First published on: May 18, 2016
Criminal Defamation a Tool in the Hands of the Corporates, Sedition in the Hand of the State
The recent judgment of Supreme Court upholding the constitutional validity of criminal defamation provisions has been rightly criticised. Undoubtedly the provision of criminal defamation violates the fundamental right to freedom of speech and expression and should have no place in the law.
While agreeing broadly with all the reasons given for criticising the Judgment, I feel it is also necessary to highlight the use of criminal defamation against activists and civil society organisations which has increased over a period of time.
United Phosphhorous and Vapi Industrial Association filed a criminal defamation case in 2013 against Rohit Prajapati an activist working for decades on environmental issues in Gujarat and across the country. He made a statement against the increasing pollution at Vapi, Gujarat (which any person with a slight sense of smell can be hit by when passing through the city) and the sub standard functioning of common effluent treatment plants in the region.
He is facing a criminal defamation case in Vapi in addition to a case filed against him for damages of Rs. 25 crores. Rohit has to regularly give up his normal work and attend the Vapi Criminal Court for marking his attendance.
Kheti Virasat Mission an organisation working in Punjab has been facing a defamation trial in Mumbai since 2006 because they said that indiscriminate use of pesticide is harmful for agriculture.
Similarly Greenpeace has been facing a trial at a Court in Mumbai in respect of a report concerning Pesticides found in tea.
Rajiv Trivedi, an Additional Commissioner from Hyderabad has filed a criminal defamation case against Civil Liberties Monitoring Committee concerning a statement made by the committee about the Hyderabad Police’s involvement in Sohrabuddin encounter case.
Jeans Knit Care Limited filed a criminal defamation case against the Netherlands based International organisation Clean Clothes Campaign for pointing out bad working conditions in the garment industry in India.
Similarly Multi-Commodity Exchange (MCX), the financial body filed a criminal defamation against Ajay Shah, a leading economist for having criticised its functioning.
These are but a few examples of civil society organisations facing criminal defamation cases especially from big corporates. Undoubtedly the Corporates also file what are known as SLAPP Suits (Strategic Law Suits Against Public Participation) against civil society organisations and individuals.
Many organisations like Greenpeace, Centre for Science and Envrionment, Narmada Bachao Andolan and others are repeatedly subjected to civil suits for injunction and damages on the allegation that defamatory statements are being made.
While the Supreme Court was considering only the criminal law of defamation, the misuse of the civil law by the Corporates needs to be equally examined.
But coming back to the issue of criminal law of defamation and its impact on civil society organisations and activists, there are four reasons given by the activists which make them vary of the criminal law of defamation.
First, a defamation case can be filed anywhere. The law being that such a case can be filed by the person defamed in any place where he is defamed. So, Kheti Virasat Mission which works in Punjab gave a statement about pesticide industry to a newspaper in Delhi is facing criminal prosecution in Mumbai because the Company says its officers read the newspaper in Mumbai.
Second, coupled with the above, the requirement of personal appearance in criminal matters (which is not a requirement in civil matters) causes tremendous hardship. While on applications, the criminal courts do at times give exemption from personal appearance, this does not happen in all cases and if you miss a date without having exemption, a warrant can be issued. Everyone, including the higher courts, know that these criminal cases can go on for years together.
Third, Truth by itself is not a defence in criminal defamation which is not the case in civil defamation.
Fourth, there is always a possibility of conviction and jail sentence.
All the above, can have a chilling effect not just on persons who are sued but also on others. Invariably newspapers get sued along with the individuals whose statements are quoted and the newspapers start becoming extra cautious in what they quote.
Increasingly the criminal law of defamation is being used against civil society organisations and activists across the country. It is a clear division of labour between the large corporates and the State.
When you criticise the state, charges of sedition, hurting religious sentiments, etc. are put. When you criticise the corporates, civil or criminal defamation cases are filed. Freedom of speech and expression is attacked from both sides and in that context the judgment of the Supreme Court upholding the criminal defamation provisions is highly regrettable.
(The author is a senior advocate in Mumbai)