Defamation cases should be civil, and not criminal

In democracies, free speech is especially important in criticising political figures. So, the Supreme Court should re-examine this colonial-era statute on defamation
A court in Gujarat has sentenced Rahul Gandhi, leader of the Opposition, to two years in jail in a defamation case. This is disconcerting. At a rally in 2019, Rahul had cracked a weak joke on Narendra Modi’s surname. This spurred a Bharatiya Janata Party (BJP) politician, Purnesh Modi, to file a defamation case against him. Technically, the court found Rahul guilty of defaming all people called Modi, not the Prime Minister specifically. But had Rahul not mentioned the Prime Minister, nobody would have given his speech a second thought, let alone prosecute him.
Nothing is commoner in India than people making adverse remarks about others of a particular caste, religion or region. This is regrettable but has never before resulted in a jail sentence for a top politician.
Indian politicians have long traded accusations of corruption and thievery without a second thought. Congress partymen had campaigned against Modi using the slogan ‘chowkidar chor’. The Gujarat verdict opens the possibility that this slogan will become grounds for launching innumerable new defamation suits against Rahul and his partymen. That would dramatically inhibit political freedom of speech.
On the same day as the verdict, the Delhi police arrested owners and workers of a printing press that had printed posters saying ‘Modi hatao, desh bachao’ (translation: Remove Modi, save the nation.) In no democracy should this be viewed as objectionable. The posters were allegedly ordered by the Aam Aadmi Party which is in office in Delhi, and now fears that its chief minister Arvind Kejriwal will be arrested. A leader of the BJP itself has pasted posters in Delhi calling for Kejriwal’s ouster.
Across India, laws on sedition, unlawful activities and promoting enmity between groups have been misused to prosecute critics. All political parties ruling different states have been guilty of this. Just a few days ago, a Chennai resident was arrested for sharing a video critical of Tamil Nadu chief minister MK Stalin. In the past few years, several people — including a local Congress spokesperson and a BJP youth leader — have been arrested for anti-Mamata Banerjee posts online. Opposition parties, however, say the BJP is well ahead in this race. They recently moved the Supreme Court over alleged misuse of central investigating agencies to target Opposition politicians.
Rahul will appeal to higher courts. Even if he is exonerated, the fact that he was convicted on such weak grounds is of concern.
Democratic norms
In democracies, free speech is especially important in criticising political figures. Allegations of corruption fly thick and fast in India, and this has till now been viewed as the normal hurly burly of democracy, not criminal behaviour.
Defamation suits against politicians in democracies are typically civil suits, not criminal ones. The suit in Gujarat was brought by a private individual. But the court treated the offence as criminal, not civil. It awarded Rahul the maximum sentence under the law, two years in jail.
Legislators convicted for two years or more lose their seats in Parliament, and cannot contest elections for another six years. So, Rahul may be shut out of elections for eight years. This is not how a democracy should function.
In most democracies, allegations against politicians, even if proved untrue, do not lead to conviction unless accompanied by malicious intent to defame. In this case Rahul was criticising the government’s failure to tackle unemployment and inflation, and slipped in a sentence about the three Modis. Can his joke really be construed as the most dastardly slander meriting the harshest punishment? Going by the logic of the verdict, I could be in trouble for writing this column. That is an unhappy thought.
Voters widely view all politicians as crooked. Electoral bonds may have yielded some white money for electoral spending but the Election Commission complains that gargantuan sums of black money are spent in elections. Naveen Jindal, who is both a businessman and a politician, once said that of all the money politicians get from businessmen, barely 1% is spent on elections.
In this milieu, allegations of thievery are common. Every party accuses others of corruption, but very few cases end in conviction beyond appeals. However, defamation cases can move at much faster speed than corruption cases. The risk is that the corrupt might stave off cases forever while their accusers are jailed for defamation.
In 2016, the Supreme Court had upheld criminal defamation, saying that a person’s right to reputation was part of one’s fundamental right to life. Given the prime need for free speech in politics, the apex court should re-examine this colonial-era statute. It should lay down guidelines for lower courts on handling defamation cases against politicians. All such cases should be treated as civil cases. Allegations of corruption and alleged insults should not be criminalised. Bad jokes must not lead to jail.
This article was originally published by The Times of India on March 26, 2023.

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