THE fact that Section 499 contains 10 exceptions which allow criticism of public servants has escaped the notice of those who have criticised the Supreme Court verdict.
The Supreme Court’s refusal to decriminalise the law of defamation contained in Section 499 and 500 of the Indian Penal Code has left newspaper editors fuming and the glitterati rejoicing because these sections were enacted in 1860 by the British to protect the so-called reputation of corrupt governors like Robert Clive who committed suicide in 1774.
Clive has now been supplanted by people like former Rajya Sabha MP Vijay Mallya who fled India after owing Rs 9000 crore to a consortium of banks. To drive home this point, Dawood Ibrahim has never faced a trial in any Indian court and to accuse him of planning the 1993 bomb blasts which left 257 dead has yet to be proved in a trial court. Until convicted, Ibrahim is innocent. So too is Mallya – both public figures whose reputation is protected by the law of defamation.
In sharp contrast to the Indian law, the actual malice test in the USA was laid down in 1964 by the US Supreme Court in New York Times Co. v. Sullivan, which required a plaintiff who was a “public figure” to prove that his vilifier knew a defamatory statement was false or did not care if it was true or false before publication.
By stating that truth cannot always be pleaded as a defence when a criminal complaint for defamation is lodged in the magistrate’s court, the Supreme Court has not carved out an exception for public figures such as Subramanian Swamy who has a habit of making unverifiable allegations against all and sundry including the Pope in Rome.
In the USA, the actual malice test applies specifically to public figures so that the media in that country cannot be dragged to court so long as a reporter has attempted to verify an allegation against a public figure.
In 1989, a US jury exonerated Pulitzer Prize winning journalist Seymour Hersh of defaming the late Prime Minister Morarji Desai by accusing him of being a CIA agent in his 1983 book “The Price of Power.”
But there are two sides to the coin, and sometimes, reckless journalists, eager for name and fame, eagerly lap up unverifiable allegations made by political opponents or business rivals who readily furnish police complaints, leading unwary journalists to defame innocent public figures. The fact that Section 499 contains 10 exceptions which allow criticism of public servants has escaped the notice of those who have criticised the Supreme Court verdict.
For the apex court has had to balance the right to freely criticise those who wield power against the right of those to a good reputation irrespective of what they do in private. For that matter, despite mouthing sweet nothings about press freedom, Jawaharlal Nehru first amended the Constitution on 10th May 1951 to curtail press freedom whereas the first amendment to the US Constitution is the exact opposite.
In any case, both investigative reporting and the right to know under the Congress were non-existent till the 1970s when Arun Shourie decided to expose the late Maharashtra chief minister Abdul Rehman Antulay for accepting donations to dole out cement.
When Atal Bihari Vajpayee was the Prime Minister in 2003, he told the CBI not to leak information to the media about raids after certain MPs who were raided, complained to him. Vajpayee is seen dancing on stage with controversial godman Asaram Bapu charged with rape and murder. It is impossible for any journalist to verify Vajpayee’s links with the godman just as it is impossible for any journalist to get hold of confidential government documents under the Right to Information Act, 2005 within the deadline set by a daily newspaper or a news channel. For example, the Supreme Court upheld the judgment of the Bombay high court to demolish a 10-storeyed building built by Girish Vyas, son-in-law of former Shiv Sena chief minister Manohar Joshi who de-reserved 30,000 square feet of prime land at Lohegaon in Pune earmarked for a primary school.
Editor Vijay Kumbhar of Bimb-Pratibimb dared to publish news reports without gaining access to the file where Joshi had allowed the de-reservation of the plot so his son-in-law could build a 10-storied building.
The apex court upheld the demolition but quashed a plea for a criminal probe. Joshi went ahead to become the Lok Sabha speaker and was honoured by Mumbai University with a doctorate.
The Supreme Court is supreme not because it is always right but because it is final.
