Pachauri Defamation Suit: Court Rejects Interim Gag Order Plea

By Aditya Singh Chawla

The Patiala House court at Delhi has rejected R. K. Pachauri’s plea for an interim gag order against NDTV, Bennett Coleman and Co., and the India Today Group. The media houses had been made defendants in a defamation suit filed by him in 2016.

In 2015, an FIR had been filed against Pachauri by a woman employee of TERI (The Energy and Resources Institute, of which he was then the Chief) accusing him of sexual harassment. Following these allegations, several other women had spoken out about similar experiences while they had worked at the organization. The allegations and ongoing proceedings had received extensive coverage in the media.

Pachauri filed for defamation against multiple parties, including the media houses, one of the women who had spoken out, as well as her lawyer. He sought a gag order against the media houses, and damages of Rs. 1 Crore from the victim and her lawyer.

We have written previously about how suits such as these are in the nature of ‘SLAPP’ suits – Strategic Lawsuits Against Public Participation. These are cases where powerful individuals and corporations use litigation as a way of intimidating or silencing their critics. The defendants are usually media houses or individuals who are then forced to muster the resources to mount a legal defense. Even if they are able to secure a victory in Court, it is at the cost of a protracted and expensive process.

The court has now refused to grant an interim injunction against the media houses, noting the right of the public to be aware of the developments. It further noted that public figures can be held to a higher degree of scrutiny by the public. However, it has also held that further reportage must also carry Pachauri’s views, and indicate that the matter is still pending before the Court. The text of the order may be found here.

Aditya is an Analyst at the Centre for Communication Governance at National Law University Delhi

When the Empire SLAPPs Back

By Aditya Singh Chawla

“Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined”

-Nicholas Colabella J. of the New York Supreme Court, in Gordon v Marrone.

The above statement vividly describes what has come to be called a SLAPP suit – Strategic Lawsuit Against Public Participation. The term was coined by University of Denver Professors Penelope Canan and George Pring in their book ‘SLAPPs: Getting Sued for Speaking Out’.[1] SLAPPs are generally characterized by deep-pocketed individuals or entities pursuing litigation as a way of intimidating or silencing their critics.

The suit likely may have no merit, but the objective is primarily to threaten or coerce critics into silence, or in the alternative, impose prohibitive costs on criticism. SLAPPs also have the effect of suppressing reportage about initial claims.  Even if defendants win a lawsuit on merits, it would be at an immense cost in terms of resources. This experience is likely to deter them, and others from speaking out in the future. Faced with an uncertain legal process, defendants are also likely to seek settlement. While this allows them to avoid an expensive process, it usually entails them having to abandon their opposition as well.  By in effect chilling citizen participation in government, SLAPP suits strike at the heart of participatory democracy.

SLAPPs have also come to be employed in India, in a number of instances. These are usually large corporates, powerful individuals, and even private universities, dragging media houses and journalists, or academics to Court for unfavorable reportage. Recent instances indicate that SLAPPs can also be employed by influential people accused of sexual assault or harassment. The aim appears to be to suppress media coverage, and deter victims from publically speaking out.

Defamation suits tend to be the weapon of choice for SLAPPs. In India, where defamation can also be a criminal offence, this can be a particularly effective strategy, especially since it may be pursued concurrently with a civil claim. Another tactic to make the process more punitive, is to file the suit in a remote, inconvenient location where the offending publication may have been made available. In the context of the internet, this could theoretically be anywhere.

There have not been many instances where the judiciary have demonstrated awareness of this phenomenon. In Crop Care Federation of India v. Rajasthan Patrika, reports had been published in the Rajasthan Patrika about the harmful effects of pesticides. Crop Care Federation of India, an industry body of pesticide manufactures, sued the newspaper and its employees for allegedly defaming its members. In response, the defendant filed an application for the rejection of plaint, under Order 7 Rule 11 of the Code of Civil Procedure, 1908. It was argued that the plaintiff was an association of manufacturers, and not a determinate body, which was a necessary requirement to constitute a cause of action in a defamation suit. Justice Ravindra Bhat dismissed the suit on the above ground but also explicitly called out the petitioner’s suit as a SLAPP, with a reference to Justice Nicholas Colabella’s dictum in Gordon v. Marrone. He went on to note that, “in such instances the plaintiff’s goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion and abandons the criticism. A SLAPP may also intimidate others from participating in the debate.”

