Political Diary
New Delhi, 28 March 2023
Defamation = Disqualification
MAN. OUR NETAS
ARE TOUCHY!
By Poonam I Kaushish
It’s the season of the
defamation whereby any innuendo equals disqualification and becomes a ticket to
jail. Perhaps little did Congress’s Rahul’s know his comment of “Why do all
thieves have Modi as the common surname,” at a poll rally in Karnataka 2019
would land him in legal trouble 2023 when ex-Gujarat Minister Purnesh Modi
filed a case in Surat court that his comments had defamed entire Modi
community.
True, the Court
suspended Rahul’s two years sentence but within 24 hours Lok Sabha disqualified
Rahul under RPA’s Section 8(3) even though Court gave him 30 days to appeal.
Basing its decision on a 2013 Supreme Court judgment which avers stay on
conviction and not sentence was the only
way that could protect Rahul’s MPship.
Accordingly, Rahul stands
disqualified from Parliament for his jail term period and an additional 6
years, unless a higher court suspends his conviction. Ironically, the 2013
ordinance which Rahul tore up would have
allowed a convicted MP/MLA to continue in office till his appeal was disposed
of, has returned to haunt him.
Rahul, on his part
is defiant and seems to follow the three Cs principle: Conviction, Courage and
Commitment. Working on the
premise of ‘Converting’ the defamation challenge
to an opportunity of the ahead, making it the fourth C. The political rainbow
is his conviction has bandied the Opposition together as its leaders could be
next.
Questionably, is India heading
towards an era of political intolerance and criminal defamation? Is the polity
afraid of clash of ideas in public life? Why are politicians’ discourses
becoming more and more venomous and toxic? Is Government, Centre or State
crushing free expression, suppressing dissent? Underscoring the narrow-minded
climate of political discourse we live in.
Either way, there are two important
takeaways from the Surat court’s conviction of Rahul --- and neither is about
whether he will be disqualified as MP, even though a 2013 Supreme Court judgment
is explicit on the outcome. It held any MP, MLA, MLC found guilty of crime and
sentenced to more than two years would lose their House membership.
One, whether the Court
ruling will reopen discussion on one of the most controversial penal provisions
of the Indian Penal Code: Section 499 and 500 which spell out a “simple imprisonment
for a term which may extend to a maximum of two years and a fine or both for
spoken, read, gestured words with the intention of harming a person’s
reputation is to be considered defamation and attract legal punishment.”
Despite experts arguing
that it is disproportionate to harm caused and prone to misuse due to the vague
language used, specially in a milieu of competitive democracy during the heat
and dust of frenzied electioneering where leaders of every colour, caste and
creed try to whip up voters sentiments via speeches based on lies, deceit,
toxicity, slander, toxicity. Elections over these are forgotten and dumped in
political raddi.
Till date there was
an informal compact whereby political speeches made in the heat of campaigning
were largely exempt from domain of criminal defamation cases, not by law but
practice. It remains to be seen whether Rahul’s conviction and subsequent
disqualification shatters this convention and opens doors for Parties, leaders
and groups to file defamation charges against political adversaries and the
route taken by judiciary to decide these cases.
Specially as 6 high
voltage Assembly elections are scheduled this year prior to general polls in
2024. Raising a moot point: Will poll campaigns now be peppered with criminal
defamation litigation? Will it prompt netas
to be more restrained? Will courts evolve a new doctrine in adjudicating
such complaints? Given the vagueness of the criminal defamation statute.
The law completely fails to clarify
what harm to a person’s reputation means. Its explanation of harm as lowering
‘moral or intellectual character’ or lowering the ‘credit of that person’ in
the ‘estimation of others’ only convolutes the provision further.
It is difficult to sustain the
argument that all those with the surname, and not merely the three individuals
including Prime Minister Modi who were referred to, can be aggrieved persons.
Also, it is not clear if the complainant had shown that he was aggrieved by the
alleged slur either personally or as a member of the ‘Modi’ group.
Two, is the impact this move will
have as it generates a debate on the criminal act of defamation and whether
such a draconian law is required at all when civil remedies for defamation
exist. But it has resisted legal challenges twice. The offence arises from the
interplay of Article 19 which allows free speech with reasonable restrictions
and Article 21 which assures the right to live with dignity.
However, notwithstanding
reservations the British era provisions remain on books due to a Supreme Court
2016 ruling rejecting pleas from politicians and intellectuals that it was an
outdated idea that undermined Article 19.(1) (a) which grants a citizen the
right to freedom of expression. Instead,
it held that a person’s right to reputation was part of a person’s fundamental
right to life.
The provision is also peculiar
because it essentially uses criminal law to prosecute a private wrong committed
by an individual against another and not society at large. Consequently, only a
person or group can bring a charge of criminal defamation against someone, not
the State. The reason why many countries have dispensed with the law.
It is for these reasons that the
Apex Court asked magistrates to be careful while adjudicating cases and ensure
that the allegedly defamatory statement is not generic or based on subjective
understanding of a remark and contains specific ingredients that make up a
defamation charge. It is questionable whether attacking an indeterminate set of
people with a general remark will amount to defamation, and even if it did,
whether it is so grave as to warrant the maximum sentence.
It remains to be seen if the nautanki on the political firmament catalyses
another challenge to this statute. Will it open more such suits? Recall, Tamil
Nadu’s AIADMK Jayalalitha used criminal defamation as a tool between 2002-2006
filing over 100 criminal defamation cases against the media.
Clearly, there is no place for
criminal defamation in a modern world. A democracy should not treat defamation
as a criminal offence at all. It is a legacy of an era in which questioning
authority was considered a grave crime. In contemporary times, criminal
defamation acts as a tool to suppress criticism of public servants and
corporate misdeeds.
In the ultimate, when we do a
cost-benefit analysis, we need to answer a simple question: Is this toxicity really
worth the price the country will pay? Who will bear the cross? Our leaders must
dial down on coarse political speeches and desist from using narrow-mindedness
and prejudices as pedestals to stand on to be seen. The aim should be to raise
the bar on public discourse, not lower it. Parliament and Courts have plenty to
do. They need to pay heed before it’s too late. ---- INFA
(Copyright, India News
and Feature Alliance)
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