SC notes Arvind Kejriwal irony, stays defamation order

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The May 6 circular referred to Sections 499 and 500 of the IPC, which deal with defamation, and asked government officials to report such matters to the Principal Secretary (Home) who would forward it to the Director (Prosecution) for advice on whether prosecution is applicable and file a case, if needed, before a competent court.

“On one hand your case is pending before us… you are a sufferer but on the other, this circular is there. Both things cannot do at the same time. How do you justify this circular?” the bench asked Kejriwal’s counsel senior advocate Arvind Datar.

While Datar sought time to come back with instructions, the bench asked why did the Delhi government have to issue a circular like this when there were already other provisions in the Code of Criminal Procedure (CrPC) to deal with defamatory imputations against government officers.

Section 199 in the CrPC relates to prosecution for defaming government servants and either the state government or the complainant himself can prosecute a complaint before a magistrate.

Citing this provision, the bench said: “Why did you issue this circular on May 6? Section 199 is still there and we have not stayed the operation of this law. What is this policy under which you have issued this circular? You can in your individual capacity file a case but you cannot interdict the operation of the power under provision of a statute.”

“Issue notice (to Kejriwal). However, as an interim measure we direct stay of the circular dated May 6, 2015 till further order of this court. Accordingly, it is stayed,” ordered the bench, while seeking explanation from Kejriwal in individual capacity on July 8.

The order was passed on a plea by lawyer Amit Sibal who had filed a case against Kejriwal for his allegedly defamatory accusations against him. Proceedings before a Delhi trial court were stayed by the Supreme Court on May 1 after Kejriwal filed a petition, seeking de-criminalisation of defamation.

Appearing for Sibal, senior advocates Abhishek M Singhvi and Sidharth Luthra asked the bench to lift the stay order since the circular “directly contradicts and militates against the stand” taken by Kejriwal in his petition. The counsel pointed out that the circular belied Kejriwal’s stand before this court that defamation should remain a civil wrong and that criminal prosecution was a threat to freedom to speech.