Criminal Defamation Law Is a Weapon of Political Warfare

Even though the colonial-era Parliament building is being replaced with much fanfare in India, the criminal defamation law, along with many other colonial laws, like seditious libel, enacted by the British raj in the 19th century, is still in effect. 

Criminal Defamation Law Is a Weapon of Political Warfare: Photo: Volodymyr Hryshchenko/Unsplash

Ashish Khetan, The Wire, 12 April 2023 : The “mother of democracy” – India – stands out as a glaring outlier among the world’s major democracies when it comes to criminalising speech on matters of public and political interest. Political and journalistic speech are among the most protected species of free speech in most of the liberal democratic world, but India’s archaic criminal libel laws disproportionately impede public discourse.

India is one of the last major democracies that continue to criminalise speech. At the turn of the century, the UK repealed all four forms of criminal libel – seditious libel, obscene libel, blasphemous libel and defamatory libel. The US Supreme Court abolished common-law criminal libel way back in 1966 in a case called Ashton v Kentucky. Since then, the criminal defamation laws in 38 US states and territories (US territories are directly controlled by the federal government) have either been repealed or struck down as unconstitutional.

Even smaller countries like Ireland, Malta, Romania, Jamaica, Mexico (federal level), Montenegro and Macedonia have completely abolished defamation as a criminal offence.

However, even though the colonial-era Parliament building is being replaced with much fanfare in India, the criminal defamation law, along with many other colonial laws, like seditious libel, enacted by the British raj in the 19th century, is still in effect.

Not only has India persisted with criminal defamation, its laws also allow the power of the state and criminal courts to be used to prosecute private complaints of reputational harm. Some of the other disproportionate and unreasonable aspects of the law include an overly broad definition of the offence of defamation, high burden of proof and limited exceptions for the defendant, accompanied with prohibitive legal costs.

Truth is not an absolute defence. Even sarcastic comments might be considered defamatory, and family members or even the representatives of the “defamed” person can file legal action. A prima facie defamatory statement is enough to get the process issued by the court. The procedure itself serves as punishment because the higher courts hardly ever stay or dismiss a case. Big corporations and influential politicians institute proceedings in jurisdictions of their convenience, which are often hundreds of kilometres away from the place of residence of the defendant.

In 2016 a two-judge bench of the Supreme Court of India upheld the constitutionality of the offence of criminal defamation, stating that it constitutes a reasonable restriction on the right to freedom of expression. The court failed to see the indissoluble and essential relationship between free speech and democracy.

The ruling opened the floodgates for defamation law to be used as a potent tool of political warfare. It is frequently used by politicians and public officials, especially members of the ruling BJP and its affiliate organisations like the RSS.

In contrast, the higher courts in the US, England, South Africa and Australia have consistently applied the standards of high tolerance for criticism directed at politicians, public officials, constitutional functionaries, judges and even big corporations.

The US Supreme Court has provided greater protection to political speech by creating different categories of plaintiffs in civil libel suits (common-law criminal libel is already abolished). Public officials (New York Times v Sullivan, 1964) and public figures (Associated Press v Walker, 1967) have a greater burden of proof than private individuals in civil defamation suits.

To prove libel, a public official must show that the defendant acted with “actual malice”, that is, with the knowledge that it was false or reckless disregard for the truth. Public figures could recover damages under a finding of highly unreasonable conduct by reporters and publishers. Even in cases involving private individuals, the courts have accorded greater protections to speech involving matters of public interest.

In Australia, the court has read in the country’s constitution an implied right to freely communicate and publish materials discussing governmental and political issues, including the suitability and behaviour of MPs.

In 2021 the Constitutional Court of Italy, which still criminalises defamation, ruled that judges can pass a sentence of imprisonment in criminal defamation only in cases of “exceptional severity”. The court also asked the Italian parliament to carry out a comprehensive reform of its defamation laws.

In their decisions, the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights have given broad consent to the right to freedom of expression enshrined in Article 13 of the American Convention. The Courts in the Inter-American system have given political speech and speech involving matters of public interest and conduct of public officials the status of specially protected speech.

In 2022 courts in England and Wales were granted new powers to dismiss lawsuits employed by wealthy claimants known as Slapps (strategic lawsuits against public participation). The courts now deploy a three-stage test to dismiss intimidatory legal action against reporters and publishers: if the journalistic activity is in the public interest, if the claimant is abusing the process and if the case has a realistic prospect of success.

You wouldn’t find a politician suing another politician for making a political speech anywhere in the western world.

From Canada, Australia and New Zealand to England, Europe and the US, it’s only the media, which is often sued in civil law by politicians, celebrities, corporations and, occasionally, even ganglords. Some of the recent high-profile defamation lawsuits include those filed by Prince Harry against the British tabloid Daily Mail, Australia’s attorney general Christian Porter against an ABC journalist, Russian warlord Yevgeny Prigozhin against a UK-based investigative journalist, Brexit supporter Arron Banks against a journalist from the Observer, and Dominion Voting Systems against Fox News.

Then there are the odd celebrity v celebrity defamation suits, such as Samantha Markle suing Meghan Markle and Johnny Depp suing Amber Heard for civil libel. But politicians being sued by fellow politicians for a political stump speech is unheard of in the west.

By contrast, politics in India has been repurposed through defamation cases.

Ashish Khetan is a former chairperson of the Dialogue and Development Commission of the Delhi government.