Editorial 1: Chilling effect: On defamation, free speech and the Rahul Gandhi case
Context:
- Member of opposition in Parliament, and MP from Wayanad, Mr. Rahul Gandhi has been sentenced to two years in prison, the maximum sentence for criminal defamation, and disqualified from his membership in the Lok Sabha.
Recent developments
- Both the conviction and sentence raise legal questions. Does the remark amount to defaming anyone in particular, or to people with the surname ‘Modi’ as a group? Case law indicates that the expression ‘collection of persons’ used in Section 499 of the IPC, with reference to those who can be defamed, has to be an identifiable class or group and that the particular member who initiates criminal proceedings for defamation must demonstrate personal harm or injury by the alleged defamatory statement.
- Statutes prescribe maximum jail terms so that trial courts use their discretion to award punishments in proportion to the gravity of the crime. It is questionable whether attacking an indeterminate set of people with a general remark will amount to defamation, and even if it did, whether it is so grave as to warrant the maximum sentence.
- The correctness of the judgment will be decided on appeal, but the political cost to Mr. Gandhi in the form of disqualification from the House and from electoral contest will have a lasting impact, unless he obtains a stay on the conviction rather than mere suspension of sentence.
- In contemporary times, criminal defamation mainly acts as a tool to suppress criticism of public servants and corporate misdeeds. In 2016, the Supreme Court upheld criminal defamation without adequate regard to the chilling effect it has on free speech, and to that, one must now add, political opposition and dissent.
Defamation:
- Defamation is the act of communicating false statements about a person that injure the reputation of that person when observed through the eyes of an ordinary man. Any false statement published or spoken deliberately, intentionally, knowingly with the intention to damage someone's reputation is defamation.
Defamation and free speech in India:
- Article 19 of the Constitution grants freedom of speech to its citizens. However, Article 19(2) has imposed certain reasonable exemptions to this freedom such as - Contempt of Court, defamation and incitement to an offense.
- In India, defamation can both be a civil wrong and a criminal offense, depending on the objective they seek to achieve.
- A Civil Wrong sees a wrong being redressed with monetary compensation, while a criminal law seeks to punish a wrongdoer and send a message to others not to commit such acts, with a jail term.
- In a Criminal Offense, defamation has to be established beyond reasonable doubt but in a civil defamation suit, damages can be awarded based on probabilities.
Disqualification of MPs
- The conviction may disqualify an MP if the offense for which he is convicted is listed in Section 8(1) of the Representation of the People (RPA) Act of 1951.
- This section includes offences such as section 153A (offence of promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony) or section 171E (offence of bribery) or section 171F (offence of undue influence or personation at an election) and a few others.
- Section 8(3) of the RPA mandates that an MP can be disqualified if convicted and sentenced to at least 2 years of imprisonment. However, the section also states that the disqualification takes effect only “after three months have elapsed” from the date of conviction. Within that period, the convicted MP can file an appeal against the sentence before the High Court.
Conclusion:
- Opposition parties expressing dismay at the verdict against Mr. Gandhi should include abolishing criminal defamation in their agenda.
Editorial 2: A boost to the zoonoses theory regarding the origins of the SARS-CoV-2 virus
Context:
- In the never-ending debate about the origin of the virus that set off the COVID-19 pandemic, there is now fresh grist for the mill for those who have held out for the zoonotic angle — that the infection skipped from animals to humans. Undisclosed genetic data from a food market in Wuhan has been unearthed and is being used to support the zoonoses theory over the lab leak theory. These findings were recently presented to the Scientific Advisory Group for the Origins of Novel Pathogens, an expert body constituted by the WHO.
What is this fresh theory about?
- Centre National de la Recherche Scientifique in France discovered the data which consists of genetic sequences posted in GISAID, a virology database, by Chinese researchers. The Chinese team had reportedly collected samples from the Huanan Seafood Wholesale Market, which has been, since 2020 notoriously connected to a cluster of early COVID-19 cases.
- They had, in February 2022, posted a preprint with a graph that showed several environmental samples from the market containing the virus which also had human genetic material.
- The paper also records the response of George Gao, former head of the Chinese Center for Disease Control and Prevention (China CDC), who proposes that humans brought the virus to the market, having detected that some of the samples that tested positive for SARS-CoV-2 had human DNA, but none other.
- On the contrary, the evidence in front of the WHO now is that “some coronavirus-positive samples collected contained DNA or RNA from raccoon dogs, civets, and other mammals now known to be highly susceptible to SARS-CoV-2.”
- Researchers at the University of Arizona, say that the path of evidence leads up the zoonosis path, and not of the lab leak. There is now a large body of peer-reviewed scientific research consistent with a zoonotic origin of this pandemic. However, there is no credible, peer-reviewed research pointing to a lab leak. Their data indicate that the Wuhan market was an unlikely location for the world’s first cluster of COVID cases, unless it was also from where the virus emerged.
Is it important to analyse origins?
- The main theoretical dualism that the world has contended with since the COVID-19 pandemic is the origin question — lab leak or zoonoses. In a letter in Science journal published nearly two years ago, scientists urged the scientific world to keep an open mind about both the theories, on the ground that they remained viable.
- They also called upon public health agencies, and researchers to make their data and analyses open to the public. It is expected that the recent genetic data that was presented to the WHO will also find its way to a peer-reviewed journal.
- Ascertaining the origins of the COVID pandemic is important in not only just understanding the disease, but also in preventing future zoonotic viral disease outbreaks.
Conclusion
- As for COVID-19, this might not be the final answer. Researchers on both sides of the dichotomous question will endeavour to gather evidence to support their theory. It is likely to continue until sufficient evidence emerges to arrive at a single cause. Critics of the animal transmission theory are demanding specifics and details on the ‘spill over’ while virologists say it would be impossible to get that level of data. With post facto research alone guiding the investigation, the scrutiny will likely continue.