India: Supreme Court slams TN CM Jayalalithaa on numberless defamation cases!
-Dr. Abdul Ruff
Indian Supreme Court on August 24 asked the Tamil Nadu government to chin up and face criticism of its policies. The apex court observed No other State in the country seemed to have filed so many criminal defamation cases, that too using the state machinery and the public prosecutor’s office, in the recent past. Rebuking Tamil Nadu Chief Minister J Jayalalithaa during a hearing on a defamation case filed by her, the Supreme Court today said a public figure must be prepared to face criticism. “You are a public figure and you have to face criticism,” the apex court told the AIADMK chief, whose government has filed several defamation cases against her critics. The Supreme Court was not pleased. “No other state misuses the state machinery like the Tamil Nadu government,” the bench noted.
One of those defamation cases refers to a report on Jaya’s medical condition. “Defamation cases can’t be slapped for merely reporting on the Chief Minister’s health condition,” the apex court said. It was for the second time in as many months that the Jayalalithaa government in Tamil Nadu was slammed by the Supreme Court over the batch of defamation cases.
Last month, a bench of Justice Dipak Misra and Justice Rohinton Faliman had said such defamation cases against the critics of a government have a “chilling effect”. “It amounts to curbing of free speech. There has to be tolerance for criticism. The defamation law cannot be used as a political counter weapon,” the bench said. The apex court by its May 13, 2016 judgment had rejected the challenge to the constitutional validity of penal provisions for criminal defamation.
A Bench, led by Justice Dipak Misra, perused the history of defamation cases filed in the past five years and said criminal defamation cases were filed even for reports about the Chief Minister’s health condition. “This is not the way… this is not the sign of a healthy democracy. This shows State’s control over the sanctioning authority and prosecutor’s office in filing defamation cases against opponents, media and political rivals,” Justice Misra observed orally. “If somebody criticises the policy of the government, if the person criticised is a public figure, he has to face it instead of using the state machinery to choke criticism,” the Bench said.
The court issued fresh notice to the State government and the authorities and directed them to file their responses on the issue within three weeks. The court then posted a hearing after five weeks.
On August 17, the government provided the Supreme Court with a list of defamation cases filed by the State through the public prosecutor in the past five years. The list shows a spectrum of cases filed against the DMK, the DMDK, the Congress, the media and BJP leader Subramanian Swamy. The 70-page list, in a tabular form, is titled the “list of defamation cases filed by the Government of Tamil Nadu for defamatory speeches made against Honourable Chief Minister from May 16, 2011 to July 28, 2016”.
A broad count of the list shows that 213 criminal defamation cases have been filed by the Tamil State. Of this, 85 were registered against the DMK, 48 against the DMDK, 55 against media persons, seven against the Congress and five against Dr. Swamy. The submission of the list was based on a July 28 order by the court, which was alarmed by the row of criminal defamation cases unleashed on political opponents of Ms. Jayalalithaa through the state machinery. This was barely 10 days after the apex court sought a personal explanation from Ms. Jayalalithaa about the series of criminal defamation cases being lodged against political opponents.
The Bench was hearing a criminal defamation case filed against DMDK leader Vijayakanth through the local public prosecutor on the government’s sanction against his remarks at a public event in Tirupur district on November 6, 2015. During an earlier hearing on a similar defamation case against Mr. Vijayakanth for remarks made in Dharmapuri district, Justice Misra had orally observed that a “public prosecutor is not a postman” to settle political scores.
The Supreme Court on August 24 said defamation cases should not be used as a political counter weapon against critics of governments and stayed non-bailable warrants (NBW) issued against DMDK Chief and actor politician Vijayakanth and his wife Premlata in such a matter. “Anyone calling a government corrupt or unfit cannot be slapped with defamation case,” a bench comprising Justices Dipak Misra and R F Nariman said. The apex court further said, “there has to be tolerance to criticism…defamation cases cannot be used as a political counter weapon. Cases for criticizing the government or bureaucrats create a chilling effect.”
The court also sought the list of defamation cases filed by the public prosecutors in Tamil Nadu on behalf of Chief Minister Jayalalithaa against her critics in two weeks. The penal provision on defamation (section 499 and 500 of the IPC) should not be used to throttle dissent, the bench said, adding that the court must step in, if there are continuous efforts to harass persons by filing a number of defamation cases.
