In yet another development in the protracted CBI versus Kolkata Police saga, the Kolkata Police have sent a letter to Arnab Goswami, the editor-in-chief of Republic TV, threatening to file a defamation suit. It refers to a news item broadcasted on the channel on 2 February, which claimed that Kolkata Police Commissioner Rajeev Kumar had been "missing and absconding". The police claim that this is untrue, and that the channel had "ulterior motives to malign" the police commissioner and the Kolkata Police. A defiant Arnab Goswami has stated that he is "ready to take them on".
So, what is the law on defamation in India, and do the Kolkata Police have a case against Republic TV?
Defamation in India
Defamation in India is a civil as well as a criminal offence. In civil defamation, a suit is filed (by a plaintiff against a defendant) for claiming damages, whereas criminal defamation (filed by a complainant against an accused) is punishable by imprisonment for up to two years and/or a fine. In either case, to constitute defamation, the statement must refer to the plaintiff/complainant, must be published by the defendant/accused and should lower the reputation of the plaintiff/complainant in the estimation of others.
In civil defamation, intention to cause harm to the plaintiff's reputation is immaterial. However, in criminal defamation, the statement has to be made "intending to harm, or knowing or having reason to believe" that it would harm the complainant's reputation. Certain defences are also available to the defendant/accused, including truth, fair comment, privilege and consent.
Criminal defamation has been criticised for providing a disproportionate public law remedy for what is essentially a private wrong (harm to reputation). Several countries including the UK and Sri Lanka have decriminalised defamation and retain it only as a civil wrong. However, the Supreme Court of India upheld the constitutional validity of criminal defamation in 2016.
In practice, there has been a slew of defamation cases in the recent past. These have mainly been between politicians (Shashi Tharoor against Ravi Shankar Prasad), politicians and journalists (Edappadi Palaniswami against Mathew Samuel), corporates and journalists (20 cases filed by the Reliance Group against various media organisations in 2018), in relation to sexual harassment cases (MJ Akbar against Priya Ramani) and also, curiously, between sons of public figures and journalists (Vivek Doval against The Caravan and Jay Shah against The Wire). Often, defamation cases involve exorbitant amounts, with Reliance for instance suing a journalist for Rs 7,000 crore. These cases also tend to stretch over several years.
Who is the aggrieved person?
If the Kolkata Police intend to follow through with their threat and initiate defamation proceedings against the Republic TV, they will need to make some decisions. First, whether to initiate civil or criminal proceedings, or both? The letter refers to a "defamation suit", indicating civil action. Of course, this does not prevent the Kolkata Police from initiating criminal action.
Only an aggrieved person can initiate a defamation action, whether civil or criminal. Therefore, the second decision that will need to be made is, whether the suit/complaint should be filed by the Kolkata Police or by their Police Commissioner? The allegedly defamatory statement highlighted in the letter exclusively refers to the whereabouts of the latter. Since the statement was made in connection to the Police Commissioner's alleged involvement in the chit fund scams, he may be able to prove that his reputation was harmed. But the Kolkata Police believe that their reputation as an organisation has also been harmed, by extension.
In a case before the Kerala High Court, the complainant argued that certain allegations made against a policeman had caused harm to the reputation of the Kerala Police as a whole. Criminal defamation does include statements made against an association or collection of persons. However, such an association or collection must be definite and determinable, and the statements need to be defamatory against all of its members. It was held that the Kerala Police, with their ever-changing composition due to regular recruitments and retirements, were not definite in that sense, and the statements were not defamatory against all their police officers.
Similarly, as the statement referred to in the letter only mentions the Kolkata Police Commissioner, it would be difficult for anyone else to prove that they are an aggrieved person.
Defences available to Republic TV
The defences available to Republic TV would vary depending on whether criminal or civil action is brought against them. In any case, a court would have to determine the factual accuracy of the news item. If it is proved that the statement was truthful, then in a civil action, Republic TV can claim complete defence. However, in a criminal action, Republic TV would have to additionally prove that the statement was made for the public good.
Even if the statement is proved to be false, in a civil case, Republic TV can argue for a public interest defence or "Reynolds defence". To avail of the same, they will have to prove that there was a strong element of public interest and that they had acted in a responsible manner. A court would look into several factors including the seriousness of the allegation, the nature and source of the information, the steps taken to verify the information, the urgency of the matter and the tone.
If the statement is proved to be false in a criminal case, Republic TV could still take the defence that the statement was made in good faith and for the public good. To prove good faith, they would have to demonstrate they had taken due care and attention, such as making sufficient enquiries.
It remains to be seen whether the Kolkata Police carry out their threat. The letter, dated 7 February, asks Republic TV to respond within three days of receiving it. This could develop into another facet of what is already a very peculiar episode in India's political history.