By Tanmay Mehra:
I was watching a web interview series by Kunal Kamra, a standup comedian who I always called ‘Kamaraj’. The series is called “Shut Up Ya Kunal”, and it brings politicians, journalists, and other stakeholders to the table to discuss issues in a light-hearted manner.
In Episode 4, Kunal interviews The Wire’s co-founding editor Siddharth Varadarajan and Supreme Court lawyer Karuna Nundy. One thing that they mentioned, really got my attention. It was the part where Varadarajan talks about how criminal defamation has hounded his publication.
First, let’s look at what defamation means. According to section 499 of IPC defamation means:
“Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.”
Criminal defamation laws are basic laws which guarantee criminal action against the accused if the necessary conditions are met. Now, this might seem harmless or even necessary on the outside, but in my humble opinion, (and many others but not the Supreme Court) it is quite destructive.
Criminal offences are punishable by imprisonment. They raise the stakes of defamation. If it were a civil matter, it would be resolved without the threat of imprisonment hanging over one’s head. But since the threat is clear and present and was even upheld by the Supreme Court in 2015 (against global trends, mind you), Indians have grown a fetish for it.
I want to make it clear that I am not questioning the SC judgment. That is a debate for another day. However, if you want to read more about how this is a pointer towards institutional decay, give this article a read.
Anyway, back to le mudda (topic). Criminal defamation cases and defamation cases are a dime a dozen these days. Everyone who gets offended uses this constitutional right to file a defamation case and a criminal one at that.
Because of the stakes involved, this is highly concerning to the accused. While luminaries like Varadarajan might be able to weather the storm, it is not so easy for everyday people like you and me.
Think about it, if a criminal defamation case was filed against you, what would you do? How would you fight it? Fighting demands lawyers and lawyers demand money. Money that you and I don’t have.
Also, given the state of the judicial system, there is a high chance that it will drag on for quite some time, further increasing the funds’ problem. This is further exacerbated by the fact, as Varadarajan points out, that there are two of them, with the civil one asking for damages of figures in the hundred crore range.
Even though these figures are completely ridiculous and most of these cases are thrown out by the courts anyhow, it doesn’t matter. Because here the real threat is not the punishment, but the threat itself.
In most cases, the very threat of a case is enough to scare the person away to oblivion. And those who file these cases know that. They use the legal system to subvert those who dare speak up. Even though we are supposed to live in an egalitarian society, with recourse for every wrong and an impartial body to judge us, that is hardly the case.
People who possess money and power are easily able to manipulate the system and use the instrument of the system that was supposed to protect us, against us. They know that we will have no place to go to except the courts and more importantly no resources to fight this war of attrition that they engaged.
They know that they have enough and more resources and tricks up their sleeves to fight it and bear any losses they might face. They will either buy out, subvert, or take out of the equation, those who stand against them.
And even if they lose, they have not lost. For they are big enough to bear a few losses to their reputation, a few bad days, weeks, or months. Even if they lose half of the fights, they still win the other half, and they know that.
A version of this post was first published here.