The defamation case which led to the disqualification of Congress leader, Rahul Gandhi, from India's parliament merits a serious introspection of the current status of defamation law in the subcontinent.
The penal codes of India and Bangladesh treat defamation as a criminal offense, despite the widespread recognition of defamation as a part of tort law.
Sections 499 to 502 of the penal code have codified defamation as a part of criminal law. This defeats the purpose of an effective defamation law.
As a result, the law of defamation has essentially broken down and become a useful tactic for politically-motivated cases.
If defamation was tried in civil courts with a high threshold for the standard of proof, it would set a strong precedent for financial liability and societal awareness and prevention.
The decriminalization of defamation is much needed to ensure that defamation is reduced and does not take place.
Rahul Gandhi's case represents a flawed interpretation of defamation law. In Subramanian Swamy v. Union of India, it was held that “individual grievances pertaining to reputation can be agitated in civil courts and thus, there is a remedy and viewed from a prismatic perspective, there is no justification to keep the provision of defamation in criminal law alive as it creates a concavity and unreasonable restriction in individual freedom and further progressively mars voice of criticism and dissent which are necessitous for the growth of genuine advancement and a matured democracy.”
In Google India v Visakha Industries, Google petitioned the Indian Supreme Court to quash proceedings in lower courts after a lawsuit was filed on the basis of criminal defamation. Concerns were raised about the impact on business due to intermediaries being sued under criminal law.
In Gandhi's case, the lawsuit was filed by a person who was not directly affected by his comments. It is now widely reported that Gandhi referred to three individuals, including the Indian prime minister, a diamond baron, and a former executive of the Indian Premier League.
Gandhi never referred to all people with the surname Modi. He did not refer to a Modi caste.
The complainant lacks locus standi to file the case. There is no evidence of a power of attorney being given to the complainant on behalf of the individuals targeted by Gandhi.
The criminal procedure code requires clear evidence of a power of attorney in the event that the directly affected person is not able to file a case due to being underage, insane or sick.
None of the individuals Gandhi targeted suffer from these conditions and hence there is no need for a power of attorney.
In 1914, the Calcutta High Court quashed defamation proceedings in Abhaybswari Debi v Kishori Mohan Banerjee due to the lack of a credible need for a power of attorney.
In Thomas v Thomas, the Kerala High Court remarked that “The crux of the contention is that the holder of the power of attorney is not a person aggrieved by the offense and is therefore not competent to file the complaint.”
These factors clearly apply to the case against Gandhi. The sweeping repercussions of his conviction are a cause of grave concern.
Gandhi was speedily removed from his membership of the Indian parliament as a result of this conviction. Given the evident flaws in the judgment, the disqualification of Gandhi appears to be arbitrary and unjustly politically-motivated.
Gandhi must return to India's parliament and take up his rightful seat. He personifies the hopes and aspirations of millions of people in the subcontinent, particularly young people, who wish to see a new era of politics.
Umran Chowdhury works in the legal field.
