Unfree speech

Laws of defamation and contempt must be seen as lingering anachronisms.

Written by Rajeev Dhavan | Published:January 4, 2016 12:10 am
 law, indian law, defamation, centempt, criminal defamation, delhi high court, Supreme court of india, khushwant singh, criminal procedure code, M F Hussain, freedom of speech, column, epxress column Supreme Court

December has been a cruel month for free speech. Law is imperfect, often used for the wrong reasons to exacerbate the very publicity it claimed to want to suppress. A quick retrospective will remind us of Salman Rushdie’s Satanic Verses under the Customs Act, Khushboo indicted for criminal defamation and later absolved in the Supreme Court, James W. Laine’s work on Shivaji, banned under the Criminal Procedure Code, liberated by the Supreme Court, the ban on Sahmat’s posters lifted by the Delhi High Court, Khushwant Singh’s biography injuncted by Maneka Gandhi until the ban was lifted by the Delhi High Court.
M.F. Husain was pilloried by criminal offences till he left the country to die abroad. The stories are endless as India’s increasingly intolerant society allows Hindu fundamentalists to threaten those they don’t like with impunity. Cinemas are closed because party goondas do not like a film.

The pathology of litigation exposes the law. In the 1990s, Georg W. Pring and Penelope Canan invented the term “Slapp”, which stands for Strategic Law Suit Against Public Participation that has been used in many countries to silence speech on public affairs through litigation. In my book Publish and Be Damned (2008), faced with the absence of an acronym for criminal cases harassing Husain, I created the term “Kicks” for “(K)riminal Intimidatory Knock-out-Strategy”. Ignore my forced spelling, but that is what the criminal law does and seeks to do with artists like Husain and activists

like Teesta Setalvad and Binayak Sen. In civil matters, there used to be some restraint due to the ad valorem court fee (fee as a percentage of the value claimed as damages). Maharashtra dispensed with such a huge fee to make Mumbai the defamation capital of India. Most irresponsibly, Justice P.B. Sawant claimed Rs 100 crore because his picture had been wrongly placed against another judge’s name. We all know how Rupert Murdoch closed down Private Eye to provoke a marvelous book called Malice in Wonderland. Slapp and Kicks wear out free speech to despair and bankruptcy.

Tamil Nadu Chief Minister J. Jayalalithaa has filed several defamation cases. She had filed against The Hindu, but the case became infructuous. Her ire has been conspicuously against Subramanian Swamy. In the decriminalising defamation case, the Supreme Court was astounded by the number of criminal complaints filed by the great leader against Swamy. More recently, Nitin Gadkari and Amit Sibal filed against Arvind Kejriwal. A defamation case against Rahul Gandhi was valiantly opposed by the Congress’s top-notch lawyers. Although many proceedings were stopped by the court, the Supreme Court (Justices Mishra and Pant) showed incredible indecisiveness. Months have passed since the judgment was reserved. All defamation cases can be filed anywhere the comment claims to be read. Caravan was proceeded against in the Northeast by a corporate. As my friend, Malcolm Feeley, reminds us: “The process is the punishment.” Mind you, Swamy loves this drama. Most would not.

Recently Kirti Azad, a BJP MP, seemed to want an investigation into the contracts for re-doing the Feroz Shah Kotla ground when Arun Jaitley was in charge of the Delhi & District Cricket Association. He was suspended from the party. Kejriwal entered the fray. The controversy spiralled. The Delhi government set up a probe committee. On December 21, 2015, Jaitley filed both civil and criminal cases against Kejriwal and five others. Kirti Azad was saved Jaitley’s ire. The civil case demanded Rs 10 crore as damages. What was impressive was not the initiation of cases but the fanfare that went with them. Jaitley was accompanied by ministers Smriti Irani, Piyush Goyal, J.P. Nadda, Venkaiah Naidu, R.S. Rathore. The case seemed less important than the fanfare. Jaitley, a lawyer of distinction, has been wrongly advised. After the Auto Shankar case (1994), India has adopted the NY Times formula that public figures must expect criticism on public issues

in due diligence publications, even if found to be untrue. Thus, Morarji Desai lost his case against the duly diligent Seymour Hersh alleging that Morarji was a CIA agent. Criminal defamation can also provide such protection (Section 499, Exception 1 and 9). What was the purpose of Jaitley’s cases? Declaration of innocence. But mostly tamasha. The only thing missing was the drums and the dance of triumph by BJP followers.

