CENSORING FREE SPEECH: STRATEGIC LAWSUITS AGAINST

PUBLIC PARTICIPATION AND THE NEED FOR AN ANTI-SLAPP-

LEGISLATION IN INDIA
- Karan Gupta1
INTRODUCTION
If a democratic government is the vehicle, freedom of speech is the wheels on
which it progresses.2 Being the bulwark of such a government, this freedom
of speech and expression is not only essential for the smooth functioning of a
democracy, but is also considered as the first condition for liberty,3 sometimes
being called the mother of all liberties.4 Free debate and open discussion form
one of the only correctives of government action.5 The freedom to think and
speak is an indispensible means to the ends of the discovery of political truth
and every citizen is guaranteed of this means.6 Also endorsed by the Universal
Declaration of Human Rights,7 this freedom in the Indian context, finds its
codification in Article 19(1) of the Constitution which holds that “All citizens

1
Vth Year, B.A. LL.B. (Hons.), NALSAR University of Law, Hyderabad. I would like to
thank Prof. Sidharth Chauhan and Rupali Samuel for comments on an earlier draft.
2
Sun, L., THE ROLE OF DIVERSITY ON FREEDOM OF SPEECH IN DEMOCRATIC SOCIETIES,
International Journal of Sustainable Human Development, 2(2), 44-51 (2014). [One must
however, guard themselves from such a value-laden justification, as the same can be use to
curb that speech that does not further ‘democratic’ values. For an intrinsic justification of free
speech, see Kent Greenawalt, FREE SPEECH JUSTIFICATIONS, Columbia Law Review, Vol. 89,
No. 1 (Jan., 1989), pp. 119-155.]
3
See generally Mill, John Stuart, ON LIBERTY, London: John W. Parker and Son, West Strand,
(1859).
4
Report of the Second Press Comm., Vol. I, p. 34-35.
5
Maneka Gandhi v. Union of India, AIR 1978 SC 597, ¶ 696; John W. Whitehead, The Right
to Tell the Government to Go to Hell: Free Speech in an Age of Government Bullies,
Corporate Censors and Compliant Citizens, The Huffington Post, 21 Jan., 2016. Available
at: https://www.huffingtonpost.com/john-w-whitehead/the-right-to-tell-the-
gov_b_9019636.html
6
Whitney v. California, 274 U.S. 357, ¶ 6.
7
Article 19, Universal Declaration of Human Rights, See
http://www.un.org/en/documents/udhr/
shall have the right to freedom and speech of expression.”8 However this right
is not universally enforced: there exist individuals and entities that attempt to
curb this freedom of others through legal action.9
The objective of this essay is three fold: First, to understand briefly the nature
and objectives of a Strategic Lawsuits Against Public Participation (SLAPP);
Second, to understand the application of this concept to the Indian scenario in
the context of the SLAPP suits in The United States Of America; and Third,
to provide a normative comment on the need for an anti-SLAPP policy in
India.
UNDERSTANDING SLAPP SUITS
Imagine the following scenario: A developer wants to build 200 luxury
condominiums in small town and a plan has been forwarded to the requisite
development authorities. A citizen is concerned about the possible
environmental effects and begins to distribute numerous flyers in the
neighborhood with information regarding the same in order to convince
people to sign a petition to the authorities. The developer, fearing the rejection
of the project, files a multi-million dollar lawsuit of defamation against the
person. This, is a classic example of a ‘SLAPP’ - a term coined by two
University of Denver professors Penelope Canaan and George. W. Pring.10
This method is essentially one where deep-pocketed corporation, developer
or government official, file a lawsuit whose real purpose is to silence a critic,
punish a whistleblower or win a commercial dispute.11 objective of filing the

