The Tamil Nadu government filed a criminal defamation case on July 14 against five people associated with the news site for carrying an article speculating about Chief Minister J Jayalalithaa’s health, highlighting once more the state’s repeated use of this legal provision against journalists, media outlets and politicians.

Tamil Nadu files one of the largest number of criminal defamation cases against these groups. The latest case was filed in Chennai’s principal sessions court, alleging that the article, which suggested that Jayalalithaa was planning to fly out of the country for treatment, was false and the news site had not verified the facts. has taken down the article.

That the case was, ironically, filed on a day when the Supreme Court started hearings in the constitutional challenge to India’s criminal defamation provisions filed by the Foundation of Media Professionals, along with the second hearing in Subramanian Swamy vs Union of India, was perhaps just a coincidence.

Swamy, a bitter critic of Jayalalithaa, had rushed to the Supreme Court  with his petition in September 2014 when she filed five defamation cases against him in just a week. While granting a stay on all the cases against Swamy, the bench also agreed to examine the constitutional validity of Sections 499 and 500 of the Indian penal code, dealing with criminal defamation.

Swamy’s petition was later joined by others filed by Congress vice president Rahul Gandhi, Aam Aadmi leader Arvind Kejriwal and opposition leader in the Tamil Nadu assembly Vijayakanth, who is also president of the Desiya Murpokku Dravidar Kazhagam, or DMDK.

In the first week of July, in its reply to these petitions, the Tamil Nadu government, unsurprisingly, supported retaining the sections. “Liberty in an ordinary sosciety cannot mean license to write or publish whatever the petitioner [Subramanian Swamy and Vijayakanth] wanted and that is why no individual right, even if guaranteed by the Constitution can be absolute," it said. "Freedom of press cannot be stretched to morbidity. A person who freely uses his liberty shall be responsible for the abuse of that liberty and the state is entitled to punish those who abuse this freedom.”

The law allows public prosecutors to represent ministers both in the presentation of defamation cases and subsequent hearings, whereas private entities must come to all hearings. The process, as it is famously said, is the punishment, regardless of the outcome. The defamation laws were conceived of by Lord Macaulay in 1837 and subsequently made law in 1860. India continues to apply this colonial law while the British themselves have got rid of it.

Record cases

During Jayalalithaa’s first tenure, from 1991 to 1996, the defamation cases filed by her government against politicians and several Tamil and English newspapers were constantly in the news. She withdrew all these cases at the very end of her tenure, in February and March 1996. During her second tenure, from 2001 to 2006, she created history of sorts when her government filed a defamation case against the union human resource development minister, Murli Manahor Joshi, in a Chennai court.

But it is not as if the problem is confined to the All India Anna Dravida Munnetra Kazhagam: if the Jayalalithaa government filed almost 120 criminal defamation cases against the media during her second term, the Dravida Munnetra Kazhagam, often at the receiving end of these cases, in turn filed more than 40 defamation cases against the media during 2006-2011.

Since Jayalalithaa came to office for a third time, in 2011, the story has been much the same. In the principal sessions court in Chennai alone, the state government on behalf of the chief minister, her ministers and other officials, has filed more than 80 defamation cases against various media outlets, politicians and one TV news reader. The number of such cases filed in district courts is virtually impossible to gauge.

The state government has even appointed a special public prosecutor dedicated to preparing affidavits for defamation cases

Effective weapon

In the hearing in Supreme Court on Tuesday, citing dangers of criminal defamation, Swamy said, "critics are turning into criminals" because "criminal defamation chills public debate due to fear from arrest and criminal prosecution."

Just a glance at some of these cases is enough to bear the charge out. A leading Tamil daily, Dinamalar, published an article that the Tamil Nadu government was considering privatising bus transport in the rural areas. The government filed a defamation case against it for this. The Times of India carried a front-page article about the rampant corruption in the state’s road transport offices headlined "TN gives licence to its drivers to kill". The state transport minister filed a defamation case against the newspaper. The principal session’s judge in whose court this petition arrived told the government counsel, “What’s wrong with this piece? This is just an article, and as a government you should have at least some tolerance.”

But the government was unrelenting and finally the judge yielded, admitting the petitions and issuing summons to the accusedHowever, The Times of India went to the Madras High Court and got a stay for the case.

No defamation case, however, has reached the trial stage, which involves looking at the evidence and cross-examining witnesses. They usually drag on and on for years. Each hearing happens in intervals of roughly between one month and three months. The accused have to go to the court and stand in the witness box, only for the judge to adjourn the case and announce another date.

Media special target

Subramanian Swamy wrote in the Hindu last year:
ON SEPTEMBER 17, the Tamil Nadu Government filed an affidavit in the Supreme Court stating that it had ordered the withdrawal of 125 defamation cases filed against  The Hindu and various other publications. This is a tribute especially to  The Hindu `parivar' for showing guts and challenging the constitutionality of the cases filed against its representatives.

But clearly not all cases were withdrawn.

"I have 211 cases against me," Nakkeeran Gopal of the leading Tamil bi-weekly Nakkeeran told the website in May this year. These including 15 cases filed by the current regime. That the problem cuts across party lines is clear from what he was further quoted as telling the website:
Gopal says a portion of the defamation cases against him are nothing but a game of spite that DMK and AIADMK play against each other. From 1991-95, the AIADMK regime led by Jayalalithaa slapped more than 100 cases against the magazine.

“The cases were withdrawn as soon as the DMK came into power. The DMK too has filed defamation cases against us, but the number is much lesser than that of the AIADMK. The point remains that defamation is simply a political tool,” Gopal says.

Few media outlets want to fight legal battles for long, and in this age of costly legal advice, protracted litigation is a nightmare. As Gopal pointed out:
“In most cases, there is a court hearing or summons every 15 days or a month. Lawyers’ fees, court fees, all have to be paid. Each time reporters from districts have to travel to other courts.”

Tamil weekly, Ananda Viakan, faces nearly two dozen defamation cases. Cases are pending against the The Hindu, India Today and Murasoli, the DMK mouthpiece. The TV channels Times Now, CNN IBN, NDTV, Captain TV, owned by Vijayakanth, Kalaignar TV, owned by DMK’s first family, also face such cases.

Nakkeeran editor RR Gopal has become a party in the case in the Supreme Court.  But none of the other big names in Tamil Nadu’s media business have joined.

Politicians also on radar

The Jayalaithaa government has filed many cases against politicians as well.

For example, a slew of cases has been filed against Vijayakanth in various districts. Vijayakanth is the leader of the opposition, enjoying cabinet rank in the state, but he still has to appear in several courts throughout Tamil Nadu for his political speeches criticising the Jayalalithaa government. He has finally knocked on the Supreme Court’s doors, along with Swamy.

Other politicians include the main opposition Dravida Munnetra Kazhagam, or DMK, president M Karunanidhi, its treasurer MK Stalin, Tamil Nadu Congress Committee president EVKS Elangovan, Tamil Nadu Communist Party of India (Marxist) leader N Varadarajan and Dalit leader Krishnasami.