MAINS 2016 CURRENT AFFAIRS

GENERAL STUDIES II
22/09/2016
14. CRIMINAL DEFAMATION
Generally, defamation means an act of injuring a persons reputation and ruining his or her character
without lawful justification or excuse. In India, defamation can both be a civil wrong and a criminal
offence. The difference between the two lies in the objects they seek to achieve. While a civil wrong tends
to provide for a redressal of wrongs by awarding compensation, a criminal law seeks to punish a
wrongdoer and send a message to others not to commit such acts. In Indian laws, criminal defamation
has been specifically defined as an offence under the Indian Penal Code (IPC) whereas the civil
defamation is based on tort law an area of law which does not rely on statutes to define wrongs but
takes from ever-increasing body of case laws to define what would constitute a wrong.

Section 499 of the IPC defines what amounts to criminal defamation and few subsequent provisions
specify what the punishment for having committed defamation would be. Section 499 states defamation
could be through words spoken or intended to be read, through signs, and also through visible
representations. These can either be published or spoken about a person with the intention of
damaging reputation of that person, or with the knowledge or reason to believe that the imputation will
harm his reputation. Section 500 stipulates an imprisonment of up to two years, with or without fine,
for someone held guilty of criminal defamation.
MISUSE
Even though the protection of reputation is a reasonable goal, in practice, the law is used as a tool for
harassment and intimidation.
These provisions are disproportionately used against the media, human right defenders and political
leaders.
It is relatively easy to file a criminal defamation case and this can be used to drag the alleged
offender to courts across the country since physical presence of the accused is compulsory for all
criminal cases until a bail application is heard and granted. The fear of such harassment is certainly
detrimental to free expression of views.
There is rarely any compensation for wrongful arrests.

Citing rampant misuse of these provisions, many politicians, media associations etc. moved the Supreme
Court, challenging the constitutional validity of the law on criminal defamation, as defined in the IPC
Sections 499 and 500 that permits a private citizen to file a criminal defamation complaint before a trial
court for being subjected to insinuating utterances. They have all argued that it impinges upon the
fundamental right to freedom of speech and expression and that civil defamation is an adequate remedy
against such wrongs. The Section 199 of the Code of Criminal Procedure (Cr.P.C.) providing for the
procedural requirements of prosecution of the defamation is also challenged.

SUPREME COURT JUDGMENT

In the case of Subramanian Swamy v. Union of India (2016), the Supreme Court held Sections 499 and
500 of the IPC dealing with criminal defamation as constitutionally valid. It recognised the right to
reputation as a part of the right to life assured to citizens under Article 21 of the Constitution. It declared
that the right to free speech under Article 19(1)(a) had to be balanced against the right to reputation
under Article 21.

The Supreme Court said a free press is the heart and soul of political intercourse and is a public educator,
but this freedom is not absolute and cannot be used by the media to cause injury to an individuals
precious reputation. The Court held that the press has to also observe reasonable restrictions and its
purpose is to advance the public interest by publishing facts and opinions without which a democratic
electorate cannot make responsible judgments.

The Court said the reputation of an individual was an equally important right and stood on the same
pedestal as free speech. The Court held that criminalisation of defamation to protect individual dignity of
life and reputation is a reasonable restriction on the fundamental right of free speech and
expression. The right to reputation is a constituent of Article 21 of the Constitution. It is an individuals
fundamental right. It is also a human right. Cumulatively, it serves social interest. Upholding defamation
provisions do not silence free speech.

The court observed that deliberate injury to the reputation of an individual is not a mere private wrong,
worth only a civil case for damages. Defamation is a crime committed against society at large and the

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State has a duty to redress the hurt caused to its citizens dignity. Nobody has a right to denigrate others
right to person or reputation. Interest of the people involved in the acts of expression should be looked at
not only from the perspective of the speaker but also the place at which he speaks, the scenario, the
audience, the reaction of the publication, the purpose of the speech and the forum in which the citizen
exercises his freedom of speech and expression.

In a judgment upholding the constitutional validity of criminal defamation, the Supreme Court also rejected
demands to strike down Section 199(2) to (4) of the Cr.PC. The court rejected the argument that this
section creates a separate class. It also dismissed the contention that the classification enumerated in this
provision has no rationale and does not bear constitutional scrutiny. The provision in the Cr.PC allows
public servants to file a complaint in a sessions court through a public prosecutor for alleged
defamatory comments on their official acts.

The court said the right of a public servant, under CrPC 199 (2) to (4), to file defamation complaint is
over and above his or her right under Section 199 (6) to personally file a complaint before a Magistrate.
Section 199 (6) gives to a public servant what every citizen has as he cannot be deprived of a right of a
citizen. There can be cases where sanction may not be given by the State Government in favour of a public
servant to protect his right and, in that event, he can file a case before the Magistrate under Section199 (2)
to (4).
ANALYSIS OF SUPREME COURT JUDGMENT
The Supreme Court verdict upholding the provisions of the IPC that make defamation a criminal offence is
retrograde and out of tune with the times. The Court has unfortunately accepted the argument by the
Centre that criminal defamation does not have a chilling, inhibiting effect on the freedom of
expression. In fact, there is enough evidence that its existence on the statute book leads to self-
censorship, and that it is often used to stifle legitimate criticism.

