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14 May 2016 Editorial


14 MAY 2016

A disappointing verdict

The Supreme Court verdict upholding the provisions of the Indian Penal Code that make defamation a criminal offence is retrograde and out of tune with the times. Many countries, including neighbouring Sri Lanka, have decriminalised defamation, which should be a civil offence alone. The court has unfortunately accepted the self-serving argument by the Centre that criminal defamation does not have a chilling, inhibiting effect on the freedom of expression. In fact, there is enough anecdotal evidence that its existence on the statute book leads to self-censorship, and that it is often used to stifle legitimate criticism. The court has sought to create an artificial balance between the fundamental right of free speech under Article 19(1) (a) and the right to reputation as part of one’s right to life under Article 21. When an individual has the recourse to sue respondents in civil courts for damages against loss of reputation, there is hardly any justification to keep the criminal option open. It is true that ‘defamation’ is one of the reasonable restrictions to free speech envisaged in the Constitution, but this is not enough to justify retaining its criminal component. In the Indian context, criminal defamation is not generally a dispute between two individuals. It is invariably a shield for public servants, political leaders, corporations and institutions against critical scrutiny as well as questions from the media and citizens. The challenge to the validity of Section 499 and 500 of the IPC was undoubtedly the biggest free speech issue to have arisen in recent times. The two-judge Bench could have referred the matter to a Constitution Bench.

If criminal defamation is really needed to protect reputations, it is befuddling how the right to reputation under Article 21 can be extended to collectives such as the government, corporations and institutions, which presumably have the resources to set right damage to their reputations. The origins of criminal defamation lie in the Court of the Star Chamber of King Henry VIII, where it was used as a means of “punishing disrespect towards authority”. Some State governments seem to go by this principle while filing defamation complaints against political rivals, media organisations and journalists. The outcome is often of little significance, as it is the process that is the punishment. The court could have read down Section 199 of the Code of Criminal Procedure that allows public prosecutors to step into the shoes of allegedly defamed public servants. It is patently unfair to allow the State to use its legal machinery to suppress criticism without public servants concerned being required to testify in court on the actual injury or loss of reputation suffered by them. The faith the court has reposed in the ability of prosecutors and lower court judges to apply their mind before instituting cases or issuing summons is worrying. Given the presence of key political figures among those who challenged the provisions, perhaps the last hope is that Parliament may be rallied to scrap it.

BCCI after Shashank Manohar

Shashank Manohar’s resignation as the president of the Board of Control for Cricket in India has come at an inopportune moment for the sport in this country. Conversely, his re-election as the chairman of the International Cricket Council is a fillip to the game’s apex body. In his recent stint at the ICC, Mr. Manohar helped curb the disproportionate powers and profit of the so-called “big three”, India, Australia and England, an initiative that has been insufficiently lauded. And on his watch, the BCCI has been able to recover a semblance of equilibrium after its credibility had been steadily eroded since 2013. Beginning with controversies drawing from conflicts of interest in the Indian Premier League, the BCCI had come under a gathering cloud. The board’s functioning eventually came to be scrutinised by the Supreme Court, which has made some extraordinary interventions. In fact, recommendations on a clean-up by the court-appointed Lodha panel are still being heard in the Supreme Court. It is not clear whether Mr. Manohar chose to leave the BCCI on account of his inability to adequately tide over the Lodha storm — or whether he simply saw it as a prerequisite for election as the ICC’s first independent chairman. Till now he had been serving in the ICC post as the BCCI’s nominee. New rules, in the framing of which he played a role, stipulate that nominees not be attached to any board.

Now that he has been elected as chairman of the ICC on Thursday, Mr. Manohar’s fresh stint will be closely watched. Freed from his moorings at the BCCI, will he bring some coherence to the administration of international cricket, particularly to its calendar? Post-IPL, international cricket is being played basically to the dictates of the game’s most profitable territories — read India, Australia and England. Will he, for instance, revive the Future Tours Programme that gave all ICC full members assurance of matches with each other? Will he check the BCCI’s arbitrariness in forcing its agenda on other boards? Meanwhile, back at the BCCI, different lobbies are at work to swing the numbers to their own advantage. Whoever steps into Mr. Manohar’s shoes will first have to contend with the Lodha panel’s wide-ranging recommendations. These include an age cap of 70 years for office-bearers, a representative of the Comptroller and Auditor General of India to oversee financial transactions, withdrawal of full membership to the Cricket Club of India and Railways (among others), induction of the northeastern States, and the removal of BCCI office-bearers from the IPL Governing Council. Mr. Manohar worked towards implementing some of the suggestions but much more needs to be done. If the Supreme Court’s unerring gaze is focussed on the BCCI, it only has itself to blame. The top item on the next board president’s agenda has to be to avert a slide back to the BCCI’s bad old ways and reverse the impression that it is an opaque, old boys’ club.

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