Monday, May 16, 2016

Chaitanya Kalbag - HOW TO THROTTLE FREE SPEECH FOR 156 YEARS

The English ruled India for 190 years from the Battle of Plassey in June 1757, but 70  years into political independence we are still tied to the apron-strings of the British Empire.  It's not just the 'steel frame' of our administrative service, or the sinews of the Indian Railways, or our parliamentary system (where the Speaker still intones "The ayes have it" after a voice vote) - it is also most noticeably in India's laws. 

Indeed, several Commonwealth countries continue to enforce laws drafted by the East India Company and its factotums like Macaulay, Bentinck and Curzon. My column in the Economic  Times today was brief today because of the space pressures of yesterday's state assembly exit polls, but a full version is at http://goo.gl/XN2ciO and in text below.  It looks chiefly at the retrogression of last Friday's Supreme Court ruling that upheld the constitutional legitimacy of penal provisions against criminal defamation, 156 years after the Indian Penal Code was enacted.  I hope you will add your voice to the need for 21st-century laws in 21st-century India Chaitanya Kalbag

How the cold hand of the law falls across two centuries on our freedoms

Twice in the past two and a half years, the Supreme Court has ruled with a 19th-century mindset on vital 21st-century issues affecting personal freedom using criminal and penal codification that was enacted by India’s British rulers. The Indian Penal Code of 1860 was first drafted by Thomas Babington Macaulay in 1837, and its enactment was delayed by the Sepoy Mutiny of 1857.

On December 11, 2013 a two-judge bench of the Supreme Court upheld Section 377 of the IPC which criminalises homosexuality and ‘unnatural’ sex.  Then, on Friday the 13th of May, a two-judge bench headed by Justice Dipak Misra upheld the constitutionality of Sections 499 and 500 of the IPC which relate to the criminality of defamation.   Most of the world categorises defamation as a civil offence on the grounds that it is a personal matter.  Most defamation lawsuits are brought by the rich and powerful and are nearly always designed to smother any hint of criticism or exposure.  Sec.499 casts the onus of proving innocence on the person accused of defamation, whose only defence can be that he published the truth for public good. Criminal defamation suits are often filed in lower courts and drag on for years.  The accused have to appear in person before the trial magistrate. The trial process itself constitutes severe harassment and has a deterrent effect on free speech.

“In upholding, in all its Victorian savagery, Section 377 of the IPC, the Supreme Court had at least the fig-leaf excuse of protecting public morals. But there can be no moral justification whatever for the State continuing to impose criminal sanctions for protecting the reputation of individuals – many of whom are persons prominent in public life.  For them, the law of torts (civil wrongs) affords the only remedy: to sue the wrongdoer for damages in seven figures, and also to apply for injunction from repeating the offending words spoken or written,” eminent jurist and consstitutional expert Fali Nariman said.

“One can be, and frequently is, dragged to remote areas of India to personally attend to a magistrate’s summons – not once, not twice, but repeatedly over long periods of time. Ultimate acquittal in the end is not half as jolly as it sounds!” Nariman said in emailed comments.

“In my view there is little justification for criminalising what essentially was (and still is), a civil wrong, namely injury to reputation which does not lead to a breach of peace or to public disorder – which, in the 19th Century was the principal cause for making defamation a criminal offence!   The Second and Final Report of the Law Commissions (May 1848) which prompted insertion of Section 499/500 in the Penal Code expressly said that ‘the tendency of calamitous imputations to provoke breaches of the peace is undoubtedly one of the reasons for making defamation an offence’.  In the 21st century I know of no instance where defamatory words (not hate-speech but defamation) has provoked a riot or public disorder,” Nariman added.

“To give a public law remedy for what is essentially a matter pertaining to private law (and actionable in Court under common law) is an anachronism in this day and age – especially when in a civil suit for the (civil wrong) of defamation truth is a complete defence; whereas in a criminal prosecution under Section 499 IPC it is not enough to establish that the words spoken or written are true – it has to be for the public good that the truth is disclosed (Exception 1 to Section 499); this explains why there are so many more criminal complaints than civil suits for defamation,” Nariman said.

