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)