Several jurisdictions have enacted ‘anti-SLAPP’ legislations in an attempt to protect defendants from such practices. Broadly, such legislations provide the defendant an opportunity to seek dismissal of the suit early in the proceedings. In most anti-SLAPP statutes in the United States, if the defendant demonstrates that the statements were within the exercise of free speech, and on matters of legitimate public interest, the burden shifts onto the plaintiff to establish a probability of success of their claims. Failing to do so would lead to a dismissal, with the petitioner having to compensate the defendant’s legal costs. Typically, the discovery process is halted while the motion is being adjudicated upon. This further mitigates the financial toll that the proceedings might otherwise take.

In a similar vein, one of the recommendations in India has been to introduce procedure into Order 7 Rule 11 that allows suits that bear the mark of a SLAPP to be summarily dismissed. Broader reforms to the law of defamation may also limit the impact of SLAPPs. It has been proposed that Sections 499 and 500 of the Indian Penal Code, 1860, which criminalize defamation, should be repealed. It is widely held that, despite the Supreme Court’s contrary view, the imposition of penal consequences for defamation runs counter to the free speech ideals enshrined within our Constitution. There are also suggestions to codify civil defamation, with higher thresholds for statements regarding public officials or public figures, as well as a stricter requirement of demonstrating harm. There are also proposals to allow for corrections and apologies to be offered as remedy, and for damages designed to be primarily restorative, and not punitive.

According to Pring and Canan, SLAPPs are a way for petitioners to transform a “a public, political controversy into a private, legalistic one.”[2] Defamation, and SLAPP suits in general, have become a tool to deter public scrutiny and criticism of those in power. Drawing reasonable inferences from fact is essential to the functioning of the press, and the internet has provided citizens an avenue to express their opinions and grievances. Both are likely to limit the legitimate exercise of their free speech if they run the risk of being dragged to court to mount a legal defense for their claims. Our legal framework seeks to deliver justice to all, but must also be cognizant of how it may be subverted towards nefarious ends.

[1] Penelope Canan and George Pring, SLAPPs : Getting Sued for Speaking Out (Temple University Press, 1996).

[2] Id., at 10.

Aditya is an Analyst at the Centre for Communication Governance at National Law University Delhi

Subramanian Swamy v. UoI: Unanswered Arguments

By Anna Liz Thomas

A lot has been made of the Supreme Court’s ruling in Subramanian Swamy v. Union of India, finding criminal defamation laws in India, encapsulated in sections 499 and 500 of the IPC and section 199 of the CrPC, constitutional. Most public commentary has been critical of the reasons and language of the judgment. This post will attempt something different: to highlight the arguments of the petitioners that never found place in the 268 pages of the Court’s judgment. The various petitions are available here.

Non-application of Auto Shankar

Several petitions had relied on R. Rajagopal v. State of Tamil Nadu (the Auto Shankar case) to discuss the evolved standards and tests to be used in the case of defamation. The Auto Shankar case primarily dealt with the question of whether the State or its officials could impose prior restraint on publishing of material that is defamatory of the State or its officials. The case also adopted the American standards for defamation in the case of public officials as laid down in New York Times v. Sullivan. In doing so, truth as a defence no longer required statements to be conclusively established in a court of law. All that the defendant needed to prove was that she had acted after a reasonable verification of facts, and that the publication was not actuated by malice. This provided some “breathing space” for critical speech.

Though the Court in Auto Shankar had issued a caveat that the ratio of the decision was limited to civil defamation and did not extend to criminal defamation, its principles should not be discounted. In fact, these principles attain greater significance in criminal defamation because the threshold for imposing liability is always lower in civil cases as compared to criminal cases. However, by failing to take into account the ratio of the Auto Shankar case, the SC’s criminal defamation judgment has in fact inverted the thresholds. Additionally, by failing to consider the Auto Shankar case, the Court also failed to consider the several arguments made in the Petitions against the partial treatment accorded under S.199(2) towards public officials, and the need for officials to have thick skins in the face of public criticism.

