Abstract
During recent years, a sharp rise is noted in the number of frivolous law suits filed to silence voices of dissenters and the marginalized sections including women who complaint against violence. These legal tactics are striking the roots of democracy and curbing the public discourse on the vital issues while choking the freedom of speech. In western countries, anti-SLAPP legislations have been framed to curb such bogus law suits. In India, the anti-SLAPP laws are in the nascent phase. Much discussions are required to frame the laws to prevent the abuse of the laws and the legal system by the powerful. The debate on the neutrality of the law has to be re-examined from this perspective to achieve the goals of justice in true sense.
Introduction
On 6 July 2021, the Times of India reported, “Jailed under UAPA in October, activist Fr Stan Swamy (84) dies waiting for bail”. He was in custody since October 2020 under an anti-terror law. Despite repeated pleas being made for bail on grounds of old-age and poor health, he could not be released. The state authorities misappropriated their powers to deny legal claims of a senior citizen, an activist who is working for tribal rights, and deprived him of his basic rights. Justice Lokur (2021), the former judge of the Supreme court of India, noted that punitive procedural measures have been followed in this case when Fr Stan Swamy suffering from Parkinson disease was even denied sipper and straw for two months while he was in jail. Justice Lokur observed,
“Unfortunately, compassion and a degree of humanity seems to be missing and Stan Swamy was taken from Ranchi to Mumbai and kept in detention as an under-trial prisoner, away from his environs and ordinary place of residence, killing him softly”.
Still there are other senior activists who are still in jail in the same Elgar Parishad case despite the principle `Bail not jail’ being clarified by Justice Krishna Iyer (1977) and adopted by the Indian legal system later or even the precedents as set by the Supreme court in DK Basu’s case in 1996 or in AK Roy’s case in 1981. The Kafkaesque state deployed all strategies to suppress dissent.
In July 2021 in State v Mohd Nasir, the court imposed fine of Rs 25,000/ on Delhi Police to mishandle the complaint file during Delhi riots in 2020 calling the action of police in FIR No 64 of 2020 Bhajanpura PS as `casual, callous and farcical’ and stated that police has miserably failed in their statutory duties’. The court noted that case diary was not maintained as per the mandate and that the guidelines in the Lalita Kumari’s case issued by the Supreme court in 2013 were not followed. The learned judge opined,
“I have not been able to persuade myself about the efficacy and fairness of the investigation carried out in this matter”.
Even earlier, the court has pulled up the police in cases where several complaints have been clubbed into one FIR `to protect the accused’. (Anand Mohan, 2021) Besides, in several other cases, the laws have been used to oppress the weak and target the dissenters. The colonial laws such as the sedition law, defamation laws, anti-terror laws, and even Section 66A of the Information Technology Act that has been repealed in 2015, all are being used to harass common citizens. (Chauhan 2021). Concerned over enormous misuse of the sedition law and with no accountability of the executive, on 15 July 2021, the Supreme court while hearing a petition regarding its validity, raised question “If sedition law is still needed after 75 years of independence?”
In yet, another matter, on 17 February 2021, in Mobashar Jawed Akbar v Priya Ramani, the Delhi District court noted,
“The time has come for our society to understand the sexual abuse and sexual harassment and its implications on victims. The society should understand that an abusive person is just like rest of the other person and he too has family and friends. He can also be well respected person of the society. The victims of the sexual abuse not even speak a word about abuse for many years because sometimes she herself have no idea that she is a victim of abuse. The victim may keep believing that she is at fault and victim may live with that shame for years or for decades. Most of the women who suffer abuse do not speak up about it or against it for simple reason ” The Shame” or the social stigma attached with the sexual harassment and abuse. The sexual abuse, if committed against woman, takes away her dignity and her self-confidence. The attack on the character of sex abuser or offender by sex abuse victim, is the reaction of self-defence after the mental trauma suffered by the victim regarding the shame attached with the crime committed against her. The woman cannot be punished for raising voice against the sexual abuse on the pretext of criminal complaint of defamation as the right of reputation cannot be protected at the cost of the right of life and dignity of woman as guaranteed in Indian Constitution under Article 21 and right of equality before law and equal protection of law as guaranteed under Article 14 of the Constitution. The woman has a right to put her grievance at any platform of her choice and even after decades”.
