The Aam Aadmi Party and the Bharatiya Janata Party might as well bring out their duelling pistols. In the latest round of mud slinging last week, the AAP accused Union Finance Minister Arun Jaitley and his family members of corruption during his 13-year tenure as president of the Delhi and District Cricket Association which ended in 2013. Jaitley went to court on Monday, filing civil and criminal defamation cases against AAP leaders, including Delhi Chief Minister Arvind Kejriwal.
AAP promised to file counter charges against Jaitley and Kejriwal declared that the finance minister should cooperate with the Delhi government’s commission of inquiry on the case if he wanted to prove his innocence. Meanwhile, Parliament erupted and Rajya Sabha was adjourned on Monday after the Congress stepped into the fray and demanded Jaitley’s resignation. In the Lok Sabha, the BJP chose to defend Jaitley by drawing attention to his “impeccable character”, his “clean life” and his services to the poor. Suddenly, the political turf war between the BJP and the AAP in Delhi has devolved into a rather quaint battle over reputations.
An archaic law
As a public figure, the finance minister could have tackled the AAP’s accusations through the usual back and forth of political exchange. As an individual, he could have taken up Kejriwal’s challenge and declared himself open to inquiry. It is not immediately clear why Jaitley, a consummate politician and lawyer, chose to hide behind a stifling, antiquated law, one whose very legitimacy is being questioned by individuals across the political spectrum. Perhaps as direct provocation to Kejriwal?
Two cases, Arvind Kejriwal versus Union of India and Ors. (2015) and Subramanian Swamy versus Union of India and Ors. (2014), currently pending in the Supreme Court, challenge the constitutionality of Section 499, which defines criminal defamation. The fate of other defamation cases would depend on the court’s decision in these two matters.
This year, a writ petition filed by the Foundation of Media Professionals also deemed Sections 499 and 500 inimical to “constitutional safeguards to freedom of speech and expression” as well as the “right to life”. The petition objected to the law’s “arbitrary application” and its habit of engendering “vexatious trials”. It observed that the provision to criminalise speech intended to harm the reputation of a person was a colonial law, enacted in 1860 and quite out of step with a modern, plural, democratic state.
Section 499 is held to be a broad brush, vaguely worded law, which imposes more than reasonable restrictions to the freedom of speech. It aims to protect public reputations from damage but the offence does not have to meet modern legal standards of “actual malice”. The accused not only has to prove that his or her statements were true, but that they were made in the “public interest”, a slippery and rather subjective notion. This caveat has been held responsible for the law’s chilling effect on free speech, as it enforces a regime of self-censorship and fear.
Lawyer Gautam Bhatia points out how defamation laws in Britain were once intended to preserve public order, creating judicial avenues to settle personal scores that might have turned violent otherwise. Stripped of the public order imperative, Section 499 has become an anomaly, argues Bhatia, providing a public remedy for a private grievance.
The costs of filing criminal defamation charges in India are low, the offences codified under the law suitably broad and the exceptions hard to prove. Which makes it ripe for political misuse.
Political misuse?
Jaitley’s charge is particularly unfortunate because the recent history of defamation cases has not been a happy one. Very often, they appear to have been used by parties with a taste for bullying, to intimidate, to suppress critical voices or to score political points.
The petition filed by the Foundation of Media Professionals details how Section 499 has helped curb press freedoms. The Tamil Nadu government has filed 125 defamation cases against the Hindu alone. Branching out in 2012, the J. Jayalalithaa government pressed charges against The Times of India for reporting critical comments made by the opposition. Sections 499 and 500 are also believed to have been deployed by the encounter police to silence investigative journalists.
This isn’t the first time the BJP and AAP have traded charges of criminal defamation either. Last year, BJP leader Nitin Gadkari filed a case against Kejriwal for naming him among India’s “most corrupt”. The episode turned into a show of brinkmanship as Kejriwal stuck to his guns, refused to furnish the bail bond and was forced to go to jail for a day. This latest episode seems to be a sequel to that spectacle, especially as it crowns a particularly noisy bout between the BJP and AAP. Earlier this month, the Central Bureau of Investigation had raided the office of Kejriwal’s chief secretary. The AAP retaliated by alleging that the Centre was using the CBI to target the chief minister and then accusing Jaitley of graft.
Going to the mattresses
The defamation row now seem to be absorbed into a longer political battle between the AAP and the BJP. The rivalry between the two parties sharpened after the BJP was routed in the Delhi assembly polls. Delhi 2015 was the first reversal in the BJP’s long winning spree, which started in the states in 2013 and culminated in the Lok Sabha elections of 2014. The next big contest between the two parties promises to be in the Punjab assembly elections early in 2017 - incidentally, Jaitley lost from Amritsar in the last Lok Sabha polls. Though still a while away, the BJP would not want to cede any more ground in Punjab.
If the BJP wants to contain the AAP, it needs to do so with a constructive agenda, not with the querulous politics of complaint and litigation. For now, Jaitley’s charges have only laid bare the ruptures within his own party. BJP leader Kirti Azad hinted darkly at corruption in the Delhi cricket body and invited the finance minister to file a case against him. And in spite of a few stray individuals parrying charges against their party colleague, the senior leadership was unable to put up a concerted defence of Jaitley. Why does the BJP look like a party that is running out of ideas?