 India’s International Obligations

The petitions also highlighted the various countries that had decriminalized defamation. They also focused on India’s various international obligations to uphold the freedom of opinion and expression under the UDHR and the ICCPR. The UN HRC has noted that the criminalization of opinion would be incompatible with Paragraph 1 of Article 19 of the ICCPR. The HRC has also urged all State parties to consider the decriminalization of defamation, and has stated that imprisonment is never an appropriate penalty. The fact that the ICCPR recognizes the right to reputation under Article 17 and Article 19(3) while simultaneously frowning on criminal defamation is very pertinent. In this context,

Senior Advocate Rajeev Dhavan, applying the Supreme Court’s judgment in Visakha, argued that even without incorporating international treaties in Indian law one could read the obligations into the fundamental rights. The only caveat was that the obligations themselves must not be inconsistent with the fundamental rights. This would mean that one should be able to read in India’s international obligation to uphold free speech and expression into Art. 19(2) such that the scope of “defamation” in the Article is limited purely to civil defamation. The Court however chose not to address this argument. The Court failed to consider any of the international obligations that India holds towards upholding free speech, or the long list of countries that have decriminalized defamation. This line of argument has been cursorily mentioned in the summary of the ASG’s arguments, where it was stated that the mere fact that certain countries have decriminalized defamation does not in itself mean that the Indian criminal defamation law is unreasonable.

It may be understood by the silence of the judgment that the Court possibly agreed with the ASG, with respect to the law as it stands in other countries. However, the Court has not provided an explanation as to why the question of India needing to fulfil its international obligations has not been answered. It could be argued that the question does not really need answering given that fostering respect for international law and treaty obligations is only a Directive Principle of State Policy under Art.51, and hence unenforceable. However, given the fact that the judgment has built an argument for protecting the right to reputation on the basis of constitutional fraternity as laid down in the Preamble and fundamental duties under Art.51A which itself is unenforceable, the directive principle of upholding international obligations should have been considered by the Court.

Proportionality in Punishment 

A case that was briefly discussed in the petitions was Lohé Issa Konaté v. The Republic of Burkina Faso, where the African Court on Human and Peoples’ Rights had held that the custodial sanction imposed for defamation was a disproportionate penalty for the act itself. The judgment permitted criminal sanctions in the nature of civil or administrative fines subject to the criteria of necessity and proportionality. The Court also directed Burkina Faso to alter its criminal defamation laws so that criminal penalties were no longer allowed This case would have especially been relevant in Subramanian Swamy since it could have led to a more detailed discussion on the proportionality of the punishment as opposed to the proportionality of the law. The proportionality of S.500 as a punishment was not really contemplated by the Court. If it had been done, it might have been possible to say that the penalty be amended to something more proportionate (for instance to be limited to a fine levied by the State to further the deterrence of defamatory speech), even if the law itself was not repealed. The arguments in the petitions were decidedly more focused on the constitutionality of criminal defamation, and the fact that the process itself was the punishment. The Court is therefore absolved to some extent for not considering how to make the punishment itself more proportionate and reasonable.

Criminal v. Civil Remedies and Disparate Impact

The Petitioners had also dwelled in detail on the differences between having a criminal and a civil remedy. A civil remedy requires the complainant to undertake certain troubles, both physically and financially, if she wishes to see the case through, thus ensuring that only a person with a legitimate claim would wish to file a complaint. A criminal recourse on the other hand merely requires the filing of the complaint for no charge, and the State takes over with the prosecution. In the case of a criminal trial, the threat of criminal sanctions facilitates the harassment and humiliation of the accused, and results in frivolous complaints. The eventual acquittal of the accused, and upholding their freedom of speech, is of little consolation at the end of the prolonged criminal proceedings. Yet again, the Court failed to consider these arguments. It could be argued that every criminal trial suffers from these defects, and hence the Court need not respond to this line of argumentation. Yet, what may be of importance in the case of criminal defamation is the context in which the complaint is often introduced. This context includes the obfuscation of public inquiry by political parties, and the harassment of journalists and bloggers by corporations in order to impose silence. Given this context, one can see the direct connection between the criminalization of defamation and the chilling effect on speech.

