy. We are reaching out to the government and MPs from every party on a personal level for support. At the same time we are clear that the Bill will not apply retrospectively so that people don’t think that it is meant to help politicians who are fighting cases against themselves. I want people to see that this Bill does not belong to any one party. That this is also a reform worth pushing for.
Why did you choose to bring a Private Member’s Bill?
Because there is no other way for an MP of the treasury or non-treasury benches to bring about legislative change.
It is the only process and yet we know that Private Member’s Bills rarely pass. Why is that?
Only two and a half hours on Fridays are set aside for these bills to be presented, debated and passed and even then they have low priority. Most MPs leave on Thursday for their constituencies. The odds are therefore stacked against Private Members Bills. Other than the Transgender Rights Bill that was passed in Rajya Sabha last year, a Private Member’s Bill has not made its way to law since 1970. Across party lines all governments and bureaucracy tend to consider them to be anathema to the administration. This attitude needs to change. Members need to take these bills more seriously. They should have a scrutiny process but once it passes that scrutiny process the government should take it up and make sure it is debated and voted on.