Former Solicitor General Gopal Subramanium echoed him. “Why would anybody go through all this pain of going to courts, appearing, and getting lawyers merely because he held a strong view and wrote an article.” The petitioners who lost on Friday included several politicians across the spectrum – except from the ruling Bharatiya Janata Party. Government lawyers argued strongly for retention of Section 499.

Subramanium told me a civil deterrent is sufficient for defamation. “But once it becomes a criminal remedy then it tends to curb people in expressing their views and can be used to silence dissent.” Both lawyers were very critical of the legal arguments put forth by Justice Misra in the 268-page verdict. “As for the legal justification of the recent decision there is little to commend, except the safeguard incorporated at the end of the judgment, namely that before a magistrate issues a summons in a complaint under Section 499 ‘Application of mind…is imperative,’” Nariman told me.

“What may be truth may appear defamatory to the other,” Subramanium said in a conversation. What is at stake? If it is the right to reputation of certain individuals and it cannot be compensated in any other manner, then one can understand a criminal remedy.  “(But) it hangs like a sword. There is no quick trial of such a complaint.”

By today’s standards – Attorney General Mukul Rohatgi told the Supreme Court that civil litigation often drags on for ten or 20 years -- Chandrakant Naidu, a former Patna resident editor of the Hindustan Times, had to wait for only four years when he was charged with criminal defamation. Naidu, who was sentenced to three months’ imprisonment in 2002 because of one word in a letter to the editor published by the newspaper.  Naidu was immediately granted bail, but the trips to the courtroom haunt him. 

When several senior editors met former Information & Broadcasting Minister Ambika Soni in 2011 to urge the de-criminalisation of defamation she made the proper noises but did nothing.  The Editors Guild told Soni about international precedent.  Britain abolished seditious libel and criminal defamation in 2009; a new Defamation Act was brought in 2013 that gives better protection to people expressing dissent.  Complainants now have to prove they have suffered serious harm before suing. The new law also ended “libel tourism” – citizens of other countries suing for libel in the U.K. to take advantage of its heavy penalties on those found guilty of defamation.

The United States had already moved to protect its citizens’ right to free speech with a 2010 law that prevents U.S. courts from enforcing British defamation verdicts. And, as recently as January this year, the European Court of Human Rights ruled that defamation judgments against a French television channel and a reporter interfered with their right to freedom of expression.

Macaulay’s IPC lives on in several former British colonies.  The infamous Section 499 (and its onerous exceptions) for instance exists verbatim in Singapore and Malaysia.  In Singapore, founding prime minister Lee Kuan Yew used the penal code on defamation to devastating effect on his political rivals, a tradition his son Lee Hsien Loong is continuing.  Opposition leaders like the late Joshua Jeyaretnam and Chee Soon Juan have been repeatedly slapped with heavy fines, disqualified from standing for election, and even served prison sentences. 

In an age where every citizen can turn publisher in minutes and write freely – and scurrilously – on social media, it is time for India to re-examine the old-fashioned laws that govern libel and defamation.  The Narendra Modi government has shown remarkable persistence in throwing out hundreds of old laws.  Last month Parliament passed two acts repealing a total of 1,053 old laws; a total of 1,159 have been repealed so far since Modi took office.  A commission set up by the government recommended in November 2014 that a total of 1,741 obsolete laws be struck off the statute books.  They include legislation like the Excise (Spirits) Act of 1863, the Elephants Preservation Act, 1879, and the Lepers Act of 1878.  

All may not be lost on the defamation front.  One of the petitions against Section 499, filed by Greenpeace activist Priya Pillai, was transferred to another two-judge Supreme Court bench after Justic Misra recused himself. The defamation suit against Pillai was filed by the Essar Group. That petition is pending, and could hopefully form the pivot for a Constitution-bench appeal against the May 13 ruling.