E-Cool Gaming Solutions Pvt. Ltd. has filed a Criminal Defamation Case against Foundation for Independent Journalism, which runs The Wire, its co-founder Siddharth Varadarajan, and others in the Court of Chief Judicial Magistrate, Aizawl District Court, Aizawl (Mizoram). The defamation case alleges that this article, which reported on a Comptroller and Auditor General of India (CAG) investigation on an alleged Rs 11,000 Crore lottery irregularity in the the Mizoram lottery tender and revenue-sharing process from 2012-2015. Nigam Kumar, a lawyer representing E-Cool told MediaNama that the summons was issued on July 7th (last Friday) and that the next hearing is in first week of September. Siddharth Varadarajan, co-Founder of The Wire, told MediaNama that they have received no information from Subhash Chandra (Chairman of the Essel Group), his companies, their lawyers, or court. E-Cool, as per the story in the Wire, is believed to be closely associated with the Essel Group.
The story, titled “Spotlight on Subhash Chandra’s Essel Group as CAG Probes Rs 11,000 Crore Lottery Irregularity” by Jay Sayta of glaws.in, alleged that as per the CAG report, companies awarded tenders have “not deposited proceeds from the sale of lottery tickets to the consolidated fund of the state, as required under the Lotteries (Regulation) Rules, 2010. The CAG report also states that out of the sale of lottery tickets of Rs 11,834.22 crores, only Rs 25.45 crores was deposited in the state exchequer.”
The defamation case alleges that “facts regarding the CAG Report titled Performance Audit of Mizoram State Lotteries have been twisted and manipulated, thereby making false and defamatory allegations against E-Cool Gaming Solutions Pvt. Ltd.” A case has been filed under the Indian Penal Code (Sections 499, 500, 34 and 109), and the court “has taken cognizance of the matter and has issued summons to the accused persons. This offence is punishable up to 2 years of imprisonment.”
My take: Defamation shouldn’t be a criminal offence
Criminal Defamation cases can be used to stifle dissent and muzzle reporting. We’ve seen in the past – with The Caravan and The Ken, for example, where cases have been filed in remote areas, in order to inconvenience the accused publications. The process becomes the punishment. A few points from the Speech Bill campaign on Criminal defamation (we’ve paraphrased these for brevity):
1. Criminal defamation is old and outdated: it’s a part of the Indian Penal Code of 1860. Modern democracies recognize that criminal defamation is a burden on free speech. It was initially made to prevent the deaths done by duels in Victorian England.
2. Criminal defamation that applies on speech which has no incitement of violence or disturbing of public order, is not in public interest, only in the interest of the individual who has filed the case.
3. Present day criminal defamation is being used as a legal tool for coercion and not for vindication of a person’s reputation. Criminal defamation results in a prolonged trial in which the process itself becomes the punishment. This comes with the requirement of personal attendance at each date of hearing, restrictions imposed by bail and the threat of eventual conviction. Most criminal defamation cases are ultimately abandoned and do not result in conviction, they are made to linger and drag on for years resulting in no determination of legality but only to cause harassment. Thus, it’s important that a person has to demonstrate conclusively that serious harm has been caused by a false statement.
4. Damages in case of criminal defamation tend to run into the hundreds of crores, and are meant not to provide relief to the complainant, but punishment and injury to the accused. There needs to be a rational relationship between the harm sustained and the amount of damages that are awarded.
Disclosure: I helped with Speechbill.in, as a part of Internet Freedom Foundation, where I am a co-founder, for decriminalisation of defamation in India