Alarming spike in legal actions against the media
In the recent past, a number of legal restraints on free speech have been initiated against journalists and the media in India, including charges of sedition, defamation, contempt of court, official secrets and hate speech,
says a report from SUKUMAR MURALIDHARAN. An excerpt from the section on defamation.
Note: The report was presented at a regional symposium on “Criminalisation of Speech, Expression and Opinion in Asia” in Jakarta, Indonesia between July 15 and 16. The symposium was hosted by the Asian Forum for Human Rights and Development (FORUM-ASIA), the Southeast Asian Press Alliance (SEAPA), the Southeast Asia Media Legal Defense Network (SEAMLDN) and the Alliance of Independent Journalists of Indonesia (AJI).
Defamation
In June this year, the Indian Institute of Planning and Management (IIPM) based in Delhi, filed suit against Caravan, a monthly magazine of political and cultural commentary, for the sum of INR 500 million (The details of the lawsuit were explained in a note from the Caravan editors in its issue of July 2011).
Headed by an individual named Arindam Chaudhuri, the IIPM is an establishment that conducts training programmes and a graduate course in business management. It has a high-profile media presence since it has an annual advertising budget estimated at INR 300 million, probably the highest among all educational institutions in India. But there has been widespread public scepticism over the quality of its academic courses.
Caravan had in its February 2011 issue, featured an article titled “Sweet Smell of Success: How Arindam Chaudhuri Made a Fortune Off the Aspirations — and Insecurities — of India’s Middle Classes”. The article was a substantive pre-publication excerpt from a book by U.S.-based journalist Siddhartha Deb, due for publication in July 2011. The IIPM lawsuit names the author, the publisher Penguin Books India and the internet search portal Google India as respondents, other than Caravan, accusing them of “grave harrassment and injury”.
The lawsuit was filed not in Delhi, where both the IIPM and Caravan are based, but in Silchar town in the north-eastern state of Assam, over 2000 kilometres away. IIPM was the second petitioner, the first being a Silchar businessman known to be associated with the institute as a recruiter.
At the first hearing of the case, the civil court in Silchar granted the IIPM a preliminary injunction, enjoining Caravan to remove the impugned article from its website. This decree was issued ex parte, without any pre-hearing notice to the magazine. The article has since failed to turn up in search operations conducted through the Google portal.
This case study vividly illustrates the syndrome that the legal scholar and senior Supreme Court counsel Rajeev Dhavan has highlighted: that “in most civil defamation cases, the real mischief takes place right at the beginning … when injunctions are freely granted to prevent the publication or dissemination of an existing or proposed publication”(Publish and be Damned: Censorship and Intolerance in India, Tulika Books, Delhi, 2010, page 112).
India continues to treat defamation as a criminal offence. A recent case is that of T.P. Nandakumar, a magazine editor in the southern Indian state of Kerala, taken into custody on 3 July 2010, following a complaint lodged by an Indian businessman resident in the Gulf emirate of Abu Dhabi. He was released on bail the following day.
Nandakumar, who edits a weekly magazine called Crime, was under court injunction not to publish any material on the complainant. His arrest followed the posting of an article pertaining to the same individual on the magazine website.
Crime magazine has earned a wide readership in recent years by carrying a number of stories with significant political impact. A story that it featured on the Minister for Education and Culture in the state, led to libel action under applicable civil law.
Media leaders in India have long argued the case for decriminalising the offence of defamation. In a 1995 ruling, the Supreme Court declined to order prior restraint on a magazine’s right to publish a convicted serial killer’s memoirs, despite urgent pleadings by a number of top officials (R. Rajagopal vs State Of Tamil Nadu; equivalent citations: 1995 AIR 264, 1994 SCC (6) 632. Bench: B.P. Jeevan Reddy and S.C. Sen, JJ).
Prison officials in the city of Chennai in the southern state of Tamil Nadu argued that the memoirs if authentic, were written in violation of rules and their publication would hence be illegal. If inauthentic, then the purported memoirs constituted a serious violation of the right to privacy of the convict. They pleaded that there was also a clear intent in the purported memoirs to defame top police and prison officials in the state.
Without examining the question of the authenticity of the memoirs, the court ruled in this case – popularly known as the “Auto Shanker case” -- that the right to privacy was necessarily subject to certain limitations where compelling public interest was involved. Since several supposedly private details of the individual’s life had already emerged in the public domain as a consequence of his trial for murder, a memoir that provided a different perspective on known facts could not be deemed a violation of privacy. No individual had the authority to stop another from recording his or her account of any sequence of events. And public officials could not argue the case for prior restraint on the grounds that their image and reputation would be damaged by the revelations of a convicted criminal. Adequate remedies, if required, would be available to them post facto.
In April 2003 and the following month, J. Jayalalitha, the chief minister of the state of Tamil Nadu, filed a series of criminal defamation cases against The Hindu, a venerable English-language newspaper publishing from the state capital of Chennai (formerly Madras) since 1878. An intent to intimidate and silence was evident. Though the count is still a little confused since the lawsuits were filed in precipitate haste and with little regard for precision or legal logic, it is estimated that upto 17 defamation cases were launched against The Hindu in the matter of a few days.
The Hindu went through a top editorial change in June 2003, but seemingly to keep the pressure on, the Tamil Nadu legislative assembly in November that year ordered the jailing of five among the newspaper’s top editorial functionaries for 15 days, on accusations of a breach of privilege of the house. Articles published in the newspaper, allegedly, brought the legislative assembly into “contempt” and "cast a slur on the chief minister's actions.”
This particular arrest order was halted by the Supreme Court soon afterwards. The defamation cases though, remained. In December, The Hindu filed suit in the Supreme Court, arguing that criminal defamation was an outdated concept, fundamentally opposed to the right to free speech guaranteed by article 19 of the Indian Constitution (Details of the cases filed against The Hindu are available here).
This was an opportunity for an authoritative judicial determination on the application of criminal law in matters involving the purported offence of defamation. But as in several other instances when basic questions are required to be sorted out in judicial deliberations, this opportunity was lost. Jayalalitha in May 2004, following general elections in the state which led to her losing power, announced her decision to withdraw all cases against the media, including those against The Hindu. In September 2004, the government of Tamil Nadu state, now under a different leadership, filed an affidavit in the Supreme Court, with full documentary assurance that the 125 defamation cases filed against newspapers and magazines – including The Hindu – had been withdrawn from the court of the Sessions Judge, Chennai and the Madras High Court (Details available here)
Exceptions are available under the criminal law of defamation on grounds of “public interest” and “good faith”. The scope of these legal provisions and their application in specific cases though, remain under-explored. Inconsistency of principle among the main actors – from government officials to the judiciary to the owners and top managers among India’s media – is clearly a major obstacle to free speech being accepted as an inviolable right that all citizens enjoy.
To access entire report, click here
(Sukumar Muralidharan is the Program Manager, South Asia, International Federation of Journalists)