Debunking the Defaming: A rebuttal to a recent Foreign Policy blog on civil liberties in India

Anti Narendra Modi Meme (Source: Facebook Community Page)

Rupa Subramanya 

The late, great political scientist Samuel Huntington, who founded Foreign Policy magazine, was called many things by friends and detractors, but one thing no one could accuse him of was being a leftist scribe. 

Ironically enough, the South Asia blog of Foreign Policy appears in recent months to be morphing into a platform for exactly such folks from India. The most egregious case is a recent piece ostensibly about the poor protection of civil liberties in India, but which in fact is a little more than a screed against the current BJP led government. 

The piece by “award winning” journalist Neha Dixit is littered with insinuations, a selective presentation of facts, poor fact checking, and overall poor argumentation, as well as one outright factual error. 

For the record: the issue that Dixit flags is a very important one and deserves serious debate. India’s criminal defamation laws — like most bad laws, a hangover from British colonial times, that post-colonial rulers found it useful to keep on the books — do importantly restrict civil liberties in India.

With defamation a crime, and not just a civil offence (although one can also sue for civil defamation), it’s possible for politicians, business people and others with deep pockets and connections to try to browbeat and silence their critics by accusing them of defamation, thereby triggering a criminal investigation which could, if they’re convicted, lead to imprisonment.

Had Dixit focussed her piece on a serious discussion on how, for instance, the criminal defamation laws impinge on the constitutional right to free speech, which is a live debate in India, she might have added some value. (See this piece by Gautam Bhatia for an excellent discussion of the issues.)

Rather, her highly politicised piece trains its guns on the new BJP government, conveniently letting off the hook the many abuses of India’s defamation laws that preceded the BJP government and occurred mostly under Congress led governments — who, after all, have been in power for majority of years since independence in 1947.

What’s worse, even in the cases she cherry picks, her presentation of the facts is in some instances incomplete and misleading.

Start with the first paragraph, where she refers to a college principal in Kerala being arrested for allegedly defaming Narendra Modi, the new prime minister.

What she neglects to tell us is that there were, in fact, two separate cases, literally within days of each other, and the second involved alleged defamation not just of Modi, but of Congress politicians including Shashi Tharoor, who’s a serving MP from Kerala, Oomen Chandy, the Congress chief minister of Kerala, and Rahul Gandhi, the Vice-President of the Congress.

What she also doesn’t tell us is that Kerala has a Congress led government. As policing is a state jurisdiction, it’s a stretch, to put it mildly, to suggest that central government is involved with these particular arrests. 

Rather, since in the second of the two cases, the alleged defamation is against the current chief minister and a senior Congress MP from the state, it would surely be more plausible for a conspiracy theorist to suggest that the state — not the central — government leaned on the police—but without evidence, even that would be a tenuous inference. 

As an instance of shoddy work, Dixit refers in her piece to the first case but provides a link to the second. What’s more, the linked article fails to mention that the alleged subjects of defamation included not just Modi but senior Congress politicians.

Why? 

Next, she brings up the case of Arvind Kejriwal, former Delhi chief minister and leader of the Aam Aadmi Party, who was arrested for allegedly defaming Nitin Gadkari, a senior BJP leader and currently a government minister. All of this is true.

What Dixit doesn’t tell us is that Gadkari made his complaint of the alleged defamation back in February, when a Congress led government was in power at the centre and Kejriwal was still chief minister of Delhi! It takes a fertile imagination to link this, somehow, to the current government.

Further, Kejriwal was arrested because he refused to furnish a bond, as required by Indian law. As many commentators have suggested, refusing to do so and going to jail was clearly a publicity stunt.

For those interested, here’s a useful timeline of what happened in this case and Gadkari’s legal notice. 

Dixit’s strategy appears to be to cherry pick instances of the use (or misuse) of the defamation laws where Modi is “implicated” as the subject of the alleged defamation while scrupulously avoiding others.

For instance, she cites the example of six people in Karnataka for being detained by the police for making “anti-Modi” remarks on social media — without again noting that Karnataka is a Congress ruled state and that people have been arrested for posts on social media in other states where the alleged defamation has nothing to do with Modi.

Of course Dixit has to make the customary detour to 2002 and the communal violence which broke out in Gujarat, segueing to activist Teesta Setlavad, a prominent critic of Modi. Setalvad is currently involved in criminal cases of alleged fraud by her and her NGO. Quite what this has to do with Modi or criminal defamation is beyond me. 

Perhaps the most bizarre case that Dixit cites is that of Shalabh Kumar, an Indo-American who filed a $50,000 libel suit against Biju Mathew, an “American Marxist intellectual” and founder of Coalition against Genocide, for Dixit tells us, “allegedly publishing ‘false’ and ‘malicious’ information about Modi.” 

This is simply false, and defies logic.

If you look at the facts of the lawsuit, the alleged defamation is against Kumar himself, not Modi! 

Dixit got her facts from this garbled and poorly written Times of India report, which seems to imply that the subject of the alleged defamation was Modi.

You don’t have to be a Supreme Court Justice to understand that to bring a libel suit in the US, the plaintiff must allege that he himself is being libelled, not a foreign politician.

The howling illogic of Dixit’s misreading of this case and her failure to do even basic fact checking speak for themselves.

Here’s the Coalition Against Genocide press release that Kumar was reacting to.

Note that his libel suit is not just against Mathew, but against a Republican Congressional candidate and a tea Party activist, suggesting, in my reading, that this lawsuit has more to do with American politics than anything going on in India. 

After this spectacular burst of illogic, Dixit next raises the case of “investigative journalist” Ashish Khetan, who claims to have unearthed cases of “saffron terror” by Hindu groups.

Khetan, who contested the recent Lok Sabha elections as an AAP candidate, also faces defamation cases, which pre-date the new government. Dixit speculates, without evidence, that the saffron terror cases might disappear under the new BJP government.

Elsewhere, Dixit seamlessly blends her own speculations with a selective presentation of facts. 

She tells us — correctly — that a third of the newly elected BJP MPs are facing criminal cases. Criminality in Indian politics is indeed a well-known and serious problem. What she doesn’t tell us is that MPs of all major parties, not just the BJP, also face criminal charges. 

Dixit’s final salvo — yet another misfire — is to raise the possibility of “draconian laws of the new government”, without telling us exactly what these are, what evidence she has that these are in the pipeline, or even an argument as to why she expects this scenario.

If Foreign Policy wanted to initiate a serious debate on India’s failure to protect civil liberties, that objective is particularly ill-served by offering up such an overtly politicised take on a much more fundamental problem of the Indian polity.

Samuel Huntington must be turning over in his grave.

Rupa Subramanya is co-author of Indianomix: Making Sense of Modern India, Random House India (2012) . She's on Twitter @rupasubramanya .