In a big setback for Delhi CM Arvind Kejriwal, the Supreme Court has suspended a circular issued by his Government on May 6, calling for the initiation of criminal defamation cases against media houses.

Adding to the Chief Minister’s embarrassment, the SC pointed out how Kejriwal earlier challenged defamation proceedings against him.

You can’t do both things together - come to the Supreme Court against defamation on one hand, and then take action against the media.

- Supreme Court

The Chief Minister’s Double Speak

Is it of any relevance that a particular circular issued by Arvind Kejriwal’s government isn’t available to the public, although reams have been written against it? And does this fact have a bearing on the contents of that circular F.No. 36/1/Policy /2015, dated 6 May, 2015?

Approved by the “Competent Authority”, that is, the Chief Minister himself, this policy document, a copy of which has been accessed by The Quint, warns anyone against making any “defamatory imputation” against any functionary or minister of the government. The CM himself has also been included (or, is included himself more appropriate?) in the list of beneficiaries.

It’s true that there hasn’t been any dearth of blatantly scurrilous, and even false, motivated reporting against Kejriwal and some of his ministers by certain sections of the media, and personal attacks have also been there.

There can’t be any defence of such tactics, and perhaps one could try and understand his anger against those he believes are behaving like his foes’ henchmen. But this directive steers clear of personal slander and instead limits itself to the conduct of government servants while discharging their official and public functions.

Here’s what former AAP member Prashant Bhushan said about the SC stay.

Petulant majoritarianism?

This means that even legitimate criticism of the government (which till date has shown a disconcerting intolerance towards criticism) would be fraught with danger. The risk is aggravated by the fact that the CM, despite his repeated proclamations espousing transparency and accountability, has far too often embraced and espoused intolerance and arbitrariness. Resorting to raving allegations of conspiracy seems to have become the norm.

Evidently, this holds up a mirror to the hypocrisy of Kejriwal, whose government, enjoying an unprecedented majority, is set to complete 100 days in power in 10 days or so.

But besides being demonstrative of a self- righteous majoritarianism, the circular has significant legal loopholes.

Sanctioned Illegalities?

First, Section 499 of the Indian Penal Code, which criminalises defamation (and the constitutionality of which Kejriwal himself has challenged in the Supreme Court) talks of only imputations which could harm a person’s reputation. Whether a particular imputation, or even an insinuation, amounts to defamation or not is to be decided in a trial, by a court.

But the circular stipulates that any defamatory imputation shall invite possible penal consequences. Such presumption, going beyond the scope of the law, is sure to be struck down by a court.

Second is the category of actions sought to be protected by a shroud of libel. Government employees and public servants, ruled the Supreme Court in the R Rajagopal case (1994) are entitled to a lesser degree of privacy than ordinary citizens, and are also legally obligated to present themselves to a higher level of public scrutiny.

Only the judiciary grants to itself complete immunity from criticism by ruthlessly enforcing the law of criminal contempt. Such self-serving protectionism is also the subject of much condemnation and criticism, especially because it violates the freedom of the press and quells any dissent.

Third, besides trying to compete with the judiciary, the government has arrogated to itself the power to decide on prosecutions. The principal secretary (Home) will proceed on the advice of the law department, and then the government will give the go ahead for charging someone insouciant enough to question the Kejriwal administration.

Apart from being a judge in its own cause (which is unconstitutional), the government is reserving the right to indulge in political skulduggery. The unceremonious ouster of Prashant Bhushan and Yogendra Yadav only reinforces one’s suspicion of the possibility of this bludgeon being used with calculated frequency.

Severe criticism from many quarters hasn’t dissuaded Kejriwal from defending this illegal monstrosity. Only a rap from the courts might rein him in.