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‘Criminal defamation must be abolished’

You can sue someone for defamation, but you cannot deprive someone of his liberty: Subramanian Swamy.

ABHIMANYU SINGH  New Delhi | 4th Jul 2015

Subramanian Swamy

r Subramanian Swamy is no stranger to controversy. Recently, the BJP leader challenged the validity of laws concerning defamation and hate speech in India. This was after Tamil Nadu Chief Minister J. Jayalalithaa filed several defamation cases against him and a non-bailable warrant was issued against him for an alleged hate speech regarding mosques. The NBW was stayed by the Supreme Court earlier this week. The Apex Court has also asked the Centre to respond to Swamy's plea regarding defamation laws. In an exhaustive interaction with The Sunday Guardian, Dr Swamy put forth his arguments supporting his contentions.

Q: With regard to laws concerning defamation, especially in the context of the cases the TN CM has filed against you, you have taken the plea that there are not enough safeguards pertaining to it.

A: No, I have used that as an example (to show) criminal defamation has no place in Indian law. It is a commitment also of the Indian government to abolish criminal defamation. Defamation can be sued for in terms of monetary (compensation). It will be a civil suit. I am not saying there is no such thing as defamation. You can sue someone for defamation, but you cannot deprive someone of his liberty. I use this to show the necessity was urgent because politicians who want to silence other politicians or the media are using the fear of arrest as a threat to chill the debate. In a democracy, healthy vigorous debate is essential. Of course, that right is subject to reasonable restrictions. The present law of defamation comes from the British period when they wanted to put people in jail for criticising anything British. What I am saying is that criminal defamation is unconstitutional; it imposes an unreasonable and disproportionate punishment. (Moreover) it is inconsistent with the international commitments of India under the International Covenant for Civil and Political Rights. We have to abide by those because we have ratified it. Furthermore, under the Directive Principles of the Constitution, we have to respect international law.

Q: Under Section 499 of the IPC, there exist several exceptions to the charge of defamation and you would agree that they are quite exhaustive.

A: There is a catch. In your defence in a criminal trial over defamation (charges), you can plead those exceptions to be acquitted. That means you will have to go through this. And it will depend on the magistrate, depends on the location...suppose I make a statement in Madras and I am sued in Assam, look at the amount of expenses I have to go through. These exceptions only apply during the trial. But the basic thing is, you should not be dragged to a criminal court. You offer me the lollypops (of safeguards), but I am at the discretion of the judge, and the trial, and my lawyers to be able to conduct the case and how fast will it be conducted. Lawyers have to be paid for every adjournment. Look at the harassment that takes place.

Q: Jayalalithaa had filed several defamation cases against you, including one concerning something you said related to the LTTE.

A: There are four or five cases. One is on fishing boats. Then there was an accusation against Shashikala. Third was that letting her govern was to give a garland of flowers to a monkey. Where is the defamation in all this? It is a well-known Tamil proverb. (About LTTE) I had said that she had allowed posters of Prabhakaran to be put up on his death anniversary. That shows that she has sympathy for the LTTE and Prabhakaran, who got Rajiv Gandhi killed and so many soldiers of our IPKF were shot, maimed and so on.

Q: Let us talk about the hate speech issue. You have challenged several sections. Some are about attempts to create enmity between religious groups by way of speaking. Others are concerned with damage to religious structures. If seen in an overall context, your detractors might allege that this is part of a larger game plan, since demolition of religious structures has happened earlier.

A: What did I say? I have never said demolish religious structures. They are demolishing them every day in Saudi Arabia. Mosques are prayer halls. And this is not what I am saying; this is not what Saudi Arabia is saying; this is a constitutional bench of the Supreme Court saying (Faruqui vs Union of India, 1994).

When it comes to these religious (and) social matters, there are three parts to a speech. Part one is a statement of my belief. Part two is my advocacy of the same. Part three is incitement. You can prosecute me for incitement. But you cannot prosecute me for telling my views based on facts. Pakistan, Qatar, Turkey, Saudi Arabia demolish mosques and build apartment buildings, roads. But temple I cannot shift: there is pran-pratishtha, there is agama-shashtra. They say once you do the pran-pratishtha puja, the Lord enters the murti and he becomes the owner of the thing. After that you cannot touch it, whether the temple is in use or disuse. And this is the judgement of the House of Lords when I got the Nataraja statue back as the Law Minister. The other side argued that the temple (it was taken from) was in disuse. I said a temple is always a temple and we won.

Q: But your detractors are liable to say that you are foisting an agenda.

A: I am hundred per cent foisting an agenda. You have been enslaved by the British. You were made stooges by Jawaharlal Nehru. Now I am trying to liberate you. Therefore, I am working according to an agenda.

Q: Some people suspect it is the agenda of the RSS.

A: So what? RSS is a friendly organisation for me and I totally associate myself with them. I am not a member but I support them.

Q: Your critics allege that there is an impression that had gained ground after you wrote an article in a newspaper where you said Muslims should proudly acknowledge their Hindu ancestry.

A: What's wrong in that? It is in their DNA.

Q: But some may not want to do that.

A: Why not? Is it a matter of shame?

Q: While you may have your reasons for your statements, there are other statements made recently, which are clearly provocative. If you take away the provision of hate speech completely, these sections will be emboldened.

A: All fundamental rights are subject to reasonable restrictions, not unreasonable restrictions. Section 153 A, 295 A, these are all unreasonable restrictions and they are being misused. What we cannot allow is for violence to take place following a speech. That will be incitement because it will lead to violence. And the violence should be manifest, and not because you thought it will lead to violence. It should happen immediately; it should be an imminent thing. If I make a statement, next day there should be a riot. You cannot say six months later there was a riot because of this statement. The imminence of violence is important in this.

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