New York Times, Now

November has turned out to be an interesting month for the law of free speech in India. First, in what has been termed India’s “highest defamation suit”, a former Supreme Court judge obtained an interim order against a prominent news corporation, requiring it to deposit a sum of Rs. 20 crore (i.e. approximately US$4 million) with the court and to furnish a bank guarantee for Rs. 80 crore (i.e. approximately US$16 million). Second, the censor board in India ordered that the flags of Tibet displayed in a film song “Saada Haq” be blurred or deleted. Both “defamation” and “friendly relations with foreign states” are exceptions to the freedom of speech and expression under Article 19(2) of the Indian constitution. Both cases offer telling insights into the state of speech in India, especially when viewed against the backdrop of former Justice Katju’s highly visible call for “instilling fear” in the media.

Almost nobody will deny that the media corporation in the defamation case committed a grave error. At 6.30p.m. on September 10, 2008, the news channel Times Now was doing a story on the provident fund scam, allegedly involving a judge of the Calcutta High Court, P.K. Samanta. Instead of running Justice Samanta’s picture alongside the story, the news channel reportedly ran Justice P.B. Sawant’s picture, for an eternity of 15 seconds. A defamation suit was filed, and a civil court in Pune reportedly ordered the Times Global Broadcasting company to pay exemplary damages of Rs. 100 crore to Justice Sawant. It was reported that the Bombay High Court admitted the appeal subject to a deposit of an amount, and that recently, the Supreme Court affirmed the High Court’s order. Times Now has to pay now: it has to deposit 20% of Rs. 100 crore in cash, and furnish a bank guarantee for the remaining 80%. Given that civil suits in India take an enormous period of time to be finally resolved, the whole legal system in India works on the basis of interim relief, and this interim order is likely to stick.

No reasonable person can argue with the fact that Times Now committed a serious mistake. The mistake is especially problematic because the judge in question was Justice P.B. Sawant— who served for close to 6 years on the Supreme Court with a stellar reputation of honesty and learning. However, one cannot help but ask: did the punishment fit the crime? (Or to be legalistic: did the quantum of damages fit the tort?)

In October 1994, when Justice Sawant was still serving as a judge in the apex court, the Supreme Court of India famously applied the US Supreme Court’s New York Times v. Sullivan standard in India. The New York Times newspaper had carried a full-page editorial advertisement (entitled 'Heed Their Rising Voices') in March 1960 alleging that the police in Montgomery, Alabama, had committed grave civil rights atrocities. Some of the allegations levelled against the police turned out to be false— the newspaper had made mistakes. The police commissioner sued the newspaper for defamation. Speaking for the US Supreme Court, Justice Brennan refused to find the newspaper liable, holding that since the case involved public officials, defamation would be found only on a showing of “actual malice” — that is, only if the newspaper had acted with knowledge that the statement was false, or with reckless disregard of whether it was false or not. Honest mistakes would not be penalized— in fact, the court acknowledged that mistakes were inevitable, and accommodating honest mistakes gives “breathing space” to debates on important political issues.

Later, this principle was extended to “public figures” as well, i.e. to those who have “assumed roles of especial prominence in the affairs of society”, and today it is not merely restricted to public officials [Curtis v. Butz, 1967; Gertz v. Robert Welch, 1974]. The motive force of the New York Times principle is that debates on public issues should be “uninhibited, robust and wide open”, especially when the issue is one of the more important public issues of the times, like corruption is in India.

In 1994, the Supreme Court of India (Rajagopal v Tamil Nadu) applied this rule to an interesting case. A prisoner on death row, “Auto Shankar”, apparently sent his autobiography to a magazine, Nakkheeran, for publication. The autobiography created a scare because it exposed the convicted murderer’s links with prison officials. The state contended before the Supreme Court of India that it could impose a “prior restraint” on the magazine, because the autobiography was false and defamatory. The court refused, and also held that public officials could not obtain damages for acts related to their official duties, even where the statements were false, unless the officials established that the publication was made with “reckless disregard” for truth.

Scholars of the “law and society” movement would criticize the blind “transplantation” of legal doctrine from one country to another, and would perhaps argue that American defamation law should not be relied on in India, as the two societies are different. Another objection to the application of U.S. defamation law in India may come from doctrinal scholars who might argue that there are national differences in free speech provisions: the “first amendment” to the U.S. constitution is “absolute”, whereas Article 19(1)(a) of the Indian constitution is subject to numerous enumerated exceptions. However, both these arguments can be addressed. First, the application of the New York Times principle in India is not a “transplantation” if one believes that “democracy” is a universal value, and not a western imposition. A robust democracy requires healthy debate, in which honest mistakes are bound to be made— penalizing those mistakes with a heavy hand will only stifle debate. Giving news corporations the breathing room to make honest mistakes is not an “American” principle as much as it is a “democratic” one. Second, although the U.S. constitution does not enumerate exceptions to free speech, numerous exceptions to free speech have been recognized there, e.g. defamation, perjury, child pornography etc. The “absolute” nature of the first amendment does not therefore make it different from the right to free speech in India.

In the Times Now case, one gets the feeling that the Indian courts did not consider whether the mistake was honest or malicious. This is especially worrying given the fact that the claimant in the Times Now case was a former Supreme Court judge— a public figure, even if no longer a public official. The lay observer might be tempted to ask: would a damages order of the same magnitude have been issued in favor of the ordinary litigant, or is justice only for the justices? Constitutional courts in India possess “contempt of court” powers which include powers to punish speakers for “scandalizing” the court or its members— a regressive blot on India’s liberal democracy. In these cases, the Supreme Court has shown a worrying tendency to ignore its application of the New York Times standard. The Times Now case troublingly fits the “contempt of court” paradigm, especially because the aggrieved individual was a former Supreme Court judge. Further, the sheer size of the damages award is surely likely to have a chilling effect on speech in India— more than ever, genuine critics of the judiciary are now going to censor themselves, for fear that a court order may bankrupt them, as it might in Singapore.

Similarly, the censor board’s decision to blot out Tibetan flags from a song in a Mumbai movie is equally troubling. The government might have a certain view on foreign policy, but what business is it of the government to impose those views on its citizens? The government may not want to express any opinion on the Tibet question. However, Indian citizens are constitutionally entitled to hold views which differ from those of the government. The censor board’s policy resembles China’s infamous attempts at carrying out “harmonization” in its society, a code-word for stifling dissent. The censor board could have required the producers of the film to issue a disclaimer that the government does not subscribe to the views expressed in the film. Instead, by stifling its citizens’ rights, the censor board has collapsed civil liberties into a tenuous concern for friendly relations with an economically powerful state.

Chinese bloggers, playing on the nuances of their language, have devised an ingenious way of criticizing their government. In Chinese, the word for “French-Croatian Squid” sounds very similar to a notorious four letter word in the English language– and the word is commonly used by Chinese bloggers against their government’s policy of “harmonization”. The censor board’s decision to stifle free speech might prompt a similar reaction in the Indian blogosphere.

Abhinav Chandrachud is a research fellow at Stanford Law School, and a graduate of the LL.M. program at Harvard Law School