Defamation and Disqualification: Political Speech and Representation in Liberal Democracies

Defamation associated with speeches against political representatives has a relatively advanced global jurisprudence. Little attention has been paid, however, to defamatory speech by political representatives, which may have consequences for democratic representation. While several jurisdictions accord higher protection to defamatory political speech, in India, a political speech by an elected representative, when construed as defamatory by a court, could lead to disqualification from membership of legislature and repudiation of an electoral mandate. This article uses disqualification on grounds of criminal defamation as an anchor to generate an academic inquiry into the relationship between speech and representation in liberal democracies. Through a contextually detailed study of the defamation law in India, in tandem with comparative jurisprudence, this article inserts a representation argument in the analysis of defamation, which has conventionally focussed on the speech argument, to reconceptualize defamatory speech as having a deliberative potential. In doing so, the article unsettles the presumption of reputational harm from defamatory political speech and advances a case for its decriminalization.