The observation by the Supreme Court that political leaders should not take criticism as a personal insult highlights a particular kind of intolerance that is rarely referred to in the ongoing debate on the subject: the inability of public figures to tolerate criticism and their repeated resort to criminal defamation proceedings to stifle adverse comment. Nothing exemplifies this as much as the 100-odd prosecutions launched by the government of Tamil Nadu against politicians and the media. The court’s remark came in the context of several of cases of defamation reaching its portals in recent years. Under Chief Minister Jayalalithaa, the law of criminal defamation is routinely set in motion within days of the publication of reports that are even remotely critical of her governance. It is always initiated by the public prosecutors on behalf of the Chief Minister and members of her Cabinet. It is needless to emphasise that criminal defamation has a chilling effect on free speech and undermines public interest by coercing the media to observe self-censorship and self-restraint. Sections 499 and 500 of the Indian Penal Code, which criminalise defamation in India, have been challenged in the Supreme Court, but so far there is little hope that the State will give up the use of this weapon against adverse coverage. It also showed questionable zeal in going up to the highest court just to obtain the police custody of Kovan, a folk singer arrested on ‘sedition’ charge, indicating a dangerously illiberal attitude. The Union government has contended, much to the disappointment of proponents of the freedom of expression, that these sections do not have any chilling effect on free speech.
Democratic opinion in many countries is veering around to the view that defamation should be treated as a civil wrong and should not be pursued as a criminal case, and that the state has no compelling interest to protect the reputation of its individual servants by prosecuting alleged offenders. In 2011, the Human Rights Committee of the International Covenant on Civil and Political Rights called upon states to abolish criminal defamation, noting that it intimidates citizens and makes them shy away from exposing wrongdoing. Its misuse as an instrument of harassment is pervasive in India. Often, the prosecutor’s complaint is taken at face value by courts, which send out routine notices for the appearance of defendants without any preliminary examination whether the offending comments or reports come under one of the exceptions spelt out in Section 499. Thus, the process itself becomes the punishment. It is internationally recognised that there ought to be some proportionality between the status and influence of public officials and how far they could be defamed. The higher the officials are the greater will be their resources to set right any impairment of their image, using their wide reach and influence over the public. It is time India’s lawmakers scrapped criminal defamation from the statute book.
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