Why haven’t Arvind Kejriwal and Subramanian Swamy been sued by most of the politicians and companies targeted by them?
The Congress and the Bharatiya Janata Party (BJP), both targets of activist Kejriwal, said they didn’t want to give him any publicity and that they wished to fight him politically, but legal experts say it could also be because they do not wish to get embroiled in lengthy and potentially invasive legal proceedings with uncertain outcomes and where the burden of proof rests with them.
Thus Robert Vadra, businessman and son-in-law of Congress president Sonia Gandhi, hasn’t sued Kejriwal who highlighted alleged sweetheart deals between him and real estate firm DLF Ltd.
Nitin Gadkari, businessman and president of the BJP, hasn’t sued Kejriwal who alleged a land-grab by him and entities associated with him.
Reliance Industries Ltd hasn’t sued Kejriwal, although it issued a statement denying that it was influencing policy and that its chairman Mukesh Ambani had an account in HSBC’s Geneva branch (both allegations made by the activist-turned-politician).
And Rahul Gandhi hasn’t sued Swamy, who accused him of everything from a land grab to violations of election norms, although he threatened legal action.
Interestingly, the one case filed, related to one of Kejriwal’s claims, has been by Louise Khurshid, the wife of external affairs minister Salman Kurshid, but against the TV Today group over stories alleging irregularities in the functioning of Zakir Hussain Memorial Trust run by the Khurshid family.
Indeed, while politicians and political parties are remarkably restrained while filing defamation cases against other politicians or parties—the one by Gadkari against Congress leader Digvijaya Singh needs to be seen as an exception, they display more alacrity while targeting the media.
“If Kejriwal has evidences against the leaders, why is he not filing petitions against the leaders whom he accuses of money laundering, income-tax (law) violation...? There are provisions in the legal system to take on such issues,” said Congress spokesperson P.C. Chacko. “The fact that he is not doing it means his attempt is just to get political mileage. He is just building up the momentum for announcing his political party. The Congress wants to fight this politically,” he added.
BJP’s Balbir Punj echoed the sentiment: “He (Kejriwal) is a lightweight and sometimes it is better to ignore him. The BJP proved him wrong on the allegations levelled by him against party president Gadkari so we did not feel the need to take legal action against him.”
This may be the best way to deal with such allegations, said a lawyer.
“If those who have enough evidence against the accused, they can go to the court, lodge a complaint and deal with it legally. It is not for the accused to go to the court. As it’s a political accusation, they (may) also prefer to deal with it politically,” said P.P. Rao, a senior advocate in the Supreme Court.
In general, politicians prefer to avoid filing defamation suits, said a Union minister who is also a lawyer and asked not to be identified. It may take too long, he said, and no one knows what may turn up.
Lawyer Rajiv Dhawan agrees. Filing a defamation case, “lands you in the court, which nobody wants. Its a tedious process and cannot be controlled”.
India allows both civil and criminal proceedings for defamation. Under criminal law, an offender can be booked under section 499 of the Indian Penal Code (IPC), while under civil law, a suit can be filed for recovering monetary damages (the civil law, however, isn’t enshrined in an Act of Parliament and its interpretation depends on the judge).
In both cases, the person or entity filing the case needs to prove that he or she (or it) has been defamed.
The UK, the US and Sri Lanka have decriminalized defamation laws, but the IPC considers defamation a criminal offence and can impose jail sentences. In 2011, then information and broadcasting minister Ambika Soni had assured editors that the government would consider an amendment to the IPC to decriminalize the defamation provision.
The editors had sought abolition of the existing criminal defamation law, which they said was outdated, a source of harassment to journalists and a cause of disproportionate penalties on journalists, arguing that the civil defamation law was sufficient.