 Hello and welcome to NewsClick. The conviction of Rahul Gandhi, Congress leader and MP in a Surat court for defamation has led to his disqualification from parliament. And that means that there is a chance that he will not be able to contest the 2024 Lok Sabha election and for a few years thereafter. Today in our studio joining us is Apar Gupta. He is a lawyer, he is the Executive Director of the Internet Freedom Foundation and we are going to discuss what the problems with the defamation law are. Is a civil defamation law a more benign sort of animal compared to the criminal defamation and also is the ruling in the Rahul Gandhi case as much political as it is legal. Apar, thank you very much for joining us. Apar, let's begin with like the most important thing that people are talking about right now. They say that this ruling by the Surat Magistrates Court is a blow against Indian democracy. But it's the ruling of a court. Can you tell us why this concern is arising? I think you mentioned this too that it's not good for democracy. Yes, so the basis of my reading has been that let's look at the law which has been used to convict Rahul Gandhi who is a member of the Indian opposition, member of the Lok Sabha and the effect it's had in terms of his disqualification from the Lok Sabha. And of course that is one way we can look at the eventual outcome it has resulted in. It's a point in time where there is a majority for the Bhartya Janta Party and what it pertains and what is the reading much more politically. But I won't do this. What I would like to do is just concentrate on the nature of the case and the law which has been used to show that this is a rare instance and an outlier and whether they should invite a critical reasoning towards it as to how this was possible. Right, how was it possible? So firstly to start thinking about this I would first look at the statement which has been made itself which is the basis of the complaint of criminal defamation and the law of criminal defamation is contained under sections 499 of the Indian Penal Code which defines the offense of criminal defamation and section 500 which then contains the punishment for criminal defamation. The process for criminal defamation as a complaint case one which is not investigated by the police even though it's a criminal case is done by a criminal court as per section 199 of the Code of Criminal Procedure. Under this the statement which is alleged to be defamatory has to be reduced before a magistrate and the person who's complaining which is the complainant has to show that this statement lowered their reputation harmed their reputation in the eyes of a third person. The definition of defamation also under section 499 contains within explanation 2 and explanation 2 basically says that when a statement is made against a not a person but a association, a registered body or a class of persons then it still may be defamation for a person who's a part of these. Now what is the statement? The statement made by Raul Gandhi has been after he takes the names of certain individuals who are fugitive absconders accused of enriching and taking loans etc fleeing this country he calls them thieves then he refers to the prime minister and subsequently he says what is which is a rhetorical statement on its very basis is that in the context of thievery are all people carrying a certain surname also thieves is in this a peculiar circumstance I'm not trying to add words here I'm just saying what is the ordinary impression a person would take away from that and that surname happens to be Modi. Now a person who is a politician a member of the Bhartya Janta party in Gujarat files a complaint before a court in Surat and alleges that because my surname is also Modi I have been defamed by this statement the first question which should be put is that does that statement by itself signify or lower the reputation of a person who carries the last name which is Modi right because it's not a specific statement against that complainant whose filed this case in Surat and this kind of statement essentially which refers to a person's last name my last name is Gupta and if says all Guptas are thieves I do not think that a person would start thinking that they have called me a thief right in that sense which is why the law also provides that there needs to be a definite classification or a specificity to the defamatory statement when it applies to a class of people it cannot be indeterminate it cannot be fairly broad and that's why last names if somebody just refers to it in the company of another person if they're 10 people present there and one of them happens to happen to have the last name Modi or Gupta and they say that well all Guptas are thieves and looks at that person or etc Modi then that means that they are pointing and lowering my reputation in front of the nine other people and this is important for us to consider because we need to assess the very basis of that conviction right the basis of that conviction is a defamatory statement with lowers a person's reputation before the eyes of a third party and I do not think so this emerges when any person's last name is referred when they are not physically present they are not even in that same state or election rally and they are not even they just carry that last name and if I've read the case properly they have they also have a middle and a first name right so you're saying that the case itself is based on the ruling of the magistrate court is based on a very shaky foundation so why is it still harmful for democracy is it that the law of defamation itself criminal definition specifically is harmful for democracy so one when one looks at criminal defamation one needs to understand that this is a law which is brought in at a point in time in the common law jurisdictions when Britain was a colonial it was brought in because at that point in time certain kinds of statements which were made were considered to be an attack against a colonial form of state which is not consistent with a constitutional republic this is the very reason why the Kenyan High Court in 2017 held that criminal defamation is unconstitutional this is the very reason why several countries all over the world have repealed or have placed criminal defamation to be an inoperative law this is the very reason why the supreme court state the operation of sedition as well which is contained within that same enactment which is the Indian penal code and when one looks at the operation of the criminal defamation law and one looks at the constitutional judgment which upheld its validity which was a judgment by Justice Deepak Mishra called Supramanyam Swami if you look at all the petitioners in that the petitioners are principally politicians they are politicians alleging that criminal defamation cases have been filed against them by other politicians or its journalists or its activists hence the offense of criminal defamation is not today serving the ordinary Indian it is not something a person takes recourse to because in any instance they are not hoping for a person who defames them to be convicted given that access to a lawyer attending court