Was anybody judged guilty of criminal defamation in last two or three decades in India?

Given below are the contents of a recent Facebook post of mine,
https://www.facebook.com/ravi.s.iyer.7/posts/1742604939289409.

Does anybody know of a criminal defamation case in the last two or three decades in India where a person was found guilty of criminal defamation?

A worrying aspect of criminal defamation law in India for writers including bloggers and Facebook "posters and commenters" is that truth alone is not an absolute defense against criminal defamation. The content also has to be for the public good!

Now that's what is conveyed by the relevant sections of the Indian Penal Code (relevant sections date from British colonial era) and the Criminal Procedure Code (relevant sections seem to have been modified/created a few years after Indian independence in 1947). [For more on it, please see my blog post, Indian Supreme Court rejects petition arguing criminal defamation law as unconstitutional; Defamation law in India, http://ravisiyermisc.blogspot.in/2016/05/indian-supreme-court-rejects-petition.html.]

I think what I and other social media writers & commenters (including Facebook posters and commenters) living in India (or based in India) need to know is how have Indian courts of law INTERPRETED these laws in the past two or three decades. Will a whistle-blower's truthful revelations about dishonest/crooked (Asathya) and unethical (Adharma) practices indulged in by some powerful office bearers of a non-governmental organization be viewed as something being done for public good, or not? If not, then the whistle-blower (social media writer & commenter) can be judged guilty of criminal defamation and be sent to jail, even when he/she has said the truth!!!

It is very interesting to know that truth is an absolute defense against criminal defamation in the 17 states and 2 territories of the USA which still have criminal defamation. At a federal level USA does not seem to have criminal defamation. For more see: https://en.wikipedia.org/wiki/United_States_defamation_law#Criminal_defamation.

I think it will be great if Indian law (relevant sections of Indian Penal Code and Criminal Procedure Code) is also modified to make truth an absolute defense against criminal defamation. After all, as this wikipedia page, https://en.wikipedia.org/wiki/Satyameva_Jayate, states, ""Satyameva Jayate" (Sanskrit: सत्यमेव जयते satyam-eva jayate; lit. "Truth alone triumphs.") is a mantra from the ancient Indian scripture Mundaka Upanishad. Upon independence of India, it was adopted as the national motto of India. It is inscribed in script at the base of the national emblem. The emblem and the words "Satyameva Jayate" are inscribed on one side of all Indian currency. The emblem is an adaptation of the Lion Capital of Ashoka which was erected around 250 BCE at Sarnath, near Varanasi in the north Indian state of Uttar Pradesh. It is inscribed on all currency notes and national documents."
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An edited mail exchange (my content has been significantly edited) between an Indian correspondent (IC; who was OK with his content being publicly shared) and me, with reference to above post content, is given below.  Note that it is quite long and so only readers interested in this topic may want to read or browse-read it.

My responses are inline within IC's mail content, and enclosed in square brackets like this [Ravi: ... end-Ravi], whereas IC's content is prefixed with IC: without square brackets.

IC: Dear Ravi

It takes a long time before a defamation case gets to court.

[Ravi: Perhaps criminal cases get processed faster than civil cases. Based on what I have heard about a couple of cases (one was about estranged wife making an alleged dowry harassment complaint or something like that, and another was on alleged record tampering by a principal of a school which harmed a school teacher's salary and projected retirement benefits), it seems to me that in the place where I live (Penukonda town is the court for Puttaparthi jurisdiction), the validity of a criminal complaint tends to get decided within the first few hearings which take a few months (say three to six months, or in exceptional cases, maybe nine months). If the court upholds the case as valid the defendants are asked to appear before the court and they have to apply for some bail bond or similar bond (else they will be put in custody). Note that being on bail bond does not mean that the court has decided them guilty. That happens at the end of the case. For the case to reach judgement it can take years if not decades, I believe. In both these cases that I mentioned earlier, I think it has gone on for years without any decision yet.

The point to note is that the fear, rather terror, of getting a summons from the court and being asked to apply for bail or else get "put in judicial custody" (not arrested, I guess), comes into play in a few months (less than a year) after a case is filed, if the court views the criminal complaint as valid. This is how it played out for Shri Arvind Kejriwal (currently Delhi state chief minister; then political leader but not sitting chief minister) in the criminal defamation case Shri Nitin Gadkari (current union minister; then BJP leader), had made against him. Some quotes from the magistrate, Kerjiwal and his lawyer, Prashant Bhushan, are given below from http://timesofindia.indiatimes.com/india/Arvind-Kejriwal-sent-to-judicial-custody-in-Gadkari-defamation-case/articleshow/35433279.cms, dated May 21st, 2014.

