SC Verdict on criminal defamation: scary, chilling effect on journalism, say editors

They are sceptical of the SC's recommendation that magistrates apply the law with great care

news Criminal Defamation

The Supreme Court on Friday upheld the penal provisions for defamation in the Indian Penal Code, observing that the Right to Life under Article 21 includes the Right to Reputation. The Court said that there is a need to strike a balance between reputation and freedom of speech.

The Court further said that it is difficult to say that criminal defamation has a chilling effect on the Freedom of Speech and Expression.

For journalists in India, some of whom were petitioners in the current case, the SC verdict has come as a big blow. Reacting to initial media reports on the Supreme Court verdict, many said that they were disappointed by the verdict. However, they all maintained a more thorough look of the judgement was necessary before responding further.

Journalist and Consulting Editor of the India Today Group, Rajdeep Sardesai, responded to the SC verdict saying, “In principle, criminal defamation has been misused in the past. It has been used as an instrument of harassment against journalists by those politically powerful.”

N Ram, Chairman of Kasturi & Sons Ltd, and former editor and publisher of The Hindu, said that criminal defamation “is a law of the bygone age. Most countries have abolished it either on paper or in practice.

He said that there is currently no balance between the right to free speech and the right to reputation. “The balance is struck in the favour of the right to reputation, and in a rigorous fashion.”

Pointing out that In TN alone there are more than 130 defamation cases in Tamil Nadu alone, he further added, "The chilling effect will continue. I hear there is a line in the judgment which says the magistrates should be careful while taking these cases, but that's up to the Gods, as they say. It's up to luck and how the magistrate is.”

He also added that it should be remembered that, “here the process is the punishment. People have to attend the court, and it could be in far off places. It's very difficult."

Editor of Economic and Political Weekly, Paranjoy Guha Thakurtha, said, “I haven’t read the judgement, but my first reaction is one of disappointment. I had hoped that the Supreme Court would (scrap it). Many countries have only civil defamation.”

Referring to the defamation notices that were sent out by Reliance in response to Gas Wars, a book he co-authored, Guha Thakurtha said that criminal defamation had a “chilling effect” on journalists and others.

Sevanti Ninan, founder-editor of The Hoot.org, said that the judgment is "regressive" and "will have a chilling effect on free speech".

"It puts the onus on the judiciary to admit cases. Also every day two to three cases of defamation are filed — and although how many of them are criminal defamation cases is not clear, it is that common — the judgment is a matter of concern," she said.

Sucheta Dalal, business journalist and Managing Editor of MoneyLife.com, said that based on media reports, “I am horrified, it is scary.”

"As it is there are no checks and balances in the system, and we are facing absolute harassment on the civil side with slapp-suits being filed on us just to harass us as journalists," she said.

She added that justice is easily available only for people with money and power, but journalists are unable to afford it.

"Criminal defamation cases had slowed down because of this case pending at the SC, but now we are going to face the heat again," she said.

As for the SC saying that magistrates must be careful in pursuing cases of criminal defamation, she said, “… we all know that is not going to happen.”

She also said that the court has not taken into consideration how the media is changing in the country. “The Big Media have their advertising. Smaller organizations and bloggers expose what needs to be, and now they will suffer. Genuine voices like us will suffer."