The minute a Surat court convicted Congress leader Rahul Gandhi on charges of criminal defamation, it was clear there was an imminent threat to his position as the Member of Parliament from Wayanad. Though the court suspended his sentence of two years, a 2013 Supreme Court judgment had already clarified that a stay on the conviction, and not just the sentence, was the only eventuality that could protect the lawmaker’s seat. So, in a sense, the notification on Friday confirming Mr Gandhi’s disqualification was a given — with only its timing being in question. The decision — the law states that he will stand disqualified from the House for the period of his jail term and an additional six years, unless a higher court suspends the conviction — will have political ramifications, for both the ruling Bharatiya Janata Party as well as the Opposition, especially the Congress. But beyond this, there are two important fallouts.
The first is on the nature of political speech and the kind of legal action it invites. There existed an informal compact in India where political speeches made in the heat of campaigns largely remained exempt from the domain of criminal defamation cases. It will be important to see whether Mr Gandhi’s conviction and subsequent disqualification shatters that convention and opens the door for political parties, leaders and groups to file criminal defamation charges against political adversaries — and the route taken by the judiciary to decide these cases. This is all the more important in a year where six high-voltage assembly elections are scheduled ahead of the general elections next year. Will poll campaigns now be peppered with criminal defamation litigation? Will it prompt politicians to be more restrained? Will the courts evolve a new doctrine in adjudicating such complaints? The vagueness of the criminal defamation statute will make these questions even more urgent.
The second is the impact this move will have on the swirling debate on the criminal act of defamation, and whether such a draconian statute is at all required when civil remedies for defamation exist. Criminal defamation is defined by sections 499 and 500 of the Indian Penal Code, which spell out a punishment of a maximum of two years in prison and a fine. Time and again, experts have argued that to criminalise defamation is excessive because curtailing a person’s liberty is disproportionate to the harm caused, and that the vague language used in the provision makes it prone to misuse. The provision is also peculiar because it essentially uses criminal law to prosecute a private wrong – one that is committed by one individual against another individual, and not society at large. Therefore, only another individual or group can bring the charge of criminal defamation against someone, not the State. It is because of reasons such as these that many countries across the world have done away with criminal defamation.
Despite these reservations, the provision remains on the books because the top court in 2016 rejected pleas from top politicians and public intellectuals that the British-era provision was an outdated idea that undermined free speech, and instead held that a person’s right to reputation was part of one’s fundamental right to life. It remains to be seen whether recent developments catalyse another challenge to this statute.
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