Metropolitan magistrate Gomati Manocha ordered "Take him into custody", after Kejriwal repeatedly refused to furnish a personal bail bond and surety of Rs. 10,000 each. The magistrate is quoted as saying, "In these circumstances as the accused has refused to furnish bail bond or even personal bond without surety, this court is constrained to take the accused into custody. Let the accused be sent to judicial custody and be produced before the court on May 23." ..."The court cannot act as a mute spectator when a particular litigant intentionally seeks to violate the procedure established by law." ... "This case cannot be dealt with any differently than any other criminal cases where the courts insist on furnishing bail bond/personal bond to secure the presence of the accused persons." ,,, "The accused in the present case cannot seek differential treatment to be let off only on an oral undertaking in violation/divergence to the settled practice/procedure regarding bail". ... "The accused is just adamant to not furnish bail bond or even a personal bond for his appearance before the court".

The article states that Gadkari alleged in court that Kejriwal had included his name in a list of "India's most corrupt" made by Kejriwal's political party, Aam Aadmi Party/AAP (Aam Aadmi is Hindi meaning Common Man, so the party's name in English translates to Common Man Party). I guess that Gadkari may have shown evidence to the court of such a published list by AAP, which would have made the court consider his criminal defamation complaint against Kejriwal to be valid to be heard in a court trial. That would have resulted in a summons to Kejrwal to appear in court, which he did.

The article states that Kejriwal was willing to file an undertaking that he would appear in court (in future) but was not willing to furnish a bail bond! Interestingly, Kejriwal also argued himself in court stating that he had not committed any heinous crime and was not looking for any exceptional treatment. Kejriwal is quoted in the article as saying, "This is my principle that when I have not done anything wrong, I will not seek bail. I am ready to go to jail"

The advocates for Kejriwal including famous advocate, Prashant Bhushan, took the view that there was no possibility of Kejriwal tampering with the evidence or influencing the witnesses and that the filing of an undertaking (without furnishing a bail bond) was correct.

But the advocate for Gadkari, Ms. Pinki Anand, took the view that there was no procedure in law to furnish an undertaking and that the law should not vary for anyone. So, I guess, the magistrate agreed with the view of the advocate for Gadkari.

Interestingly, the article clearly states that the magistrate had observed (in an earlier court hearing) on February 28th 2014 that the AAP leader's alleged statements against Gadkari had the effect of "harming the reputation" of Gadkari (complainant). In http://www.ndtv.com/india-news/delhi-court-summons-arvind-kejriwal-in-a-criminal-defamation-case-filed-against-him-by-nitin-gadkari-552278, we have a report of the February 28th 2014 court hearing where the same magistrate, Gomati Manocha, heard the statements of Gadkari's lawyers alleging criminal defamation by Kejriwal, and then decided to summon Kejriwal as an accused in the criminal defamation case on April 7th (2014). Perhaps Kejriwal's lawyers requested a postponement, in the light of the May 2014 general elections in India, which would have been granted, and so Kejriwal appeared before the court on May 21st 2014.

Gadkari's statements to the court as reported by the above ndtv.com article, besides the inclusion of his name in the "India's most corrupt" list of the Aam Aadmi Party, are, "The accused (Kejriwal) is in the habit of making false and defamatory statements without any basis. The statements made by the accused and his party members have damaged and tarnished my image in the eyes of the people." ..."The said statements have been made maliciously by the accused person and his party people with the knowledge that the same are false, without any basis and with the malafide intention to defame and tarnish my reputation".

The article also states that on February 18th 2014, the court had recorded statements of Gadkari and one of his advocates as complainant witnesses in the complaint.

Kejriwal spent six days in Tihar jail and was released on Tuesday, May 27th 2014, after he took the advise of the Delhi High Court which he had appraoched on the matter, and furnished a personal bond, via his lawyer to the Metropolitan magistrate, Gomati Manocha, http://www.ndtv.com/elections-news/arvind-kejriwal-submits-personal-bond-released-from-tihar-jail-564185. The article quotes Magistrate Manocha as saying, "It is also submitted that Arvind Kejriwal has written in his own handwriting that he is filing the personal bond in compliance with the high court order. In view of this, the personal bond furnished is accepted" ... "Let the accused be released forthwith."

