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Weaponising the defamation law (Specials)

Published: 30th Mar, 2023


Recently, the Congress leader Rahul Gandhi was held guilty and sentenced to two years in jail by a Surat Court in a 2019 defamation case.

What was the case?

  • The Rahul Gandhi commented that “Why do all thieves, be it Nirav Modi, Lalit Modi or Narendra Modi, have Modi in their names”. These remarks were made during a rally in Kolar, Karnataka, in the run-up to the 2019 Lok Sabha elections.
  • However, none of the three named Modis filed a criminal complaint or a civil suit for defamation on being called thieves.  A former Gujarat Minister and current MLA, Purnendu Modi, filed a criminal complaint in a Surat court saying that all Modis had been defamed.
  • His complaint was based on the second explanation to Section 499 of the IPC, which reads: “It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.”
    • Section 500 of the Indian Penal Code (IPC) prescribes for defamation a simple imprisonment for a “term which may extend to two years, or with fine, or with both.”

Ground of Disqualification:

Disqualification of a lawmaker is prescribed in three situations.

  • One of the prescriptions is under The Representation of The People Act (RPA), 1951.
    • There are several provisions that deal with disqualification under the RPA. 
  • Section 8 of the RPA deals with disqualification for conviction of offences.
    • The provision is aimed at “preventing criminalisation of politics” and keeping ‘tainted’ lawmakers from contesting elections.
  • Section 8(3) of RPA states: “A person convicted of any offence and sentenced to imprisonment for not less than two years shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.”

Law of criminal defamation

  • The law of criminal defamation was not intended to have political consequences. It has been in the Indian Penal Code (IPC) since its inception in the times of
  • The basic logic of making defamation a criminal offence was to prevent people from fighting in the streets to protect their honour or that of their loved ones.
  • When the Constitution of India came into being, the right to freedom of speech and expression was made subject to the laws of defamation and contempt of court, along with a few exceptions.
  • Free India ought to have done away with criminal defamation and continued with defamation as a civil law that envisages compensation in terms of damages.

What about ‘free speech’?

  • Under the Constitution of India, all Indian citizens enjoy free speech subject to reasonable restrictions under Article 19, but the speech of MPs and Members of Legislative Assemblies in Parliament and other legislative bodies is particularly protected under Articles 105 and 194 as a parliamentary privilege, subject only to provisions of the Constitution and standing orders of such a legislative body.
  • MPs cannot be punished “in connection with" any vote or speech made in Parliament.
  • Courts are also specifically barred from making inquiries into proceedings in Parliament.
  • These additional greater protections for legislators are neither accidental nor a carve-out for special interests, but a recognition of how important free speech of legislators has been, historically, and continues to be in our parliamentary democracy.

Important SC’s Judgment

Lilly Thomas Case:

  • Under the RPA, Section 8(4) stated that the disqualification takes effect only “after three months have elapsed” from the date of conviction. Within that period, lawmakers could file an appeal against the sentence before the High Court.
  • However, in the landmark 2013 ruling in ‘Lily Thomas v Union of India’, the Supreme Court struck down Section 8(4) of the RPA as unconstitutional.

The Subramanian Swamy case

  • The constitutionality of criminal defamation was challenged in the Supreme Court, but in 2015, in the Subramanian Swamy case, the court upheld Sections 499 and 500 of the IPC, with the argument that the provision had existed in the statute books for a long time.
  • It was also argued that even the makers of the Constitution had made an exception in the freedom of speech provisions in favour of defamation laws.


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