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AAP promised to file counter charges against Jaitley and Kejriwal declared that the finance minister should cooperate with the Delhi government’s commission of inquiry on the case if he wanted to prove his innocence. Meanwhile, Parliament erupted and Rajya Sabha was adjourned on Monday after the Congress stepped into the fray and demanded Jaitley’s resignation. In the Lok Sabha, the BJP chose to defend Jaitley by drawing attention to his “impeccable character”, his “clean life” and his services to the poor. Suddenly, the political turf war between the BJP and the AAP in Delhi has devolved into a rather quaint battle over reputations.
An archaic law
As a public figure, the finance minister could have tackled the AAP’s accusations through the usual back and forth of political exchange. As an individual, he could have taken up Kejriwal’s challenge and declared himself open to inquiry. It is not immediately clear why Jaitley, a consummate politician and lawyer, chose to hide behind a stifling, antiquated law, one whose very legitimacy is being questioned by individuals across the political spectrum. Perhaps as direct provocation to Kejriwal?
Two cases, Arvind Kejriwal versus Union of India and Ors. (2015) and Subramanian Swamy versus Union of India and Ors. (2014), currently pending in the Supreme Court, challenge the constitutionality of Section 499, which defines criminal defamation. The fate of other defamation cases would depend on the court’s decision in these two matters.
This year, a writ petition filed by the Foundation of Media Professionals also deemed Sections 499 and 500 inimical to “constitutional safeguards to freedom of speech and expression” as well as the “right to life”. The petition objected to the law’s “arbitrary application” and its habit of engendering “vexatious trials”. It observed that the provision to criminalise speech intended to harm the reputation of a person was a colonial law, enacted in 1860 and quite out of step with a modern, plural, democratic state.
Section 499 is held to be a broad brush, vaguely worded law, which imposes more than reasonable restrictions to the freedom of speech. It aims to protect public reputations from damage but the offence does not have to meet modern legal standards of “actual malice”. The accused not only has to prove that his or her statements were true, but that they were made in the “public interest”, a slippery and rather subjective notion. This caveat has been held responsible for the law’s chilling effect on free speech, as it enforces a regime of self-censorship and fear.
Lawyer Gautam Bhatia points out how defamation laws in Britain were once intended to preserve public order, creating judicial avenues to settle personal scores that might have turned violent otherwise. Stripped of the public order imperative, Section 499 has become an anomaly, argues Bhatia, providing a public remedy for a private grievance.
The costs of filing criminal defamation charges in India are low, the offences codified under the law suitably broad and the exceptions hard to prove. Which makes it ripe for political misuse.
Political misuse?
Jaitley’s charge is particularly unfortunate because the recent history of defamation cases has not been a happy one. Very often, they appear to have been used by parties with a taste for bullying, to intimidate, to suppress critical voices or to score political points.
The petition filed by the Foundation of Media Professionals details how Section 499 has helped curb press freedoms. The Tamil Nadu government has filed 125 defamation cases against the Hindu alone. Branching out in 2012, the J. Jayalalithaa government pressed charges against The Times of India for reporting critical comments made by the opposition. Sections 499 and 500 are also believed to have been deployed by the encounter police to silence investigative journalists.
This isn’t the first time the BJP and AAP have traded charges of criminal defamation either. Last year, BJP leader Nitin Gadkari filed a case against Kejriwal for naming him among India’s “most corrupt”. The episode turned into a show of brinkmanship as Kejriwal stuck to his guns, refused to furnish the bail bond and was forced to go to jail for a day. This latest episode seems to be a sequel to that spectacle, especially as it crowns a particularly noisy bout between the BJP and AAP. Earlier this month, the Central Bureau of Investigation had raided the office of Kejriwal’s chief secretary. The AAP retaliated by alleging that the Centre was using the CBI to target the chief minister and then accusing Jaitley of graft.
Going to the mattresses
The defamation row now seem to be absorbed into a longer political battle between the AAP and the BJP. The rivalry between the two parties sharpened after the BJP was routed in the Delhi assembly polls. Delhi 2015 was the first reversal in the BJP’s long winning spree, which started in the states in 2013 and culminated in the Lok Sabha elections of 2014. The next big contest between the two parties promises to be in the Punjab assembly elections early in 2017 - incidentally, Jaitley lost from Amritsar in the last Lok Sabha polls. Though still a while away, the BJP would not want to cede any more ground in Punjab.
If the BJP wants to contain the AAP, it needs to do so with a constructive agenda, not with the querulous politics of complaint and litigation. For now, Jaitley’s charges have only laid bare the ruptures within his own party. BJP leader Kirti Azad hinted darkly at corruption in the Delhi cricket body and invited the finance minister to file a case against him. And in spite of a few stray individuals parrying charges against their party colleague, the senior leadership was unable to put up a concerted defence of Jaitley. Why does the BJP look like a party that is running out of ideas?
