Self-litigating-non-lawyer-now-with-BJP politician Subramanian Swamy is on course to creating legal history again (after his litigation relating to 2G spectrum).

The Supreme Court is hearing his writ petition challenging the legality of defamation being considered a crime. A bunch of 18 other writ petitions filed this year by petitioners ranging from Rahul Gandhi to Arvind Kejriwal have been tagged with Swamy’s petition of last year.

Under Section 499 of the Indian Penal Code any “imputation” by words or signs that can harm the reputation of another person commits the crime of defamation. A nod or a wink in a manner that harms someone’s reputation is a crime. The punishment, apart from fine, can extend to two years in jail. In current-day Indian society, where everyone is quick to assume that everyone else is corrupt, this would mean that the “crime” is rampant in society. Equally, it would mean that a law that renders almost every human being’s conduct to be a crime is draconian and unconstitutional.

The Indian Constitution guarantees freedom of speech and expression as a fundamental right. It permits fetters only if they are “reasonable restrictions”. Defamation is explicitly mentioned as one of the grounds on which fundamental rights can be “reasonably restricted”. The key question, therefore, is whether sending someone to jail for expressing a view can be considered reasonable. Every crime is wrong but every wrong cannot be crime.

Remember Sharad Pawar’s famous suit in the 1990s for damages of Rs 100 crores against The Outlook for suggesting that the NN Vohra Committee appointed by the Home Ministry had suggested a nexus with hawala operators of Dawood Ibrahim. The dispute was settled out of court for an unconfirmed sum, estimated at Rs 5 crores. Likewise the only retribution so far against TV anchor Arnab Goswami has been the prohibitively expensive and chilling deposit of Rs 100 crores that has had to be paid in a defamation suit filed by a retired judge after he aired the photo of the retired judge as the photo of someone else who was that night’s subject of humiliation. While civil proceedings are an effective disincentive to defamation, criminalising defamation presents a bad economic policy incentive.

Civil proceedings involve paying fees for justice delivery linked to the amount claimed. Criminal proceedings involve setting up the might of the state at the expense of taxpayers to settle private battles. If one politician bad-mouths another, it is hardly a reason for the common man’s taxes to be used in resolving their battle. Although our politicians are far more thick-skinned than our businessmen, they routinely initiate criminal action for alleged defamation. Recently, the highly-reputed Maharashtra Chief Minister is reported to have threatened criminal defamation against anyone suggesting that he had some responsibility for delaying the take-off of his Air India flight.

The perverse incentive in use of criminal prosecution is pervasive. The rule of law in civil courts is sidestepped by the coercive exploitation of the human fear of losing personal liberty in jail. Private business defaults could routinely be termed as cheating or criminal breach of trust. The very prospect of criminal proceedings could coerce a settlement of disputes. Retired police officers with access to local policemen are reported to have set up business models founded on this fear.

The Union Home Ministry has opposed the petitions on the ground that civil suits take too long to be effective. This statement underlines a governmental endorsement of the fear of the police to curb free speech. The criminal justice system is as broken if not more broken than the civil justice system. Therefore, it is the sheer fear of having to answer summons in distant locations that the ministry seeks to endorse. Such an approach is an endorsement that a chilling effect on free speech is seen as being desirable by the government. It is the government’s job to clean up delays in justice delivery. Endorsing a perversity to deal with another perversity is bad governance. Whichever way the Supreme Court decides, this case will be an important event in India’s legal history of freedom of speech.

(This piece was published in the July 17, 2015 edition of the Ahmedabad Mirror, Bangalore Mirror, Mumbai Mirror and Pune Mirror)

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