8
Art. 19(1)(a), CONSTITUTION OF INDIA.
9
On an interesting exposition of how the the judiciary itself has caused a censorship of free
speech without a backing of the law, see Gautam Bhatia, Judicial Censorship and Judicial
Evasion: The Depressing Story of Jolly LLB 2, Indian Constitutional Law and Philosphy, 7
Feb., 2017. Available at: https://indconlawphil.wordpress.com/2017/02/07/judicial-
censorship-and-judicial-evasion-the-depressing-story-of-jolly-llb-2/
10
George W. Pring, SLAPPS: STRATEGIC LAWSUITS AGAINST PUBLIC PARTICIPATION, 7 Pace
Envtl. L. Rev. 3 (1989).
11
Paula Goedert, THE SLAPP SUIT THREAT: SQUELCHING PUBLIC DEBATE, American
Libraries, Vol. 22, No. 10 (Nov., 1991), p. 1003; U.S. needs an anti-SLAPP law like
suit is not to take the case to court and win, but to ensure that the dissenttort,
now fearing lengthy legal proceedings and the possibility of paying an
enormous amount, stops distributing the fliers and retracts heirstatements,
thus scoring out the possibility of the petition being successful. Thus, a
SLAPP suit can be seen as a suit filed by one side to a public, political dispute
with the view of punishing or preventing any opposing view. This is seen as
a method of “privatizing public debate: a unilateral effort to change a public
political debate into a private legal adjudication making the forum and issue,
a disadvantage to the other side.”12 This shows how legal proceedings could
be used as a method of retaliation or coercion, regardless of the unmeritorious
nature of the suit in a manner ensuring substantive legal expenses to the
defendant/s.13 The nature of a SLAPP action case is threefold: First, there
exists a power imbalance between the plaintiff and the defendant in favour of
the former.14 This manifests itself in the access to the resources each one has.
The defendant is generally seen to be an individual who may not be able to
bear the costs of legal proceedings. Even in a case where the defendant has
adequate resources to defend their freedom of speech, their opportunity cost
will be considerably higher than that of the opposite party. Thus every SLAPP
case is essentially ‘deep pockets v. Limited Resources’; Second, there exists
common objective of silencing the defendant’s expression of his/her views
and to psychologically affect the defendant as to succumb and repeal the made
statements; and Third, a SLAPP action has a flimsy, frivolous or non-existent

California's, Los Angeles Times, 16 Aug., 2015. Available at:

http://www.latimes.com/opinion/editorials/la-ed-slapp-20150816-story.html
12
Supra, n. 10.
13
Penelope Canan, THE SLAPPFROM A SOCIOLOGICAL PERSPECTIVE, 7 PAcE ENvrL. L. REV.
23 (1989); Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731.
14
Avner Pinchuk, THE SILENCER: LIBEL LITIGATION AS A THREAT TO FREE SPEECH, The
Association for Civil Rights in Israel, pg. 4 (2013). Available at:
http://www.acri.org.il/en/wp-content/uploads/2013/02/The-Silencer-SLAPP-lawsuits-
FINAL.pdf
cause of action which directly resulted in curbing free speech. In this way,
“short of a gun to the head, a greater threat to First Amendment Expression
can scarcely be imagined.”15
SLAPP ACTION: COMPARTIVE CONTEXT
As compared to the United States of America in which 28 states have
implemented Anti-SLAPP policies, 16 the Indian system sees no such
corresponding law. This absence of a statutorily devised way of recognizing
and dealing with such cases, is the reason for the limited contribution of the
Indian Jurisprudence to this concept. The only provision in India, remotely
equivalent to Anti-SLAPP acts in which a plaint can be quashed to preserve
the right of expression is found codified in the Civil Procedure Code, 1908
(CPC). Order 7, Rule 11 of this Act states that a plaint can be rejected when
the court finds that there is no cause of action. 17 The application of this
provision in light of an SLAPP was brought forward in Crop Care Federation
of India v. Rajasthan Patrika (Pvt.) Lmt. And Ors.18 In this case, the company
(plaintiff) was licensed to produce pesticide. The plaintiff alleged to be
aggrieved by several articles published by the defendants in relation to the
level of pesticides companies used and what subsequent effect this had on
plants and animals. They argued that all pesticide manufacturers, which
included the plaintiff and its shareholders had been defamed. The defendant,
filing an application under Order 7, Rule 11, CPC contented that defamation
suits are against a determinate body and an association of various firms and
individuals all over India cannot be termed as a determinate body.19 The court

