Justice Balakrishnan, in refusing to quash criminal proceedings against a nineteen year old blogger, says that any blogger posting material on the web should be aware of the reach of the internet and hence also be willing to face the consequences of such action. This sounds fair enough, and it would seem that if bloggers are exercising their right to freedom of speech and expression, then they should be subject to the same norms as a newspaper or magazine would, including the possibility of legal action being taken against them.
This sentiment reminds me of Anatole France’s famous statement that the law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread. The quick equation of an individual blogger with the might of a newspaper or a magazine is a little troubling. Individuals do not have the same kind of power, money or reach to be able to defend themselves in the way that newspapers may be capable of.
Legal action against an alleged defamatory act can either be in the form of criminal action (Sec. 499 of the IPC) or a civil action under common law for damages. The main difference between the two is that while criminal defamation seeks to punish the offender, the civil action seeks compensation in the form of monetary damages. It is also important to note that while intention of the defaming party is relevant for any action brought under Sec. 499 of the IPC, it is irrelevant for the purpose of any civil case. Furthermore, a criminal action and civil action for defamation are not mutually exclusive, and both can be pursued simultaneously. While there are a number of defenses available against a charge of criminal defamation, that is rarely the point, since it is the procedure itself that is the punishment. Added to this is the fact that a defamation case can be filed at any place where the publication was available, which in the case of the internet can mean that a case can be filed just about anywhere. There is, by now, a pretty long history of the use of defamation laws by corporations to silence any form of critique, or action by activists. This has even been acknowledged by the Supreme Court in the past. In Indian Oil Corporation v. NEPC (2006), the court observed that there was
“a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable break down of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure though criminal prosecution should be deprecated and discouraged.”
Citing G. Sagar Suri vs. State of UP [2000 (2) SCC 636], this Court observed :
“It is to be seen if a matter, which is essentially of civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this Section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice.”
While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under section 250 Cr.P.C. more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant.
It seems that in refusing to quash the proceedings against Ajith, Justice Balakrishnan has applied Anatole France’s ironic dictate and ignored previous cases that clearly recognize the misuse of criminal defamation. When organizations like the Shiv Sena and the Sri Ram Sene start using defamation laws, it smacks of chutzpah to me. The definition of Chutzpah is a person who kills his parents, and then claims clemency on the grounds that he is an orphan. What other way can we describe the bizarre situation of the violence prone macho men, who suddenly run around screaming about the violation of their legal rights and the slurring of their reputation?
So we find ourselves in a slightly tricky situation. On the one hand we have an increase in corporate crimes, organizations capable of taking the law in their own hands, and when individuals respond through their writing, they then have the long hand of the law to contend with. This mode of silencing through the legal process is quite well known. At the global level the Mac Libel case has been documented in some great detail. Even though the case was won by MacDonalds, it turned out to be a PR fiasco for them, with the kind of adverse media attention that they received.
In India we have had a similarly chequered history of the use of defamation by corporations and right wing organizations. In 1984, Campa Cola obtained a ‘gagging order’ on India Today (S. Charanjit Singh v. Aroon Purie, (1983) 4 DRJ 86; In 1982 the Madhya Pradesh High Court injuncted the Weekly Gwalior Reporter from publishing defamatory and insulting material; Han Shankar v. Kailash Narayan. AIR 1982 MP 47; in 1987, the Karnataka high Court injuncted the publication of the novel ‘Avasthe’ and its being converted into a film on the basis that the contents were not very flattering to the memory of a ‘new-deceased’ socialist leader; Sonakka Gopalagowda v. LLR.Anantha Murthy, AIR 1988 Kar 255; In 1988, the Delhi High Court injuncted advertisements about the sale of ‘Garden’ sarees as hurting the business interests of the manufacturer Garden Silk Mills Ltd, Vasdev Motwani, AIR 1989 Del 46; In 2003, the S. Kumar corporate conglomerate building the Mahabaleshwar dam successfully injuncted the Narmada Bachao Andolan from exposing financial dealings even from public records. (Source: Rajeev Dhavan, Harassing Hussain, Safdar Hashmi Memorial Trust, 2007, See also, Rajeev Dhavan, Whistles, Stings and Slapps, The Hindu, Friday, December 12th, 2003)
These are merely an illustrative set of cases highlighting the misuse of criminal defamation, and there are many other cases which have are not even reported, or where the cease and desist notice has served its purpose. Recently Ranjan Kamath received a notice from Tata and Sons threatening him with legal action against his letter for the cellular silence day. Arindam Chaudhy, he, of the count your chicken before they hatch, and get a free laptop fame threatened legal action against Gaurav Sabnis, a blogger, for his comments on the tall claims of the IIPM. And most recently, the Fomentos have filed a case against Sebastian Rodrigues in the Calcutta High Court, claiming damages of Rs 500 crores, for his writings in his blog, expoising the mining industry in Goa. Sunita Narain says that “companies who file SLAPP cases rarely win in court, but achieve their real objective to discourage others from speaking out.” United Phosphorous filed a case against Umendra Dutt of the Kheti Virasat Mission for discussing in public the ill-effects of pesticide exposure, and followed this up with a case against the Times of India for publishing a report quoting Dutt.
So rather than seeing this as an issue of the privilege of bloggers v. newspapers, it might make sense to locate the history of criminal defamation within the larger context of free speech as it affects different kinds of practitioners. And it might make sense for bloggers to also get a little organized in their responses to censorship of bloggers, because this is indeed one of those cases where an attack on one will eventually be an attack on all.