Defamation and the law: India
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Introduction
India Today, May 19, 2016
Soli Sorabjee
In order to protect a person's reputation, defamation does not have to be a criminal offence.
The right to freedom of speech and expression has been guaranteed as a fundamental right under Article 19(1)(a) of our Constitution. Like all fundamental rights in our Constitution, this precious right is not absolute. It can be reasonably restricted, as is evident from Article 19(2), which envisages imposition of restrictions inter alia on the head of defamation. Right to reputation is also guaranteed as part of the fundamental right of personal liberty in Article 21 of the Constitution, as expansively interpreted by the Supreme Court. Hence no one can claim a fundamental right to defame a person. This was recognised by the Supreme Court in its judgment in Subramanian Swamy vs Union of India where the court was considering a challenge to the constitutionality of Section 499 of the Indian Penal Code whereunder a person found guilty can be punished with simple imprisonment of two years or with a fine or with both. In the course of the judgement, Justice Dipak Misra, speaking for the Bench, which included Justice Prafulla C. Pant, observed that the "reputation of one cannot be allowed to be crucified at the altar of the other's right of free speech" and that "the object of defamation, civil or criminal, is not to suppress dissent or criticism but to protect the reputation and dignity of an individual against scurrilous attacks.... Reputation being an inherent component of Article 21, it should not be allowed to be sullied solely because another individual can have its freedom of speech". Therefore, according to the bench, a balance between the two rights needs to be struck. In the result, the court upheld the constitutionality of Section 499 of the IPC. For whatever it is worth, the bench clarified that since the offence of criminal defamation has its own gravity, the magistrates have to be extremely careful in issuing summons. In reality and practice, this admonition will be honoured more in breach than observance. As a further sop, the bench stated that it will be open to the petitioners to challenge the issue of summons before the high court, either under Article 226 of the Constitution or Section 482 of the CrPC as advised, and seek appropriate relief. Unfortunately, the court failed to notice the actual trauma and harassment persons have to face in criminal prosecution for defamation. It did not appreciate the pervasive uncertainty and the expenses involved in adopting legal proceedings at all. To that extent, the judgement ignores the realities on the ground. Has the Supreme Court struck the right balance? I think not. In order to protect a person's reputation, defamation does not have to be a criminal offence. The court failed to appreciate that Section 499 of the IPC in reality and its actual operation undoubtedly have a chilling effect on free speech. That leads to self-censorship, stifling free speech, which is an unhealthy development in any democracy. The Law Commission has noted that the defamation law as it stands can lead to a chilling effect on the publication of free and independent news.
The court's reasoning that the legislature in its wisdom has not thought it appropriate to abolish criminality of defamation in the obtaining social climate is unconvincing. It is precisely because of the inaction of the legislature which results in the violation of the right to free speech that judicial intervention is warranted. Many democracies the world over which recognise the right to free speech as also a person's right to reputation do not treat defamation as a criminal offence. In 2010, the UK abolished criminal libel as anachronistic, recognising it was used less to protect reputations and more to silence dissent. There are exceptions as in the case of Pakistan, Malaysia and Singapore. India does not need to be in their company. Balancing is a difficult and delicate task, especially when it involves two fundamental rights, equally important and which also embody our constitutional values. Unfortunately, the court has unduly tilted the balance against free speech. This imbalance needs to be promptly rectified.
Decriminalization of defamation
The Times of India, Jul 25 2015
A Subramani
HC: Can't decriminalize defamation
While the Supreme Court is seized of a batch of petitions questioning the constitutionality of criminal defamation proceedings, the Madras high court stopped just inches short of decriminalizing the `offence' when it ruled that persons facing such cases could not be considered to have a `criminal background'. “The trend appears to be towards decriminalization of defamation. The SC is also seized of the issue. In such circumstances, it is not possible for us to convince ourselves that filing of a private complaint of defamation against a person for writing articles in a magazine could make him a person with criminal background,“ ruled a division bench of Justice V Ramasubramanian and K Ravichandrabaabu.
Tamil Nadu government is the biggest defamation complainant in the state, having filed more than 110 criminal defamation complaints since 2011.The bench was passing orders on a petition filed by freelance journalist M Nedunchezhian, whose application to be enrolled as an advocate was rejected by the Bar Council of TN and Puducherry, because a criminal defamation complaint was pending against him.
Constitutional validity of criminal defamation challenged
The Times of India Dec 22 2015
TIMES NEWS NETWORK
The maintainability of the criminal defamation case filed by finance minister Arun Jaitley against AAP leaders Arvind Kejriwal and five others hinges on the impending judgment of the Supreme Court on petitions challenging the constitutional validity of the criminal defamation provision in IPC.
A bench of Justices Dipak Misra and Prafulla C Pant is likely to pronounce its verdict in January on petitions filed by Congress vice-president Rahul Gandhi, BJP leader Subramanian Swamy and Kejriwal. After holding extensive hearing over 19 days, the SC had reserved its order on August 8.
The court will decide whether IPC Sections 499 and 500 are an infringement on the individual's right to freedom of speech and expression and whether remedy against defamatory statements can be sought only through civil process--defamation suit -seeking damages from offender. The SC will also consider whether the tone, tenor and stringency of Sections 499 and 500 of the IPC needs to be read down.
During the hearings, the Centre and many state go vernments had opposed the plea for quashing of criminal defamation provisions in IPC.They had argued the penal provision acted as a deterrent and prevented people from maligning reputations. They had contended that scrapping the law would lead to anarchy in society as people would get away with destroying the hard-earned reputation of a person.
Attorney general Mukul Rohatgi had told court that such a penal provision was a must in the present era of social media when a person's reputation could be sullied in a second. He had said such activities could not be allowed under the guise of constitutional right to freedom of speech and expression. “If Section 499 goes then it means that a person will have aright to hurl abuses at others.Can any civilised society permit such a thing? Someone's hard-earned reputation will be destroyed in a second. It will result in anarchy in society,“ he had said.
Swamy and other petitioners submitted that criminal defamation was unconstitutional as it put unreasonable restrictions on right to free speech and expression and it should be scrapped for violation of fundamental rights.
