Karan Kumar

| @CouldBeKaran | July 9,2018

SLAPP, in line with the term’s literal perusal, is an acronym for Strategic Lawsuits Against Public Participation. These are cases filed to shut down any criticism, regardless of its authenticity. Intrinsically linked with the Freedom of Speech guaranteed by Article 19(1)(a), SLAPP suits have not yet garnered the requisite judicial scrutiny. The only relevant instance of the higher Indian judiciary taking cognisance of the threats SLAPPs pose is the 2009 verdict of the Crop Care Federation of India vs Rajasthan Patrika (Pvt) Ltd case. Here, the Delhi High Court issued a warning with respect to SLAPPs, holding:

“Free speech and expression is the life blood of democracy. Any action — even civil injunctions, damages, or threat to damages, are bound to chill the exercise of that invaluable right of the people, and the press. By giving such orders, or allowing claims for damages, for perceived injury to reputation, the harm done to freedom of press, which facilitates free flow of ideas is incalculable.”

How do SLAPPs operate

These proceedings are usually defamation suits filed by a party to silence any criticism it may have been subject to and are usually characterised by two primary features. First, the complainants possess greater means and resources than the defendants. Hence, such suits are usually demonstrative of a David versus Goliath scenario, with the defendants being individuals such as journalists, activists, academics, or bloggers, pitted against complainants being affluent entities.

The complainants possess greater means and resources than the defendants. Hence, such suits are usually demonstrative of a David versus Goliath scenario, with the defendants being individuals such as journalists, activist, academics, or bloggers, pitted against complainants being powerful entities

As a general trend, the complainants are substantially more affluent, both in terms of financial and social capital, compared to the defendants.

The second defining characteristic of the suits is the aspect of harassment they embody. Here, the aforementioned allows the complainants to embroil their critics in long-drawn litigation battles across various judicial forums. The mismatch in resources permits the complainants to indulge in their problematic enterprise whereas the costs of maintaining and sustaining a legal defence takes a massive toll on the defendant, which apart from fulfilling the complainant’s objective of harassment, may even force the defendants into silence.

They manifest themselves as civil defamation suits claiming exorbitant sums as damages, criminal defamation suits under the Indian Penal Code’s (IPC) Section 499, or simply by relying upon the delaying mechanisms the procedural aspects of the legal system avail.

Civil suits

Laws pertaining to civil defamation are not codified, hence adjudication upon such matters is governed by the principles of common law. By virtue of this, the complainants are free to seek exorbitant amounts as damages, which ties into the harassment aspect of such suits. The following are a few instances of such suits:

A one crore rupee claim made by RK Pachauri, former TERI Chief, against lawyer Vrinda Grover who made public the statements of two of her clients, as the latter had accused Pachauri of sexual harassment.

A 5 crore rupee claim made by United Phosphorous Limited, a leading pesticide manufacturer against an NGO, Kheti Virasat Mission, for publicly discussing the negative health effects of pesticides.

A 1,000 crore rupee claim against investigative journalist Josy Joseph by Jet Airways for writing about the alleged links between the airline and gangster Dawood Ibrahim in his book, A Feast Of Vultures.

A demonstration of these tactics succeeding is the recent stepping down of Paranjoy Guha Thakurta as the editor of Economic & Political Weekly (EPW), following a simple legal notice indicating towards a multi crore defamation suit by Adani Power Ltd unless an article they deemed to be defamatory was taken down. Not only did EPW board of trustees decide to remove the piece from its website, it also asked Guha Thakurta  to not change the editorial format of EPW’s academic inclination by publishing investigative stories in the commentary journal, thereby laying bare the myriad editorial self-censorship that media platforms — even the prestigious and serious ones such as EPW — resort to in order to avoid being trapped in a vicious cycle of SLAPP suit generated adversity.

“Truth”, a principle at the forefront of investigative and critical endeavours maliciously targeted by SLAPPs,  is an absolute defence in the cases of civil defamation, without the burden of them being published in lieu of public good. This tilts the scales in favour of the defendants vis-à-vis the legal battle, but more often than not these ends are not achieved due to the long-drawn, resource intensive nature of litigation in India.

