News Analysis: Defaming the defamation law

The defamation case filed against the Barguna UNO, though finally withdrawn by the complainant, has become the latest example of using the defamation law as a weapon to muzzle dissenting voices and criticism.

The way the case was filed and the subsequent harassment faced by the UNO Tariq Salman has raised a very important question whether the legal protection against arbitrary usage of the defamation law loses effectiveness if the complainants belong to an influential political party.  

The grounds for the case and the subsequent judicial proceeding initiated in this case are intriguing enough to bear repeating.

A Barisal Awami League leader, also president of the Barisal District Bar Association, filed the case against Salman for distributing Independence Day invitation cards imprinted with allegedly a distorted portrait of Bangabandhu.

He accused Salman, who was then UNO of Agailjhara of Barisal, of intentionally distorting the portrait. However, his accusation was found baseless. The portrait used was actually drawn by a class V student in a competition. In his case petition, the AL leader, who was later suspended for filing the case, had concealed the fact.

Yet, he claimed that "along with the entire nation he and the witnesses of the case were dishonoured. They were defamed by the accused which is worth of Tk. 5 crore." He even claimed that "the entire nation, he and the witnesses were shocked" for "distorting" Bangabandhu's portrait. 

He prayed to the court to punish the UNO under section 501 of the Penal Code, 1860. This section says: "Whoever prints or engraves any matter, knowing or having good reason to believe that such matter is defamatory of any person, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both."

The Barisal chief metropolitan magistrate accepted the case and summoned Salman to appear before his court on July 19. He appeared before the court and prayed for bail.

But initially his prayer was not granted and the magistrate sent him to the court's jail where he had to stay for two hours before he was granted bail.

Section 198 of the Code of Criminal Procedure, 1898 imposes a clear bar on filing a defamation case by third party. It reads: "No Court shall take cognisance of an offence falling under Chapter XIX or Chapter XXI [ defamation] of the Penal Code or under sections 493 to 496 (both inclusive) of the same Code, except upon a complaint made by some person aggrieved by such offence."

The scope of exception in this provision is very narrow. The exception is: "where the person so aggrieved is a woman who, according to the customs and manners of the country, ought not to be compelled to appear in public, or where such person is under the age of eighteen years or is an idiot or lunatic, or is from sickness or infirmity unable to make a complaint, some other person may, with the leave of the Court, make a complaint on his or her behalf."

According to the criteria set by the law, the suspended Barisal AL leader was in no way entitled to file the case. He might have felt defamed. But mere injury to his feeling was not defamation. He must prove loss of his reputation. His reputation in no way was lost.

Apart from imposing bar on complainant, the section 198 prohibits the court from taking cognisance of a defamation case unless it is filed by the person who has been allegedly defamed.

This provision has been upheld in many cases by the higher courts in the Indian sub-continent for decades.

 But both the complainant and the magistrate in Barisal deviated from the settled principle.

There is no reason to think that the suspended AL leader, also a lawyer by profession and the magistrate were not aware of section 198.

They are also aware of another provision, section 197(1) of CrPC, that should have given further protection to the UNO from being prosecuted in a criminal case. This section says: "When any person who is a Judge within the meaning of section 19 of the Penal Code, or when any Magistrate, or when any public servant who is not removable from his office save by or with the sanction of the Government, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction of the Government."

In the case of the UNO, there was no such permission.

The day the case was filed the magistrate inquired about the permission. The AL leader told the court that he collected a permission letter in this regard from the divisional commissioner and deputy commissioner. But he could not produce any such letter.  

What prompted the magistrate to take cognisance of the case then?

Media reports and numerous social media posts may reveal the reason behind it. The complainant along with more than 50 pro-AL lawyers and a local ruling party MP went to the magistrate court on June 7 to file the case.

There was also a similar showdown on July 23, the day the UNO appeared before the court.

The circumstances raised the question whether the showdown was arranged to create pressure on the magistrate to accept the case in June and deny bail to the UNO in the hearing.

Newspaper reports and social media feeds in last couple of days brought to light several events surrounding the main figures in the situation which gave a clear indication that the local political elites were annoyed with the UNO for many of his activities that went against them.

So, it may be presumed that the local political elites chose the sensitive issue--portrait of Bangabandhu to harass the UNO by framing him in the defamation case.

Yet, Tarique Salman seems to be a lucky man. People stood by him for his good works. They used the social media to condemn his harassment and the case.

People's outburst prompted the administrative service association to strongly condemn the case.  

Even Prime Minister Sheikh Hasina herself stood by Salman. She appreciated his work for organising the drawing competition among children and the use of the said portrait on the invitation cards.

The premier did not find any distortion in Bangabandhu's portrait. She lauded the student who drew the portrait, in fact. Her party also suspended the Barisal leader.

In face of a storm of criticism, the suspended AL leader on Sunday applied to the court for withdrawal of the case while the UNO prayed for discharging him from the case. The court allowed his prayer.

In the latest development, the deputy commissioners of Barisal and Barguna Gazi M Saifuzzaman and Bashirul Alam were withdrawn from their respective posts on Monday as the duo had moved to take departmental actions against Salman in connection with "distorting" of the portrait before the case was filed against him. 

The case against the UNO is not an isolated incident. It is a manifestation of the current wave of filing defamation cases to muzzle criticism and dissenting voices against the powerful and influential people.  

Many defamation cases were filed under the Penal Code by a third party in the last two years against editors, journalists and political opponents.

Most of the cases were filed by ruling party men, ignoring the section 198 of the CrPC. Except one or two cases, the magistrate courts accepted those without questioning the eligibility of the complainants and summoned the accused to appear before the courts.

The law of defamation seeks to protect individual reputation. However, restrictions have been imposed by the CrPC in section 198 to check the arbitrary use of the law. No third party can file the defamation case.

Only the person who allegedly feels defamed must file complainant with magistrate, not with the police. This also speaks for judicious decision by the magistrate to protect people's freedom of speech and expression guaranteed by the constitution. 

But nothing is working. The usage of the defamation law as a weapon to muzzle criticism and harass opponents seems to have destroyed the good spirit of the law.

The magistrates should play a pivotal role to stop any abuse of the law. Therefore, before allowing complainants claiming to have felt aggrieved or defamed to file defamation cases, magistrates should consider whether there was, in fact, any damage to the complainants' reputation. Only feeling of being defamed cannot be ground for taking cognisance of a defamation case.

Judicious decision of the magistrates can protect the innocent from being harassed in defamation cases. This will also uphold the rule of law.