The justice seekers will suffer the penal nature of the process and if they succeed, that relieves only a part of their pain.
Criminal defamation is a redundant anti-expression law, which is a burden on citizens and threat to any communicator. It causes fear and prevents free expression.
Law of criminal defamation is abused by those in power to further victimise the victims of their crimes. The criminal proceedings for defamation will have a chilling effect on the victims and instils fear in them against reporting the crime committed on them. Very rarely one will find a Priya Ramani to stand with courage and fight wrongs.
It will be too early to describe such fight as ‘successful’ because the rivals in such cases are generally resourceful, rich and powerful to pursue the appeals till the Supreme Court. The tragedy is that the prosecution on the charge of sexual harassment is pushed to sideline and uncertainty.
“It was me, the victim, who had to stand up in the court as an accused,” said Priya Ramani after a Delhi court rightly rejected the allegation of criminal defamation by journalist-turned-politician M J Akbar, who was accused by her of sexual harassment. This statement reflects the status of ‘rule of law’.
It is undoubtedly a great success for Priya Ramani against Akbar. Now, the accusation that Akbar sexually harassed needs to be proved. It is fraught with tough tests, procedural difficulties, evidence issues, shortage of courage on the part of constitutional office holders and honesty of prosecutors.
This is the candid example of abuse of defamation as a crime, not only to prevent the prosecution of charges against them, but also as a propaganda tool. Akbar’s case strengthens the demand for the decriminalisation of defamation to prevent its abuse which threatens reporting of crimes by powerful men. The victims of sexual harassment face two immediate threats to stop them from reporting that crime - one, character assassination and two, defamation complaints - both civil for heavy compensation and criminal wrong that threatens with imprisonment.
The justice seekers like Ramani will suffer the penal nature of the process and if succeeded, that relieves only a part of their pain. This is because the process itself became worse than punishment in our judicial system. When Akbar is accused of the charge, the accuser-victim Ramani is turned into accused and made to suffer the process and perhaps will continue to do so for decades in appeals and reviews.
The question is whether complaining itself attracts criminal charge of defamation? If a person has no freedom or right to complain, what is the value of criminal justice system and the constitutional guarantee of freedom of speech? The magna carta started in 1215 with a right to petition at fundamental of all civil rights, which includes right to complain. Are we giving up this age-old established right?
Section 499 of IPC defines crime of defamation with 10 proclaimed exceptions. Accusation preferred in good faith is a significant exception. It is the eighth exception, which says: Accusation preferred in good faith to authorised person: It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject matter of accusation.
The IPC gave an illustration also: If A in good faith accuse Z before a Magistrate; if A in good faith complains of the conduct of Z, a servant, to Z’s master; if A in good faith complains of the conduct of Z, and child, to Z’s father—A is within this exception.
If anybody has made an imputation or allegation of crime for protection of his or her or other interests, it is not defamation. This rule is incorporated in ninth exception, which says: “Imputation made in good faith by person for protection of his or other’s interests; It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good”.
The Penal Code also gave following illustrations:
(a) A, a shopkeeper, says to B, who manages his business; “Sell nothing to Z unless he pays you ready money, for I have no opinion of his honesty”. A is within the exception, if he has made this imputation on Z in good faith for the protection of his own interests.
(b) A, a Magistrate, in making a report of his own superior officer, casts an imputation on the character of Z. Here, if the imputation is made in good faith, and for the public good, A is within the exception.
Priya Ramani has made an imputation of sexual harassment against the journalist, in order to protect her dignity in her interest. It may not be an accusation made to appropriate authority as explained in the eighth exception, because it was part of #MeToo agitation which may be said as not an appropriate authority. But it squarely falls under the ninth exception. Without complaining or exposing, it is not possible for her to get justice.
Thus, it is an established legal principle that complaining or making an imputation to protect own interests is not defamation. It is in public interest and for rule of law, it should not be criminal defamation if that it is part of a complaint. If less and less number of people complain and more prefer to suffer in silence, all crimes including sexual harassment will flourish.
It is pathetic that in the Indian legal system, the victim must suffer prosecution while the accused uses the legal machinery to secure his reputation. The test for core truth must wait until the powerful man’s fight for reputation is completed.
The criminal charge of defamation is an impediment to book the criminals into process of punishment. This crime should not be allowed to be a tool to prevent the process of rule of law. The victims should be facilitated to put the law in motion, irrespective of the status of the criminally accused person. Time has come to abolish criminal defamation from statute books to help victims to complain and journalists to comment.
(The writer is former Central Information Commissioner and Professor of Law)