Earlier this week, the Delhi police searched the Wire’s office and the homes of its five staffers, days after BJP leader Amit Malviya accused the portal of maligning his and his party’s reputation through a criminal conspiracy, cheating and forged documents.

The portal, following Malviya’s complaint, had alleged that its consultant Devesh Kumar was behind the “fabrication of documents and forgery” of evidence used in its now-revoked Meta stories. Kumar was questioned by the Delhi police today.

Several questions have been raised over both the police action as well as the Wire’s response to shortcomings in its reportage. Was the police action based only on a private complaint of defamation? Are such raids and seizures justified in case of cognisable offences such as cheating and forgery? In what cases can editors be held responsible? Are employers liable for actions of rogue employees? And, is the Wire saga just another defamation story to suppress media freedom?

In India, where defamation can be both civil and criminal, we also take a look at the problems and precedents of a provision used commonly against the press.

Technical issue?

In a statement following the Wire’s apology to its readers last week, Malviya had said he would not only set a criminal process in motion but also sue the portal in a civil court. In his subsequent complaint to the police, he listed defamation, which is a non-cognisable offence, as well as cognisable offences such as cheating and forgery with the purpose of cheating.

Lawyer Rebecca John told Newslaundry that all criminal defamation complaints cannot be investigated by the police in this manner. “If it’s a private complaint, it cannot be investigated by the police…in this case, they will focus on the other sections,” said the lawyer who represented Priya Ramani in the criminal defamation case filed against her by MK Akbar.

A private complaint is submitted before a competent authority other than the police seeking action. However, according to section 155 (4) of the CrPc, if a case relates to two or more offences, of which at least one is cognizable, it shall be deemed to be a cognizable case to be investigated by the police. It means that if Malviya’s statement was to include only section 500 pertaining to defamation without the other cognisable offences, it could be a private complaint before the magistrate.

In 2017, the Madras High Court had reiterated that a complaint of criminal defamation cannot be made directly to the police, and that the police has no authority to register an FIR on the basis of such a complaint. 

In 2016, the Supreme Court too had said that the magistrate cannot ask the police to investigate a private criminal defamation complaint. It was the complainant who needed to prove the case, the court held, adding that the police has no role in criminal defamation allegations and it cannot lodge an FIR.

“In the recent past, criminal defamation has been used as a tool for harassment. When I was training as a young lawyer, my office would always say to not encourage clients to file criminal defamation cases. But it has been used more creatively in the last few years by political parties against their opponents, and journalists or anyone seen as an obstruction,” said John.

Several countries, including the UK, US, Sri Lanka, Jamaica and El Salvador, have decriminalised it and made it a civil offence. However, it’s unlikely that the same can happen in India as the issue has been examined by both the Supreme Court and parliament, said senior lawyer Nachiket Joshi.

In 2017, a private members’ bill was introduced in the Lok Sabha to decriminalise defamation but it wasn’t cleared.

A disproportionate restriction on free speech?

In a landmark verdict in May 2016, the Supreme Court rejected the constitutional challenge to criminal defamation, holding that it’s not a disproportionate restriction on free speech as protection of reputation is a fundamental as well as human right.

The court also said that IPC sections 499 and 500 related to defamation are not ambiguous or vaguely worded.

But right to reputation can’t be protected against right to dignity

In a significant verdict for both sexual harassment and criminal defamation cases, a Delhi court last February acquitted journalist Priya Ramani in a case filed by former union minister MJ Akbar. Ramani had named Akbar in light of the #MeToo movement.

The court held that the right of reputation cannot be protected at the right to dignity, and that the defence of “truth in public interest” had been accepted. 

The court observed that women cannot be punished for raising their voice against sexual abuse on the pretext of a criminal complaint of defamation. It also disregarded Akbar’s contention about his “stellar reputation”.

But courts have taken varied positions when it comes to criminal defamation cases against journalists.

Fair reportage and rights of the public 

In June 2022, the Nagpur bench of the Bombay High Court set aside criminal defamation proceedings against Vijay Darda, the chairman and editor-in-chief of Lokmat Media group. 

The paper had reported on an FIR against the complainant and his family over an alleged property dispute. The court held that fair reporting may not attract defamation charges, adding that a defamation case over true and faithful reporting is unhealthy for a democratic setup. 

