The Supreme Court, on May 13, announced its decision to uphold criminal defamation laws. The constitutional validity of Sections 499 and 500 of the Indian Penal Code providing for criminal defamation were challenged by Congress vice-president Rahul Gandhi, Bharatiya Janata Party leader Subramanian Swamy and Delhi Chief Minister Arvind Kejriwal along with journalists, through separate petitions.

Considering how criminal libel has often been used to suppress dissent and quell media scrutiny, we spoke to a few journalists currently embroiled in criminal defamation cases to know their views on the apex court’s decision.

‘Dar toh lagta hai khabar chhapne se pehle’

 Asianet News Editor MG Radhakrishnan was sued by Kerala Chief Minister Oommen Chandy on April 8, 2016, for airing a story pertaining to allegations of sexual harassment on the CM. The case’s first hearing is scheduled on May 20. Radhakrishnan stated that it is imperative that defamation laws in any decent democracy remain within the realm of civic offences and not criminal acts. “India is one of the very few countries which still continues with criminal defamation laws which, I think is outdated for any democracy,” he said.

“Such laws come in the way of journalists’ duty to explore the truth and to also ask questions of political, financial and corporate power,” he said, adding that these laws not only act as a deterrent to freedom of expression, but also the people’s right to know.

Vinod Gupta, reporter with Punjab Kesari in Gurdaspur, has been fighting a case of criminal defamation since 2002. He was sued by Yogesh Mahajan, District President of an organisation called Flying Squad Anti Corruption, in Pathankot, Punjab, for allegedly publishing “wrong and defamatory statement”.

Gupta’s explains how the case has affected his work: “Dar lagta hai khabar chhapne se pehle. Bees baar sochte hain, likhein ya na likhein.” (We feel scared before publishing a copy. We think 20 times if we should write a piece of news or not.)

The case, according to Gupta, is still pending. “Tab se hi chal raha hai. Session Court mein appeal ki hai ab humne, par pure process se tension toh hota hi hai bohot. Har agle din court mein jaana padta hai. Kaam pe farak padta hai, parivar pe farak padta hai, sochte hain, kahan phas gaye?” (It’s going on since then. We have appealed in the Session Court now, but the entire process gives a lot of tension. I have to go to the court every alternate day. Work gets affected, family gets affected. Sometimes we think, what have we gotten stuck with?)

Apar Gupta, Delhi-based lawyer, pointed to this very aspect. “The first and the biggest problem by itself is that due to delays in the Indian judicial system, you don’t get an ‘innocent or guilty’ verdict immediately,” he said. “It takes a long number of years. It takes away your time, your money and your energy. It’s not as if the ultimate conviction is the punishment for the person, it is the engaging with the entire process itself, to prove you are innocent.” He adds that the apex court’s decision takes a narrow, technical view of the offence of criminal defamation. “The problem in the law is not only the letter of the law as it is on the statue, it’s also how it’s being applied.”

Paranjoy Guha Thakurta, journalist and author, echoed this sentiment. “I was hopeful that the honourable Supreme Court would not make defamation a criminal offence, that it will just be a civil offence,” he said. “But the judges thought otherwise. Many countries in the world, especially countries that believe in democracies, freedom of expression, and countries with governments that are not authoritarian, they do believe that it could be a civil offence.”

Gupta said criminal defamation is no recourse to those fighting libel or slander. “It only results in harassing people who are accused of defamation,” he said. “The person isn’t even necessarily held guilty, but is made to go through a dilapidating process. In such a case, the proper way out is to respect the first principle, which is the freedom of speech and expression. The right way to tackle this is through a civil penalty which is effective with respect to defamation.”

He further added, “We also need to consider that a large amount of false news, paid news and inaccurate news originates from large corporate houses. The corporatisation of news is a fact of daily lives now. Living in a society where news is being made for a motive of profit, what higher penalty or a deterrence can there be than a civil penalty and not a monetary fine.”

The author can be contacted on Twitter @anjaliSharma57