A Sullivan For The Times: The Madras High Court On The Freedom Of Speech And Criminal Defamation

Quashing in a criminal defamation case is a difficult prospect. This is because – to simplify – under Section 499 of the IPC, a prima facie offence of defamation is made out with the existence of a defamatory imputation, which has been made with the intention or knowledge that it will cause harm. This is, evidently, a very low threshold. Section 499 also contains a set of exceptions to the rule (such as statements that are true and in the public interest, statements made in good faith about public questions, and so on) – but here's the rub: these exceptions only kick in at the stage of trial, by which time the legal process has (in all likelihood) dragged on for years. What we essentially have, therefore, is one of those situations where the cost of censorship is low (instituting prima facie credible criminal proceedings), but the cost of speech is high (a tedious, time-consuming, and expensive trial, with the possibility of imprisonment). Long-standing readers will recall that this structure of criminal defamation law – and the chilling effect that it causes – was part of the unsuccessful 2016 challenge to the constitutionality of Section 499.

In a short and lucid judgment, Justice G.R. Swaminathan of the Madras High Court nonetheless proceeded to quash the proceedings. He did so on two bases, both of which are critical for the future development of free speech law. First, on a careful study of recent precedent, he accurately identified the unarticulated premise of those judgments, and took it to its logical conclusion. As Justice Swaminathan noted, the 1994 judgment of the Supreme Court in R. Rajagopal v State of Madras had extended the rule of actual malice, laid down in the American Supreme Court case of New York Times v Sullivan, to Indian law. The Sullivan Rule (whose evolution in the American Civil Rights movement was traced by Swaminathan J.) is based on the recognition that if free speech, and especially journalistic speech, is to survive, it must have "breathing space." In other words, mere inaccuracies will not subject the writer to defamation, unless it is shown that the writer either knew that they were making false statements, or made them with "reckless disregard" for whether they were true or false.

In Rajagopal, as pointed out above, the Sullivan principle was applied to civil defamation cases. In subsequent judgments by Justices Shah and Bhat in the Madras and Delhi High Courts, the American trajectory of extending the principle from cases involving only public officials, to cases involving questions of public interest, was also followed (these, too, were extracted by Swaminathan J.). However, as we have discussed previously on this blog, this left the law in a paradoxical state: the law on civil defamation became more speech protective than criminal defamation, a reversal of the traditional rule that criminal proceedings need to come with more procedural safeguards, because of the graver penalties involved (this argument was also unsuccessfully made before the Supreme Court in 2016, as an alternative "reading down" of Section 499 – the Court did not engage with it).

It was Swaminathan J. who finally put the paradox to rest. He noted that Exceptions 2 and 3 to S. 499 – that is, statements on the public conduct of public servants, and on public questions – already encoded the Sullivan principle. Furthermore, as the Madras and Delhi High Courts had specifically concretised the principle in Indian law, that reading would necessarily have to form part of the interpretation of Exceptions 2 and 3 (paragraph 14). Thus:

There can always be a margin of error. The permissible width of the margin will depend on the facts and circumstances of each case. The media can avail this defence whether the complainant is a public official or a private entity. Mere inaccuracies in reporting cannot justify initiation of prosecution.

Thus, as long as there was a public question involved – i.e., "an issue in which the public or the community at large has a stake or interest" (paragraph 15), the Sullivan rule would apply. In this way, Swaminathan J. elegantly reconciled the post-Rajagopal split between civil and criminal defamation, and brought the latter up-to-date.

There still remained the issue, however, of the exceptions kicking in only at the stage of trial, and not at the stage of quashing. This constituted the second significant part of the judgment. Justice Swaminathan noted that under the Constitution, the default was the right to free speech, with restrictions justified only as exceptions. This understanding would have to be incorporated into the interpretation of Section 499, as long as it remained on the statute books. In particular, the judiciary would have to take this fact into account when exercising its powers under Section 482 CrPC, as a dismissal would entail sending the petitioner back to the trial court to fight the entire case. Thus:

If a summary examination of the materials produced by the accused can bring their case within one of the Exceptions, I can give relief to the petitioners here itself instead of making them undergo the ordeal of trial. Such an activist role will have to be played by the higher judiciary because it is a matter of record that criminal defamation proceedings have become a tool of intimidation and before corporate bodies and powerful politicians whose pockets are tunnel deep and whose hands are long even media houses having good resources have capitulated. (paragraph 20)

Conducting that summary examination, Swaminathan J. noted that the article was (a) based on a public interest litigation filed before the Madras High Court, (b) it contained a response from the complainant, (c) there were a few errors, which were later clarified and apologised for by the magazine, (d) cognisance was taken by the Court of the allegations of illegal mining, and a status quo order was passed (paragraph 21). For these reasons, Swaminathan J. held that the Exception was clearly attracted, the "good faith" requirement had been met, and that consequently, a case for quashing was made out.

It is my submission that Swaminathan J.'s approach was entirely correct, and I would add that I do not think it was "activist" in any sense. As the extracted paragraph demonstrates, Swaminathan J. clearly reasoned that (a) Article 19(1)(a) makes it evident that restrictions upon free speech – such as those imposed by criminal defamation – are to be understood as "exceptions"; (b) that the structure of criminal defamation law, as it stood, was contrary to this principle, and indeed, because of this, it had become a tool to facilitate legal harassment and SLAPP suits. Now, it may not be easy for a trial judge to depart from the strict bounds of criminal procedure and, say, entertain an application for discharge by considering whether the Exceptions to S. 499 have been made out or not. This is why Swaminathan J. located the remedy in Section 482 proceedings before the High Court, but nonetheless, conducted only a "summary examination" of the complaint to determine whether the exception was self-evidently made out or not. He found that it did. Notably, the summary examination did not require him to rule on disputed questions of fact and evidence, but whether on the accepted facts – that is, on the complainant's best case – the exception was attracted or not. In this case, given the language of Section 499, and the constitutional framework with which it must comply, it is submitted that Swaminathan J. got the balance exactly right.

In sum, therefore, Sandhy Ravishankar's Case is a crucial landmark in the history of judicial protection of free speech in India. It takes forward the unrealised promise of Rajagopal, and further develops the law laid down by the Madras and Delhi High Courts. The judgment holds that (a) the Sullivan rule of actual malice applies to criminal defamation, and in particular, to Exceptions 2 and 3. Thus, mere factual errors in reports on issues of public importance cannot justify criminal prosecution; and (b) that in light of the constitutional guarantee of free speech the High Court, acting under Section 482 CrPC, is empowered to conduct a "summary examination" and assess whether an accused falls within the Sullivan rule in a particular case or not – and to quash the case if they do. This is a powerful doctrine for the future protection of free speech, and a bulwark against the continued use of SLAPP suits as a legal weapon to silence inconvenient journalism.

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Gautam Bhatia is a Delhi based Lawyer and Writer

This Article was first published here