Ashish Khetan on Rahul defamation

Law Professor and former AAP spokesman, Ashish Khetan, who was booked for hurting Sikh religious sentiments and gave a fulsome apology, has this to say in CODA-

India and other major democracies have taken two different approaches in the area of defamation law. In the U.K. and U.S., defamation law has been transformed.

But India is not rich like the UK or the US. It is similar to other countries in the region all of whom have retained criminal defamation law. Khetan  mentions Subramanian Swamy v Union of India- in which Kejriwal and Rahul were also petitioners. The Bench decided that criminal defamation was constitutional. Indeed it was needful to protect the dignity of the people. This is an important point. In a rich country, with an 'atomized' society it is plausible to argue that everyone has sufficient assets to launch a civil suit to protect their reputation. Moreover, no collectives exist such that an entire community can be insulted. In a poor country, this is patently false. If defamation is not a criminal offense, you rely on the Mafia don of your caste community to take vengeance on those who insult or injure you. That means the chopping off of hands or heads or riots featuring arson and mass murder.

The U.S. Supreme Court’s 1964 ruling in New York Times Co. v. Sullivan transformed the law of defamation around the world, tilting the balance in favor of uninhibited, robust and wide-open speech.

But Clarence Thomas, for one, thinks the decision was wrong. SCOTUS may overturn it as it did Roe v Wade. 

Justice William Brennan ruled that for free speech to survive it needed “breathing space.” Erroneous statements or even vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials were inevitable in a free debate, the court ruled.

But what SCOTUS gives SCOTUS can take away. I wonder whether the Indian Bench will overturn Subramanian Swamy or even Lily Thomas. Let politicians decide political questions. 

The First and Fourteenth Amendments

but due process activism is a double edged sword! 

to the U.S. Constitution were used to extend constitutional protections in favor of free speech and bar elected officials from seeking compensation, even for false comments made about their official actions unless those statements were made with “actual malice.”

India's First Amendment went in the opposite direction. Is there a 'chilling effect' in India? Perhaps with respect to 'hurting religious sentiments'. But a politician has a good faith defense for targeting named individuals provided he apologizes once he finds out the facts of the case are against him. Kejriwal apologized to Jaitley, Majithia, Gadkare and Kapil Sibal's son and has been given relief in numerous other cases.  

A plaintiff had to demonstrate with clear and convincing evidence that false or inaccurate statements were made with knowledge of their dishonesty or with a reckless disregard for the truth under the “actual malice” standard.

India is not so different. You apologize and- speaking generally- there the matter ends. The process is the punishment.  

It also shifted the burden of proof from the defendant to the plaintiff. The court rejected the common law presumption of damages and asked aggrieved public servants to prove actual damages. In the same year, in Garrison v. Louisiana, the U.S. Supreme Court held that criminal defamation laws must be narrowly tailored to target only speech intending to lead to group disorder or inciting a breach of the peace. The court noted that, generally, criminal law is reserved for those crimes that threaten the security of society, and criminal sanctions cannot be justified merely because defamation is evil or damaging to a person.

Why does Khetan not pick holes in the ratio in Subramanian Swamy? Is there really 'a constitutional duty to respect the dignity of others'? Perhaps not. But there can be no doubt that saying 'members of such and such caste are thieves' is highly injurious to public order and the integrity of the country. 

Common law criminal libel was abolished by the U.S. Supreme Court in 1966 in Ashton v. Kentucky.

No. Criminal libel is rarely prosecuted but exists on the books in many states. Ashton just says that vague wording makes a law unconstitutional more particularly when it touches on First Amendment rights. But the thing itself is perfectly constitutional absent this infirmity. 

Since then, the criminal defamation laws in 38 U.S. states and territories have either been repealed or struck down as unconstitutional. Once the Supreme Court set the precedent, other former British colonies and common law countries such as Australia, New Zealand, Canada and South Africa, followed.

Nonsense! Australia has no bill of rights and is the 'defamation capital of the world'. In New South Wales, criminal defamation can get you a three year jail sentence! New Zealand is more civilized but still favors the plaintiff. As for South Africa, no doubt Botha was anxious to follow US precedents in between killing and torturing black people.  

A consensus emerged that if speakers were threatened with criminal prosecution for speaking out on matters of public concern, it would have a chilling effect on public discourse.

This is all very well but most US states have 'per se defamation' and, what is more, legal fees and damages can be very high. In this case, a Texan Modi who sued a Texan Gandhi who said 'all thieves are Modi' could bankrupt the fellow because it is per se defamation to make allegations or imputations "injurious to another in their trade, business, or profession".