The Court has sought to create an artificial balance between the fundamental right of free speech
under Article 19(1) (a) and the right to reputation as part of ones right to life under Article 21. The Court
did not explained how the balancing exercise was to be carried out, but simply asserted that reputation
could not be crucified at the altar of free speech.

The Courts argument was to invoke something that it called constitutional fraternity. It held that criminal
defamation law protected the feeling of fraternity or solidarity between members of a society. While this
may sound fair enough, there is a slight problem. 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. 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. The word fraternity is
mentioned in the Constitutions Preamble, as an aspirational goal for the newly independent Indian
Republic, alongside liberty and equality. It was never meant to become a tool to broaden the scope of
restrictions upon fundamental rights. Fraternity, then, was meant to complement civil rights, not to destroy
them.

Over the last 30 years the court has radically expanded the scope of the right to life and personal liberty
under Article 21. For the most part, the court has used this expanded definition to force the state to
undertake various social justice and welfare measures for the benefit of citizens. But in this judgment
the court used Article 21 as a sword to cut down the fundamental right to freedom of speech and
expression. This new doctrine of death by Article 21 emerged as a serious threat to the future of
constitutional rights. Article 21 has now become so vast, that if its use as a sword becomes a regular
feature, then it will likely soon swallow up the rest of the fundamental rights chapter.

Equally problematic are the silences, the arguments that the court failed to engage with. For instance, it
made no mention of the fact that Section 499 does not allow for honest mistake as a defence. This
omission is especially glaring because this very Supreme Court, 22 years ago, had found that the civil law
of defamation, as it then stood, was unconstitutional and a disproportionate restriction upon free speech,
since it did not allow for honest mistake.

In case of Section 199 of CrPC, the vague terminology used in Section 199, that any person
aggrieved can file a defamation complaint, would open the flood-gates for frivolous litigation. The Court
did not provide any mechanisms to check/punish for frivolous litigations. The Court merely said that this
would be determined by courts in each case according to fact situation.

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By upholding the validity of Section199 (2) to (4) of Cr.P.C the Court has held that the public servants are a
different class. In the words of the Court, A studied scrutiny of the provision makes it clear that a public
servant is entitled to file a complaint through the public prosecutor in respect of his conduct in discharge of
public functions. Public functions stand on a different footingThe provision gives them protection for their
official acts. There cannot be defamatory attacks on them because of discharge of their due functions. In
that sense, they constitute a different class.

ARGUMENTS IN FAVOUR OF DECRIMINALIZING DEFAMATION

Defamation law is a colonial and pre-Constitutional law. The 17th century England began to prosecute
defamation as a criminal offence to maintain public disorder. Truth was no defense since a true
defamatory statement was as likely to lead to a breach of peace as a false one. This is known as criminal
libel. In 1860, the British imported the idea of criminal libel into the IPC. Section 499 of the IPC
criminalized intentionally defamatory statements. True statements were not exempted, unless they were
made for the public good. Criminal defamation law is preserved without substantial legislative
change till date. A change in times necessitates a change in law. What may have been reasonable in
medieval England and colonial India clearly seems antiquated to a modern, democratic society that values
free discussion and debate.

The law on criminal defamation is problematic because the crime is broadly defined. It can be applied to
any communication, visible or audible. A book, a newspaper article, a cartoon or even a poem may be
read as defamatory. After the independence, with the Constitution coming into existence, defamation law
has always faced tensions with Article 19(2) which gives freedom of speech leading to censorship and
chilling effects. Social, political and economic circumstances have changed a lot over the years. The
narrow minded society has transformed into a more open and matured one. Hence criminalizing
defamation can be an extreme step when it comes to individuals.

It is true that defamation is one of the reasonable restrictions to free speech envisaged in the Constitution,
but this is not enough to justify retaining its criminal component. In the Indian context, criminal defamation
is not generally a dispute between two individuals. It is invariably a shield for public servants, political
leaders, corporations and institutions against critical scrutiny as well as questions from the media
and citizens.

The Human Rights Committee of the International Covenant on Civil and Political Rights and other
international bodies has urged countries to abolish criminal defamation. The United Kingdom, from
whom India borrowed the provision of the defamation law, abolished criminal defamation in 2009. Many
countries, including Sri Lanka, Zimbabwe have decriminalised defamation, which should be a civil offence
alone. The apex courts of the United States, Canada and South Africa have transformed criminal
defamation out of all recognition, adding defences that make it far more protective of the freedom of speech
and expression. The Indian Government should have taken the cue from such developments and
exhortations from global bodies.