15
George William Pring, Penelope Canan, SLAPPS: GETTING SUED FOR SPEAKING OUT,
Philadelphia, PA: Temple University Press, 1996, pg. 11.
16
See Digital Media Law Project, Available at: http://www.dmlp.org/legal-guide/state-law-
slapps
17
Or. 7, R. 11, CIVIL PROCEDURE CODE, 1908.
18
Crop Care Federation of India v. Rajasthan Patrika (Pvt.) Lmt. And Ors,
MANU/DE/3251/2009, CS (SO) 531/2005.
19
Ibid, ¶ 5.
held two things: First, there was no direct reference made to the plaintiff in
the articles;20 Second, the suit filed had all the ingredients of a SLAPP suit.21
The court opined that the lawsuit was “intended to censor, intimidate and
silence critics by burdening them with the cost of a legal defense until they
abandon their criticism or opposition,”22 and that the filing of the suit in
relations to matter of public concern “was to muffle the airing of such
views.”23 As such the case was dismissed as a SLAPP action case. This was
the first instance where an Indian court had recognized a SLAPP suit and
made it complimentary to an existing provision of the CPC.

20
Ibid, ¶ 17.
21
Ibid, ¶23.
22
Id.
23
Id.
 SLAPP SUITS: RECOGNIZING A GROUND-LEVEL REALITY
SLAPP cases in India find its largest base in the provisions of defamation
which states that a person who by words or visual representations knowingly
causes harm to the reputation of others has committed defamation.24 Taking
the provision for reasonable restrictions in Art. 19(2) to what the Indian
Supreme Court believed was the logical end, criminal defamation in India was
said to be protected and constitutionally valid. 25 This, despite indian
jurisprudence that public interest is not a ground of restriction under Art.
19(2). 26 Further, despite the court striking down the common law of
defamation in India for being based on a no-fault liability and unreasonably
restricted free speech under Art. 19(1)(a).27
In Charanjit Singh v. Arun Purie And Ors,28 a gagging order against India
Today was obtained as soon as India Today said that they were going to justify
the words complained of. In 2009, Fomentos filed a case against Sebastian
Rodrigues in the Calcutta High court alleging damages by his blog exposing
mining in Goa and subsequently claiming 500 crores as damage. 29 Y.S.
Mohana Kumar was slapped with a legal notice by the Pesticide Association
of India for revealing through researches, the confirmed presence of

24
S. 499-500, INDIAN PENAL CODE 1860.
25
Subramanian Swamy v. Union of India (UOI), Ministry of Law and Ors, AIR 2016 SC
2728.
26
Gautam Bhatia, The Supreme Court’s Criminal Defamation Judgment: Glaringly Flawed,
Indian Constitutional Law and Philosophy, 13 May, 2016. Available at:
https://indconlawphil.wordpress.com/2016/05/13/the-supreme-courts-criminal-defamation-
judgment-glaringly-flawed/
27
R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264.
28
Charanjit Singh v. Arun Purie And Ors, 1983 (4) DRJ 86.
29
SLAPPing Down Public Protest, The Herald, 23 Jan., 2009. Available at:
https://www.heraldgoa.in/Editorial/Editorial/slapping-down-public-protest/22051.html
endosulfan in the water from his village.30 Kheti Virasat Mission, an NGO
run by Umendra Dutt was sued by Phosphorus Limited for discussing in
public the side effects pesticide exposure.31
In March this year, The Wire, an online journalism site with analytical pieces
was charged with two defamation suits worth Rs 10 crore each in March by
The National Democratic Alliance politician and MP Rajeev Chandrashekhar
for their articles fousing on his new media venture, Republic TV,32 and the
potential conflict of interest involved in his serving on the parliament’s
standing committee for defence while owning companies that are involved in
the military sphere. 33 In a surprise, without being afforded the right to be
heard, they managed to secure an an ex parte injunction from a local court in
Bengaluru for the two articles to be taken down.34
In July this year, Paranjoy Guha Thakurta, who was editor of
India’s Economic and Political Weekly, along with his colleagues Advait Rao
Palepu and Shinzani Jain, were threatened with legal action by Adani Power
Ltd,35 for two articles published by them. When the Sameeksha Trust board
ordered for the articles to be taken down, he resigned soon after. 36 Most