Whether calling a Chief Minister “corrupt” amounted to criminal defamation or not was the crux of a debate between Tamil Nadu Chief Minister Jayalalithaa’s lawyers and the Supreme Court . “You can’t call a Chief Minister ‘corrupt’ and then say there is no defamation,” senior advocate L. Nageshwar Rao August 23, 2016 told a Bench of Justices Dipak Misra and Prafulla C. Pant. Justice Misra reacted saying that “then there cannot be any criticism in this country”. “Saying corrupt is all right,” Justice Misra remarked. But Rao persisted that comments in the nature of a personal attack of the Chief Minister amounted to defamation. The exchange came on a petition filed by DMDK founder and Leader of the Opposition in the Assembly Vijayakanth against criminal defamation cases filed against him in various courts in Tamil Nadu.
The petition by actor turned political leader Vijayakanth, represented by advocate G.S. Mani, was part of a batch led by BJP leader Subramanian Swamy and diverse leaders seeking decriminalization of defamation. The Apex bench told the counsel for Tamil Nadu government that there should not be abuse of defamation provisions. A Tirupur trial court had yesterday issued a non-bailable warrant against Vijayakanth and his wife after they failed to appear before the court with regard to the defamation case against them. The case lodged by Public Prosecutor of Tirupur district was on the allegation that they made false remarks against Jayalalithaa and criticised the functioning of the State government on November 6, 2015.
Penal provisions of defamation amounted to a chilling effect on free speech, and thus unconstitutional, they had argued. “Why should this court give an exception to people who have come here to this court? Why show this exception to people who speak about somebody’s personal life? The comments in question ranged from accusation of sand mining to making Rs.100 crore of illegal benefits… It is all right to criticize the government, but these comments are personal,” Rao submitted.
Incidentally, the Centre, represented by Additional Solicitor General P.S. Narasimha, also agreed with Ms. Jayalalithaa’s side that the cases “should go to trial”. The court then reserved the petition for final orders.
Earlier, the apex court had issued notice to Jayalalithaa on a plea by Vijayakanth seeking stay on proceedings on a criminal defamation case filed against him through public prosecutor. Besides Jayalalithaa, the court has also issued notice to the public prosecutor who has filed the defamation case. “A sustained democracy is predicated fundamentally on the idea of criticism, dissent, and tolerance, for the will, desire, aspirations and sometimes the desperation of the people on many an occasion are expressed through such criticism,” the bench had said while reproducing the submission made by DMDK counsel G S Mani.
Meanwhile, the apex court is hearing an appeal filed by Karnataka challenging the acquittal of the 68-year-old AIADMK chief and three others in the disproportionate assets case. the Karnataka government in June told the Supreme Court that Tamil Nadu Chief MinisterJ Jayalalithaa’s acquittal by the state High Court in an illegal assets case is perverse and defeats the mandate of the Prevention of Corruption Act.
Jayalalithaa and others were accused of allegedly amassing disproportionate asserts to the tune of Rs 66.65 crores during her first term as chief minister from 1991 to 1996. After a trial that lasted for 18 years, a trial court in Bangaluru had convicted Jayalalithaa and sentenced her to four-year jail term and a Rs 100 crore fine.
Karnataka government has challenged the state High Court’s May 11, 2015 verdict reversing a September 27, 2014 Bangaluru trial court order convicting Jayalalithaa, her aide N Sasikala Natarajan and the latter’s two relatives VN Sudhakaran and Elavarasi in the case. Karnataka had argued before the apex court that the accused had conspired to camouflage the disproportionate assets by creating a web of companies.
Last month, in a historic victory, Jayalalithaa bucked the trend to beat anti-incumbency – and allegations of corruption – to retain power in Tamil Nadu, a first since 1984. In a coincidence, the AIADMK supremo took oath as Chief Minister for the second time in a span of one year on the same day – May 23. Jayalalithaa had assumed office on May 23, 2015, exactly a year ago, as Chief Minister for the fifth time of the state then following her acquittal.