Defamation: The Weapon of Choice to Stifle Pursuit of Justice and Free Speech

Defamation laws as different from ‘ordinary’ attacks on free speech. They aim to shut down critical speech by intimidating critics and undermining their active public engagement.

It has been more than two weeks since Priya Ramani was acquitted in a defamation suit filed by former Union minister and journalist, M.J. Akbar. It was followed, expectedly and deservedly, by collective celebrations and resounding applause, but it’s time that the euphoria gave way to more profound questions about why she was standing in the court as an “accused” in the very first place. Wasn’t she the victim – of sexual harassment and unconcealed, blatant abuse of masculine privilege by Akbar?

Akbar had brought Ramani to court alleging that, in recounting her experience of how he had harassed and tormented her sexually, Ramani was trying to “defame” him and harm his reputation. The acquittal verdict at the very least vindicates Ramani’s story of sexual harassment, humiliation and intimidation. It shouldn’t have needed legal validation, but it did. And we are all glad, relieved and a little celebratory that the validation came.

Celebrations are due and celebrate we must for it is not just her personal victory but a victory for innumerable women who either suffer the ignominy of sexual harassment silently, or who lose their battles even when they muster the courage to speak up. But amidst all the celebrations, there are two uncomfortable truths about this victory that we need to pause and consider.

First, we need to ask: what are we really celebrating? The acquittal of a “victim”? There’s something horribly wrong with a legal system that renders a victim of sexual harassment vulnerable to further damages, then proceeds to “acquit” her and save her from those damages. The truth is that the legal system has an archaic, defunct law, a tool in the hands of the rich and powerful really – the “defamation law” (for short) – that can enable an accused to turn the tables and make a culprit out of a victim? Our celebrations need a reconnaissance that defamation law still exists and will find newer victims tomorrow.

Also read: In a Small Courtroom, a Big Victory for India’s #MeToo Movement

The second truth is that Priya Ramani could well have lost this battle. Had she not been backed by the brilliance of her lawyer, Rebecca John, by the testimonies and stories of other Akbar-victims (Ghazala Wahab, Pallavi Gogoi, to name two in a long list), by the media, by the stirrings of the “collective conscience”, the judgment could have gone another way. Recall how screenwriter, Vinta Nanda’s rape charges against Alok Nath panned out. Nanda’s searing account of rape resulted in a counter move by actor Alok Nath, who filed a defamation suit against Nanda. The defamation law enabled the accused to hound his victim further – this time legally. The trigger effect was that in January 2019, the sessions court ruled that the rape case against Alok Nath was lodged on the basis of a “defamatory” and “false” report of complainant Vinta Nanda, and that it’s a case of “personal vendetta”.

There is something deeply discomforting when the discharge of justice looks like a lucky break. The more justice appears as an outcome of conjunctures and fortuitous constellations, the less sure we should feel about its future trajectory. Till a law like the defamation law remains intact, the conduct of free and fearless speech will always be in peril each time a victim of sexual harassment, a journalist, an activist, a motivated citizen speaks truth to power.

Journalist Priya Ramani and #MeToo accused M.J. Akbar. Photos: PTI

The Indian defamation law (covered under IPC Sections 499 and 500 and Sections 199(1) to 199(4) of the CrPc) fall under the rubric of what is globally referred to as SLAPP (strategic law against public participation) suits. A SLAPP suit is intended to intimidate and silence a party from speaking freely and fearlessly. The strategy is to exhaust resources and morale, generally including exorbitant claims for damages and allegations designed to smear, harass and overwhelm activists and/or civil society organisations.

Certain lawsuits, like defamation suits, are filed in order to target individual or group litigants who voice their concern over important or considerable social issues in the public arena. Examples include the defamation suit filed by Jay Shah against The Wire for carrying a story alleging that revenues of Shah’s company had grown massively within a year of the ruling BJP coming to power in 2014. Or against Newslaundry by the Times Group for allegedly defaming the editors of the Times Now channel. SLAPP suits like the Indian defamation laws are like the sword of Damocles hanging over the heads of those who dare to speak out.

Also read: Backstory: Watch Out for That SLAPP

There are three disturbing effects of defamation like SLAPP-suits. The first, there oftentimes is a disparity of power and resources between the complainant and the defendant. Second, the goal of a criminal defamation charge may not necessarily be to actually win the lawsuit, but to drag critics to court and bury them under a pile of attorneys’ fees, litigation costs, harassment and embarrassment until they wear down and withdraw.

As journalists, academics, legislators and bloggers across the country have recognised, such lawsuits are increasingly used by corporations, businesses, public officials as a weapon to silence, intimidate and control what constitutes the truth. We know how hard it is to face up to defamation suits when a sitting chief minister, Arvind Kejriwal, had to retract DDCA-corruption allegations under the protracted burden of a defamation suit filed by his powerful detractor, then finance minister, the late Arun Jaitley. One of the oldest and most respected journals of India, the Economic and Political Weekly, succumbed to threats of a defamation suit for carrying an article on the Adanis.

freedom of press, media, indian media, gauri lankesh

Journalists and social activists attend a protest against the killing of Gauri Lankesh, a senior Indian journalist who according to police was shot dead outside her home by unidentified assailants in southern city of Bengaluru, in Ahmedabad, September 6, 2017. Photo: Reuters/Amit Dave/File Photo

Third, SLAPP lawsuits like defamation suits have a chilling and prohibitive effect on public participation and conduct of free speech. They enable power and means to gang up and ensure that they nab you in your thoughts, warn you of dire consequences, chill you into silence and make you your own censors. They are a form of “lawfare” that pose a threat to freedom of expression and seek to intimidate, silence and “mutefy” citizens and citizen bodies.

We have to understand defamation laws as something different than an ‘ordinary’ attack on free speech. Defamation lawsuits aim to shut down critical speech by intimidating critics and undermining their active public engagement. As a New York Supreme Court judge famously said in reference to SLAPPs: “Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined”.

More law is seldom an answer to growing societal anomalies, but there appears to be a strong case emerging for an anti-SLAPP law in India. Recognising the value of free speech, 26 states in the US, together with Australia and Canada have instituted highly developed anti-SLAPP statutes that include measures like penalising the abuse of the legal system, reimbursing the cost of the litigant and so on.

Also read: We Need an Anti-SLAPP Law To Encourage and Protect Free Press

A thriving, self-confident democracy has no place for a retrograde law like the defamation law. We need to recognise, as The European Court on Human Rights did – that a “democratic society should tolerate ideas that offend, shock or disturb the State or any sector of the population”.

Rajshree Chandra is a political scientist.