In all the above matters, the law and the system has been used as a repressive tool, manipulated and twisted by those in power. Those who dared to speak were punished using legal tactics. The neutrality of the law is twisted to be used against those at the margins. The privileged men use law as a backlash strategy. Oppressive legal provisions have been deployed to silence the voice of women who complaint about the harassment they faced and scare them to not to mention about harassment they have faced. In many more matters, those in power, including the state authorities, have deployed strategies to shut the voices of the victims and the human rights defenders. (Nigam S 2019) Frivolous cases have been filed against journalists, students who participated in protests, academicians, and others where law is used as a weapon to curb freedom of expression. In Greenpeace case, ESSAR group, a corporation with multiple resources used criminal defamation law against activists who brought to attention the issue of high public significance. Such suits are based on unequal power relations where threatening party enjoys greater clout and money. In Subramaniam Swamy v Union of India in May 2016, the Supreme court articulated, “The right to freedom of speech and expression is not an absolute right …..A person’s right to freedom of speech has to be balanced with the other person’s right to reputation”.
Frequently, elite and powerful use the law to silence the victims. Not only in India, this phenomenon is common in other countries too. The famous case of Harvey Weinstein in the USA, aggressive strategies have been used to intimidate and silence those who tried to raise their voices. Non-Disclosure Agreements were signed in to create an unequal system where the complainants were not allowed to speak freely or raise their grievances. The legal system is used to shut the voices to protect those who are resourceful and powerful. In the Western countries, this phenomenon is termed as SLAPP or Strategic Law Suits Against Public Participation.
Elite Privileged Resourceful Men Silence Voices of Dissent Through SLAPP
SLAPP or Strategic Law Suits Against Public Participation is a term coined by Professor George W Pring and Penelope Cannan in 1992. SLAPP has been used in situations where the common citizens or groups raise their legitimate concerns, report violation of law, write to government officials, file applications under the Right to Information law, attend public hearings, criticize any actions of the ruling elite, testify before the government bodies, campaign or lobby for their entitlements, file appeals, or engage in peaceful boycott or demonstration. (Pring and Cannan, 1996) The apparent goal of SLAPP or frivolous counterclaims is to stop the common citizens from exercising their political rights or to punish them having done so. It helps moving the dispute from the political platform to the judicial forum. SLAPP suits are different from ordinary law suits as these seek to dissuade one from exercising legal rights such as making complaints, testifying, investigating fraud, or participating in a political campaign. The purpose is not to remedy a wrong but to harm citizens who are exercising their constitutional rights to intimidate them to participate in the process of governance through the costly exhausting frivolous litigation.
The concept of Strategic Law Suit Against Public Participation (SLAPP) has emerged in the Western countries to denote how the powerful use the law to silence, censor and intimidate their weak opponents by burdening them with the unnecessary false legal suits until the feeble abandon the process of seeking justice. Such frivolous law suits impede the freedom of speech and hurdle the course of litigation. SLAPP suits are routinely filed for libel, slander, defamation, malicious prosecution, conspiracy, invasion of privacy, and tortious interference. SLAPP entails multi-million law suits, loss of resources, expenses and the emotional cost to the litigants. It deters and prevents people from speaking up (Wyrwich, 2011). Those who file SLAPP are not taking actions to win a case but their purpose is to intimidate the opposite party. Victims seldom loses but are devastated emotionally or financially and are depoliticized or in other words, SLAPP has a `chilling effect’ on the opponents. It is expensive and daunting (Pring, 1989). Legally, courts see SLAPP as an ordinary suit and could not distinguish or deal with them. SLAPP create environment where the freedom of speech is at risk as it chokes the public discourse about a significant issue. Institutional biases and systemic power imbalance, all are deployed to develop a legal strategy to silence voices of dissent and curb free speech by those in power. The modus operandi is to bury the complainants in legal cost and disproportionate legal exercise till they are forced to give in or become bankrupt to pursue the litigation.
Specifically, in cases of violence against women, the perpetrators being resourceful calculative manipulators, use all kinds of techniques and resources to intimidate the victims to prevent them from reporting the abuse. Also, once the survivors report abuse, the perpetrators pressurize the victim to withdraw the legal cases, and for doing so, the abusers threaten to sue the abused women and file false cases under different laws to pressurize them to give up the course of litigation. As a result, those at receiving end face multiple frivolous suits. SLAPP suits sends a clear message that there is a price for speaking out (Pring, 1989).
SLAPP in cases of activism and advocacy use range of strategies to exhaust campaign capacity and morale. These tactics include smearing campaigns and imposing exorbitant claims to harass and overwhelm the campaigners by imposing heavy burden on civil society organizations. Individual campaigners are targeted to intimidate and silence their voice. In India, Amnesty International has submitted its recommendations to the Law commission in 2014 about protecting the right to free speech. Pen International noted SLAPPs had ‘devastating impacts’ on the rights of marginalized people and that ‘socio-economic status is usually a decisive factor in their success’. SLAPP suit involves dragging the opponent through a costly, time-consuming legal battle to make their life difficult.
