'Threshold For Criminal Defamation Higher For Political Discourse' : Supreme Court Stays Case Against Arvind Kejriwal, Atishi

In an interim relief to Aam Aadmi Party chief Arvind Kejriwal and Delhi Chief Minister Atishi Marlena, the Supreme Court today stayed further proceedings in a criminal defamation case filed by BJP leader Rajiv Babbar assailing their remarks over alleged deletion of Delhi voters' names from electoral rolls in 2018.

A bench of Justices Hrishikesh Roy and SVN Bhatti granted the interim relief, while issuing notice on the plea filed by Kejriwal-Atishi seeking quashing of the defamation case.

Kejriwal-Atishi filed the petition challenging the Delhi High Court's dismissal of a plea against their summoning as accused in the complaint. Proceedings in the case were stayed in 2020. Vide the impugned order, Justice Anoop Kumar Mendiratta vacated the stay and directed the parties to appear before the trial court on October 3.

During the hearing, Senior Advocate Dr AM Singhvi (for Kejriwal) contended that law on criminal defamation requires a specific finding of locus and person aggrieved. However, in the present case, the defamation complaint has been filed by respondent No.2-Rajiv Babbar as authorized representative of BJP Delhi Pradesh, which is not a determinate class of "aggrieved person", and there is no "specific legal injury" alleged.

The senior counsel pointed out that nothing was said qua respondent No.2 in the impugned statements and insofar as petitioner No.2-Atishi, there was no specific allegation in the complaint, besides a newspaper report, which shall be treated as hearsay unless supported by proof.

Referring to the impugned judgment, Singhvi further urged that the High Court relied inter-alia on the judgment in the case of Shashi Tharoor v. State of NCT of Delhi, but that judgement was recently stayed by the top Court.

Calling Babbar a "professional filer", the senior counsel also drew the court's attention to the fact that the defamation complaint against Shashi Tharoor was also filed by Babbar. Further, he emphasized that the issue as to whether a political party can constitute a determinate class has not been decided by the top Court, albeit there are different High Court opinions on the point.

In brief, the crux of Singhvi's argument was that unless injury/harm to reputation and 'being aggrieved' is demonstrable, summoning of an accused for criminal defamation may not be warranted. The second crucial point was that impugned statements were made in the run-up to Parliamentary elections and the same ought to be seen as part of political discourse.

Senior Advocate Sonia Mathur, on the other hand, entered appearance for Rajiv Babbar and asserted that the defamation complaint was filed on authorization of the BJP and it was the political party that was "aggrieved", not Babbar (in his personal capacity).

Taking objection to Singhvi's reference to Babbar as a "professional filer", she urged that in Shashi Tharoor's case, Babbar approached the court being personally aggrieved. However, in the present case, it was the political party which was aggrieved and Babbar was duly authorized to litigate on its behalf.

Mathur also referred to a Kerala High Court judgment, where RSS was held to be a determinate class. It was stated that the special leave petition challenging the said judgment was dismissed.

After hearing the senior counsels, the bench expressed that if the defamation complaint was infact on behalf of the political party ie BJP, it should have been titled "BJP through its authorised representative Rajiv Babbar", but that was not the case.

"If someone says District Collector of so and so State...he is not representing the state", said Justice Bhatti, before adding that "the extent of defamation and also the lakshman rekha in this matter needs to be decided".

The order was dictated thus: "The issue as to whether respondent No.2 is an aggrieved person will require examination. In our country, freedom of speech is a fundamental right guaranteed under Art 19(1)(a) of Constitution and the threshold limit to curl speeches in course of political discourse...has to be placed at a higher threshold...In other words, the threshold for criminal defamation is to be taken at a higher threshold level for discourse amongst political persons and political parties...In Khushboo, it is opined that threshold for placing reasonable restriction on freedom of speech and expression is a very high one and there should be presumption in favor of accused...Issue notice, returnable in 4 weeks. Further proceedings pursuant to the impugned judgment are stayed."

Background

The defamation complaint was moved by Rajiv Babbar against Kejriwal, Atishi, Sushil Kumar Gupta and Manoj Kumar. He sought action against Kejriwal and AAP leaders for "harming" the reputation of Bhartiya Janata Party (BJP) by blaming it for deletion of the names of voters from electoral rolls.

It was claimed that the AAP leaders, during a press conference in December 2018, alleged that on the directions of BJP, names of 30 lakh voters from Bania, Poorvanchali and the Muslim community had been deleted by the Election Commission of India.

Before the High Court, Kejriwal and AAP leaders submitted that the trial court had failed to appreciate that no offence was made out against them. They contended that the trial court orders failed to appreciate that the AAP leaders did not make or publish any statement against Babbar or his party as alleged by him.

Case Title: Arvind Kejriwal And Anr. v. State (National Capital Territory Of Delhi) And Anr., SLP(Crl) No. 13279/2024