While the Court did hold that in the context of the CrPC, an abuse of process or the potential for abuse of a law is no ground for repealing the law itself, the Court failed to notice the fact that the criminal defamation provisions themselves are being used as a tool by the powerful to harass the weak. Whether the Court is even bound to notice disparate impact while deciding on constitutionality is arguable. But the Court has noted in this very judgment that it is “the ultimate “impact”, that is, effect on the right that has to be determined”[1]. If this is indeed, what needs determination, the Court is required to have examined the context of application of criminal defamation laws to gauge the “impact”.

Other arguments

There were several rhetorical ideas that were expressed with respect to the stigma attached to a person who is under trial for criminal defamation and the long drawn process of litigation in criminal courts. The impact on the citizen’s right to know and the change in Indian constitutional norms from the time of the British Raj were also brought up in the petitions. In addition to this there were also arguments targeting the vagueness of the explanations and exceptions attached to S.499. These arguments were not given much consideration by the Court, and even when considered, was done so in a cursory manner, without truly looking at the content of the argument. It has already been noted that the Court has not appreciated the difference between the argument against the constitutionality of criminal defamation, and the argument against the scheme of criminal defamation as laid down in the IPC and the CrPC. Perhaps a more thorough consideration of the numerous arguments made across the twenty-four petitions may have resulted in a better understanding of the distinctions being drawn by the petitioners across their arguments, resulting in a better judgment.

(Anna is a law student at NALSAR University of Law & currently an intern at CCG)

[1] Para 125 of the judgment.

CCG analyses on the Criminal Defamation ruling

Written by Nakul Nayak

Since the Supreme Court’s May 13th ruling on the constitutionality of criminal defamation laws in India, CCG has come out with two op-eds on the shortcomings of the judgment.

1. In today’s Indian Express, Chinmayi Arun (Executive Director of CCG) raises important questions surrounding the implications of the judgment. Specifically, Chinmayi points out the glaring dissonance in the Central Government arguing for a right to reputation in the domain of defamation and simultaneously arguing against the fundamental right to privacy in the Aadhar hearings. Chinmayi also goes on to criticise the Supreme Court’s inadequate recognition of the powerful parties that use criminal defamation laws and their disparate impact on ordinary citizens. Her op-ed can be found here.
2. A few days back, I wrote an opinion piece in Livemint arguing that criminal defamation laws can and have been used by state officials to obfuscate public inquiry. This affects the truth-seeking endeavour of free speech, apart from the fact that India necessitates a “public good” value to truthful statements to qualify as a defence. I also argue that section 199 of the CrPC, which enlists the procedure to be followed in any criminal defamation prosecution, envisages an additional avenue for silencing criticism of official conduct by allowing a public prosecutor to file a complaint even when the particular state servant may not have felt aggrieved. My op-ed can be found here.
3. Post Script [May 27, 2016]: Anna Liz Thomas, a student at NALSAR University and an intern with CCG, has written an interesting piece analysing the arguments of the petitioners that were never countered or even addressed by the Supreme Court. Anna proceeds with look at the effect of these arguments and this, apart from making for a compelling read, makes one wonder whether the rebuttal of these arguments would have made the judgment a more informed and nuanced one. Anna’s post can be found here.

Supreme Court to pronounce judgment on Criminal Defamation tomorrow

Tomorrow in Supreme Court’s Room no. 4 at 10.30 am a bench of Justices Dipak Misra and Prafulla Pant will pronounce the judgment regarding the constitutional validity of criminal defamation (Sections 499 and 500 of IPC and section 199 of CrPC).

The CCG Blog

A Supreme Court bench of Justices Dipak Misra and Prafulla Pant is hearing a set of at least thirty petitions challenging the constitutional validity of criminal defamation (Sections 499 and 500 of IPC and section 199 of CrPC).

The summary of hearings from the first six days can be found here.

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Online Harrasment and Legal Remedies

By Shrutanjaya Bhardwaj

Background

The information in this piece had originally been collected for an awareness session hosted by JaagoTeens for college students in DU, for which I had gone with CCG Fellow Aarti Bhavana. While preparing for the same, I had reached out to all my friends and relatives to gather instances of online sexual harassment faced by them or those they knew, in order to prepare case studies relatable to by college students. Within two hours, (un)fortunately, my phone was full of replies.

