With numerous defamation cases filed by Tamil Nadu CM Jayalalithaa, the Supreme Court has asked the state to be tolerant to criticism and give it a list of those in the firing line
By India Legal Team
A Supreme Court bench of Justices Deepak Mishra and Rohington F Nariman observed the following on July 28 while hearing a petition from actor-turned-TN politician Vijayakanth: “The penal provision of defamation (Sections 499 and 500 of the IPC) should not be used to throttle dissent … the court must step in, if there are continuous efforts to harass persons by filing a number of defamation cases. Just because any one calls a government corrupt or lacking in administrative ability he cannot be slapped with defamation case. There has to be a tolerance to criticism. Defamation cases cannot be used as a political counter weapon and cases for criticizing the government or bureaucrats create a chilling effect. Even though we upheld defamation law, if we find there is a deliberate design to engage government law officers to file cases, it is the duty of the court to protect them. We direct the government of Tamil Nadu to furnish the complete list of defamation cases filed by the Chief Minister either through the office of the Public Prosecutor or otherwise within two weeks and we adjourn the case for further hearing to September 21.”
These golden words gave some reprieve to Vijayakanth. The petition requested the court to stay the arrest warrant issued by a Tiruppur district sessions judge on a defamation case filed by Tamil Nadu Chief Minister J Jayalalithaa against Vijayakanth and his wife, Premalatha, for a public speech of theirs. The defamation case was filed on behalf of Jayalaithaa by the Tiruppur district public prosecutor.
Interestingly, though the Supreme Court had stayed all the proceedings in this case in March 18 this year, the Tiruppur sessions judge went ahead and issued non-bailable arrest warrants against Vijayakanth and his wife on the pretext that neither they nor their counsel attended the proceedings. The bench also stayed the arrest warrants.
ALARMING SITUATION
In fact, a few days back while hearing another defamation case filed by Jayalalithaa against Vijayakanth, a bench headed by Justice Deepak Mishra was taken aback by the sheer number of such cases filed by the CM and her council of ministers against their political opponents.
One advantage for the government is that as it is the complainant, it needn’t come to court either during the presentation of the case or in subsequent hearings. However, under normal circumstances, if the complainant is a private citizen, he will have to come for all hearings.
The situation is so alarming in Tamil Nadu that anyone criticizing Jayalalithaa or her ministers is in for trouble. At the Principal Sessions Judge’s (PSJ) Court in Chennai alone there are 162 defamation cases against politicians, media houses, journalists and even against a lady TV news reader. No one knows how many cases are pending in the districts as this figure is unavailable but conservative estimates say it could be not less than 200. The filing of defamation cases started as early as January 2012, just six months after Jayalalithaa came back to power for a third term.
Defamation cases are pending against The Hindu, The Times of India, India Today, Rediff.com, The Economic Times, NDTV, CNN IBN, Times Now and scores of Tamil newspapers, magazines and television channels. One of the leading Tamil magazine groups—the Vikatan group of publications which publishes the bi-weekly Junior Vikatan and weekly—Anandha Vikatan—is also facing 45 defamation cases. Another leading Tamil political biweekly, Nakkheeran, is facing 19 defamation cases.
WATCH OUT
Even for expressing one’s opinion, defamation cases are filed. In 2014, then Janata Party president, Dr Subramanian Swamy, had tweeted that it was not Jayalalithaa but he who was responsible for Tamil Nadu winning its rights in the Mullaperiyar issue in the Supreme Court. For this, Jayalalithaa filed a defamation case against him. Similarly, a leading Tamil daily Dinamalar carried an article which said that the Tamil Nadu government is considering privatizing bus transport in rural areas. A defamation case was filed. The Times of India carried a front page article about rampant corruption in Road Transport Offices in the state and titled it: “TN gives license to its drivers to kill”. A defamation case was filed against it.
The importance attached by the Jayalalithaa government to defamation cases can be gauged by the fact that it has appointed a special lawyer to oversee them. “If the special lawyer is satisfied that a particular news item against the chief minister or a minister warrants a defamation case, then he will prepare the affidavit and the city public prosecutor will file the complaint in court. This has been the procedure for the past four-and-half years,” said a former government lawyer.
The importance attached by the Jayalalithaa government to defamation cases can be gauged by the fact that it has appointed a special lawyer to oversee them
One advantage for the government is that as it is the complainant, it needn’t come to court either during the presentation of the case or in subsequent hearings. However, under normal circumstances, if the complainant is a private citizen, he will have to come for all hearings.
STATE MACHINERY
In fact, when the Justice Deepak Mishra bench upheld the constitutional validity of Section 499 and 500 on May 13, 2016, there were some sane voices which said that at least the Supreme Court should have done away with these provisions. A retired Madras High Court judge who did not want to be named said: “The Supreme Court could have read down Section 199 of the Code of Criminal Procedure that allows public prosecutors to step into the shoes of allegedly defamed public servants. In my view, this is patently unfair, unethical and against natural justice to allow the State to use its legal machinery to suppress criticism without the public servants concerned being required to testify in court on the actual injury or loss of reputation suffered by them.”
As of now, not a single defamation case filed by the government has seen the light of day, ie, reached the trial stage. “The main aim is to harass the journalist or the politician. And this has its own chilling effect at least as far as media persons are concerned. Generally, no media outlet wants to fight litigations for long and in this age of costly legal affairs, protracted battles are unthinkable. So media houses want to avoid this nightmare and the government attains its desired results,” said MP Thirugyanam, a senior Tamil journalist.
For politicians, the situation is worse. Vijayakanth, being the leader of the opposition in the assembly, had to visit district after district to attend defamation cases filed by Jayalalithaa for his public speeches. This forced him to repeatedly knock on the doors of the Supreme Court for relief and it was at one of these hearings on July 28 that the Justice Deepak Mishra bench came down heavily on the Jayalalithaa government.
N Ramesh, the advocate representing the Vikatan Group of Publications said: “Even after the Supreme Court’s July 28 anguish, yet another defamation case was filed against us in the first week of August. We were indulging in nothing but fair criticism and this is the duty of both the media and the opposition. It seems the Tamil Nadu government is not ready to mend its ways. Repeated filings of defamation cases are nothing but an attempt to gag the media.”
Almost all the top politicians of the state—DMK president M Karunanidhi, his son, MK Stalin, Pattali Makkal Katchi leader Dr S Ramadoss, his son Anbumani Ramadoss, MP, DMDK president Vijayakanth and leaders of Left parties are all facing defamation cases by the government.
TAME MEDIA
Some of those connected with these cases blame the media in Tamil Nadu. “If only the media had taken up these cases seriously as an assault on the freedom of expression and shown some backbone, things would not have gone this far. There were absolutely no protests from the media when the government was day in and day out strangulating their voices,” said GS Mani, a Supreme Court lawyer representing Vijayakanth.
In the previous DMK regime too, the government had filed defamation cases against the media and political opponents. “But there was a qualitative difference—it filed cases only if the criticism was completely personal and below the belt. They definitely allowed some space,” said Aazhi S Senthilnathan, a writer and journalist.
Defamation laws were the brain child of Lord Macaulay. He conceived this in 1837 and they were subsequently made law in 1860. While upholding the constitutional validity of Section 499 and 500 IPC, the Justice Deepak Mishra bench said: “These laws stood the test of time and hence there is no need to strike them down”. After this judgment, Dr Subramanian Swamy, one of the petitioners who challenged the constitutional validity of both these sections, said he would try to take this issue to a large constitutional bench.
Meanwhile, for “Amma” and her ministers, it is business as usual.
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