Why in News

1. Supreme Court of India in Subramanian Swamy case upheld the validity of the criminal defamation law.
2. The court pronounced its verdict on a batch of petitions challenging the constitutional validity of sections 499 and 500 of the Indian Penal Code providing for criminal defamation.

What is Defamation?

1. Defamation refers to the act of publication of defamatory content that lowers the reputation of an individual or an entity when observed through the perspective of an ordinary man. Defamation in India is both a civil and a criminal offence.

The Law which deals with Defamation

• Sections 499 and 500

Sections 499 and 500 in the IPC deal with criminal defamation. While the former defines the offence of defamation, the latter defines the punishment for it.

Section 499

Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.

Section 500

Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.

Supreme Court on Defamation

1. Court rules that defamation laws are not in conflict with the right to free speech.
2. Court stated that notwithstanding the expansive and sweeping ambit of freedom of speech, as all rights, right to freedom of speech and expression is not absolute. It is subject to imposition of reasonable restrictions

Why should it be retained?

1.  The reputation of an individual, constituent in Article 21 is an equally important right as free speech
2. It has interpreted art 21 to provide for the right to reputation and brought a new concept of constitutional fraternity – that is, an assurance of mutual respect and concern for each other’s dignity.
3. The Supreme Court declared that the right to free speech under Article 19(1)(a) had to be “balanced” against the right to “reputation” under Article 21.
4. It has been part of the statutory law for over 70 years. It has neither diluted our vibrant democracy nor abridged free speech
5. Protection for “legitimate criticism” on a question of public interest is available in the Civil law of defamation & Under exceptions of Section 499 IPC
6. Mere misuse or abuse of law can never be a reason to render a provision unconstitutional rather lower judiciary must be sensitized to prevent misuse
7. Monetary compensation in civil defamation is not proportional to the excessive harm done to the reputation
8. Editors have to take the responsibility of everything they publish as it has far-reaching consequences in an individual and country’s life
9. Since there is no mechanism to censor the Internet from within, online defamation could only be adequately countered by retaining defamation as a criminal offence.
10. Also, criminalisation of defamation is part of the state’s “compelling interest” to protect the right to dignity and good reputation of its citizens.
11. Unlike in the U. S, defamation in India cannot be treated only as the civil liability as there is always a possibility of the defamer being judgment-free, i.e., not having the adequate financial capability to compensate the victim.

Why should it not be retained?

1. These restrictions have a chilling effect on freedom of speech; they create an anomaly whereby the threshold for criminal prosecution for defamation is now possibly lower than the threshold for civil damages;
2. “Constitutional fraternity” is not a part of Article 19(2) of the Constitution, which specifically limits the circumstances under which the state can restrict speech to eight enumerated categories.
3. It is also nowhere in the fundamental rights chapter of the Constitution, so the question of “balancing” free speech against constitutional fraternity does not arise.
4. Article 21 which is a shield to protect the individual against State persecution or indifference, is used as a sword to cut down on the fundamental right to freedom of speech and expression because of this provision.
5. Freedom of speech and expression of media is important for a vibrant democracy and the threat of prosecution alone is enough to suppress the truth. Many times the influential people misuse this provision to suppress any voices against them.
6. Considering anecdotal evidence, every dissent may be taken as unpalatable criticism. Sections 499 and 500 of IPC prescribe two years’ imprisonment for a person found guilty of defamation.
7. The right to reputation cannot be extended to collectives such as the government, which has the resources to set right damage to their reputations.
8. The process in the criminal cases itself becomes a punishment for the accused as it requires him to be personally present along with a lawyer on each date of hearing.
9. Given that a civil remedy to defamation already exists, no purpose is served by retaining the criminal remedy except to coerce, harass and threaten.
10. It goes against the global trend of decriminalizing defamation

• Many countries, including neighbouring Sri Lanka, have decriminalized defamation.
• The United Kingdom abolished criminal defamation altogether
• More recently, the Constitutional Court of Zimbabwe struck it down as an unconstitutional restriction upon the freedom of speech.
• In 2011, the Human Rights Committee of the International Covenant on Civil and Political Rights called upon states to abolish criminal defamation, noting that it intimidates citizens and makes them shy away from exposing wrongdoing

11 Investigative journalism can be curtailed and the ombudsman would be threatened.

• The dozens of defamation cases filed in Tamil Nadu to silence journalists show that criminal defamation can fetter democratic accountability.

Way forward

Criminal defamation should not be allowed to be an instrument in the hands of the state, especially when the Code of Criminal Procedure gives public servants an unfair advantage by allowing the state’s prosecutors to stand in for them when they claim to have been defamed by the media or political opponents.

In recognition of the fact that many countries do have criminal defamation laws which are unlikely to be repealed in the very near future, following interim measures can be taken:

1. No-one should be convicted for criminal defamation unless the party claiming to be defamed proves, beyond a reasonable doubt, the presence of all the elements of the offence, as set out below;
2. The offence of criminal defamation shall not be made out unless it has been proven that the impugned statements are false, that they were made with actual knowledge of falsity, or recklessness as to whether or not they were false, and that they were made with a specific intent to cause harm to the party claiming to be defamed;
3. Public authorities, including police and public prosecutors, should take no part in the initiation or prosecution of criminal defamation cases, regardless of the status of the party claiming to have been defamed, even if he or she is a senior public official;
4. Prison sentences, suspended prison sentences, suspension of the right to express oneself through any particular form of media, or to practise journalism or any other profession, excessive fines and other harsh criminal penalties should never be available as a sanction for breach of defamation laws, no matter how egregious or blatant the defamatory statement.

Conclusion

1. While the right to reputation may be protected by the Constitution, it should not be at the cost of freedom of speech.
2. Free speech is necessary because it enables the media to hold governments and individuals accountable. Freedom of speech should also protect the right to offend within reasonable limits.
3. If the ability to legitimately criticize is not protected, voices throwing light on important issues will continue to be silenced by the rich and powerful