Allegations Of Ruling Party Misusing Investigating Agencies Part Of Freedom Of Political Speech, Not Defamation: Delhi Court

A Delhi Court on Tuesday observed that the allegations of political corruption, poaching of politicians or misuse of investigating agencies by the ruling dispensation against political opponents are part of freedom of political speech and won't amount to defamation per se.

Special judge Vishal Gogne of Rouse Avenue Courts said that each political formation is known to project its own vision of political, economic, social and cultural policy or vision to the electorate and that often such narratives allege violation of constitutional provisions, norms, morality or criminal law by the other.

“These diverse views are all sheltered by the Fundamental Right to freedom of speech and expression. Why then must the criticism or allegations of political corruption, poaching of elected representatives or the purported misuse of investigation agencies by the ruling dispensation against small political opponents be outside the protective umbrella of the freedom of speech...Accountability of the government and the ruling party is a primary expectation of the electorate. Thus, there ought to be a wider latitude to criticism and specific allegations made against the government or the ruling party. Allegations made by Ms. Atishi regarding poaching of MLAs are as much a part of the right to free political speech as they are an effort to report a specific act of alleged corrupt practice. There is no particular reason for the court to discern hightened sensitivity of an allegation and treat it as defamatory only because it is made against the ruling party of the day,” the Court said.

It added that the right to freedom of speech enables the existence of different political views and the right of opposition parties to elicit accountability in public affairs.

The judge made the observations while quashing the summons issued to Chief Minister Atishi in a defamation case filed by BJP leader Praveen Shankar Kapoor.

The defamation case was filed over the claims that Aam Aadmi Party (AAP) leaders were approached by Bhartiya Janta Party (BJP) to join them in return of crores of cash.

The judge observed that the allegations made by Atishi regarding poaching of MLAs were as much a part of the right to free political speech as they were an effort to report a specific act of alleged corrupt practice.

“Whilst such tactics may be part and parcel of political strategy, a court of law cannot be a party to the creation of a chilling effect on freedom of speech by admitting or acting upon such efforts to silence whistle blowers or smaller political opponents. To summon Ms. Atishi for the offence of defamation in the present allegations would be suppressive of the freedom of speech and the accountability of public office,” the Court said.

It said that “any foot solider” of a “big enterprise” like BJP must necessarily project “broad shoulders” in accepting an alternative political narrative and that such responsibility accompanies the privilege of being the ruling party.

The big voice cannot scupper the smaller voice using the weapon of defamation, the judge said.

Furthermore, it was observed that political discourse is mired by opposing leaders accusing each other of specific instances of corruption and such allegations are part of the freedom of political speech.

“The present allegations made by Ms. Atishi essentially alleged attempts at political corruption by the BJP for poaching the MLAs of the Aam Aadmi Party. To view these allegations, in the context of defamation, in isolation from the established debate on such topics would be to employ a harsher standard for one political outfit viz Aam Aadmi Party,” the Court said.

It added that if the interpretation of the complainant in the case was accepted, almost every top leader of every political party in India would become liable to prosecution for defamation.

“Any action, even by way of a complaint under section 500 IPC, which essentially seeks to muzzle and tarnish the whistle blower would necessarily be curtailing the right of the citizen to know about the details of investigation into the allegation,” the Court concluded.

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