Introduction:

In a significant legal development, the Supreme Court of India has temporarily stayed the proceedings in a criminal defamation case filed against Congress Member of Parliament, Shashi Tharoor. The case stems from remarks made by Tharoor in 2018 at the Bangalore Literature Festival, where he quoted an expression comparing Prime Minister Narendra Modi to “a scorpion sitting on a Shivling.” This metaphor, originally reported in a 2012 article by *The Caravan* magazine, led to the defamation complaint, primarily filed by BJP leader Rajeev Babbar. Babbar alleged that Tharoor’s statement not only defamed the Prime Minister but also hurt the religious sentiments of millions of Lord Shiva devotees. Despite Tharoor’s defense that the comment was a metaphorical expression and that it came within the exception of “good faith imputations,” the Delhi High Court refused to quash the complaint. Tharoor then moved the Supreme Court, where a bench of Justices Hrishikesh Roy and R Mahadevan stayed the proceedings while issuing a notice in the case.

Arguments by Shashi Tharoor’s Counsel:

Tharoor’s defense, represented by Advocate Mohammed Ali Khan, made several key points in challenging the defamation complaint:

• Quoting an Existing Source: Tharoor’s counsel argued that the Congress MP merely quoted a statement made by an unnamed Rashtriya Swayamsevak Sangh (RSS) leader in a 2012 article published in *The Caravan* magazine. The magazine had published an interview with the leader, who used the “scorpion on Shivling” metaphor to describe Prime Minister Narendra Modi. Tharoor’s counsel emphasized that the remark was not an original creation of Tharoor but a repeat of what was already in the public domain for years.
• Expression as a Metaphor: The counsel further stated that the statement should be understood as a metaphor, which was described by Tharoor as “extraordinarily striking.” According to the defense, metaphors are inherently open to interpretation and could be understood in various ways. Tharoor’s counsel highlighted that even Justice Roy, during the proceedings, referred to the statement as a metaphor, suggesting that it could represent the invincibility of the person it refers to.
• No Defamation in 2012: The defense also pointed out that when the metaphor was originally published in 2012, it was not considered defamatory, and no complaints were filed. The argument suggested that if the remark was acceptable in 2012, it could not suddenly become defamatory when repeated in 2018.
• Good Faith and Public Interest: The counsel argued that Tharoor’s statement falls within the exceptions outlined in Section 499 of the Indian Penal Code (IPC) regarding defamation. The defense emphasized that Tharoor acted in “good faith” and that the comment was made with no malicious intent, but rather as a part of a public discussion on Modi’s leadership style. They also pointed to the legal provisions protecting fair comments made in the public interest.
• Questioning “Person Aggrieved” Status: Another significant point raised by Tharoor’s counsel was that the criminal defamation complaint was filed by a third party, Rajeev Babbar, who was not personally named or directly defamed by the statement. The defense questioned the Delhi High Court’s judgment in expanding the definition of an “aggrieved person” to allow a third party like Babbar to file a complaint, as Section 199 of the Code of Criminal Procedure (CrPC) limits defamation cases to individuals who are directly aggrieved by the defamatory statement.
• Non-Inclusion of *The Caravan* and RSS Leader: It was also noted that the defamation complaint did not name either *The Caravan* magazine or the RSS leader who originally made the statement, raising further doubts about the legitimacy of the complaint targeting Tharoor.

Arguments by the Complainant (Rajeev Babbar):

Representing the complainant, BJP leader Rajeev Babbar, the prosecution put forth the following key arguments:

• Hurting Religious Sentiments: Babbar’s primary contention was that Tharoor’s statement, by comparing Prime Minister Modi to a “scorpion on a Shivling,” deeply hurt the religious sentiments of Lord Shiva devotees. Babbar, identifying himself as a devotee of Lord Shiva, claimed that the remark was an “intolerable abuse” and an “absolute vilification” of a sacred symbol, affecting the religious faith of millions of people in India and across the world. According to Babbar, the comparison of a revered deity to a scorpion caused widespread offense and emotional distress among Shiva devotees.
• Defamation of Prime Minister and BJP: Babbar further argued that the statement defamed not only Prime Minister Narendra Modi personally but also the BJP as a political party, as well as the RSS and its members, who have supported Modi’s leadership. The complainant asserted that the remark symbolized an attack on Modi’s leadership and indirectly defamed the entire political establishment associated with him.
• Impact on Modi’s Public Image: Babbar emphasized that Modi, as the elected Prime Minister and the legislative head of the ruling party, is a significant public figure whose image plays an important role in the country’s political dynamics. The complainant contended that imputations against the Prime Minister would have far-reaching implications on his public image and by extension, on the political party he leads. Babbar argued that such remarks could influence voters’ perceptions and impact the electoral process, thereby threatening democratic stability.

Delhi High Court’s Judgment (August 29, 2024):

• Expanded Definition of “Person Aggrieved”: The Delhi High Court, in its August 29, 2024 order, ruled against Tharoor’s plea to quash the defamation complaint. The court expanded the scope of the term “person aggrieved” under Section 199 of the CrPC, holding that a complaint by a third party (in this case, Babbar) could be maintainable. The court reasoned that members of a political party, such as BJP and RSS, could be considered an aggrieved class in relation to the alleged defamatory statement targeting their leader.
• Defamation of Modi and BJP: The court observed that Tharoor’s comments not only defamed Prime Minister Narendra Modi but also BJP, RSS, and their members, as the metaphor suggested that Modi was an unacceptable leader within the RSS establishment. Justice Anoop Kumar Mendiratta remarked that Tharoor’s remark, by likening Modi to a scorpion, implied frustration among certain sections of the RSS with Modi’s leadership style. Therefore, the court held that the comment affected the reputation of both Modi and his party.
• Harm to Political System: The High Court further expressed concern over the impact of such comments on the political system and electoral process. It noted that imputations against a political leader of such stature could tarnish the image of the party and disrupt the democratic fabric, as political leaders’ reputations are closely tied to their party’s electoral prospects.

Supreme Court’s Observations and Judgment:

When the case reached the Supreme Court, a bench of Justices Hrishikesh Roy and R Mahadevan stayed the criminal proceedings and issued a notice on Tharoor’s petition. The Supreme Court made several important observations during the hearing:

• Metaphor’s Multiple Interpretations: Justice Roy acknowledged that the statement was a metaphor and pointed out that metaphors could be understood in multiple ways. He indicated that the metaphor could suggest the invincibility of the person being referred to and questioned why the complainant had taken such strong offense to it. The bench appeared to lean toward the view that the statement might not necessarily carry defamatory connotations.
• Public Figures and Criticism: The court hinted that public figures like Prime Minister Modi should be open to a certain degree of criticism, especially in the context of political discourse. The justices seemed to imply that political satire or metaphorical references should be treated differently from direct defamatory remarks, especially when the statements concern public leaders.
• Stay on Criminal Proceedings: After hearing the arguments, the Supreme Court stayed the criminal proceedings against Tharoor for the time being. The bench issued a notice to the complainant, giving him four weeks to respond to Tharoor’s plea. In the meantime, the defamation case will not move forward until the court takes a final decision.