Image: https://www.blogher.com/files/pewstat.jpg

What is most troubling is that these are not cherry-picked accounts. In fact, what I present below is a compilation of generic instances of humiliation all women face at some point in their lives – the product of a sick sense of entitlement over a woman’s body and person that our society constantly feeds into every man it bears. Most of my (mostly female) friends and relatives had gotten back to me with an added comment: “Every woman you write to would know about this.”

My immediate motive is to set out here the provisions of the Indian Penal Code (as amended in 2013; hereinafter IPC) as well as the Information Technology Act (as amended in 2008; hereinafter IT Act) that deal with, or have the potential to deal with, cases such as those hereinafter mentioned. While Case I is that of harassment being caused by a stranger, while Case II deals with someone more familiar – a frustrated ex-boyfriend who couldn’t get what he desired. The hope behind this piece is that the law against online harassment will be generally known, and actions like these will be met with complete intolerance and proper legal retaliation at all times to come. I welcome your feedback about other strategies that may be useful.

Case I: The Creep

It starts with a random message from a random stranger.

Him: “Hey. How old are you?”

Her: “16. Do I know you?”

Him: “16 is good. Very fresh.”

Her: “What do you mean?”

Him: “I just mean… 16 is very fresh, you know? Ripe for plucking.”

She stopped replying.

It doesn’t stop here, of course. The guy starts following and adding you everywhere – Orkut, Twitter, LinkedIn, Messenger – everywhere. Her ‘Other’ folder on Facebook is filled with dirty messages from him, including links to erotic sites. He keeps asking her for sexual favours despite her having expressed clear disinterest, and in his messages writes in great detail how he wants to dominate, exploit, harass and torture her in bed. When she doesn’t reply for a long time, he starts sending her pictures of his private body parts.

Still receiving no response, he decides to move out of her inbox, onto what is a more public aspect of her social media profile. He starts commenting on her pictures, saying things like “You dress like a call girl”, “You have very nice breasts” etc. He downloads her profile picture, morphs it and uploads a picture depicting her in a sexual act with another person. At this point, she reports him and blocks him from her profile.

Three IPC provisions provide you a direct legal remedy for this: S. 354A, S. 354D and S. 509. S. 354A punishes (with 3 years imprisonment and/or fine) as ‘Sexual Harassment’ instances where a man makes “a demand or request for sexual favours”, shows “pornography against the will of a woman”, or makes “sexually coloured remarks”. S. 354D punishes under ‘Stalking’ any man who “follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman” with three years and/or fine on first conviction, and five years and/or fine on second conviction. Finally, S. 509 provides that any person who utters any word or makes any sound or gesture, intending that such word, sound or gesture be heard or seen by a woman and insult her modesty, shall be punished with one year imprisonment and/or fine.

Further, the IT Act punishes transmission of obscene as well as sexually explicit content in electronic form. S. 67 prohibits, and punishes with imprisonment extending up to three years and fine for first conviction and to five years and fine upon second conviction, the publication, transmission and causing of transmission of obscene content. Obscene content has been defined in the same manner as in S. 292 IPC, and therefore the test of obscenity is to be the same as under that provision.[i] As per S. 67, something is obscene if it:

• Is lascivious; or
• Appeals to the prurient interest; or
• Has the effect of depraving and corrupting persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.

Finally, S. 67A of the Act carves out a special category of obscene content i.e. material containing a ‘sexually explicit act’. The publication, transmission or causing of transmission or such material is punishable with imprisonment extending up to five years and fine for first conviction and to seven years and fine upon second conviction.

Case II: The Frustrated Ex-Boyfriend

Her boyfriend had taken some pictures and videos of her giving him a blowjob. On other occasions, he had asked her to send him nude pictures of hers over WhatsApp, and she had obliged. Shortly after this, however, the two had a big fight, and she broke up with him.

After the break up, he started threatening to leak her pictures and videos if she didn’t give in to his demands. When she didn’t oblige, he circulated the pictures and videos of her giving him a blowjob among all her friends and family on Facebook, with his own face blurred. Her nude pictures were circulated all over WhatsApp. One of her pictures had also been uploaded on a porn web site, with her contact number flashing next to it.