Arundhati Roy has been a champion of many causes for justice to the disempowered. The Bombay High Court denied bail to 90 per cent disabled Professor G.N. Saibaba, arrested for speciously alleged Maoist links. Roy published an article, “Professor POW”, in Outlook magazine of May 18, 2015. Saibaba’s bail was extended in July because of his disability. But on December 23, 2015, Justice A.B. Chaudhari refused bail and in the same order issued a contempt notice for what Roy had said on bail rejection by Justice S.B. Shukre on August 25, 2014, for “interfering with the administration of justice and lowering down the image of the judiciary without any basis and with selfish motive”. What a farce! How contrary to the law. It only goes to show that judges like Justice Chaudhari cannot be trusted with the peremptory power of contempt.

All these events augur poorly for free speech in public discourse. Most Indian governments want the defamation law to remain. Recall Rajiv Gandhi’s infamous Defamation Bill to permit cases to be filed for supposedly scurrilous attacks. A popular movement smashed the bill. The law of contempt was debated before the Contempt of Court Act 1971, but then law minister H.R. Gokhale skilfully averted radical changes.

We seem to forget Lord Atkin’s famous statement that “justice is not a cloistered virtue (but) must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men”.

Our hope is that the Supreme Court might decriminalise defamation. Our strategy has to be to fight each free speech violation, case by case, until the laws abridging free speech fall, one by one.

 

Dhavan is senior advocate, Supreme Court, and author of, among others, ‘Publish and be Damned’ (2008)

