Kanojia, There’s No Freedom For Defamation

Freedom of telling a truth alone is unexceptionable, a cause worthy of fighting for; both journalists and fly-by-night operators in the media industry must note that FoE is not a licence for slander


Forget how the BJP has reacted to the arrest and bail of journalist Prashant Kanojia; even the Supreme Court said in different contexts while hearing various cases that the right to freedom of expression in India couldn’t be absolute. We have a right to disagree. The freedom to critique the ruling class (the government) or an intimidating group (a religion) has no meaning if it is withheld with the apprehension that it may have violent repercussions. However, criticism is not the same as slander. No one can be given the right to spread falsehood about either an important or an ordinary citizen, which will unduly have a bearing on the targeted person’s career as well as life. In the case of Uttar Pradesh Chief Minister Yogi Adityanath, his immediate society has been that of celibate ascetics. A woman whose mental stability is doubtful as per reliable reports cannot be allowed to claim he has had a conjugal life without corroborative evidence. For, in the circle that the yogi socialises, this is a terrible accusation, worthy of being excommunicated (although he being a mahant, that would be an extreme).

If wanton slinging of mud were kosher, democracies more evolved than India would not declare defamation as illegal; they do. The question is whether Uttar Pradesh crossed their mandate in the case of Kanojia. If they did, the legislature and not the law-enforcement agency must be questioned for that. While advocates of democracy in this country have for long wanted Section 66 of the IT Act to be abrogated, there has been no nationwide debate on maintaining or revoking non-cognisable offences under Section 500, the offence of public mischief under Section 505 of the IPC, Section 505 (1) (publication or circulation of statement, rumour or report with intent to incite), Section 501 (printing matter known to be defamatory), Section 153 (provocation with intent to cause riot) and bailable offences under Section 436 of the CrPC. This is not to qualify the freedom of expression. It is to say that a lie is not covered under this moral right to freedom.

That brings to question the third aspect of l’affaire Kanojia: Is caricaturing tantamount to a falsehood? That would depend on the premise of the satire or sarcastic comment. The basis of the joke must be established. A policy can be condemned both seriously and jocularly. A real being or a real act can be castigated in a comical way as much as in sober prose. But something that never was cannot be claimed to have been and something that never happened cannot be alleged to have occurred even facetiously. That’s the line Kanojia crossed. As the world has seen, none in the phenomenally large group of followers of Prime Minister Narendra Modi ever dragged any media house to a court or the nearest station for raising questions about his wife. That was because Jashodaben is not the figment of the imagination of some little-known of neurosis wanting to catch 15 seconds of fame on television.

Finally, those shedding copious tears for the television channel Nation Live must be informed about the menace that mushrooming news mediums of the country pose. As much as a section of RTI activists, these low-cost mediums have turned into a convenient tool in the hands of dubious operators including blackmailers. In the best case scenario, they are looking for TRPs (when they are television channels) or page views (when they are websites), for which they can sensationalise bland stories and raise false alarms. The argument whether Ishika Singh, Anuj Shukla and Anshul Kaushik had the licence for Network 10 but they turned the name arbitrarily to Nation Live is not moot. The complaint was received not from a fringe element but from the assistant director, district information office. The media functionaries claim that they have the necessary documents, due to which none of these laws applies: Sections 419 (cheating by impersonation), 420 (cheating and dishonestly inducing delivery of property), 467 (forgery of valuable security, will, etc), 468 (forgery for purpose of cheating) and 471 (using as genuine a forged paper) of IPC. On the issue of freedom of expression, no legal preparedness would make them immune to the consequences of false reporting. Editors Guild is wrong. The freedom of expression of truths alone is absolute in the world of ethics, for which journalists of Charlie Hebdo, for example, sacrificed their lives. Truth, as the qualifier, is absolute.

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