International Human Rights Provisions
The rights to freedom of expression, of peaceful assembly and of association are fundamental human rights, all are enshrined in Articles 19 and 20 of the Universal Declaration of Human Rights and guaranteed under Articles 19, 21 and 22 of the International Covenant on Civil and Political Rights (ICCPR). Resolution 24/5 of the Human Rights Council, Resolution stresses on the rights to freedom of peaceful assembly and of association, in relation to civil society. The Working Group on Business and Human Rights in its Guidance on National Action Plans on Business and Human Rights, United Nations Working Group on Business and Human Rights, 2014 recommended that States enact anti-SLAPP legislation to ensure that human rights defenders are not subjected to civil liability for their activities.
Anti-SLAPP Legislation across countries
In many jurisdictions, the law provides individuals to challenge the SLAPP suits early in the proceedings to test if the legal action is for the purpose to silence the defendant or to disable freedom of speech and expression. These have strategized to quickly out throw the fraudulent or meritless cases meant solely to silence the petitioner. Anti-SLAPP laws are a kind of protection that assists in speedy trials to prevent frivolous suits harming the complainants. The judiciary has to be hyper-vigilant in such cases to the fact that the rights of complainants or the whistle-blowers should not be suppressed due to the frivolous lawsuits.
Anti-SLAPP laws provide civil immunity to the complainant so as to not to dissuade the victims from reporting crimes out of the fear that they might be sued. Generally, the anti-SLAPP laws has several goals. These are:
1) to provide protection against frivolous lawsuits
2) to furnish a procedural framework that encourage inexpensive and prompt resolution of SLAPP claims, and
3) to facilitate appropriate reimbursement for fee and expenses incurred by SLAPP suit targets and penalize the plaintiffs (Prather and Bland, 2015).
As per these anti-SLAPP laws, victims cannot be sued for reporting such issues. In cases of violence, it is recommended that the courts need to strike a balance between preserving access of the victims while preventing the retaliatory litigation. It is critical to restore safeguards and protections to support the survivors to combat the increasing use of retaliatory hazardous suits designed to silence them. Many countries, such as the USA, the UK, Canada, Australia recognize and acknowledge these abusive law suits and provide the remedies against such suits that whereby the powerful parties penalize the weaker ones to force them to withdraw the complaints.
SLAPP suits in India
In India, the concept of SLAPP is not recognized by the law. Rather, currently the law is being used as a tool for repression against social movements, social activists and survivors of crime against women. The state in India even earlier, has used SLAPP against the students and the human rights activists where journalists, lawyers, poets, academicians and others who raised their voice against the government policies. Despite the fact that the Constitution of India provides for right to remedies in cases of the violation of fundamental rights under Article 32 and 226, yet, no immunity is provided to those who seek to assert their constitutional rights in many situations. The legal or the judicial landscape has failed to protect the whistle blowers as they are in danger of being abused by the rich and resourceful. Though the rights to public participation been recognized as human rights and the citizens’ involvement in governance is a hallmark of democracy, yet the fact that SLAPPs are contradiction to these fundamental principles is not recognized by the state.
The law in India is still in rudimentary phase. Order 7 Rule 11 of the Civil Procedure Code deals with the rejection of the plaint in case it fails to disclose any cause of action. Section 250 Criminal Procedure Code allow the Magistrate to order the complainant to pay monetary compensation to the accused in case, the accused persons are acquitted.
Also, some of the states have formulated the law to prevent `vexatious litigation’. For instance, Madras has enacted the Madras Vexatious Litigation (Prevention) Act, 1949 and in Maharashtra it is called as Maharashtra Vexatious Litigation (Prevention) Act, 1971. The Madhya Pradesh House passed the Bill in 2015 to prevent `vexatious litigation’ without any debate. (Ghatwai, 2015) The idea behind such law is that the court’s time should not be taken up by those who litigate persistently without a justifiable cause. However, the activists claim that it is `unconstitutional and undemocratic’. No debates are being held, instead the state use these laws to prevent the common citizens to exercise their democratic rights. These laws are seen as an attempt to keep people away from the process of governance’, and is meant to stifle the undemocratic voices.
The Law Commission in its 192nd report on prevention of vexatious litigation recommended for enacting the law with the purpose to `prevent a person from instituting or continuing vexatious proceeding habitually and without a reasonable ground in High courts and subordinate courts’. The report claimed that the law will provide legal protection to the law-abiding persons from the vexatious litigation pursued against them. It its 189th Report too, the Law Commission has recommended to enact the national law on the subject.
In fact, the Supreme Court in 2010 outlined the Maintainability of Public Interest Litigation Rules that made mandatory for the petitioners to disclose their credentials and motives. The purpose is to prevent frivolous litigation that clog judicial process. The courts are also imposing heavy penalties on the petitioners who file frivolous litigations. Therefore, apparently, the purpose of enacting such regulation in India is not to support the vulnerable party in the litigation, rather it is to prevent the people from approaching the courts.