One reason a very poor country may criminalize an offense is that many have nothing financial to lose. Indeed, even if they live comfortably all the assets belong to their Hindu Undivided Family. 

In 2009, the U.K. Parliament abolished the offense of criminal defamation. The 2013 U.K. Defamation Act introduced a requirement for claimants to show that they had suffered serious harm before suing for defamation. It also introduced a defense of “responsible publication on matters of public interest” and new statutory defenses of truth and honest opinion.

Sadly, many Commonwealth jurisdictions take every instance of publication- not just the primary one- as being capable of giving rise to a civil action. 

Meanwhile, even after achieving independence from British rule and adopting a republican constitution, India has continued to uphold legislation designed to protect the colonial elite.

Fuck off! The 'colonial elite' killed anyone they thought was a danger to themselves. Brigadier Dyer wasn't locking people up for defamation. He was machine gunning them.  

By amending the Code of Criminal Process in 1955, India also placed public officials into a separate class and established for them a special procedure involving the state machinery to sue private parties for making defamatory statements.

The public prosecutor, under advisement by the concerned Government department, could initiate proceedings. But that is not germane in this context. 

The Indian Constitution contains a chapter on fundamental rights, styled after the American Bill of Rights. Chief among the constitutionally guaranteed freedoms is the right to free speech and expression, subject only to limited restrictions.

Nonsense! The Emergency showed there were no fucking restrictions. A right is not a right if there is no remedy.  

One of these restrictions is defamation. The key is that the restrictions have to be reasonable.

No. What is legal may or may not be reasonable. However a judgment may be impugned for showing non application of mind- i.e. no evidence of ratiocination.  But that is a separate matter. 

But the Indian judiciary has continued to interpret and apply these restrictions narrowly.

No. The complaint is that the restrictions are too broad. A very narrow restriction may be no restriction at all. 

In 2016, a two-judge bench of the Supreme Court of India upheld the constitutionality of criminal defamation. “Criminalizing defamation,” noted one lawyer, “serves no legitimate public purpose.” And, he added, “the court’s reasoning is wooly at best.”

 That lawyer is now based in Singapore. Is he speaking out against that country's criminal defamation law? No. Don't be silly.

As a result, India’s influential politicians and corporations are the ones who most frequently invoke criminal defamation, typically against either political opponents or journalists.

Strangely enough, Indians who live below the poverty line aren't bringing cases of defamation. Why is that?  

India’s criminal defamation laws closely resemble 19th century libel laws in England. But there is a major difference. In England, defamatory libel always involved publication in writing. Even if they were malicious, spoken words or gestures weren’t considered libel. Verbal slander, though, can result in criminal charges under India’s penal code.

But the British Law Commission, in 1985, proposed to abolish defamatory libel and bring in criminal defamation. It appears, India was ahead of, not behind the UK.  In wealthy countries even ordinary people have valuable assets they can lose if dragged into court for defamation. The chilling effect is greater than in a poor country where assets are owned by a HUF and fines and court fees are nominal. SLAPPs are a feature of advanced economies. 

Rahul Gandhi has been convicted by a court in Gujarat for spoken words.

Which were being recorded by Election officials and thus had a permanent form. 

Unless his conviction is stayed by the appellate court on April 13, he will continue to be barred from parliament, from doing the job he was elected to do for his constituency. If he were living in England 170 years ago, he would not even have faced criminal proceedings, let alone the possibility of imprisonment.

Indeed, he would have been congratulated for denouncing a bunch of niggers  

The dangers that India’s criminal defamation laws pose to Indian democracy are evident in Rahul Gandhi’s conviction — they appear to exist to protect the ruling class

Gandhi is a fifth generation President of Congress. He is the fucking ruling class.  All he needs to do is apologize and say 'Modis are very sweet and lovely. One or two bad apples are giving them a bad name'. Is that too much to ask of him? 

and intimidate critics into silence.

His granny beat and jailed tortured her critics. Killing people silences them permanently. The alternative to criminal defamation laws which are a nuisance to politicians,  is that every caste or community defends its own dignity by killing those who insult them. Is that really the part Ashish Khetan wants the country to go down? 

Still, it must be said, the Bench may be regretting its own hubris in continually extending its powers. What will it do if Rahul demands to be sent to jail? It will back down. Indeed it may reverse Subramanian Swamy, not to mention Lily Thomas. Expand the doctrine of political question and let politicians sort out their own messes.