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What’s in a Name?

A recent award of Rs 2 crore by the Delhi High Court to a defamed army officer has sparked a debate about the defamation law impinging on the fundamental right to freedom of speech and expression

By Dr Swati Jindal Garg

A slip of the foot you may soon recover, but a slip of the tongue you may never get over.

Benjamin Franklin, American author and scientist

In a case that caught the headlines, Justice Neena Bansal Krishna of the Delhi High Court directed that Rs 2 crore be paid to Major General MS Ahluwalia by Tehelka.Com, its owner M/s Buffalo Communications, its proprietor Tarun Tejpal and two reporters, Aniruddha Bahal and Mathew Samuel for loss of reputation.

The case dates back to March 2001, when a story about alleged corruption in defense deals in relation to the import of new equipment was carried on Tehelka.com. This was after a sting operation was conducted by Bahal and Samuel, who posed as representatives from a fictitious London-based defense equipment firm that was keen to introduce new equipment in the Indian Army. The sting operation, which showed army officers, civilian officers working in the Ministry of Defense and politicians, was also aired by Zee TV which was made a party in the case by Ahluwalia. The army officer had approached the Court in 2002 stating that in the video tape as well as in the transcript an impression had been created that he had demanded “Blue Label Whisky” and Rs 10 lakh from Samuel, which was false.

The fact that defamation casts a lasting impact on the aggrieved person cannot be denied. There have been cases where blatant defamation caused serious harm to the reputation of an honest citizen, and mere tendering of an apology, usually after years or even decades of alleged publication, was held as “not only inadequate but also meaningless”.

Observing that the plaintiff not only faced a lowering of esteem in the eyes of the public, but that his character had been maligned with serious allegations of corruption which no subsequent refutation can redress or heal, the Court said: “Truth is considered to be the best vindication against slander as wisely quoted by Abraham Lincoln. Yet, truth lacks the potency to restore the reputation that one loses in eyes of a society which is always quick to judge. The disconsolate reality is that wealth lost can always be earned back; howbeit, the scar to one’s repute once etched in the soul, yields nothing but forlorn even if millions are granted in reparation.”

Many may feel that this is a case of too little too late. Ahluwalia had to live with the stigma of being corrupt for too many years to now be satisfied with this sum. The Court rightly pointed out that the “scar” to one’s reputation cannot be healed even by granting millions.

The reputation of a person forms an intrinsic part of his life as in a country like India, people care about their honour and name like they care about their life. Defamation under the Indian Penal Code, 1860, refers to attacking another person’s reputation by making or publishing defamatory statements against them. It could be either in the form of libel or slander. While libel is defamation in some permanent form such as written, printed, etc., slander is defamation through spoken words or gestures. Sections 499, 500, 501 and 502 of the Indian Penal Code, 1860, contain the provisions regarding the offence of defamation. Section 499 lays down a comprehensive definition of defamation and its exceptions. According to these provisions, the three essentials of the offence are: making or publication of imputation, means of imputation and intention of harming the reputation.

The law of defamation has been extended to “electronic documents”. Section 469, IPC, has been amended by the Information Technology Act, 2000, to include “electronic record forged”. Section 66-A, Information & Technology Act, 2000, was quashed by the Supreme Court in Shreya Singhal vs Union of India due to ambiguity in the definition of the word “offensive”.

There have been other prominent defamation cases too. Many cases were filed against the media, mainly by politicians. J Jayalalithaa had filed 125 defamation cases against The Hindu and other publications during her tenure as Tamil Nadu chief minister between 2001 and 2004. She, however, withdrew the cases later, saying that she hoped that the media would ensure unbiased reporting on her in the future. Congress MP Shashi Tharoor filed a Rs 10 crore defamation suit against a newspaper. In fact, a Rs 100 crore defamation suit was filed by a judge against Times Now. The channel had, in 2008, erroneously run Justice PB Sawant’s picture instead of another judge in connection with a Provident Fund scam. The image was on air for 15 seconds. The Bombay High Court had ordered the channel to deposit Rs 20 crore in cash and give a bank guarantee of Rs 80 crore to it as damages which the judge sought. The channel appealed, contending that it had apologised to the judge which it ran in the news scroll for five days. Dismissing Times Now’s appeal against the order, the Supreme Court had asked it to first pay up and return to the Bombay High Court where the case was being heard saying: “We are not inclined to interfere….there are serious debate on the issues…which have to be adjudicated by the High Court.”

In another case recently, Twitter expressed concerns over “intimidation tactics” by the Delhi Police and the “potential threat to freedom of expression”. The government hit back, calling the statement baseless, false and an attempt to defame India to hide Twitter’s own follies.

The Indian Medical Association, too, in May 2021, served a defamation notice on Baba Ramdev for alleged disparaging remarks against allopathy and allopathic doctors. It demanded an apology from him within 15 days, failing which it said it would demand a compensation of Rs 1,000 crore from the yoga guru. 

Time and again, the Indian courts have reaffirmed the right to reputation as a part of the right to life under Article 21. Using the principle of “balancing of fundamental rights”, courts have held that the right to freedom and speech and expression cannot be “allowed so much room that even reputation of an individual which is a constituent of Article 21 would have no entry into that area”.

With the rise in defamation cases, there is also an increased demand for the repeal of the law of defamation. This is because criminal provisions have often been used purely as a means of harassment as a majority of these cases are withdrawn. It has also been argued by critics that the defamation law impinges on the Fundamental Right to “freedom of speech and expression” and that civil defamation is an adequate remedy against such wrongs and hence the criminal provisions ought to be done away with. 

On the other hand, criminal defamation has a pernicious effect on society. For instance, last year, the Madras High Court while quashing defamation cases initiated during Jayalalithaa’s tenure against the media held that public servants and constitutional functionaries cannot be allowed to misuse the law of criminal defamation by using the State as a tool to initiate defamation proceedings against their adversaries. 

Administrative authorities, particularly the police, must be professionally trained and made aware about laws like criminal defamation which have a high tendency of being misused against an innocent person. The lower judiciary too, where such cases are initiated, needs to be properly trained in this regard so that frivolous complaints having no prima facie case must be dismissed.

Unfortunately, we live in a society which will question one’s reputation, but will believe defamation issues without question. Reputation is an asset to every person and the laws of defamation can be enacted to prevent anyone from maliciously misusing their right to freedom of speech and expression. 

—The writer is an Advocate-on-Record practicing in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi

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