The price for defamation

Anyone growing up on a staple diet of American legal drama TV series — LA Law, Ally McBeal, Practice to Boston Legal — will surely conjure up a litigious idea of America where people tend to sue at the drop of a hat. That too often on outrageous grounds. Remember Stella Liebeck's 'hot coffee' lawsuit against  McDonald's in 1992?

The branch of law addressing “civil wrongs” with compensation (“damages”) is called “Law of Torts”. ‘Defamation’ is a “tort” and if it is verbal it is “slander”. If in writing it is “libel”. The  “Tort Law” is extremely underdeveloped in our country. You can get an idea from the efforts made in 1986 by the Indian Government which chose Judge Keenan’s District Court in the US to file a suit claiming compensation for the Bhopal Gas Leak victims.  In retaliation, Carbide let loose Palkhivala’s brilliant affidavit of hosannas for the Indian legal system. The US Court threw out India’s suit and redirected parties to Bhopal!

The highest I have got a client in a defamation suit is Rs 5 lakhs! In fact, Indian cases rarely result in great damages. Such suits are also time consuming and often find diminished priorities, with the courts striving to short circuit the process by getting parties to settle.

It is against this backdrop that the interim order against TimesNow to deposit Rs100 crores in the defamation case filed by Justice PB Sawant for mistakenly carrying his mugshot for 15 seconds that has raised many an eyebrow in the legal fraternity.

Given the toothless tort remedy, many gravitate towards a criminal remedy — Section 499 of the Penal Code defines the offence of defamation as “by words, either spoken or intended to be read or by signs or by visible representations. Harm(ing) the reputation”.  This “harm” is an imputation which “in the estimation of others, lowers the moral or intellectual character…or lowers the character in respect of his caste or of his calling or lowers (his) credit”. Section 500 makes this punishable with imprisonment upto two years and fine.  There are several exceptions to defamation such as critique of a judgement or the actions of a public servant or a public performance and for public good.

Other reasons often weigh in favour of a criminal remedy. Its stigmatic, it involves an element of inconvenience — requirement to secure bail, facing a possible criminal detention and it is relatively inexpensive. Unlike in a civil case  no court fees are involved.

Arvind Kejriwal's latest stunt has generated many a write up and I don’t intend to top it. However, the Law Commission has sat up and decided to examine the issue of de-criminalisation of defamation.

As we hurtle towards the Shanghai model-via Gujarat, there is surely no better time than now to take stock of where Free Speech is headed in the Indian Republic. Article 19(1)(a) of the Constitution ensures “freedom of speech and expression”. Article 19(2) subjects this freedom to restrictions on account of national sovereignty, international relations, public order, morality, contempt of court, incitement of offence and defamation.

The criminal law of defamation brings with it the hazards of the criminal justice system. The complainant has to be present on each date or seek exemption; the accused has to seek and obtain bail.  Most importantly, it brings along the stigma of being a “criminal accused”. Kejriwal repeatedly cried foul about the system making him a criminal while the Purti pati was lording it over.

Several countries, over the years, have transitioned from a criminal defamation regime to a civil liability regime: Mexico, New Zealand, Papua New Guinea, Ghana, Ukraine and Romania to name a few. Russia — under Medvedev — had decriminalised the law in 2011. But Putin has now re-criminalised the law! Even Oscar’s England has decriminalized “defamation” in 2009.  Across the channel, France has also taken steps.

So while the “civilised” world takes steps to place “defamation” purely in the personal realm, in India this provision is readily invoked, many times to settle political scores or to overawe dissent. Is Gadkariji’s stature more affected by his bariatric surgery than Kejriwal’s jibes? Is the janata the ultimate judge in a democracy?

In power, our politicians are tempted to stifle dissent by jailing cartoonists for sedition or punishing authors with bans. And if the State apparatus is not at hand, the criminal machinery can always embroil the opponent in criminal litigation.

I do not for a minute advocate the shoot and scoot guerilla tactics of Kejriwal & Co. But I do feel that we have been presented with a wake up call which brings with it an opportunity to improve our justice dispensation system.

As the new Law Minister occupies the gaddi at Shastri Bhawan, the mantra I propose (and in Modi Sarkar I am told catchy slogans go a long way) is “Not More Judges but More Judgments”. 'Certainty of Results' should be the core philosophy guiding all law reform. If we can assure the litigant and the offender alike, the “certainty of result”, half the violations will melt away. If the offender knows that whatever be his wrong, the trial result is assured by X months, he would think twice before entangling with the law. In fact, in many nations plea bargaining is popular because the accused knows that the result of a trial is “certain” and possibly, if contested, would be harsher than what he gets through a plea bargain. In India the accused knows that his lawyer is equipped with magic and can transform a BMW into a truck! The accused knows that the trial can go on for ages and the appellate process for eons.

Therefore, even for defamation, there would be no need for a criminal option in case the civil law is strengthened and the litigant is assured a certainty of result and the possibility of securing a decent compensation within a reasonable time-frame.

The writer is an advocate practising in the Supreme Court and the Delhi High Court