Defamation case: SC relief for AAP leaders

The Supreme Court on Monday stayed criminal defamation proceedings against Aam Aadmi Party (AAP) convener Arvind Kejriwal and Delhi chief minister Atishi in a case related to a statement made in 2018 that accused the Bharatiya Janata Party (BJP) of facilitating the alleged deletion of 3 million voters from electoral rolls ahead of the 2019 Lok Sabha elections.
A bench headed by justice Hrishikesh Roy issued notice on the petition filed by the two AAP leaders and said: “Further proceedings in the case are stayed.”
The complaint was filed by Rajiv Babbar, an authorised representative of Delhi BJP Pradesh committee, taking offence of a statement made by Kejriwal that alleged it was at the instance of the BJP that names of people from specific communities in Delhi were deleted from voter rolls.
The bench, also comprising justice SVN Bhatti, said that the petition raised a larger issue of whether the threshold for criminal defamation could curb speeches in the course of political discourse.
It said, “In our country, freedom of speech and expression is a fundamental right guaranteed under Article 19(1)(a) of the Constitution. And whether the threshold limit to curb speeches in the course of political discourse qua provision of Section 499 (criminal defamation) of Indian Penal Code (IPC)….is to be placed at a higher threshold.”
The court’s decision came at a time when both the AAP leaders were to appear before the trial court on October 3. The top court issued notice to the state and the complainant and posted the matter for hearing after four weeks. Earlier, the Delhi high court had on September 2 refused to stay the defamation proceedings following which the appeal was brought to the top court.
The petition was argued by senior advocate Abhishek Manu Singhvi and advocate Vivek Jain, who appeared for the AAP leaders. Singhvi doubted the maintainability of the complaint by pointing out that the statement alleged to be defamatory did not name Babbar. He stated that Section 199 of the Code of Criminal Procedure (CrPC) lays down the procedure for prosecuting a defamation complaint. It provides that a “person aggrieved” alone has to file a complaint.
He read the definition of defamation under Section 499 IPC, which gets triggered if the alleged imputation harms, or there is reason to believe that such imputation will harm the person’s reputation.
He said, “Babbar claims to be the authorised representative of Delhi BJP. It is not an entity in law and a general indiscriminate class cannot file a defamation complaint. Further, Babbar is not concerned with my complaint. He is representative of a non-qualified entity.” He added that the AAP convener had said that it was “shameful” that the BJP orchestrated the deletion of names from the voter list, and that such language is part of political discourse. As regards Atishi, Singhvi said that nothing is attributable to her except for her picture in one of the election posters where Kejriwal’s statement was written.
Singhvi also drew a parallel to a similar case decided on September 10 where the top court stayed defamation proceedings against Congress MP Shashi Tharoor for his remark against PM Narendra Modi quoting an article of 2012 published by Caravan magazine. The magazine carried a statement by an unnamed RSS leader who compared PM Modi to a “scorpion sitting on a Shivling”. The order was passed by a bench headed by justice Hrishikesh Roy who said that the manner of speech used by Tharoor was a “metaphor”. Singhvi even suggested having the Kejriwal matter heard with the pending petition by Tharoor. There too, the complainant was Babbar.
Senior advocate Sonia Mathur appearing for Babbar sought to distinguish the present case from the September 10 order. She said, “Here there is reference to caste and the imputation is against the BJP which brought harm to the caste.” She said that while Babbar filed the complaint against Tharoor in his individual capacity, the present complaint was filed following a letter by BJP on January 16, 2019 authorising him to file the complaint as an authorised representative of the party.
The bench remarked, “If we take it that the complainant or the complainant political party are political entities, this has happened during elections (in the run up to the 2019 Lok Sabha polls). Can’t we not take it that this was part of political discourse that was said to garner votes.”
Mathur argued that rather than focus on the person filing complaint, the character of the complaint must be seen. The bench did remark that the statement by Kejriwal did lack “sobriety” and said, “Lakshman rekha (dividing line) in these cases has to be decided.”
Singhvi pointed out that past decisions of the top court dealing with defamation law vis-a-vis fundamental freedom of speech has required the threshold to place reasonable restrictions on free speech to be very high.
Noticing these judgments in S Khushboo v Kanniammal (2010) and Subramanian Swamy v Union of India (2016), the bench said, “The issue as to whether respondent 2 (Babbar) is an aggrieved person within the definition of Section 199 of CrPC needs to be examined. Similar examination needs to be made whether political party can be an aggrieved party under the relevant section.”
“In other words, whether the threshold for criminal defamation is to be taken at a higher threshold level for political persons and political parties,” the court observed.
The Delhi high court order that was under challenge in the top court said that the AAP leaders’ accusation implied that the ruling BJP engaged in corrupt practices by manipulating the voter rolls and removing names, in order to influence public opinion. The HC deemed the statements defamatory as they tarnished the reputation of the party and undermined public trust in the party.