“Truth”, a principle at the forefront of investigative and critical endeavours maliciously targeted by SLAPPs, is an absolute defence in the cases of civil defamation, without the burden of them being published in lieu of public good. This tilts the scales in favour of the defendants vis-à-vis the legal battle, but more often than not these ends are not achieved due to the long-drawn, resource intensive nature of litigation in India

Hence, suits filed on frivolous legal grounds with foreseeable outcomes do end up favouring the party who’s position is intuitively opposed to the law.

Criminal suits

Criminal defamation suits ensue with the invocation of the draconian Sections 499 and 500 of the IPC, and usually accompany a civil defamation suit. The constitutionality of these colonial era laws were challenged at the Supreme Court in Subramaniam Swamy Vs. The Union of India. The verdict of this case, which potentially could have acted as a shield for citizens against state persecution, is widely considered as a missed opportunity.

The judgment penned by current Chief Justice of India Dipak Misra held the archaic laws to be in line with the “reasonable restrictions” to free speech as per Article 19(2) of the Constitution. The rationale seems counter-intuitive to the scope of these restrictions as propounded by the 2015 Shreya Singhal verdict, which held them to be “narrowly interpreted so as to…restrict only what is absolutely necessary”.  Also, the Court’s attempt at reading “public interest” within the reasonable restrictions as per Article 19(2), are in direct contradiction with the holdings of the aforementioned Shreya Singhal verdict, as well as the constitutional bench of the Sakal Papers case. 

Further, the bench failed to address how defamation constitutes a public wrong, a necessary element to affirm its criminality. Additionally, the verdict also read the right to reputation as included within “dignity” availed to each individual as a fundamental right under Article 21, The Right to Life. This judgment encourages the filing of SLAPP suits under the garb of a violation of fundamental rights.

The verdict also read the right to reputation as included within “dignity” availed to each individual as a fundamental right under Article 21, The Right to Life. This judgment encourages the filing of SLAPP suits under the garb of a violation of fundamental rights
Further, unlike “truth” being an absolute defence as in civil defamation suits, criminal defamation requires the instances of speech to be in furtherance of public good. This additional burden upon the defendant to establish beneficial nature of their statements has a chilling effect on the free speech given that this embroils the defendants in two legal battles, with the State being the prosecutor at the criminal front

Other detriments

Defamation suits can be filed at any of the 600-plus district courts across the country. This legal provision is in furtherance with the complainants’ objective to harass their adversary, by forcing them to travel and engage in legal battles all across the nation.

Additionally, multiple suits if in case the aggrieved is a company are filed via their employees, adding to the perils of their critiques.

Also, temporary injunctions as per the CrPC’s Order 29, allows the petitioners to get blanket restraints enforced upon the defendants, stifling all publication till the case’s pendency which drag on for years at end, with the threat of attachment of the defendant’s properties in case of disobedience. The fact that these interim orders are issued by Courts without any kind of substantive hearings, runs the risk of them being insufficiently “reasoned”.

Demonstrated by the Gujarat High Court order gagging The Wire from running the Jay Shah story, and the Delhi High Court order gagging Cobrapost from reporting upon the sting against Dainik Bhaskar, and the one restoring the gag on the biographical book Godman to Tycoon: The Untold Story of Baba Ramdev. This trend of gagging speech without sufficiently examining the allegations’ veracity, runs the threat of reducing Article 19(1)(a) under the pretext of maintaining the status quo.

Need for anti-SLAPP legislation

To stem the growth and to counter the negative implications SLAPP suits have upon free speech which is critical towards the existing power structures, an anti-SLAPP legislation is required, similar to those implemented by 28 states of the USA. These laws avail the defendants to file petitions against them aimed at silencing them, by claiming their exercise of speech is a matter of right, and is a matter of public concern, hence addressing the criminal aspect of defamation as per the current legal scenario.

This burdens the accusing party to produce evidence substantiating their claims of the defendants’ statement actually causing them harm, making them demonstrate that they actually have grounds to proceed with a suit that may end in their favour. Such laws will prevent filing of cases on frivolous grounds intended to be drawn out over years, as they will prevent the harassment that bogus litigants usually strive to impute upon their adversaries.

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