Recently, Supreme Court has reserved its verdict on constitutional validity of criminal defamation law.

Lets try to understand the concept of defamation and then we will move on to criminal defamation and its relation with fundamental rights, which is the center-point of the debate.

What is Defamation?

Defamation means destroying the reputation of an individual or organisation through slander (speech), libel (written) or both.

Slander: To make a false spoken statement that causes people to have a bad opinion of someone.
Libel: The act of publishing a false statement that causes people to have a bad opinion of someone.

Defamation gives rise to both civil and criminal liability.
This means that the guilty may be punished with a simple imprisonment of less than 2 years arising out of criminal liability and/or he may be subjected to monetary compensation arising out of civil liability.

What does IPC have to say about Defamation?

There are two sections under IPC, viz. Sec 499 and Sec 500, which pertains to the criminal defamation.

Sec 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.

Sec 500: Punishment for defamation: Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.

PIL petitions were filed before the SC arguing that criminalisation of defamation deters free speech.

What was government’s stand in the SC?

• Govt argued that in India citizens are unlikely to have enough liquidity to pay damages for civil defamation.
• Online defamation in the Internet age can be effectively countered only by making it a criminal offence, and that the law is part of the state’s compelling interest to protect the dignity and reputation of citizens.

What is the criticism of criminal defamation?

• Citizens are afraid of expressing their opinion freely and openly because of possible fear of punishment.
• It indirectly violates the freedom of press, as it has chilling effect on the publication of free and independent news articles.
• Section 499 and 500 prevent the citizens from even expressing their legitimate criticism of govt. and public officials.
• The recent history of defamation laws is riddled with misuse by politicians and corporate’s to silence the media, activists and criticism.

Why there are concerns regarding its misuse?

• It is liable to be misused where many complaints can be filed across the country in various courts against the person for allegedly making a single defamatory statement.
• This possibility of misuse of Sec 499 and 500 has an intimidating effect on the citizen and they are afraid of using their right under Article 19(1)(a) freely.
• Critics of such a law argue that civil liability is a sufficient means of safeguarding the reputation of person.

Let’s know a bit about Article 19(1)(a) and Art 19(2)

Article 19(1)(a) confers right to freedom of speech and expression on all citizens.

Article 19(2) allows the state to make laws which impose reasonable restrictions on this right in the interests of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.

What are concerns, if the criminal liability is removed?

• The argument says that in the absence of penal provisions, there will be no deterrence against the misuse of free speech to destroy the reputation of a person which is earned over his lifetime.
• If the defamation is to be treated merely as a civil liability, then the defamer may be too poor to pay compensation to the victim and it cannot act as a sufficient deterrent.
• During elections, the absence of criminal liability will give rise to hate speeches more frequently destroying the free and fair nature of elections in the country.

How to strike the balance between the two extremes?

There is a need to balance free speech and dignity of an individual which is possible only by retaining the criminal nature of defamation.

If Sec 499 and 500 are misused, the logical approach should be to place a regulatory mechanism to prevent that misuse, but not to withdraw them.

Published with inputs from Pushpendra