In the previous columns, we have seen how the laws of sedition, obscenity and “blasphemy” are used to shut down critical speech by initiating criminal prosecutions against the speakers. Each of these laws are part of the Indian Penal Code, and involve the heavy use of state machinery from the very beginning of the case when the complaint is filed. There is another law, however, which is not codified, and is not even criminal—but is often as effective a means of silencing inconvenient speech as anything else. This is the law of civil defamation.
Article 19(2) of the Indian Constitution specifically envisages “defamation” to be a ground for “reasonably restricting” the freedom of speech. The stated object of the defamation law is to protect the reputation, dignity, honour or character of individuals against unjustified attacks or slanders.
In India, the English “common law” of defamation—i.e., an uncodified legal regime constituted of a successive series of court judgements developing the law over time—is applicable. The common law of defamation reflects the concerns of its origins in early-modern England, where freedom of speech was not accorded much importance, but the “character” of gentlemen was.
To satisfy the ingredients of defamation, the plaintiff—i.e., the person claiming to be defamed and who initiates legal proceedings—must only show the court that the defendant “published” a statement (i.e., that the statement was made to at least one other person), that it “referred” to the plaintiff, and that it tended to lower the reputation of the plaintiff in the eyes of right-thinking members of the society. The plaintiff can then ask the court to order the defendant to pay him heavy compensation as redressal. To escape liability, the defendant must show either that the statement was true (the defence of “justification”), or that it was a “fair comment” based upon true facts (there is a third defence of “privilege” that we need not go into).
The obvious problem here, of course, is that the defamation law leaves no room for honest mistakes. In legal terms, this is called “strict liability”. A false defamatory statement is legally actionable even though the defendant can show that he honestly believed it was true, and took all reasonable steps to verify its truth. The strict liability of the defamation law becomes especially problematic in the case of newspapers, where errors are bound to creep in from time to time.
This form of defamation law has made it a potent weapon in the hands of private parties—whether corporations or politicians—to stifle critical speech. Apart from the possibility of the award of heavy damages, defamation cases also often involve the grant of “injunctions”—i.e., a court order requiring that the allegedly defamatory material not be published or distributed until the end of the legal proceedings. In India, given the inordinate length of court proceedings, an injunction is effectively a death sentence for any would-be writer or speaker.
The free speech implications of the defamation law, therefore, are immense. Surprisingly, however, it took the Supreme Court of India 44 years to evaluate defamation on the touchstone of Article 19(1)(a). When it finally did so in 1994, in the case of R. Rajagopal vs State of Tamil Nadu, it adopted the test laid out by the US Supreme Court in one of its most famous cases, New York Times Co. vs Sullivan.
New York Times Co. vs Sullivan was a case decided in 1964. It involved a defamation claim that came before the US Supreme Court from the state of Alabama. At this time, the American civil rights movement was at its peak. The New York Times had published a full-page advertisement titled “Heed Their Rising Voices”, which purported to describe police atrocities upon civil rights protesters in the deep South. The advertisement contained a few factual errors. It stated, for example, that Martin Luther King Jr. had been arrested seven times, whereas he had been arrested only four times. It also claimed that in the town of Montgomery, young black protesters had been padlocked into a hall in order to “starve them into submission”—this had never happened.
On this basis, the police commissioner of Montgomery sued the newspaper, claiming heavy damages. There is near-universal agreement that the defamation law was being used as a political weapon in order to stifle the national media from reporting on the civil rights movement, and thereby deprive it of the oxygen of publicity.
In a momentous decision, the US Supreme Court noted that the common law of defamation, as it then stood, was inconsistent with the constitutional guarantee of the freedom of speech. It adverted to something that is now popularly known as the “chilling effect”: the risk of being sued for heavy damages would make people engage in self-censorship, and exercise so much caution that they would end up steering well clear of the dividing line between legitimate criticism and defamation.
For this reason, the US Supreme Court held that insofar as public officials were concerned, liability for defamation could be imposed only if “actual malice” was proved—i.e., if it was proved that the speaker/writer intentionally lied, or made his statement with “reckless disregard” for the truth. Needless to say, this will be extremely difficult to prove.
Thirty years after Sullivan, the Supreme Court of India followed suit in R. Rajagopal’s case. This case involved the autobiography of convicted serial killer Auto Shankar, who was on death row. It was claimed that he had accorded permission for the autobiography to be published, but had then been coerced by state officials—who were afraid of revelations involving the police-criminal nexus—into withdrawing his consent. The case, therefore, raised complex questions about the intersection of privacy, freedom of speech and defamation. Among other things, the state officials argued that the autobiography contained defamatory material against them.
This contention was squarely rejected by the Supreme Court, which applied the Sullivan test, and held that “in the case of public officials, it is obvious, right to privacy, or for that matter, the remedy of action for damages, is simply not available with respect to their acts and conduct relevant to the discharge of their official duties. This is so even where the publication is based upon facts and statements which are not true, unless the official establishes that the publication was made (by the defendant) with reckless disregard for truth”.
The adoption of the Sullivan test in Rajagopal’s case was a notable advancement, and subsequent decisions have tried to build upon it. In a couple of cases, for instance, the Delhi high court has attempted to extend the test from “public officials” to other entities performing “public functions”. This is a logical extension, and has already been made in other jurisdictions.
By and large, however, it seems that despite the holding of the Supreme Court in Rajagopal’s case, there has not been too much of a difference in the way that defamation cases continue to be dealt with at the lower judicial level.
Part of the reason for this is that Rajagopal’s case itself contains various internal contradictions, and appears to be confused as to the correct legal test at different points. But another part of the reason is certainly that the Supreme Court itself has failed to build upon the work that it started in 1994.
In the meantime, the use of the defamation law to chill speech and injunct works from being brought into the public domain has continued. It is to be hoped that the judiciary will—eventually—respond.
Gautam Bhatia is a New Delhi-based lawyer. His book Offend, Shock, or Disturb: Free Speech Under the Indian Constitution is available on Amazon.
Case Studies is a series that looks at why we have the laws that we have and what it means to change them.
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