SLAPP in the cases pertaining to violence against women
In the cases relating to violence against women, SLAPPs as retaliatory abusive suits are being used to deter, threaten and intimidate the complainants regardless of the merit of their complaints. There is a general tendency to silence women as they speak out or challenge the patriarchal norms. Women are forced to make repeated court appearances to defend the law suits. The idea of filing SLAPP suit is filed with the calculative motive to silence women and to harass her knowing the fact that she lacks access to resources to fight the legal battle. The abuser uses SLAPP suit as a tool to pressurize the victim to withdraw her complaint. For instance, in the TERI case and many other matters, offenders have used the legal system to control the survivor. Counter-retaliatory litigation act as an extended tool to exert control over victims. The fear of violence multiplies with the fear or threat of litigation as the very place where victim is supposed to turn for protection. Survivors sadly lack resources or the information to obtain legal assistance when battling an abusive partner who may be using all resources to trap their victims. Therefore, the complainants suffer extensive economic and emotional repercussions. The fear of reprisal, impunity for attackers, and attitude of condoning violence already deter reporting of crime of domestic violence, in such situations, the SLAPP litigations further add to the trauma of complainants. Both the structure and the implementation of law contributes to the widespread impunity.
In a violent marital relationship, abusive husbands counter- file multiple litigations to harass wives. Courts become a site for inviting risk of hazardous counter litigation. In cases when women file claims for maintenance, the resentful husbands file counter-petitions such as the divorce applications, custody suits, or the visitation applications to defeat the claims made by women or the remedy for restitution of conjugal rights may be deployed to deter the wives who file complaints under 498A. In case, a woman chose to exercise her rights under Protection of Women Against Domestic Violence Act, 2005 for right to residence, pressure tactics are utilized to throw her out of her matrimonial house. Vexatious eviction suits are filed against women who claim their right to residence. Women, who have faced abused in violent homes for years, are again abused in courts, where law is being used as a tool by the manipulative and controlling husbands to harass their wives. A battered woman who is already vulnerable may get intimidated and may withdraw the complaint. Such actions are a barrier to the access to justice for women. (Nigam 2019; Nigam 2021) After escaping the situation of violence, frequently with no resources, a victim is being forced to face the frivolous lawsuit. Family courts do not recognize this pattern of abusive, bogus, vexatious litigation and therefore it becomes difficult for women to seek relief from the legal system which is already daunting and frightening. The batterer continues his exploitative tactics within the courtroom while undermining safety and security of the victim.
Recognizing the Power Imbalance while Enforcing the Law
In the nut shell, it may be said that the neutrality principle of law is not ensuring justice in many cases where power imbalance operates to end up harassing the powerless and therefore, needs re-examination. The neutral concept of rights has to be re-evaluated from the perspective of those on margins. Affirmative actions are required to support those who lack power and provisions for the same have already been made in the Indian constitution. The jurisprudence needs to reconsider and realize the reality of the principles of social justice through the prism of oppression. In SLAPP suits the power imbalance is too obvious and prima facie malafide to be ignored. Addressing the lacunae in the laws can be the first step in the direction to protect the roots of the healthy democratic society. Protecting the right to freedom of speech is crucial for democratic governance. The need, therefore is to debate and draw an exhaustive plan to differentiate between the vexatious complaints, malicious prosecution, miscarriage of justice, and the SLAPP suits. The repressive colonial laws such as sedition law, anti-terror laws, all need to be re-evaluated in the current context. More specifically, the rights of the marginalized communities need to be protected in situations when the powerful abusers use the law and the court procedure as a tool to harass the victims in order to achieve the goals of justice in true sense. Or as Justice Iyer in Jasraj Inder Singh v Hemraj Multanchand (1997) stated,
“…Truth, like song, is whole, and half-truth can be noise! Justice is truth, is beauty and the strategy of healing injustice is discovery of the whole truth and harmonising human relations. Law’s finest hour is not in meditating on abstractions but in being the delivery agent of full fairness. This divagation is justified by the need to remind ourselves that the grammar of justice according to law is not little litigative solution of isolated problems but resolving the conflict in its wider bearings.”
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Dr Shalu Nigam is an advocate, a legal scholar, and an activist working at the intersection of gender, law, governance, and human rights issues. She has done PhD in Social Work and has obtained a degree in law. Her recent publications include The Founding Mothers: 15 Women Architects of the Indian Constitution (coauthor, 2016) and Women and Domestic Violence Law in India: A Quest for Justice (2019). Her newly title published is Domestic Violence Law in India: Myths and Misogyny (2021). She has been a regular contributor to countercurrents.org and has published essays in journals such as the South Asia Journal, Social Action, International Journal of Gender and Women’s Studies, and Legal News and Views. Some of her writings are available here and here.
