In India, defamation action can be a double whammy against the accused. The law in this country allows the aggrieved party to simultaneously launch both civil suit and crimil case. Both actions are judged separately — and critics argue that whichever judgment comes out first, is likely to influence the other. However, the Supreme Court on May 13 this year had ruled that there is no unconstitutiolity if both civil and crimil actions against defamation proceed simultaneously. Despite this, the last is yet to be heard on this issue. The Delhi High Court has now dismissed a plea by Chief Minister Arvind Kejriwal that crimil proceedings against him in the Chief Metropolitan Magistrate’s trial court be stayed, as a civil suit on the same ground of defamation is pending in the high court itself. Both the actions were launched by Union Fince Minister Arun Jaitley against Kejriwal and five other AAP leaders for alleging that Jaitley had siphoned off huge funds from the Delhi and District Cricket Association (DDCA) which he headed for 13 years. The crimil case entails a punishment of up to two years in jail; the civil suit seeks Rs 10 crore in damages for false and defamatory statements. The two are ‘separate and independent proceedings and they can go side by side’ which is not illegal or un-sustaible under the law, the Delhi High Court maintained on Wednesday while throwing out Kejriwal’s petition. This is in accordance with the Supreme Court’s verdict. The apex court also notably gave ‘different status’ to public servants, entitling them to file defamation complaint through public prosecutor regarding their conduct in discharge of official functions. But the Supreme Court continues to address the larger issue in other cases, having criticized Tamil du CM Jayalalitha in August last for ‘misusing crimil defamation to throttle democracy’, while advising her to face criticism as a public figure. On different occasions, the Supreme Court as well as the Madras High Court have given relief to BJP leader Subramanian Swamy by staying proceedings in various defamation cases in which Swamy had been ordered to appear in person before the concerned trial court. All the cases had been filed by the Jayalalitha government for Swamy’s alleged derogatory remarks and tweets against her.
It is another matter that the apex court has refused to buy Swamy’s arguments that while the fear of paying crippling damages discourages those belonging to economically weaker sections from freely expressing their opinions, the fear of getting jailed makes it ‘oppressive for every freethinking person to express his views’, because the law as it stands makes expressing truth in the public interest only a limited defense. Bringing in a new legislation has remained a low priority for most political parties, whether on the left or right of the ideological divide. But leading political leaders across party lines – from Subramanian Swamy to Arvind Kejriwal to Rahul Gandhi have been at the receiving end of defamation actions, scrambling from one court to another. The thorny issue has prompted Biju Jata Dal MP Tathagata Satpathy to move for initiating a Private Member’s Bill in Parliament seeking to abolish crimil defamation while strengthening civil remedies to protect the right to reputation. He has put the Bill on a website to invite suggestions from the public, while pointing out how difficult it is to build public opinion on this issue because common people are little affected by this law. Rather, it is the media which is primarily threatened by the law of crimil liability for defamation, which is basically a colonial relic though it has been overturned in Britain itself. The threat comes from big corporates and industries, Satpathy points out, which have become successful by exploiting tural resources in the country and own media houses to protect their interests. It is such big business groups getting a strong foothold in media which are moving against activists and jourlists for what they are writing. And their lawyers ensure that the threat of using ‘strategic litigation against public participation’ (SLAPP) suits with astronomical damage claims will muzzle any attempt to publish undesirable exposes. It is this chilling effect on free speech that will be another battleground in the coming years. This in turn will be a challenge for our lawmakers and judges to ensure a level playing field so that the rule of law is not hijacked.