By Sanjay Pinto
What the Constitution Of India guarantees its citizens, a provision of
the Indian Penal Code seeks to undermine. A fundamental right that the world’s
largest democracy can be proud of – freedom of speech and expression, runs the
risk of being rendered a dead letter by a Code of 1860 vintage, that was
designed by the British to muzzle the press and patriotism. Even a
fresher at Law School will tell you that in a toss up between a Constitution
mandate, that too one that is enshrined as a basic structure and any other law,
it is the former that shall prevail. So in Article 19 (1) (a) Vs Sec.499 of the
Indian Penal Code, I hold a brief for free speech. At a time when there has
been an outcry to erase the ‘unnatural’ taint from homosexuality, at a time
when there is a demand for the abolition of capital punishment for
murder, at a time when there is a nationwide chorus against corruption
and the media rattling skeletons in cupboards; at a time when the fourth
estate, along with the judiciary, of course, is being seen as the last ray of
hope for the common man, particularly against the ‘Swindlers List’, are
we going to allow a damocles sword – the prospect of imprisonment, to
hang over the heads of journalists for performing their democratic duty? It is
for this reason that several countries, including neighbouring Sri Lanka, have
decriminalised defamation. As the Law Ministry in India is debating the issue,
I’ve decided to throw my hat in the ring and implead myself in the case!
Criminal defamation’s most predictable recipe is malicious prosecution.
Not a month passes in the country without some vindictive soul running to
a magistrate with a vexatious criminal complaint against a
journalist. And yes, with two set up witnesses to say that they had lost
respect for the complainant after reading or watching a news story! (I wonder
how many who actually lose respect for a person will take the trouble to
accompany the ‘defamed’ bloke to the salubrious environs of a criminal court to
pour their heart out!) Ironically, some of these ‘victims’ of ‘criminal
defamation’ would be either accused of some scam or raided by Central or State
Govt sleuths and resort to this tactic more as a pre-emptive strike or a
prophylaxis to ensure that no more dirty linen is washed in public! It’s hard
to resist quoting Lord Denning: “if you don’t want your dirty linen to be
washed in public, it’s very simple. Don’t have dirty linen at all!”.
The Code Of Criminal Procedure, under Sec.482, may seek to remedy
the potential mischief by giving High Courts the inherent power to quash such
frivolous criminal complaints. But at what cost? And given the backlog in our
High Courts and the Supreme Court, how often are they able to intervene? The
easiest option is to ask the petitioners to prove their innocence in the trial
court. And the complainant often deliberately throws up a slew of ‘matters of
fact’ that High Courts cannot go into, to scuttle a quash petition. Isn’t
the trial itself the punishment for a journalist who has to make endless trips
to the lower court, sometimes even in far flung and remote areas, and stand as
an accused along with petty criminals? Mercifully, there is that ‘dispense with
presence’ allowance. However, the higher judiciary must never lose sight of the
fact that they are not mere courts of law but courts of justice.
The basic ingredient of criminal defamation is the ‘intention’. It
is the passion for an expose or a good story that drives a journalist, not
criminal intention or mens rea .(I’m not talking about exceptions like planted
stories or scurrilous writing or paid news) Even Lord Macaulay
contemplated ten exceptions to Sec.499. The landmark Bhajan Lal case
notwithstanding, High Courts and the Supreme Court have held that these
exceptions can only be raised at the trial stage. How many criminal
defamation cases end in conviction? And apart from an infringement of Art 19
(1) (a), don't frivolous criminal defamation cases also strike at the root of
his freedom to practice his profession, guaranteed under Art 19 (1) (g)? When a
journalist is acquitted in a trial court, the complainant, invariably uses the
various tiers of judicial wisdom as a tool of further harassment. For how long
can a journalist keep fighting? If in the end, the criminal charge cannot be
substantiated, what is the criminal form of redressal? There is only the option
of a civil suit for malicious prosecution and damages.
All the other estates of democracy have some form of immunity. The
judiciary has the Contempt Of Courts Act. Legislators have privilege.
Prosecuting Government officials requires sanction from higher powers. And
don’t forget a penal provision to take care of any obstruction in the
performance of their duties. There is a court marshall for defence forces. Even
when political leaders in power use the State legal fire power through their
Public Prosecutors to file criminal defamation cases against their opponents,
these cases are routinely withdrawn when there is a change of guard! I must
mention a new trick that politicians use to gag inconvenient journalists –
proxy complainants! Having ‘patented’ benami transactions, they are undisputed
experts at shooting over the shoulders of their minions with private complaints
so that the new dispensation cannot withdraw them! What is the protection that
honest and neutral journalists have against legal excesses and vexatious
adventurism?
With the proliferation of 24 hour television news channels, I do believe
the law needs to keep up with the times. In criminal defamation complaints
against the electronic media, the grossly inapplicable Press & Registration
Of Books Act is being invoked! What’s most unfair and disturbing is the round
robin style implication of Editors of live telecasts. So it’s not just a
Reporter accused of defamatory utterances but even the Editors who are
fastened with criminal liability and made to troop to court. Vicarious
liability exists only in Torts. It has no place in criminal law.There are two
broad categories of television news items. Live Outdoor Broadcasts by Reporters
and Edited News Stories. A basic understanding of the medium will reveal that
it is impossible to edit what is live. If you cannot edit what is live, what is
the role, the liability, much worse, the criminal liability of an Editor of a
live telecast? Often, even the scroll or ticker that keeps running on the
screen is a sort of automated process based on the information provided by the
Reporter during the live telecast. What’s also pertinent here is that Reporters
involved in news gathering are given a fair amount of freedom and autonomy to
report truthfully what they see or hear, subject to editorial guidelines. Their
sources are confidential. It is impractical to expect Editors to cross check
everything Reporters say in their live telecasts. Editors cannot be expected to
carry truth serum and subject their Reporters to lie detector tests
everyday! Edited news stories have scripts written by reporters on the
field and vetted by Editors, voiced and packaged. This is where the
‘Editor’ can come in. Quite like the ‘Editor’ of a print publication.
Unfortunately, this distinction is lost on many. In the absence of a
specific law to govern content in the electronic news media, individual
channels have devised their own internal code of ethics. There is the National
Broadcasters Association that oversees the exercise of self regulation. This is
to obviate the need for the State to impose censorship and gag the news
channels that telecast anti establishment stories. A good recent example of
self regulation is the verdict on the Babri Masjid issue. Not a single national
television channel aired the old visuals of the mosque being demolished as that
would have rekindled the old wounds. Neither were any provocative reactions or
images telecast after the verdict.
Of course, no one in their senses will deny the prevalence of yellow
journalism and those who use the medium to settle personal scores with slander
or to even blackmail others for a quick buck. But let’s not indulge in broad
brushing. Let each journalist’s reputation speak for itself. Let
aggrieved parties pay court fee and file civil suits for damages. Criminal
Defamation, that allows persecution of credible journalists, is an unreasonable
restriction on freedom of speech. It’s rightful place is the archive of legal
history. Let defamation law be only a shield, not a sword.