30
Sunita Narain, Want to be Fried?, Down to Earth, 31 May, 2006. Available at:
http://www.downtoearth.org.in/content/want-be-fried
31
Ibid.
32
Sandeep Bhushan, Arnab’s Republic, Modi’s Ideology, The Wire, Jan., 25, 2017. Available
at: https://thewire.in/102650/arnabs-republic-modis-ideology/ [Note: in compliance with the
order of the Hon’ble City Civil Court at Bengaluru, the article has been taken down].
33
Sachin Rao, In Whose Interests Do Our Soldiers March?, The Wire, 17 Feb., 2017.
Available at: https://thewire.in/109513/soldiers-defence-conflict-rajeev-chandrasekhar/
[Note: in compliance with the order of the Hon’ble City Civil Court at Bengaluru, the article
has been taken down].
34
In highly unusual move, Bengaluru court orders The Wire to remove articles on Rajeev
Chandrasekhar, Scroll, 7 Mar., 2017. Available at: https://scroll.in/article/831159/in-highly-
unusual-move-bengaluru-court-orders-the-wire-to-remove-articles-on-rajeev-chandrasekhar
35
Indira Basu, Adani Slaps Defamation Case on EPW for ‘Crony Capitalism’ Story, The
Quint, 12 Jul.,, 2017. Available at: https://www.thequint.com/news/india/epw-defamation-
case-gautam-adani
36
Adani Group ‘SLAPP’ Pushes EPW Editor Out of His Job, The Wire, 18 Jul., 2017.
Available at: https://thewire.in/159090/adani-group-slapps-epw-editor-job/
recently, Jay Amitbhai Shah filed a defamation case against The Wire, for
Rohini Singh’s article ‘The Golden touch of Jay Amit Shah.’37
Indian academia has begun capturing the effects of such tactics as well.
Recently, Rajeev Dhavan proposed a new - KICKS (Kriminal Intimidatory
Coercive Knock Out Strategies) to describe a mode of using the law for the
most illegal purposes by the most lawless groups.38 A recently launched book,
Sue the Messenger, journalists Subir Ghosh and Paranjoy Guha Thakurta,
reveals how democracy is being undermined by the legal harassment of by
corporate bodies.39
In all the examples cited above, two common characteristics emerge: First,
there is a power imbalance between the two parties and the case proceeds with
the objective of silencing the voiced opinion without a reasonable cause of
action; and second, the basis for such is claimed to be the provision of Article
19(2). The American Constitution enacted an absolute prohibition on any act
or judgment abridging an individual right to free speech, to which exceptions
are judicially evolved with limited scope. 40 Hence, a strong anti-SLAPP
policy could be evolved and implemented. However in India, Article 19(1) is
read alongside Article 19(2) and laws and cases which fall under Article 19(2)
are prima facie presumed to be constitutionally valid.41 Further the provisions
of Article 19(2), in the absence of an anti-SLAPP policy, provide impetus for
filing such frivolous lawsuits aimed at curbing free speech. The limitation
imposed on a person in regard to his rights of free expression should not be

37
Jay Amit Shah Attempts to Gag The Wire, The Wire, 16 Oct., 2017. Available at:
https://thewire.in/188066/jay-amit-shah-attempts-gag-wire/
38
Rajeev Dhavan, PUBLISH AND BE DAMNED : CENSORSHIP AND INTOLERANCE IN INDIA, Tulika
Books, 2008.
39
Paranjoy Guha Thakurta and Subir Ghosh, SUE THE MESSENGER, AuthorsUpFront, 2016.
40
Kathleen Ann Ruane, FREEDOM OF SPEECH AND PRESS: EXCEPTIONS TO THE FIRST
AMENDMENT, CDS Report for Congress, 4 Sept., 2014. Available at:
https://fas.org/sgp/crs/misc/95-815.pdf
41
H.M. Seervai, CONSTITUTIONAL LAW IN INDIA, Universal Law Publishing, p.710 (2015).
arbitrary or of an excessive nature42 and any restriction laid down should take
into account the current social, economic and political circumstances
prevailing43 and impair as little as possible the freedom in question.44 Thus,
the increasing number of SLAPP suits in India, furthers the idea of an
immediate need for an anti-SLAPP policy.

