There are several larger issues involved in the recent conviction of Congress leader Rahul Gandhi in a four-year-old criminal defamation case in which he was awarded the maximum sentence — two years’ imprisonment — that led to his disqualification from the Lok Sabha.

The crux of the matter here is the continued existence of a colonial-era law that criminalises defamation. Criminal defamation as defined in Section 499 of the Indian Penal Code is a relic that continues to have a chilling effect on free speech in India. It has been used intermittently to stifle free speech, deflect criticism or crush voices such as the women’s testimonies during the #MeToo movement.

Its continued application is a regressive practice that shows up India in embarrassing light, compared with other democracies such as Australia and New Zealand where defamation is only a civil offence. In the US, Justice William J Brennan, in New York Times-versus-Sullivan case that shaped the discourse on defamation, said that even making mistakes were part of the price a democratic society must pay for freedom of speech. “Erroneous statement,” he pointed out, “was inevitable in free debate” which should be “uninhibited, robust and wide open”.

In India, however, the Supreme Court has upheld the Constitutional validity of this section with a restricted view in Subramanian Swamy-versus-Union of India (May 2016) that reputation is an integral part of Article 21 and should not be allowed to be harmed only because another individual can have his freedom. However, Rahul Gandhi’s case violates the basic premise in the law itself that the complainant should be the one who is able to demonstrate that s/he personally has been defamed. In this case, no one, who has been named in the offending speech , has filed the complaint.

The question about whether a speech made in Kolar can be the subject of legal action in an entirely different jurisdiction, in Surat, has not been properly explained. Even so, the maximum sentence of two years has been awarded which has triggered the disqualification of a four-term MP from Parliament on a speech he made during elections. While Rahul’s remarks were in poor taste, the court’s response was disproportionate; it was made possible by a law that gives room to criminalise any lapse of speech.

The ramifications of this case for politics in the year prior to the general elections is an open question. The message from the ruling establishment is that there is an air of inevitability around elections returning them to power. The prospect of a sympathy wave for the Opposition does not seem to impact their moves. The Opposition appears to have realised that broadbased unity alone can work as a bulwark against the BJP. Be that as it may, there can be no case for persisting with criminal defamation in the statute books.

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