Defamation as bludgeon

Those holding public positions need, among other attributes, broad shoulders and a particularly thick skin. Tamil du chief minister Jayalalitha seems an exception, even though she is into her sixth term. So touchy is her administration to criticism, that it has filed as many as 213 defamation cases in the last five years against media houses and political opponents. The media is facing Jayalalitha’s ire for reporting on her regime’s failure in fulfilling poll promises and even on her vacations and health condition. Things have reached such a pass that the Supreme Court recently had to chastise her that ‘anyone calling a government corrupt or unfit cannot be slapped with defamation case’, that criticism for public policy cannot be ground for defamation. Observing that no other state government misuses state machinery like the Tamil du government, the SC bench had to tick off Jayalalitha: “As a public figure, you must face criticism. You fight on a persol level.” Hearing a petition by former AIADMK ally DMDK chief Vijayakanth, the apex court last month had stayed the non-bailable warrants issued against him and his wife by the Tirupur district public prosecutor on the ground of making ‘false’ remarks against the Tamil du CM. On that occasion, the apex court had sought a persol explation from the AIADMK supremo about the slew of crimil defamation cases lodged against her rivals. It had then reminded her: “Defamation cases cannot be used as a political counter weapon. Cases for criticizing the government or bureaucrats create a chilling effect on free speech.”

The system in India is such that crimil cases and civil suits can be filed in tandem against defamation. In a ruling handed down by its constitutiol bench on May 13 this year, the Supreme Court had refused to de-crimilize defamation, which carries pelties up to two years in jail or fine or both under the Indian Pel Code. The Central government had taken the stand that since civil suits can go on endlessly, it is necessary to retain Sections 499 and 500 of the IPC to file crimil cases. Agreeing, the apex court had then refused to buy the argument of political leaders like Subramanian Swamy, Arvind Kejriwal and Rahul Gandhi that upholding crimil defamation would stamp out all dissent and amount to a gag on free speech. Significantly, the SC constitutiol bench had then also upheld the provision empowering a public prosecutor to file defamation case against any person on behalf of a public servant who feels defamed. It is this specific provision that Vijayakanth is challenging now. In this context, the apex court’s bench of Justices Dipak Misra and Rohinton F. riman recently said: “Although we had upheld crimil defamation, it does not mean we will allow it to be misused as a political counter-weapon against criticism.” Differentiating between a ‘real attack on the government’ on one hand and a ‘continuous and deliberate design to harass’ by the state machinery, the Supreme Court has now warned it will step in whenever there is a distortion. But it is clear that the Jayalalitha government’s predilection to use defamation action as a bludgeon to silence all criticism has created a piquant situation for the apex court. In cautioning against the misuse of state machinery to muzzle political opposition, the Supreme Court needs a bureaucracy and police sufficiently sensitized about the issue so that politically motivated, frivolous cases are not filed. But with political parties insisting on a ‘committed’ (rather than neutral) state machinery, how will the cat be belled? This will remain a serious matter, for free speech and the restrictions that go with it under our Constitution, call for a permanent if delicate balance.