“Responsibility of the editor of the newspaper is to publish true facts and nothing else,” it said, adding that the publisher or editor is not expected to probe the allegations in the FIR before publishing a news item. It said if the editor or publisher were held liable, the news could not be reported till the outcome of the investigation or the final verdict, depriving “the rights of the public to know the happenings”.

Such cases have also been used to harass journalists.

One year before her murder, journalist Gauri Lankesh was convicted of defamation in cases filed by BJP MP Pralhad Joshi and his party colleague Umesh Doshi, over a report published in 2008 in Gauri Lankesh Patrike – a tabloid edited and published by her. 

Lankesh was sentenced to six months in jail and also faced a fine of Rs 10,000 as the court held that she failed to provide substantial evidence behind the report, which alleged that three BJP workers had duped a jeweller of Rs 1 lakh. She was later granted bail. In an interview with Newslaundry, Lankesh had said that the defamation cases against her were not so much about the story as they were for a dislike for her political views. 

To inquire about the number of defamation cases in the country against journalists, Newslaundry reached out to the Committee to Protect Journalists in India, Network of Women in Media, Internet Freedom Foundation, Free Speech Collective, Press Club of India, Delhi Union of Journalists and Digipub. However, this record is not maintained by any of them. 

Geeta Seshu, who was an editor at media watchdog the Hoot and is the founding editor of the Free Speech Collective, told Newslaundry that she had tried to build a database of defamation cases against journalists in India but it had turned out to be a strenuous task.

“It is an almost impossible task, but it needs to be done. Defamation is being used as a tool of harassment and the cases take years to resolve,” said Seshu. “The hearings in these cases are prolonged and sometimes don’t get resolved. Even after editors switch organisations, they are forced to go to court for old cases. The demand to remove criminal defamation is an old one, but has been rejected by the government and the courts.”

But can editors be held liable for acts of reporters?

Hearing a matter linked to a defamatory news item published in the Vadodara edition of Gujarati paper Sandesh, the Supreme Court had in 2013 held that the editor is responsible for every news item published in the paper and cannot escape liability by blaming the resident editor. It cited the press and registration of books act to say that it is the editor who controls the selection of news items.

However, on Monday, the Supreme Court quashed a criminal defamation case against India Today editor-in-chief Aroon Purie over a report that was published in the magazine in 2007. It did not quash the case against Saurabh Shukla, the journalist who wrote the article.

The report had alleged that three Indian officials posted in the UK were “recalled in quick succession following serious allegations of sexual misconduct, corruption in issuance of visas and sale of Indian passports to illegal immigrants”.

The court said it found that nothing specific can be attributed to the editor-in-chief and so he cannot be held liable for the reporter’s acts. It said this benefit could not be extended to the editor if the allegations were sufficient and specific, and vice versa. The court also said that the allegations made in the complaint had completely fallen short of making out a case against Purie. The court came to this conclusion after considering principles laid down in the KM Mathew case and the exceptions to Section 499 which have been presided over in other cases.

Against this precedent, it should be noted that in the Wire’s case, editor-in-chief Siddharth Varadarajan and Jahnavi Sen shared bylines on the now revoked Meta reports, indicating they worked closely on them.

The Wire, however, has alleged that it was misled by its consultant and researcher Devesh Kumar, accusing him of “malintent towards the Wire and its editors and staff”, and claiming that he “confessed” to fabricating all material. Kumar, who also authored one of the Meta reports, has refused to reveal any details and said he is cooperating with the police. “My statement is the same as that of the Wire,” he told Times Now, adding that the language used in the complaint against him was incorrect.

The Wire has also accused Kumar of acting at the behest of unknown persons. However, that’s far from being established. 

But what happens to firms in case of vendetta by rogue employees?

In the UK, the Supreme Court ruled last year that employers are not liable for actions of their rogue employees. In the Morrisons data leak case, it said that the firm was not liable for the actions of a disgruntled employee, who disclosed personal data of almost 1,00,000 employees. 

While the context in this case was data breach, the court had also held that the accused was pursuing a personal vendetta.

When it comes to employers being liable for employees, senior lawyer Ameet Dutta said that there is no magic wand. “This depends completely on the level of personal involvement of the employer. How much was their knowledge? What role did they play? How much control was asserted?”