Saturday, August 30, 2008

Defamation litigation: a survivor's kit

Defamation litigation: a survivor's kit

By Subramanian Swamy

The Supreme Court judgment in the Nakkeeran case is the main tool in the survival kit for honest media and other critics of politicians against libel litigation.

ON SEPTEMBER 17, the Tamil Nadu Government filed an affidavit in the Supreme Court stating that it had ordered the withdrawal of 125 defamation cases filed against The Hindu and various other publications. This is a tribute especially to The Hindu `parivar' for showing guts and challenging the constitutionality of the cases filed against its representatives. The Jayalalithaa Government chose discretion over valour by not risking the Supreme Court striking down the libel statute itself as unconstitutional. Rather than lose permanently the weapon of state harassment of critics that defamation law represents, the Government chose to back down.

This is the second time that the AIADMK State Government has directed a carte blanche withdrawal of defamation cases. The first time was on January 1, 1994 when the Tamil Nadu Government withdrew numerous defamation cases filed against me in several Sessions Courts in the State. The reason then was the same: the Supreme Court Bench of Chief Justice M.N. Venkatachalaiah and Justice B.P. Jeevan Reddy had heard extensive arguments from me as petitioner in person and the Tamil Nadu Government counsel on the defamation law, and then orally asked why the law should not be struck down. The Government counsel then asked for time, and came back a week later to say that all the cases against me had been withdrawn. Hence, the cause of action for my petition disappeared, and my petition became infructuous. I was personally relieved but the law survived for use on another day.

But Justice Jeevan Reddy, who had listened to me with great care, went on to write a landmark judgment in the Nakkeeran case [1994] that incorporated the core of my arguments and citations from the United States Supreme Court and the United Kingdom's House of Lords. That judgment today c. The judgment however needs to be developed further by more decided cases further clarified by continued challenge to state-sponsored defamation litigation that has become far too frequent in the country, so that freedom of speech and expression can become more deep and extensive than at present.

Under the Indian Constitution, the fundamental right to free speech (Article 19) is subject to "reasonable restrictions." What is reasonable is subjective in a society; it can only be developed to some objectivity by cases decided in courts [`case law'] and according to the political culture of the times. At present, reasonableness is codified in two laws — first, in exceptions to criminal culpability incorporated in Sections 499 and 500 of the British colonial statute known as the Indian Penal Code (1870), and second, the limits to civil liability incorporated as tort law. In India, defamation proceedings can be initiated under either or both, together or in sequence. Most democratic countries have however done away with the criminal law, which is archaic and draconian. But India has not yet done so.

What is one to do if one receives a court summons for alleged defamation? For example, I once received a summons from a Delhi court because I had called a BJP leader, V.K. Malhotra, "an ignoramus." The remark was made by me during the Lok Sabha proceedings, but lifted by a sub-editor and inserted in a column I wrote for the magazine.

Under the law, I had to prove that it was true — or face imprisonment. Now, how does one prove that a person is an ignoramus in a court of law? Add to that the harassment I would have to suffer of travelling to court at least 10 times a year for at least five years to attend the case or face a warrant for my production in court. Or I would have to engage a lawyer who would charge me a hefty sum. All this for a mild rebuke of a political leader? The editor of the magazine decided he could not stomach it, so he apologised for printing the remark. I was left holding the bag.

However, I fought the case and won. Mr. Malhotra was directed to pay me Rs.8,000 as compensation for my petrol bills, which he paid with some reluctance. Now how did I do it?

I pulled out of my survival kit the first tool of defence: in a defamation case, the aggrieved person must prove "publication," which means Mr. Malhotra would have to prove first that I had, in the original text given to the magazine, written what was printed. The onus was on him to produce the original. Now which magazine keeps the original? He failed to produce it and I won.