SC stays proceedings against Arvind Kejriwal in defamation case, http://www.livemint.com/Politics/bouKw31R3yRD18bdztL38I/SC-stays-proceedings-against-Arvind-Kejriwal-in-defamation-c.html states that on April 17th 2015 (nearly one year after Kejriwal was summoned by the trial court as accused in the defamation case), the Supreme Court stayed the criminal case in the trial court as Kejriwal had approached the Supreme Court challenging the constitutional validity of defamation being considered a criminal offence. Now that the Supreme Court has judged that defamation being a criminal offence is NOT unconstitutional, and so defamation continues to be a criminal offence (as well as  civil offence), that stay has been lifted. However, the SC, if I recall correctly, has given eight weeks to Kejriwal (and others) to approach the High Court (Delhi) with a plea to quash the summons of trial court (trial court view that Kejriwal is an accused and must face trial in the Gadkari criminal defamation case).

BJP leader Arun Jaitley also filed a criminal defamation case against Kejriwal (and some others). Kejriwal was summoned by the court where he furnished a bail bond, in April 2016, http://indianexpress.com/article/india/india-news-india/arun-jaitley-ddca-defamation-case-delhi-court-grants-bail-to-arvind-kejriwal-5-other-aap-leaders/. end-Ravi]

IC: Long before that, there is the other great worry that the police (with good intentions, or arbitrarily because of the persuasion of someone influential) will arrest someone for purported defamation.

[Ravi: As I understand it, from my very recent readings on the matter, criminal defamation is a non-cognizable offence which means that police cannot make an arrest without a warrant. And, I believe, a warrant can be issued only by a court. So what you said above, as per my current understanding based on my study, does not seem to be correct. end-Ravi]

IC: That power is very dangerous, given the way the government, politicians and the rich can urge the police to act long before there is any evidence that will stand in court.

As an example, two girls in Maharashtra were arrested for a Facebook posting at the persuasion of a local politician, ostensibly because of a violation of the first version of the IT Act.

[Ravi: This was the shocker that stirred Indian social media to action. If I recall correctly one of the girls had only Facebook Liked a post critical of some Maharashtra state political leader/icon but this was at the time of that leader's funeral and so was a very sensitive matter. See http://indiatoday.intoday.in/story/2-mumbai-girls-in-jail-for-tweet-against-bal-thackeray/1/229846.html, dated Nov. 9th 2012. But this article has the advocate of the two girls saying, "Police arrested both of them under section 505(2) (statements creating or promoting enmity, hatred or ill-will between classes). Today, they were granted bail". The IT Act (section 66A) seems to have been an additional charge but was not needed for the arrest. end-Ravi]

IC: It later turned out there was no case and (a) the IT Act was later modified, and (b) the High Court instructed the government to make sure that this kind of charge is only brought by a high ranking police officer, not anyone else.

[Ravi: Section 66A of the IT act was one of the sections (but not the only one) used for arresting the Maharashtra girls; see http://cis-india.org/internet-governance/blog/bal-thackeray-comment-arbitrary-arrest-295A-66A. The Supreme Court struck down 66A section (it is not around anymore, I believe) as unconstitutional and nebulously worded, http://timesofindia.indiatimes.com/india/Supreme-Court-strikes-down-Section-66A-of-IT-Act-which-allowed-arrests-for-objectionable-content-online/articleshow/46672244.cms. end-Ravi]

IC: Even a threat of such an arrest can be used to make people retract their words, whether they are potentially libellous or not. Ordinary citizens will accept the word of the police; few of them will have lawyers to advise them.

[Ravi: That is the key issue here, I think. The chilling effect of criminal defamation lawsuit. However, one should recognize that even civil defamation lawsuit can be used by the wealthy & powerful to stifle (unfair) criticism against them. Jaitley has filed a civil lawsuit (besides the criminal one) against Kejriwal and others, demanding Rs. 10 crore compensation. See http://indianexpress.com/article/india/india-news-india/ddca-row-arun-jaitley-slaps-defamation-case-against-arvind-kejriwal-five-others/, dated Dec. 22nd, 2015. end-Ravi]

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A later mail exchange after the above:
IC: Yes, I'm sure you're right.

The point is defamation should not be a criminal offence. It gives too much power to the police and lower courts.

[Ravi: I agree that defamation should not be a criminal offence. end-Ravi]

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[I thank Wikipedia, indiatimes.com, ndtv.com and intoday.in, and have presumed that they will not have any objections to me sharing the above extracts from their website on this post which is freely viewable by all, and does not have any financial profit motive whatsoever.]