The law that muzzles free speech
Imagine this: Rahul Gandhi, accused of defaming the RSS, joins forces with sworn enemy Subramanian Swamy to overturn the criminal defamation law.
PRASHANT REDDY THIKKAVARAPU propounds this delicious impossibility.
Subramanian Swamy’s recent constitutional challenge to Section 499 of the IPC has focussed the spotlight brightly on the reasonableness of sending people to jail for the offence of criminal defamation.
In the backdrop of this petition by Swamy, a known baiter of the Nehru-Gandhi family, it may be interesting to take a look at a recent judgment of the Bombay High Court dismissing a plea by Rahul Gandhi to quash the criminal defamation proceeding which has been initiated against him by a member of the RSS for comments made by him about the RSS’s alleged involvement in the assassination of Mahatma Gandhi.
The facts of the case are simple. In the heat of the general elections last year on March 6, 2014 Congress Vice-President Rahul Gandhi had famously accused members of the RSS of killing Mahatama Gandhi.
Shortly after those utterances, a member of the RSS in Thane District filed a criminal complaint under Sections 499 and 500 against Rahul Gandhi for criminal defamation. The judicial magistrate took the statement of the complainant and referred the matter to the police for further investigation. On receiving the enquiry report of the police, the magistrate took cognizance of the offence and issued a summons to Rahul Gandhi on July 11, 2014.
On receiving the summons, Rahul Gandhi moved the Bombay High Court under Section 482 requesting it to quash the criminal complaint and summons. Under Section 482, the High Court is only required to examine whether there has been an abuse of process by the magistrate in issuing a summons.
To issue a summons, a magistrate only needs to be convinced that the elements of the offence areprima facie made out from the complaint and the police enquiry. The veracity of the comments is determined only after a trial has been conducted. Only in cases where there has been an abuse of process - where a prima facie case is not made out or where the proceedings are clearly barred by the law - will the High Court quash the complaint and summons. Thus the standard for quashing a complaint under Section 482 is quite high.
The law aside, it is rather perplexing that Rahul Gandhi has chosen to take the legal route, instead of turning these criminal proceedings into a political drama to attack the RSS and bring back the spotlight on Godse’s background. There could not have been a more politically opportune time for Rahul Gandhi to court arrest in these defamation proceedings, refuse bail and spend some time in jail to introspect and reflect in solitude.
Why apply for leave and go on a private holiday when he could put the BJP-led Maharashtra government through the uncomfortable exercise of imprisoning him and facing the collective wrath of the Congress Party? He could have killed two birds with one stone.
Returning to the case at hand, the exact statement of Rahul Gandhi, which he does not deny uttering, is reproduced below from the text of the High Court’s judgment:
“We gave the telephone to India, This is their style. Gandhiji was killed by them; persons from the RSS shot Gandhiji. And today their people talk of Gandhiji. Sardar Patel: Sardar Patelji was a leader of the Congress Party. He has written very lucidly about the RSS; he has written very clearly about their organization.”
It is not very clear as to why Rahul Gandhi began the sentence with a reference to a telephone and ended up talking about the Mahatma being killed by RSS persons. His lawyers explained to the High Court that the statement had been made in the context of a speech explaining how the BJP was trying to appropriate the names of Gandhiji and Sardar Vallabhbhai Patel, despite the fact that both were from the Congress Party.
They explained that it was not Rahul Gandhi’s intention to defame the RSS. After this explanation about the context, they proceeded to the main defence of truth being a complete defence in defamation proceedings. Rahul Gandhi’s lawyers produced before the Court, the Government’s resolution on 4.2.1948 banning the RSS and also letters written by Sardar Vallabhbhai Patel and Dr Shyama Prasad Mukherjee to the then RSS chief, Golwalkar. The Court, however, notes that neither the letters nor the banning order directly state that the assassins of Gandhiji were members of the RSS.
The second track of defence taken by Rahul Gandhi’s lawyers was to rely on a judgment of the Punjab and Haryana High Court (which is unfortunately not traceable at the moment) in the matter of Aroon Purie & Ors. v. State of Haryana & Anr. In this case Aroon Purie, the editor ofIndia Today, had published an article in the issue of August 18, 2003 which stated “Among the 300 people who greeted him that evening was Nathuram Godse, an RSS worker, who fired three shots at close range from his automatic 9 mm Beretta into the fragile chest of the Mahatma”.
In its judgment, the Punjab & Haryana Court had stated the following:
“In the back-drop of the above, if the publication is seen and especially in the context that there is a raging debate attributed to the historians, who have tried to trace the pugmarks of such historical characters, any imputation which is made presumably on the basis of the material which if not even entirely true is near the truth and inference as truthful as the truth itself, cannot be termed to be defamatory. The doctrine of “fair comment” encompasses that if a publication which broadly speaking is true in fact and not made to satisfy any personal agenda or vendetta would seemingly be protected.”
The Bombay High Court disagreed with the above reasoning, stating instead that it was up to the accused to prove before the trial court that the statement was in fact made in good faith. The court reasoned that since the RSS was not a political party and not contesting the elections, it prima facie appeared that Rahul Gandhi knew, or had reason to believe, that he would be harming the reputation of the RSS. Since the elements of a prima facie case of defamation existed, the High Court refused to intervene under Section 482. The petition was thus dismissed.
As a result of the High Court’s order, Rahul Gandhi will now be required to appear before the magistrate. He can either seek to be discharged on the grounds that there is not enough evidence to proceed with a trial, or, if the court does find that there is enough evidence to frame charges, it will proceed with a trial to test the veracity of the evidence.
An alternative ending, preferred by this writer, would be to see Rahul Gandhi join forces with Subramaniam Swamy and challenge the constitutionality of Section 499 on the grounds that it imposes an unreasonable restraint on free speech.
Like Swamy, Rahul Gandhi has been accused of defamation by his political opponents and he will have adequate cause to join the existing proceedings before the Supreme Court. The irony of such a joint battle cannot be missed, given the range of colourful, prima facie defamatory comments made by Swamy against the Nehru-Gandhis on his website.
Irony aside, such a joint challenge will force the Congress Party and perhaps even the BJP to take a stand on the possibility of decriminalizing defamation in India and retaining it only under civil law.
For those in the media, it is time to start exerting pressure on the Central Government to file a reasonable affidavit before the Supreme Court agreeing with Swamy, rather than defending the constitutionality of the provision.
Compared to Section 66A of the IT Act which applied to only communication over the electronic media, Section 499 probably has a far more significant impact on chilling free speech in the country because it applies to any utterances spoken or written in any media.
Yet, it is unlikely that Swamy’s challenge to Section 499 will draw even a fourth of the attention given to Section 66A. What are the reasons for the disproportionate difference in public perception the two laws? Both criminalize certain speech by citizens. Did this happen because Section 66A was affecting the commercial interests of the financially formidable internet industry? Just how big a role did funding from the internet industry play in shaping the debate around Section 66A?
The support received by Swamy’s petition from the media and civil society will perhaps provide us with a more accurate barometer of the manner in which Indians perceive their fundamental right to free speech.
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