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5 lawyers, 10+ hacks file SC criminal defamation & journo rights challenge wider than Swamy’s [READ ORDER]

If India had a Speakers' Corner, how long before the arrests would start? (Photo: Cory Doctorow, Singapore)
If India had a Speakers' Corner, how long before the arrests would start? (Photo: Cory Doctorow, Singapore)

Defamation will no longer be a jailable offence under which journalists may be charged for their reportage, if the Foundation of Media Professionals’ (FMP) constitutional challenge to India’s criminal defamation provisions wins in the Supreme Court.

FMP, through advocate on record Mohit Paul having briefed media law bigwig senior advocate Anup J Bhambhani, who was assisted by advocates Apar Gupta, Dushyant Arora and Mudrika Bansal, has filed a writ in the Supreme Court.

Today’s five-page order, recording arguments and citations of Bhambhani, notes that the matter will be listed on 14 July alongside Subramanian Swamy’s writ petition challenging criminal defamation laws (184 of 2014).

Read order (PDF)

The FMP writ challenges sections 499 and 500 of the Indian Penal Code, 1860 and Sections 199(1) and 199(2) of the Code of Criminal Procedure, 1973 – penalising criminal defamation - as being contrary to the fundamental rights to equality, life, liberty, trade and business of working journalists under Articles 14, 19 and 21 of the Constitution of India.

Gupta explained in an email:

Some points which are urged before the court, include:

1. The substantive law relating to criminal defamation under Section 499 and 500 of the IPC as enforced by the applicable procedural provisions of CrPC does not amount to a reasonable restriction under Article 19(2), to the right to freedom of speech and expression as contained in Article 19(1)(a) of the Constitution of India.

2. Guidelines and procedural safeguards are required to be laid down in relation to the locus standi of a complainant seeking to invoke the remedy of criminal defamation under Section 199 CrPC.

3. Guidelines and procedural safeguards are required to be laid down with respect to Sections 177 to 179 of the with respect to the territorial jurisdiction of a court which may entertain a complaint under Section 199 of the CrPC.

4. The interpretation of Section 105 of the Indian Evidence Act in so far as it applies to the exceptions contained in Section 499 of the IPC is unfair, unjust and opposed to the settled principles of criminal law in relation to summoning of an accused person inasmuch it permits summoning of an accused without even prima facia fulfilling the ingredients of the offence of criminal defamation.”

The writ (WP (Crl) 106/2015) was listed today and the Supreme Court after noting a part of the arguments in its order, issued notice to the Union of India, through the office of the Attorney General for arguments on 14 July 2015.

The FMP’s founders include journalists Amitabh Thakur, Aniruddha Bahal, Ashutosh, Madhu Trehan, Manoj Mitta, S Srinivasan, Sanjay Pugalia, Sanjay Salil, Shashi Shekhar, Vineet Narain and Vivian Fernandes.

The main points in FMP’s petition are:

1)The offence of defamation as contained under Section 499 of the Indian Penal Code, 1860 especially when it is alleged to arise in relation to public personalities, only requires an intent to lower the reputation, but does not contain the modern legal standard of actual malice. Due to the absence of this modern standard, the provision results in violation of the freedom of speech and expression and it also results in arbitrary applications to mere expressions of “opinion” as opposed to any assertion of facts.

2) The defences contained as exceptions within Section 499 are inadequate and subjective. They set high thresholds

3) The provision for criminal defamation under Section 499 is excessive and disproportionate to the alleged act, for which adequate remedies exist under civil law. It is excessive in that it criminalises not a harm against the society per se, but against an individual.

The offence of criminal defamation as contained under Sections 499 and 500 also result in procedural unfairness and arbitrary action through the application of various provisions of the Code of Criminal Procedure, 1973. These include Sections 179; 199(1); 199(2); 202; 204(1); and 205

Gupta confirmed that the writ would be clubbed with former Bharatiya Janata Party (BJP) president Subramanian Swamy’s challenge to India’s criminal defamation laws.

“Yes, it will be clubbed,” he said. “But [Swamy] is only challenging [sections] 499/500 and at most 199(2) not 199(1) and the other swathe of CrPC provisions.

“Our matter has not been formally tagged with his but is posted for arguments on the same day. With permission of the court, we hope to focus on the procedural aspects of unfairness contained under the CrPC and the Evidence Act as opposed to a direct challenge to 499/500 which will already be covered by the other petitioners.”

Gautam Bhatia yesterday wrote a commentary on the start of the Swamy hearings on the Indian Constitutional Law and Philosophy Blog, entitled “The Criminal Defamation hearings have begun – and they’re off to a bad start”.

Photo by Cory Doctorow

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