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  1. K
    K SHESHU
    Jan 4, 2016 at 4:23 am
    Law is being used, misused and abused to settle personal as well as group animosity. This is an unfortunate trend. Legal system is losing its sheen and something drastic is required to hold this in high esteem. The lawyers must come forward to rectify.
    Reply
    1. A
      Anuradha Kalhan
      Jan 4, 2016 at 11:19 am
      We seemed to have inherited the colonial state, its laws, ideology and its machinery without too much bloodshed, anguish or even thought. Perhaps if we had turned out attention to what ailed us as a society ( instead of glorifying some strange notions of our past) and thought about what kind of society we wanted to make collectively in the future we would have done much better. Maybe it is too late now.
      Reply
      1. D
        DA
        Jan 4, 2016 at 10:16 am
        This would have been a credible piece on freedom of expression had the author mentioned even ONE example where someone that had views different from his own was similarly constrained by the process of law. All along the decades preceding the 90s, Hindus could be lampooned, mocked, derided. But they did not have a similar right to offer even legitimate criticism of others. That's not the Indian way, we were told. It is only since the 90s that Hindus have learnt not to put up with nonsense. Yes, that does affect freedom of speech of some, but restores balance. Hindus cannot be freedom-of-speech's exclusive punching bag. So, make yourself scarce, Mr. Lawyer.
        Reply
        1. T
          T DUTTA
          Jan 4, 2016 at 6:04 am
          defamation act is not applicble for speeches made inside legislature and election speeches----but new politicians sometimes land into trouble for lack of knowlege------POLITICIANS ENJOY ADDITIONAL FREEDOM OF SPEECH BECAUSE THEY ARE IMUNE FROM DEFAMATION AC FOR SPECHES INSIDE LEGISLATURE AND ALSO ELECTION SPEECHES
          Reply
          1. S
            Sanjeev Gupta
            Jan 4, 2016 at 3:09 am
            Started reading it, and the errors stick out: "We all know how Rupert Murdoch closed down Private Eye to provoke a marvelous book called Malice in Wonderland". No, he did not close down Private Eye, the magazine is still in publication, and I have copies. He did not do it to "provoke" a book, he published the book as his response to the libel trial.
            Reply
            1. I
              indian
              Jan 4, 2016 at 3:50 am
              Every right under a democracy, incl FOE, should be exercised with responsibility.
              Reply
              1. J
                Jay Ravi
                Jan 4, 2016 at 12:15 am
                This Congress bootlicker suppresses an event of "intolerance" that surfaced couple of weeks before -- the Congress editor who exposed Nehru and Sonia's father was kicked out by Sonia-- does she belong to the Hindutwa BJP??
                Reply
                1. R
                  rahul mayank
                  Jan 4, 2016 at 5:25 am
                  So the author has clearly misjudged freedom of speech with freedom of being vulgar, freedom of levying false allegation, freedom of being anti India.
                  Reply
                  1. B
                    Baba
                    Jan 6, 2016 at 6:31 pm
                    Jab law aisa hai tab kejri chacha roz kisi na kisi par galat aarop lagate hain, jab thoda kam ho jayega to kya hoga. Ek dept to defame ban jayega dilli sarkar mein.....
                    Reply
                    1. M
                      Murthy
                      Jan 4, 2016 at 3:51 pm
                      Unlike Indian media, No Western media builds on police briefings and press releases to defame individuals and, worse, "convict" them through their TV channels or print. India needs stronger defamation laws. When "Congress Darshan" the Cons paper in Mumbai published historical truths about Nehru, its editor was sacked forthwith. Yet, this Congress Party lawyer is talking of "intolerance" of "Hindu Fundamentalists". In his list of books banned, most were by the Cons. He should 've mentioned the quiet banning of "The Red Saree" by Jovier, a book on Sonia i, by her then ruling government. Authors like these can never be objective.
                      Reply
                      1. S
                        Sunitha
                        Jan 4, 2016 at 3:08 pm
                        The article needs better proof reading. NKC, USA
                        Reply
                        1. N
                          Narendera
                          Jan 4, 2016 at 5:05 am
                          FREEDOM OF SPEECH does not mean to level false allegations and or to abuse others and or to hurt religious sentiments of others etc. etc. ------ This is misleading article and is a perfect EXAMPLE how lies and misleading informations are spread under the grab of FREE SPEECH . we must remember that ----- THOUGHT POLUTION IS THE BIGGEST SIN . ------ Every one knows that writer of this article ( i/e/R. Rajeev Dhavan ) is a CONGRESSI ===== He did not tell us as where was he during EMERGENCY ? ----- He also did not inform as which HINDU FUNDAMENTALISTS and or HINDU GUNDAS were behind ban on Salman Rushdie’s Satanic Verses ?
                          Reply
                          1. P
                            pankaj
                            Jan 4, 2016 at 12:27 am
                            on this: [[ We seem to forget Lord Atkin’s famous statement that “justice is not a cloistered virtue (but) must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men”. ]] and many such good for nothing quotes of famous people who are completely irrelevant in more than one way.... Who can define respectful? Can anybody born before or after Atkin, define respectful in infinite possible contexts? Is it respectful to call author pseudo intellectual?
                            Reply
                            1. P
                              Piyush
                              Jan 4, 2016 at 8:43 am
                              You ended up with, Lord Atkin’s famous statement that “justice is not a cloistered virtue (but) must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men”. Here, sir, the central thing seems to be comments (spoken by whoever) should be meant to scrutinize and be respectful. Shouldn't the wild allegations, false, contemptuous, slanderous be contested? These words, in fact, do belittle human beings. They do kill. Pen are more powerful than sword is, right? Then what is the protection against false propaa?
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                              1. P
                                P Vanaja
                                Jan 4, 2016 at 7:12 am
                                Well said and great comment.
                                Reply
                                1. P
                                  P Vanaja
                                  Jan 4, 2016 at 7:11 am
                                  You will not post the comments made by others. You will post only the comments the people who abuse the National Integrity. Here the writer is abusing the very eny of the freedom given to its nationals by the Indian Consution. Can it be taken on one way which is right in the eyes of a small section of people. Then what about the larger sections of the people of this nation and their prestige and sovereignty.
                                  Reply
                                  1. P
                                    Prakash
                                    Jan 4, 2016 at 4:02 am
                                    I wish to congratulate Indian Express for allowing legal experts like Rajeev Dhavan to write on this issue.
                                    Reply
                                    1. P
                                      prashanth
                                      Jan 4, 2016 at 9:18 am
                                      Arundathi Roy was and will be disgrace for our country. She likes everything foreign and hates everything Indian. So if some body is trying to destroy India, she will w heartedly support them.
                                      Reply
                                      1. M
                                        Manoj Gulalkai
                                        Jan 3, 2016 at 6:54 pm
                                        Good and non-ambiguous article
                                        Reply
                                        1. R
                                          Rishi
                                          Jan 4, 2016 at 1:43 am
                                          Just checked the Internet and found out that this guy is a Congressi, although not in the party. Nevertheless, he is another tentacle of the "deep state" Congress/dynasty created over 60-plus years of their rule that resulted in this party pervading "every" aspect of Indian life -- from top to bottom.
                                          Reply
                                          1. R
                                            Rishi
                                            Jan 4, 2016 at 1:35 am
                                            Who is this nutcase? Most of the suppressions of free speech this fruitcake is talking about happened when the UPA/dynasty was in power. Another Congressi gone hysterical.
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