The IPC provides another three provisions to deal with situations such as this. S. 354C defines ‘Voyeurism’ as including the act of capturing the image of a woman engaging in a private act, and/or disseminating said image, without her consent.[ii] For the act to qualify as ‘Voyeurism’, the circumstances must be such where the woman would “usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator”. A person convicted under this Section is liable to be punished with fine as well as imprisonment up to three years on first conviction and seven years on subsequent convictions.

s. 499 punishes as ‘Defamation’ the publication by visible representations of an imputation concerning the woman, when done with the intention to harm her reputation. Further, S. 503 punishes as ‘Criminal Intimidation’ threats made to any person with injury to her reputation, either in order to cause alarm to her, or to make her change her course of action regarding anything she would otherwise do/not do. The offences under S. 499 and S. 503 are punishable with imprisonment which may extend to two years, and/or fine.

The IT Act makes a special provision via S. 66E to deal with violation of the privacy of a person. Under the section, capturing, publishing or transmitting the image of a private area of any person without her consent, under circumstances violating her privacy, is punishable with imprisonment which may extend to three years, and/or fine. “Under circumstances violating privacy” refers to those circumstances in which a person could have a reasonable expectation that –

• He or she could disrobe in privacy, without being concerned that an image of his private area was being captured; or
• Any part of his or her private area would not be visible to the public, regardless of whether that person is in a public or private place.

Finally, the aforementioned generic provisions applicable to transmission of obscene or sexually explicit content also apply to situations like this.

Note: All offences mentioned above (except those under Ss. 499 and 503, IPC) are cognizable offences, which means that the police can take cognizance of these upon the filing of an FIR and begin investigation accordingly, without permission from the Magistrate.

What you can do: strategies to help you keep your options open

Often the first instinct in situations such as the above is either to delete all dirty messages and comments from your profile, or to hide in as many ways as possible any message or media that could ‘expose’ to your loved ones what you had been involved in. While I being a man can never claim to understand fully everything that the victim goes through in these situations, it is imperative that this urge is suppressed and the relevant evidence gathered. This would prove to be extremely useful if and when you decided to avail the legal remedies as aforementioned. Here are some things you could keep in mind:

• Prevention against destruction of evidence: Change your account password and make sure no one knows what it is. Take all necessary precautions to protect your phone/laptop/other digital device well from intrusion or theft.
• Preservation of important conversations etc.: Taking screenshots of relevant messages, conversations and comments always helps. If the conversation happened over an application such as Whatsapp that allows you to e-mail it to yourself, do it.
• Witnesses: Make sure there are some trusted people around you who saw what happened, so that they could later testify if needed.

In conclusion, it would be useful to mention that some organizations working in the field of women’s rights offer help to victims of sexual violence in many ways including accompanying them to the police station for filing the complaint. The contact details can be searched for on the internet. One such organization is Jagori, which runs a campaign called the Safe Delhi campaign, more details on which could be found here.

—

[i] Maqbool Fida Husain v. Raj Kumar Pandey 2008 Cri LJ 4107.

[ii] See Explanation 2 to S. 354C.

(Shrutanjaya Bhardwaj is an intern at CCG, and a fourth year student at National Law University, Delhi)

What’s the hue & cry about Criminal Defamation?: Summary of Arguments from the Supreme Court

A Supreme Court bench of Justices Dipak Misra and Prafulla Pant is hearing a set of at least thirty petitions challenging the constitutional validity of criminal defamation (Sections 499 and 500 of IPC and section 199 of CrPC).

The summary of hearings from the first six days can be found here.

Busy Day for Free Speech in the Supreme Court: Defamation and Pornography

Image: http://www.internetlawcommentary.com/wp-content/uploads/2015/06/defame530.jpg

Subramanian Swamy v. Union of India

The Supreme Court bench of Justices Dipak Misra and Prafulla Pant today heard a bunch of almost two-dozen petitions, which challenge the constitutional validity of criminal defamation (sections 499 and 500 of the Indian Penal Code). Among the more prominent ones are petitions from Mr. Subramanian Swamy, Mr. Rahul Gandhi, Mr. Rajdeep Sardesai and Mr. Arvind Kejriwal, whose government incidentally days after him challenging the validity of criminal defamation came out with a circular “to deal with instances of defamatory imputations covered under Sec 499/500 of IPC against the CM and ministers”.

