A person cannot be prosecuted for defamation for calling a government corrupt or unfit, the Supreme Court said on Thursday, pulling up the Jayalalithaa government for filing several such cases against political opponents in Tamil Nadu.
A bench comprising justice Dipak Misra and justice RF Nariman said filing cases of defamation against legislators or bureaucrats for criticising the government created a “chilling effect”.
“It amounts to curbing of free speech. There has to be tolerance of criticism...The defamation law can’t be used as a political counter-weapon,” the court observed.
India is one of the few countries in the world with both civil and criminal defamation proceedings and punishments range up to two years in prison or a fine or both.
But free-speech activists say the British-era law is often misused by influential people and politicians to crack down on dissent.
In Tamil Nadu, for example, the government filed several cases against political opponents and media houses that criticised official policy or speculated on the state of the chief minister’s health.
“If there are 5,000 cases registered and we find a continuous effort and deliberate design to harass then the court must step in to protect,” said the bench, an apparent reference to the spike in the number of defamation cases filed by the Jayalalithaa government.
The SC’s Thursday observations came on the petition of one such opponent -- DMDK chief Captain Vijayakanth – who said Jayalalithaa misused the law to stifle free speech in the state. The law empowers public prosecutors to approve defamation cases filed against government employees.
The court stayed the non-bailable warrants against DMDK leader Vijayakanth and his wife, Premalatha, issued by a trial court in Tiruppur. The Tiruppur court had issued non-bailable warrants against the couple following their non-appearance before it in a defamation case in March.
Vijayakanth alleged a prosecutor under Jayalalithaa’s regime acts like a “post office,” which it should not.
Taking note of his submissions, the court asked the Tamil Nadu government to produce within two weeks a list of defamation cases launched against government officials, including lawmakers.
Criminalising defamation in India has provoked a debate in recent months after the Supreme Court upheld the provision in May, rejecting pleas from top politicians and public intellectuals who hoped to nudge the judiciary to either abolish or water down the provision.
Justice Misra was part of the bench said the right to speech was not absolute, and that one’s right to reputation was part of one’s fundamental right to life. “When reputation is hurt, a man is half-dead,” the SC had said.
One of the petitioners then was BJP leader Subramanian Swamy, who faces three criminal defamation cases in Tamil Nadu filed by the Jayalalithaa government for allegedly making defamatory comments against her.
Other petitioners in the case were Congress vice-president Rahul Gandhi and Delhi chief minister Arvind Kejriwal.
Justice Nariman was part of a bench that struck down the controversial Section 66A of the information technology act that empowered police to arrest people for posting allegedly objectionable comments on social media.
During the hearing, Justice Misra attempted to justify his judgment to not strike down defamation laws.
“Defamation provisions have to remain. But there should be no abuse of it. The law cannot be used as a political counter weapon by the parties,” he told the counsel appearing for the Jayalalithaa government.