Opinion Restraining order

In May, the Supreme Court had disappointed by upholding the validity of the law of criminal defamation, despite the perception of the Law Commission that it is having a “chilling effect” on free speech. Now, however, it has taken the welcome step of reprimanding the government of J. Jayalalithaa for trying to “throttle democracy” and to discourage criticism by misusing Sections 499 and 500 of the Indian Penal Code. In July, it had stayed non-bailable warrants issued by the Tamil Nadu government against DMDK chief Vijayakanth and his wife, objecting to the use of defamation law as a political weapon. This week, it has elaborated that public figures must take criticism in their stride, and not seek shelter in the lee of the law.

Tamil Nadu offers a particularly striking example of the misuse of defamation law. Statistics submitted to the court show that, on average, more than three defamation cases have been filed every month over the last five years. The chief minister is involved in 85 out of a total of 200 cases, and 55 are directed at the media. However, the Supreme Court’s reprimand to Tamil Nadu is a prophylactic tonic for the whole nation. It can even be read as a message to political players permanently locked in freestyle combat in Delhi.

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The tug of war over criminal defamation has been marked by extreme stands. In May, the Supreme Court had read the right to reputation as a facet of the fundamental right to life, guaranteed by Article 21 of the Constitution. Making the connection suggested that defamation is an inherently criminal act, interfering with the right to life. This is at odds with the global trend in liberal democracies, which now prefer to treat defamation as a civil wrong, reparable by compensation. Without any sense of irony, the government has also argued for the retention of criminal provisions on the ground that the option of civil law is broken on account of tardiness, and only criminal prosecution can deliver justice in good time. Meanwhile, the perception that criminal defamation law is being used to launch SLAPP suits which deter democratic dissent is growing. The Supreme Court’s put-down to the Tamil Nadu government is therefore welcome, conveying the message that the judiciary will not countenance bare-faced misuse of the law.