42
Chintaman Rao v. State of M.P, AIR 1951 SC 118; Cited in Shreya Singhal v. Union Of
India, AIR 2015 SC 1523.
43
Senior Electric Inspector v. Laxmi Narayan Chopra, AIR 1962 SC 159.
44
Santosh Kumar Bariyar v. State of Maharashtra, (2009) 6 SCC 498.
 THE NEED FOR AN ANTI-SLAPP POLICY IN INDIA
To understand this, it is important to understand legal proceeding in the
absence of anti-SLAPP legislations and then relatively see the need for such
a policy in India. Say a Mr. X – owner of a leather factory, has filed a
defamation suit against you for your opinion written on your blog. Your blog
cites scientific evidence that certain companies, including that of Mr. X, have
been dumping hazardous chemicals into water bodies nearby. Even if you file
for a dismissal under Order 7, Rule 11 of the Civil Procedure Code, the courts
are free to start discovery which inter alia includes interrogations, demands
for documents and depositions and subpoenas to third parties for records,
which can be hideously expensive and harassing. If the plaintiff is willing to
lie or fabricate details, the court must proceed with the suit. This is evidently
a SLAPP suit action. In most cases, defendants retract their statements to
avoid increasing legal costs. But say your case went to court and you won,
you are entitled only to hard costs and not the enormous amount you would
have spent on attorney’s fees. The bottom line is that without an anti-SLAPP
statute, a malicious litigant can legally impose substantial harm and costs to
a defendant who is constitutionally exercising his right to free speech and
expression.
Let’s look at how this case would be different with the existence of an anti-
SLAPP statute. Once the defamation case has been initiated, you may file an
anti-SLAPP motion. This immediately entails two protective measures: First,
this stays discovery in the case – no more harassing you for extraction of
documents or deposition; and Second, even if the plaintiff drops the suit, you
can press forward for a ruling seeking fees. You now have to prove that your
rights are protected under the anti-SLAPP statue. I take here the existing
California anti-SLAPP statute to explain this.45 Using the statute, you quote

45
California Anti-SLAPP Project. Available at: http://www.casp.net/california-anti-slapp-
first-amendment-law-resources/statutes/c-c-p-section-425-16/
Mr. X’s lawsuit and subsequently offer evidence to put it in context. By this,
I mean that you submit evidence that your blog is written on a subject dealing
with public interest. The burden now shifts to Mr. X to submit admissible
evidence showing a probability of prevailing. Thus, the plaintiff now needs to
depend on evidence and not speculation. He must now show that your
statements are outside the purview of the act and in excess of your rights
conferred by Article 19(1). If a person wins, he will be entitled by law to
reasonable lawyer’s fees from the plaintiff. If he loses, he will have a right to
immediate appeal which stays the case and until a ruling (which usually takes
more than a year), the ability of the plaintiff to harass the appellant is halted.
This system is not perfect, but it proves to be a very effective tool in protecting
the right to free speech and preventing what is called the chilling effect of such
SLAPP suits which is a phenomenon that evolves a decreasing amount of
public participation in view of amounting fear of such SLAPP actions.46 More
so, such a policy would help the Indian scenario see Article 19(1) guarantee
the freedom of speech and expression, Article 19(2) place reasonable
restrictions on such a right whilst preventing the misuse of Article 19(2) as a
basis for SLAPP suits. Any measure used to curb such freedom excessively
must be dealt with appropriate measures.47 This would ensure that everyone
is empowered with the freedom of expression, which includes holding
opinions without interference, and the ability to seek, receive and impart
information through any outlet without fearing barriers.

46
Penelope Canan et all, THE CHILLING RISKS OF SLAPPS: LEGAL RISKS AND ATTITUDES
TOWARD POLITICAL INVESTMENT, Research in Political Sociology 6, 347-369 (1993).
47
Supra, n. 44.