About three years ago, I spent months on a case in the Supreme Court where lawyers juxtaposed two opposing interests — the right to free speech against the right to a person’s reputation. The result of this contest was a judgment in the case of Subramanian Swamy vs Union of India that upheld in flatulent prose the constitutionality of criminal defamation. This is the same law which is being used by M J Akbar to prosecute Priya Ramani for her statements against him alleging harassment. Some may say that if she is stating the truth, she has nothing to fear. Such views arise from an incomprehension of defamation laws and court processes.
Starting with first principles, the fundamental right to speech and expression is not absolute in India — but it is a fundamental right. The enjoyment of liberty is the foundation of our republic. Hence any limitations on it need to be narrow, specific and to an extent that does not cripple this right. Second, the limitation of defamation is mentioned expressly as a reasonable restriction. This has been operationalised by the colonial-era criminal offence for defamation, which provides for imprisonment, and a civil law under which declarations, injunctions and damages can be sought. These restrictions are far from reasonable.
The antiquity of the criminal law of defamation can be judged not only from when it was introduced but the reasons for which it was done. Born in Victorian England, it came from a culture of patriarchy and toxic, aggressive masculinity. Concerned by the high number of noblemen dying in duels over rumours and slander (usually about the chastity of women or the vigour of men), English lawmakers introduced a criminal penalty to discourage private reprisals. Is this in step with the culture of a modern, democratic India?
Even the civil law of defamation has several doctrinal problems given that it is a judge-made law, lacking the clarity of a parliamentary enactment. It is often used for obtaining court orders on the very first day the case is heard in the absence of the defendant. Both criminal and civil defamation laws are fundamentally flawed, allowing litigants to use “strategies” which exploit procedural loopholes. These include filing both criminal and civil cases concurrently; filing a multiplicity of cases in different courts; proxy litigations; choosing remote courts at a great distance from the author or speaker; and exaggerated valuation of damages running in thousands of crores. The defendant’s defence, which is often the truth, comes into play only at the stage of evidence.
While there may not be a singular truth in life, does it exist in a court of law? During the course of arguments in SC, the late P P Rao, a senior advocate arguing against the constitutionality of criminal defamation, pointed out how the offence of defamation does not consider truth to be a complete defence since it also needs to be in public interest. To support his submission, he even referred to the crest of the Supreme Court which carries the motto, “Yato Dharmastato Jaya (Where there is truth, there is victory)’’ quickly following it up with “…milords, it is on your chairs, your backs are turned towards it”. The implication is that neither truth nor justice may be achieved in a court when oppressive laws and procedures exist.
Underlying the abuse of the remedy of defamation is the huge delays in our courts. Given that verdicts will rarely be reached, a large number of cases exist only as a process. Hence, in this judicial duel between free expression and reputation, truth is vanquished and the only victor is case pendency.
So, do we completely forsake defamation itself? Move away from the social need of establishing the veracity of statements when they negatively impact another person? How should a culture of free expression — such as the MeToo movement that often relies on screenshots and anonymous accounts to protect victims — engage with a problematic legal process? What, if any, solutions should we explore to fix oppressive laws and systems that make it easier for truth to be established in courts?
To a large measure, the roadmap will be defined by the leadership of women who have tangibly demonstrated how the law oppresses those who lack social power and privilege — of gender, caste, ethnicity and sexual orientation. It may sound naive, but I am hoping that we retain our faith in the law and attempt to fix it so it plays its rightful role — as a means for establishing truth, for healing and for larger social reconciliation in the future.
The writer is executive director of Internet Freedom Foundation and appeared as a lawyer in the constitutional challenge to criminal defamation