proceedings leading your evidence and is a very high price to pay for then repairing your reputation it is essentially used by the most powerful people in society usually corporate groups or politicians against others right against each other as well against each other as well and I think what comes through this is should be an understanding that the law of criminal defamation is essentially being used to stop public conversation in a sense and I am not saying that you do not need a well balanced civil remedy to repair reputations but the question is that happening no but wait apart I mean I also have a question is the civil law on defamation going to be something which is benign even if that law is developed and the criminal law is not there does it make everything okay so the civil law of defamation today in India exists as what is called as common law it has a case by case development and usually claims which are filed by people claiming a large amount of damages okay usually in courts and jurisdictions which are inconvenient to the defendant thereby they have to incur a cost in the participation of the proceeding itself what this means is that the civil law also is prone to abuse and this is because the legislature has never acted defined it and legislated around it I believe that a private members bill in which I had also participated in the drafting process which is called the protection of speech and reputation bill which is filed as a private members bill by member of parliament Tathagat Satpati is one such model which exists in which the jurisdiction where the case can be filed is better defined where there is a cap on damages and beyond monetary damages what a person requires quite often is for their reputation to be repaired and to repair their reputation money is not the only thing which can result in that I think what is much more important is for a similar statement especially if it is caused by a article or something which is a video audiovisual format needs to be as prominently displayed in order to repair their reputation in a way I think what we are lacking today is the is a understanding of the law for the very nature and the purpose for what is built defamation is law is meant to repair reputations it is not meant to settle scores or personal vendettas but you're saying that it this kind of a restitution which is sort of less aggressive less likely to send you into bankruptcy or into jail would not apply in the Rahul Gandhi case in any case because you're saying that that doesn't sound like defamation at all no at the very foundation at its very root it seems the statement is a rhetorical statement the president of the supreme court interpreting explanation to section 499 clearly says if you say that all lawyers are thieves it does not mean that one lawyer can go and file a case because they think their reputation has been lowered so I would say that the case by itself seems very very strange I have read a translated not authenticatedly translated but a machine translated version of that judgment and I'd like to also focus on the punishment which has been given which is there for two years here there are about four or five pages of reasoning and in fact the court is holding that the two years of punishment are in fact awarded because the accused happens to be a member of parliament and hence needs to be more responsible and example needs to be set for society and this is a at best an incorrect assessment an indirect statement it would apply as per the complainant's own statement to all people who hold the last name Modi right so why would this severe punishment be given given that it's linked with the complainant is so remote nobody in their ordinary mind would think just because Rahul Gandhi has said that all people that to in an election rally or in a public speech that some person has a last name which is Modi that all Modi's are actually thieves I really don't think so whether so firstly the basis of the conviction in terms of the reasoning is bad secondly the giving the maximum threshold of punishment of two years imprisonment seems to be something which is completely disproportionate in its very nature this case seems very very peculiar to me because usually criminal defamation cases do not result in convictions they result in frequent adjoinments actually there is the the objective is to drain out energy resources time money from the person who has made the defamatory statement in order to extract an apology out of them and lead them to a sense of exhaustion why then in the Subramanian Swami case was it not possible to actually get this law revised or struck down and what's the way out that's my final question so I think in the Subramanian Swami case as it was being heard at that time before Justice Deepak Mishra and Panth there was wonderful constitutional advocacy which was done by a lot of senior advocates and I was I happened to assist one of them in petition which was filed for the foundation for media professionals I think the constitutional arguments at that point in time clearly indicated that the offense of criminal defamation is incompatible with article 19 1 a which guarantees us our freedom of speech and expression and does not constitute a reasonable restriction now reasonable restrictions are the grounds under which your fundamental right to freedom of speech and expression can be restricted and they do mention defamation in fact expressly right but the important word here is reasonable right and here what was reasoned by the court was that people have a right to reputation and this right to be reputation needs to be balanced with the fundamental right to freedom of speech and expression so the court did not look at criminal defamation from the prism of you have a right to freedom of speech and expression and the exception to that is a reasonable restriction called defamation they set up a competing right which is the right to reputation the exception in a sense became became independent right by itself in the sense and I think the court made a very very grievous error at that point in time the way forward is for a kind of a larger awakening that the structural risks which defamation poses to ordinary people to journalists to politicians to civic activists and the effect today is very very evident today with what has happened in the Rahul Gandhi case but this is a risk which has been continuing for a long period of time I believe that given where we are today this realization should seep in a little bit deeper the people who do obtain majorities in state assemblies and in parliament need to realize that they need to work towards legislative reform on defamation and their own self-interest may be served over a larger period of time also because they may be put to accountability by journalists and other politicians and they cannot resort to criminal defamation but also when they are in opposition because that is the very nature of Indian democracy if we still believe in it right of power and thanks very much for joining us with that update and that's all we have thank you very much for joining us and do follow us on our social media channels thank you for watching