In a criminal case the process itself is a punishment. Such cases drag on without any conclusion. Even
though a person is considered innocent till he/she is convicted, making him/her undergo trial in a criminal
case that never concludes is unfair. Hence, there is some amount of punishment even without
conviction.
ARGUMENTS AGAINST DECRIMINALIZING DEFAMATION
Mere misuse or abuse of law, actual or potential, can never be a reason to render a provision
unconstitutional. There must be initiatives to prevent misuse of such provisions rather than amputate the
statute and remove sections 499/500. To impale statutory provisions on that stake would cause
jurisprudential anarchy. Penalising the statutory provision, rather than rectifying the systemic problems in
our courts, is to throw the baby out with the bathwater.

The Government is against decriminalizing defamation. Most of the reasons cited by the Union
Government against decriminalizing the defamation law are:
1. Retention of defamation as a criminal offence would be necessary to counter online attempts at
tarnishing of reputation.
2. The Government states that defamation should not be decriminalized because the defamer in India may
be too poor to compensate the victim.
3. Civil remedies typically take longer than criminal ones.
4. The Government also submitted that criminalization of defamation was part of the States compelling
interest to protect the right to dignity and good reputation of its citizens.

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The civil remedy for defamation can be a very inadequate one as a loss of reputation cannot always be
valued or compensated in money terms. That apart, the reality is that in India, defamation suits take up to
20 years to be decreed by which time no amount of damages can recompense the consequences of a
loss of face for all those years.

The necessity to protect individual esteem must be seen as a shared or collective value. Human
interactions and relationships are premised on the esteem people hold one another in. Continuing both civil
and criminal remedies for their infraction is only natural. Arguably, the need for this law is even stronger
than it was in the 19th century. Defamation does not partake only of individual interest. It protects
reputation which is the persons estimation in the eyes of the general public. It is necessary for social
stability.
IDEAL SOLUTION
Many senior lawyers and constitutional experts point out that the right remedy is civil suits seeking heavy
damages for harm to reputation, not criminal provisions that can be misused to stifle free speech and
stifle media. A civil law for defamation already exists, developed solely by judgements and is not
contained in any parliamentary enactment.

Victims of defamation rarely use civil law for several reasons. Underlying these punitive responses is the
large fact of institutional decay and incapacity. Principal among them is the sloth and pendency in
Indian courts. Delay works towards skewing the incentives away from the civil to the criminal remedy. In the
actual functioning of courts, civil remedies take an inordinately long time; civil defamation cases can last
decades. So people dont see it as a remedy. There is no clear, established standard for valuation of
damages in civil cases. If civil suits are to be a viable remedy, they must afford quick relief. Other reasons
why the civil law is not as often resorted to is lack of proper definition on the legal ingredients of
defamation. Most court judgements mix the legal ingredients of criminal defamation with that of civil
defamation. This results in confusion and indeterminacy, to the detriment of all the parties to the case. Our
punitive impulses are an expression of deep institutional failure. Institutional mechanism that
provides civil remedy should be restructured so as to attract people to file civil defamation cases. Thus
defamation proceedings can continue under the civil provisions of the law. The government must opt
for a defamation law that is not prone to misuse by anybody for harassing its citizens.

Law Commission of India in its Consultation Paper on Media Law (2014) observed that threats of legal
action with punitive damages under the laws of defamation lead to a chilling effect on the publication of
free and independent news articles and puts undue pressure on journalists and publishing houses. Any
change to the laws on defamation in India must balance these two considerations.
The debate on defamation law is back in the spotlight. After the Supreme Court upheld the constitutional
validity of the criminal defamation law, a Member of Parliament has initiated to conduct online
consultation to reform the same. The consultation is aimed at eventually drafting a Protection of
Speech and Reputation Bill. The object of the consultation is to create a model law to establish a
mechanism for just, speedy and effective implementation of a law against defamation and safeguard
right to free speech. The main pillar of the Bill will be to repeal criminal defamation and make the civil
remedy effective but balanced. Any person can send comments through the website or over email. The
consultation helps the public to participate and express their opinions about the model law. Public
participation is a progressive step in a democracy and helps to ensure transparency and confidence.

CONCLUSION
Civil remedies should suffice to balance the right to reputation with freedom of speech. India must
refine its law to find the middle ground between protecting free speech, allowing fair criticism and also
guarding against false, injurious and reputation-lowering statements. It is important to spell out and
strengthen civil laws on defamation and do away with the harsh criminal option. Thus, defamation as a
penal offence under a colonial law muzzles free speech in a modern welfare state where truth and public
debate are considered the greatest ways to good governance. Make the civil law of defamation clear,
effective and balanced and repeal the criminal remedy that exists today only to coerce than to
convict. There has been a growing recognition all over the world that criminal defamation is a powerful tool
in the hands of politicians and corporations to stifle and suffocate inconvenient speech.
MODEL QUESTION
1. Do you think the presence of Sections 499 and 500 (criminal defamation) of the Indian Penal Code is an
affront to free speech prescribed under Article 19(2) of the Constitution? Critically comment. (200 words)

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