India’s Defamed Government

Neha Dixit

Three weeks after the Indian Prime Minister Narendra Modi and the Bharatiya Janata Party (BJP), his Hindu nationalist right-wing party, won the mandate of the Indian general elections, a college principal from India’s southern state of Kerala, was arrested for defaming Modi. The principal, with his nine students had featured Modi’s picture under a list of “negative faces” along with Osama Bin Laden, Adolf Hitler, and George W. Bush. They were booked for criminal defamation.

Criminal defamation is an invidious tool that Indian politicians have used against prospective political opponents. In India, civil defamation is not codified under a specific legislation. However, criminal defamation under Section 499 of the Indian Penal Code (IPC) makes it a criminal offense, and Section 500 of the IPC prescribes the punishment as two years imprisonment or fines, or both. Criminal defamation is a British relic in India. While it was abolished in the United Kingdom in 2009, criminal defamation continues to be used in India against opponents because civil procedures in the tardy Indian judicial system take years for a resolution. Unlike the delayed civil procedures, summons from the magistrate in criminal procedures come in promptly, and are loaded with appropriate social stigma to intimidate the accused party.

Most Indian governments have used criminal defamation to muzzle dissent. The BJP proudly flaunts a long list of defamation cases filed by them on the party’s official website. Modi’s first two weeks following his ascension in May this year were a jolt to civil liberties. Arvind Kejriwal, the founder of the newly formed Aam Aadmi Party, was arrested in a criminal defamation case for exposing alleged corruption in land deals by Nitin Gadkari, former BJP president and now a cabinet minister. Recently, on July 17, Kejriwal was once again served a defamation notice of Rs 10 million (over $160,000) for accusing BJP of “horse trading” parliamentarians to form a new state government in Delhi. Similarly, one shipbuilding professional from Goa and five students from two separate districts in the southern state of Karnataka were detained by the police for posting “anti-Modi” remarks on social media under Section 66A of the Information Technology Act, used for cyber defamation. Such repeated threats and police action have inadvertently initiated a cycle of unwarranted self-censorship in political dialogues to avoid legal action.

Under Modi’s decade-long chief ministership in Gujarat, the state witnessed its worst communal riots in 2002, which claimed the lives of over 2,000 innocent Muslims. Sanjeev Bhatt, a senior police officer, submitted in his affidavit in 2011, that on February 27, 2002, the day riots broke out, Modi, then chief minister of Gujarat, expressed the view that “Hindus be allowed to vent out their anger” during a meeting. The arrays of uncomfortable questions regarding his role in this anti-Muslim pogrom in the last decade have not been treated kindly by both Modi and his supporters.

In 2006, Teesta Setalvad, a civil rights activist and lawyer who helped victims of the sectarian violence of Gujarat 2002 riots, along with Zakia Jafri – wife of Ahsaan Jafri, a former Member of Parliament (MP) killed during the 2002 riots – filed a petition to prosecute Modi and 59 other political leaders, policemen, and administrators for their failure to prevent the killings of hundreds of Muslims, destruction of records, and use of hate speech to instigate the killings. In these eight years, Modi was exonerated by the Indian Supreme Court appointed Special Investigation Team, as well as, by a magisterial court. However, Setalvad has found herself implicated in four criminal cases including a criminal defamation case by a former aide Rais Khan, who allegedly influenced witnesses in the cases related to communal riots in the Gujarat.

Interestingly, the use of defamation cases or language is visibly unidirectional. “Narendra Modi fan Madhu Kishwar, a self-proclaimed BJP supporter and journalist, recently called Teesta [Setalvad] a terrorist on Twitter. Similarly, BJP leader Subramanian Swamy has called me a naxalite and someone who wants free sex. Both I and Teesta have tried to engage in a political debate instead of filing defamation cases. Could we then say that defamation suits are the rattles of the rich and the powerful?” asked the President of the All India Progressive Women’s Association, Kavita Krishnan, a leading voice in the December 16, 2012gang rape protests, where a 23-year-old paramedic student was gang raped by six men in a moving bus in Delhi.

The long list of expensive libel battles has not spared academics either. In November 2013, just two months after Modi’s announcement as the prime ministerial candidate of the BJP, Biju Mathew, an American Marxist intellectual and convener of Coalition Against Genocide (CAG), was slapped with a $50,000 libel suit by Shalabh Kumar, a Modi supporter for allegedly publishing “false” and “malicious” information about Modi. Mathew, along with 40 members of CAG had published “Unmistakably Sangh,” a detailed report which tracked funds being funneled to the Hindutva Movement in India – a movement advocating Hindu nationalism – and the pet project of BJP and its parent body, the Rashtriya Swayamsevak Sangh (RSS).

Modi’s candidature was openly endorsed by premier corporations in the country. The same corporations hold high stakes in major media outlets. This lack of neutrality clubbed with the compounding defamation cases on independent journalists has turned into a lethal combination to muzzle dissent. “Why did the mainstream media start losing its edge just a few months before Narendra Modi’s election campaign? Why is saffron terror not getting reported anywhere?” asks Ashish Khetan, an award winning investigative journalist and founder of an alternate investigative news portal, Gulail.com.

Even though the National Human Rights Commission and the Supreme Court of India have taken cognizance of Khetan’s ground breaking expose on saffron terror – acts of violence motivated by Hindu nationalism – and the role of BJP and the RSS in the Gujarat 2002 riots, Khetan has been at the receiving end of innumerable legal notices and criminal defamation cases.

In 2011, Khetan along with Tehelka, an investigative weekly news magazine, published a report revealing the role of the controversial RSS activist Swami Aseemanand as an ideologue to Hindu terrorists, and the complicity of RSS executive members including Indresh Kumar and BJP MP Yogi Adityanath. After the report was published, Khetan and Tehelka were served a legal defamation notice from the RSS and Adityanath, who as an MP requested the court to direct Khetan’s arrest for making “derogatory” statements against him. While Khetan is still battling the court cases, two days before Modi’s oath-taking ceremony, Kumar, who was allegedly responsible for the Mecca Masjid blasts in the southern state of Andhra Pradesh in August 2007 where 16 people lost their lives, indicated the incoming Modi government’s plan to review the saffron terror cases calling them “a conspiracy by the Congress-led United Progressive Alliance (UPA) government.” The veracity of the final judgment on such cases seems bleak since most of the accused are from Hindu nationalist groups affiliated with BJP.

From the freshly elected MPs in the general elections, one third of the total BJP MPs have serious criminal cases against them. With the available Parliamentary privileges and the rising number of defamation cases, ensuring justice against accused Parliamentarians is a growing worry. Vrinda Grover, human rights lawyer, provides perspective: “BJP definitely has a track record of brutal suppression of dissent but what is even more worrying is a weak opposition in the Parliament. There is hope only if the opposition manages to combat the rigorous clamping down of the BJP government on the dissenters and creates a debate.”

Till then, the looming danger on India’s culture of dissent will be a faltering pendulum between normalized defamation cases and draconian laws of the new government.