Attorney General Mr. Mukul Rohatgi and Additional Solicitor General Mr. PS Narasimha represented the Union of India. The Attorney General at the outset requested the court to refer the matter to a constitutional bench as per Article 145(3) of the Indian Constitution. The bench however did not seem very inclined and provided examples of multiple cases in the recent past including Suresh Kumar Koushal and Shreya Singhal which were decided by a two judge bench. In response the Attorney General submitted that if in other instances the correct course was not followed, that should not be a reason to not refer the matter in the present case. Mr. TR Andhyarujina, who has been appointed as an amicus in the case also supported the Attorney General’s contention. The Court has allowed the Union of India to raise this issue in their final arguments and has agreed to answer it in the final judgment.

The bench clarified that it will only be dealing with the issue of constitutionality of sections 499 and 500 of IPC and will not look into how these sections are applied. The bench also stated that it cannot abolish a provision as that is the job of the parliament, it can only look at the constitutionality of the provision.

Mr. Andhyarujina informed the court that among the various terms mentioned under Article 19(2) of the Constitution there is no judgment on the issue of defamation and what the court needs to decide is whether the right to freedom of speech and expression as guaranteed under Article 19(1)(a) is inhibited by defamation being a penal provision.

The Attorney General also dealt with the issue of criminal and civil defamation and stated that a civil suit for damages in such instances keeps pending for years and there is hardly any award provided, nor is there any deterrence effect whereas criminal provision at least has some deterrence effect. He also compared the situation to the English system and was supported by Mr. Andhyarujina and both of them stated that unlike the India system its easy to approach the civil court for damages in such cases and obtain a relief whereas in India the system should be kept in mind. However, the bench reiterated that it will only examine the constitutionality of the sections and the system that exists for civil defamation and the time taken to decide such suits will have no bearing on that.

Mr. Andhyarujina stated that theses sections are used as an inhibitor for freedom of speech and expression specially in political context, to which the court stated that different people have different views regarding the validity of the provisions under Article 19(2) including the two amicus appointed by the Court and the matter should be carefully considered.

The bench specifically asked the amicus to assist the court with two questions. Firstly, whether sections 499 and 500 can be read down if required and secondly, whether the fact that there has been a trend of some countries abolishing criminal defamation will have any impact on this court deciding the constitutional validity of a statutory provisions in light of our written and organic constitution.

The court has directed the Union of India to file a counter by 11^th July and all the petitioners to file their propositions of law by 14^th July which is the next date of hearing.

Kamlesh Vaswani v. Union of India

Image: http://i.telegraph.co.uk/multimedia/archive/03343/ChrissyChambers_En_3343155k.jpg

The Kamlesh Vaswani matter that has asked the Court to direct the Government to block all pornography over the Internet came up before the bench headed by the Chief Justice today. The petitioner stated that they have filed an affidavit highlighting the issue of revenge porn. The Court agreed with the seriousness of the matter and agreed to look at the issue of revenge porn. However, the Chief Justice refused to passed any interim order in the matter and stated that the Court cannot interfere in what adults do inside the four walls of their house and doing so may be violate of their Article 21 rights. The bench has asked the Union to file it’s reply in four weeks.

(Sarvjeet is a Project Manager & Fellow at the Centre)

Cases in which the Supreme Court will consider the validity of Criminalization of Defamation

The Supreme Court of India is currently hearing a bunch of petitions challenging the validity of Sections 499 and 500 of IPC among others.

PICTURE: http://law.famu.edu/wp-content/uploads/2015/03/defamation.jpg

The Centre for Communication Governance at National Law University, Delhi will been tracking the case and is collecting various documents relating to it.

NOTE: There are 25 petitions which have been tagged together- the latest list of petitions can be found at: https://drive.google.com/file/d/0BycAZd9M5_7NbWhubWo5eU92OTA/view?usp=sharing. 

We are in the process of finding out the details of the lawyers and other documents regarding the same.

