Why Allowing Corporates to Invoke Criminal Defamation Against Critics is a Bad Idea

The Supreme Court has missed a chance to bring the criminal defamation law within the frameworks required of a liberal, egalitarian state.

Priya Pillai. Credit: Facebook

Priya Pillai. Credit: Facebook

In one fell swoop, by an order barely a few sentences long, the Supreme Court of India, on January 9, dismissed Greenpeace activist Priya Pillai’s challenge to the criminal defamation law. “In view of the judgment of this court in Subramanian Swamy v. Union of India,” a two-judge bench comprising justices A.K. Goel and U.U. Lalit declared, “we are not inclined to go into the validity of provisions of Sections 499 and 500 of the IPC again.”

This order, however, runs counter to the court’s own intentions expressed in September last year, when a different bench, headed by Justice J.S. Khehar (now India’s chief justice), had agreed to hear Pillai’s case, albeit on a narrow compass. Orally, the court had made it quite clear then that it couldn’t strike down the criminal defamation law as a whole (given that it was only in May that year that the law had been found constitutionally valid), but that it would nonetheless hear arguments on one critical aspect of the contest: can corporations and other such juristic persons be allowed to file complaints of criminal defamation under the Indian Penal Code? To answer this question, the court had allowed the complainant in Pillai’s case, Mahan Coal Limited, and the prosecutor, the Union of India, to file their responses.

That the court has now chosen to dismiss Pillai’s writ petition, without any fresh arguments being adduced, could, therefore, be seen as a matter of some surprise. But in a way, the order is also indicative of a disturbing feature unique to the functioning of the Supreme Court, where individual predilections of judges, sitting on distinct panels, can make a substantial difference to the fate of a case. As the scholar Nick Robinson has observed, “the many benches that make up the court are perhaps better thought of as constituting a ‘polyvocal court’ or ‘an assembly of empanelled judges’. Any given bench may have a slightly different interpretation of the law than another bench, and sometimes a starkly different one.” In this case, the implications are huge both for the petitioner, Pillai, and for the state of free speech in India.

Pillai’s concerns arose out of a blog post that she wrote in 2014, where she had criticised the environment ministry for allocating coal reserves in Madhya Pradesh to Mahan Coal Limited, a company jointly owned by the Essar Group and the Aditya Birla Group. “In a matter of 20 days our new environment minister has cleared 70 projects worth Rs 1.5 lakh crores which means he can’t possibly have considered each proposal properly,” she wrote, “Has he been appointed to line the pockets of a tiny number of wealthy corporate companies like Essar, who are out there to wipe off forests like Mahan, or to safeguard the environment, rights of people and wildlife in the country?”

Mahan Coal Limited claimed Pillai’s criticisms were defamatory in nature and the company filed a complaint invoking Sections 499 and 500 of the IPC. Pillai responded by challenging the validity of these provisions. She argued in her petition that the law constituted an unreasonable restriction on her freedom of speech. Whatever public interest was served by the criminalisation of defamation, she claimed, was more than negated by the arbitrariness of the law’s wording and the unconscionable burden that it placed on the accused. What’s more, she also assailed Explanation 2 to Section 499, which clarifies that “it may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.”

Although Pillai’s case was originally tagged with a batch of petitions – led by Subramanian Swamy v Union of India – that were disposed of in May by a bench presided by Justice Dipak Misra, hearings in her case were deferred after Justice Misra recused himself from hearing her challenge. As a result, Pillai’s petition remained undisposed). In Subramanian Swamy, the court had found Sections 499 and 500 of the IPC, which together criminalise defamation, to be a constitutionally permissible restriction on freedom of speech. But the additional issue that Pillai’s petition raised, regarding a corporation’s ability to invoke the criminal defamation law, went unaddressed in the court’s judgment. And this, perhaps, was the reason why Justice Khehar had kept Pillai’s case alive when it came up for hearing in September.

The flaws in Justice Misra’s judgment in Subramanian Swamy has been laid out extensively. But, as I had argued in context of Pillai’s challenge, what makes the judgment even more egregious is that the core reason for the court upholding the criminal defamation law gets completely unravelled when companies are allowed to lodge complaints under Section 499.

According to Justice Misra, the criminal defamation law is both necessary and valid because it protects a person’s right to reputation, which, in his belief, flows from a more general right to dignity. But what the judgment fails to recognise is that in the case of corporations, reputation is not a product of dignity, but is rather simply an intangible asset.

“A commercial company,” as Lord Hoffman wrote in his opinion in a 2006 decision by the House of Lords, Jameel v Wall Street Journal, “has no soul and its reputation is no more than a commercial asset, something attached to its trading name which brings in customers.” Therefore, to argue that companies in India have a right to reputation as an extension of Article 21 of the constitution, which, in guaranteeing a right to life and personal liberty, protects, at best, certain basic dignitary interests, would be plainly incongruous.

Additionally, as Pillai’s petition points out, there is a further imbalance created in allowing corporations the right to invoke the criminal defamation law. For a person to be found guilty of criminal defamation under Section 499, the prosecution has to establish that the accused possessed a mental state in which he intended to commit the crime. As a result, corporations, while being permitted to complain of being defamed, cannot themselves be found criminally guilty of libel.

In dismissing Pillai’s challenge virtually in limine, the Supreme Court has spurned an opportunity to set right at least some of the wrongs in its judgment in Subramanian Swamy. For Pillai, the immediate consequences are enormous. She will now have to go through a full-fledged trial to establish her innocence – a process that is likely to prove both arduous and terrifying. The court has no doubt kept open her right to seek other “appropriate remedies.” But any effort made by her to have the complaint against her quashed, before the conduct of a trial, is likely to prove fruitless. This is because Section 499 places an unfair onus on the accused, to show that the apparently defamatory statements are not only true but also that they were made in public interest. These assertions, courts have routinely held, can only be established by adducing evidence in trial.

The dismissal of Pillai’s petition has also extinguished any glimmer of hope that might have remained for the Supreme Court bringing the criminal defamation law within the frameworks required of a liberal, egalitarian state. Collectively the decisions in Subramanian Swamy and Priya Pillai typify the court’s abysmal record in civil rights cases – binning, as they do, some of our most treasured liberties to accommodate unjustifiable state intentions. It’s safe to say the court simply doesn’t take our rights seriously enough.

Suhrith Parthasarathy is a lawyer and writer and practises as an attorney at the Madras high court.