Revisiting defamation: the demand for decriminalisation

IN Defamation | 26/02/2011
The law of criminal defamation has several ramifications, affecting the right to privacy and contempt too
and can be misused by the high and mighty to curb criticism, says RAKESH SHUKLA

Recently, the Editors Guild of India, at a meeting with the Union Minister for Information and Broadcasting, Ambika Soni, expressed the view that the existing criminal defamation law was obsolete and a source of harassment to journalists. They demanded its abolition. The Minister promised to convey the demand to the Law Minister, who had in the past given an assurance that a solution would be found to decriminalize defamation.

Various complex and competing factors come into play in the issue of the law of defamation, including the right to privacy asserted by Ratan Tata versus public interest advocated by the Public Interest Litigant, currently being hotly battled in the Supreme Court in the context of the Niira Radia tapes.

There is no specific fundamental right to privacy in India, except as in so far as judicial interpretation has included it as a facet of the valuable right to life and liberty under Article 21 of the Constitution. It is interesting to note that U.K. does not have constitutional rights and the common law does not recognize right to privacy, therefore newspaper are free to obtain and publish details of private lives without any public interest justification.

Akin to the right to the privacy, there is no specific fundamental right of the press in India, and it is through judicial interpretation that it has been has been read into the fundamental right of freedom of speech and expression guaranteed to citizens under Article 19(1)(a) of the Constitution.

Like the major body of laws in India, the law with regard to defamation comes through the route of the English Common Law which places a high value on reputation as a ‘man’s’ property more valuable than material assets and a jus in rem, a right good against all the people in the world. Under the Common Law statements exposing a person to public hatred, contempt and hatred were considered defamatory and fell in the category of libel and slander.

Libel involved publishing defamatory statements tending to injure the reputation of another person and slander constituted statements through spoken words or gestures. Criminal liability under English Law was attracted when libellous matter had a direct tendency to provoke breach of the peace. This involved tendency to arouse angry passions, provoking revenge or challenges to fight, thus endangering public peace and therefore fell in the category of criminal offence.  Defamatory statements without the element of breach of peace were civil wrongs. The remedy for civil wrongs is damages and apology while a criminal offence is punishable with imprisonment and fine.

In the Indian law, the liability for the civil wrong of defamation continues to be governed by the Law of Torts, evolved as Common Law by courts in England. The Law of Torts, coming from tortuous or twisted conduct, is not codified in a statute and continues to primarily depend on judgments of common law courts of England. However, the law with regard to criminal liability for defamation was codified under section 499 and made punishable under Section 500 of the Indian Penal Code, 1860.

Criminal Defamation has been defined as imputation by publishing, spoken words or signs intending or knowing or having reason to believe that it will harm the reputation of the person. Harming a person’s reputation has been defined by broad strokes of the brush as an imputation which lowers the moral or intellectual character, or lowers the character of a person in respect to his caste or calling or lowers his credit or causes to be believed that the body of the person is in a loathsome or disgraceful state.

Ironical expressions are also included in defamation and imputations could be against a person or a company or an association or collection of persons. Defamation has been made punishable with imprisonment up to two years or with fine or both. Imprisonment directly affects the valuable right to life and liberty guaranteed under Article 21 of the Constitution.

Imputations which are true and for the public good, public conduct of public servants and conduct of a person touching any public question have been taken out of the category of criminal defamation. Similarly, reports of court proceedings, merits of decided cases or conduct or witnesses, merits of public performances, censure by lawful authority, accusation in good faith to authorized person and imputation or caution made in good faith to protect interests or for the public good have been carved out as exceptions under Section 499 IPC. Truth is not a complete defense to a charge of criminal defamation, and it must also be proved that the imputation was made for the public good.

Defamation and criminal contempt

Criminal defamation could also be looked at in the context of the power of superior courts in India to punish for criminal contempt including imprisonment for up to six months for "scandalizing the court". The expression is inherently vague, leaves a lot of scope for arbitrariness dependent on individual predilections and at times can be used by judges to punish due to a personal sense of hurt, insult or injury. 

There has been a demand to take out "scandalizing the court" as a ground for criminal contempt. The power of contempt is for administration of justice and is not for the protection of individual judicial officers from insult or injury and is not to be used for the vindication of the judge as a person.  The recourse for a judge feeling a sense of insult or injury is to resort to the law of defamation.  Like any other individual the judge could seek damages or apology for defamation as far as civil liability is concerned.  However, even if "scandalizing the court" was to be removed as a ground for criminal contempt, a complaint by a judge for criminal defamation could still result in up to two years imprisonment, curtailing the right to life and liberty and lead to unreasonable restrictions on freedom of speech.

The criminal defamation law enacted in 1860 remains unchanged after the passage of a century and a half and merits revisiting. Despite the exceptions carved out, the definition of criminal defamation remains broad and vague and creates vulnerability with the threat of curtailment of liberty through imprisonment and leaves space for harassment, especially by the rich, high and mighty.

It is relevant to keep in mind that even the civil defamation law is, by and large, a recourse for wealthy public figures hiring expensive lawyers to seek damages at perceived unfair treatment and a feeling of being pilloried by the popular press. In the area of criminal defamation, perhaps narrowing the definition and restricting it to defamatory statements inciting to an offence or violence as punishable offences could be an avenue of exploration.

(Rakesh Shukla  is an advocate in the Supreme Court, India)

Subscribe To The Newsletter
The new term for self censorship is voluntary censorship, as proposed by companies like Netflix and Hotstar. ET reports that streaming video service Amazon Prime is opposing a move by its peers to adopt a voluntary censorship code in anticipation of the Indian government coming up with its own rules. Amazon is resisting because it fears that it may alienate paying subscribers.                   

Clearly, the run to the 2019 elections is on. A journalist received a call from someone saying they were from Aajtak channel and were conducting a survey, asking whom she was going to vote for in 2019. On being told that her vote was secret, the caller assumed she wasn't going to vote for 'Modiji'. The caller, a woman, also didn't identify herself. A month or two earlier the same journalist received a call, this time from a man, asking if she was going to vote for the BSP.                 

View More