The details and other information regarding the cases is available below. (The table is not exhaustive as we are still collecting information)

If you have any information or copy of petitions or submissions please mail them to sarvjeet.singh@nludelhi.ac.in

Name of Case	Number	Lawyers Appearing for the petitioner	Amicus	Copy of the petition	Copy of the written submission
Subramanian Swamy v. UOI, Ministry of Law & Justice & ors.	W.P. (Crl.) No. 184/2014	Mr. Subramanian Swamy (petitioner in person) Mr. G.S. Mani (Senior Advocate) Mr. A. Lakshminarayanan Mr. M. M. Kashyap	Mr. T.R. Andharujina (Senior Advocate) Mr. K. Parasaran (Senior Advocate)
Arvind Kerjiwal v. UOI, Ministry of Law & Justice & ors.	W.P. (Crl.) No. 56/2015	Dr.   Rajeev Dhavan (Senior Advocate) Ms.   Vrinda Bhandari Mr.   Chirag M. Shroff Ms.   Swati Vaibhav		Available here
Arvind Kerjiwal v. UOI & ors.	W.P. (Crl.) No. 62/2015	Mr.   Arvind P. Datar (Senior Advocate) Mr.   Guru Krishna Kumar (Senior Advocate) Mr.   Trideep Pais Mr.   Gautam
Rahul Gandhi v. UOI & ors.	W.P. (Crl.) No. 67/2015	Mr.   P.P. Rao (Senior Advocate) Mr.   Harin P. Raval (Senior Advocate) Mr.   R.S. Cheema (Senior Advocate) Ms.   Mahalakshmi Pavani (Senior Advocate) Mr.   K.C. Mittal Mr.   G. Balaji Ms.   Tarannum Cheema Mr. Nipun Saxena Mr.   Santosh Krishnan
Foundation for Media Professionals v. UOI	W.P. (Crl.) No. 106/2015	Mr. Anup Bhambhani (Senior Advocate) Mr.Dushyant Arora Ms. Mudrika Bansal Mr. Apar Gupta		Available here

A lawyer’s network to defend journalists; and decriminalising defamation

Author: Nikhil Kanekal

The recent week has been a busy one for us at CCG, thanks to a visit from  Peter Noorlander and Nani Jansen from Media Legal Defence Initiative (MLDI).  We are grateful to all those who joined hands with us in our efforts. In case you were not around or unaware, here’s what we have been up to:

1. A workshop to create a network of lawyers to defend journalists facing charges under restrictions to free speech in India
2. A public discussion on decriminalising defamation; evolving our laws with the advancement of society and technology

Both events were very productive and we promise to follow through with our efforts in these regards. We’d like to offer a recap of the events through some of the press we received. The Hindu carried an article on Saturday’s workshop, which narrates the issues faced by journalists, while also taking stock of how the contours of free speech have become tighter in the last three decades.

Jawahar Raja, a lawyer in Delhi agrees. “Look at the pattern. Somebody is offended; there is a furore; the police take action; someone is arrested; then the person, after a battle, is granted bail; and the case peters out of consciousness. In many instances, the case is dropped or there is an acquittal. But the process itself is a punishment. The trial is a punishment. The prosecution knows keeping you in jail pending bail is the punishment.”

He is right. Journalists at the forefront of the battle for free speech, fighting cases, pay a high price – literally and figuratively. They have to hire legal help; they have to appear before courts regularly; they have to navigate legal processes at a time when many of their organisations wash their hands off the case; they face regular intimidation; they spend years in prison as under-trials, which is what makes getting bail so crucial to at least providing temporary relief.

Monday’s discussion on decriminalising defamation included Peter Noorlander and Nani Jansen from MLDI, Paranjoy Guha Thakurta from the Foundation of Media Professionals and CCG’s Chinmayi Arun as panelists. The Business Standard carried a news story on the event.

Peter Noorlander, CEO of Media Legal Defence Initiative (MLDI), London, said Britain had decriminalised libel two years ago. Earlier, London was known as the libel capital as it was very easy to slap libel cases. Powerful business houses from other countries would bring libel cases on websites, which were allowed to proceed in British courts. Even scientists and artists were getting sued, he said. “The ability of companies to sue on libel was unlimited…and the damages were huge,” he said. With the change in libel laws, things have changed. Now you can’t launch proceedings against any anybody – there has to be a British connection, he said. The damages have also been limited, so people don’t have to face bankruptcy, he said. He said there was a need to pull libel out of the criminal sphere and put it in an appropriate civil law environment.

Read the full articles here

The Hindu: Negotiated freedom

Business Standard: Need to decriminalise defamation, say experts