In a 1997 press conference, I made some charges against Chief Minister M. Karunanidhi. He used Section 199 of the Criminal Procedure Code to get the Public Prosecutor to file a defamation case. This meant the contest in court was between me and the state, and not between me and the Chief Minister personally. Thus the Government would spend the money out of the public exchequer and use Government counsel to prosecute me, a totally unequal contest and wholly unfair (even if legal).

If Section 199 had not been there, the Chief Minister would have personally been the complainant and I would have had the right to cross-examine him. Now which busy politician would like that? Hence, I pulled out the second tool in my survival kit. I filed an application before the judge making the point that the alleged defamation related to the personal conduct of the Chief Minister and not to anything he did in the course of public duty. I argued that Section 199 would not apply. Thereafter, the State Public Prosecutor quickly lost interest in the case. Had the judge rejected my prayer, I would have gone in appeal to the Supreme Court and got Section 199 struck down. But alas, I could not.

In 1988 another Chief Minister, Ramakrishna Hegde, filed a suit against me under tort law for Rs.2 crore damages for my allegation that he was tapping telephones and using his office to benefit a relative in land deals. Although ultimately, the Kuldip Singh Commission and a parliamentary committee studying the Telegraph Act upheld my contentions, I would have had a problem had the court decided the case before these inquiry reports came out.

So I pulled out the third tool in my survival kit, namely the U.S. Supreme Court case laws, the most famous of which was The New York Times case decided in 1964. Contrary to popular impression, U.S. case laws on fundamental rights are applicable to India following a Supreme Court judgment in an Indian Express case in 1959.

Furthermore, since 1994, these U.S. case laws have become substantially a part of Indian law, thanks to Justice Jeevan Reddy's judgment in the Nakkeeran case.

The principle in these case laws, restricted to public persons suing for damages, is wonderfully protective of free speech: if a person in public life, including one in government, feels aggrieved by a defamatory statement, then that person must first prove in court that the defamatory statement is not only false, but that the maker of the statement knew it to be false. That is, it must be proved by the defamed plaintiff to be a reckless disregard of the truth by the defamer defendant. This principle thus reversed the traditional onus on the defamer to prove his or her allegation, and placed the burden of proof on the defamed.

This reversal of burden of proof is just, essentially because a public person has the opportunity to go before the media and rebut the defamation in a way aggrieved private persons cannot do. If criticism and allegations against a public person have to be proved in a court of law, what is likely to happen is that public spirited individuals will be discouraged and thus dissuaded from making the criticism. This is what the U.S. Supreme Court in the famous New York Times case characterised as a "chilling effect" on public debate; it held this to be bad for democracy.

Hence the need to balance the protection of reputation in law with the democratic need for transparency and vibrant public debate. The U.S. Supreme Court admirably set the balance for freedom and democracy.

Since Mr. Hegde was an intelligent man, he recognised what my survival strategy meant. He would have come on the stand in court. He would have been examined and cross-examined on why what I said was not true, and how he knew that I had known all along that my charges were false and yet I made them. He therefore sent me a message one day wanting to know if I would call it quits. So his defamation case went from one adjournment to another, until it lapsed upon his death. Before his passing, Hegde and I met. Both of us agreed that it was unwise for politicians who have so much access to the media to rebut charges to file defamation cases and waste the time of already overburdened courts. I got the impression that some sharp lawyer was behind his temporary loss of judgment in filing the case.

Today, with developing case laws, defamation litigation has become a toothless tiger for politicians to use against the media. There are enough dental tools in my survival kit to ensure this. I am therefore writing a full Manual on how to expose dishonest politicians and get away without being harassed in court. I hope honest critics will no more hesitate to speak their minds about what they know to be the truth even if they cannot prove this in court beyond a reasonable doubt.

I am happy therefore that The Hindu chose to fight it out rather than capitulate. More should follow its lead for a better democracy and a freer media.

(The author, an economist, is a former Union Law Minister. As a rule he argues his own cases in court without the agency of lawyers.)

© Copyright 2000 - 2008 The Hindu

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