Let's decriminalize defamation

IN Law and Policy | 10/04/2015
The latest attempt to bring this about is welcome because this law constitutes an unreasonable restriction on free speech.
APARAJITA LATH who has been a victim, lays out the argument for decriminalising. Pix: spicyip.com and the author.
The recent petition filed before the Supreme Court asking the court to decriminalize defamation marks the onset of another potential step towards ensuring real freedom of speech and expression. 
The petition has been filed by Subramanian Swamy, amongst others. Swamy has been the target of criminal defamation cases (here). The Supreme Court, in its April 7th order, has asked the Centre to file their responses to this petition. 
The petitioners have argued that Section 499 and 500 of the Indian Penal Code, 1860 (‘IPC’) (these sections define ‘defamation’ and provide criminal punishment of imprisonment or a fine or both) are unconstitutional as they are not “reasonable restrictions” to freedom of speech and expression. The Provisional Parliamentary debates are also cited to argue that such restrictions on the freedom of speech and expression are excessive and beyond reasonable limits. 
Being a recipient of a frivolous criminal defamation notice (here), the recent writ petition is exciting news for bloggers and journalists as it may also alter the skewed dynamics of SLAPP (Strategic Litigation against Public Participation) notices and suits.
To contextualize, the Constitution of India provides to every citizen the freedom of speech and expression under Article 19(1)(a). However, this freedom is not absolute and can be restricted on the satisfaction of two conditions: one, the restriction must fall under one of the grounds mentioned under Article 19(2) (defamation is one ground) and two, the restriction itself must be a ‘reasonable’ restriction. 
How reasonable is the restriction?
The test of ‘reasonableness’ has been laid down in the case of Chintaman Rao v. State of M.P.The phrase “reasonable restriction” connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word “reasonable” implies intelligent care and deliberation, that is, the choice of a course which reason dictates”
More recently, in 2006, in a case concerning Article 19(1)(a) itself, the Court in Lakshmi Ganesh Films v. Government of Andhra Pradesh has held that the reasonableness of a restriction must be checked against the fundamental right that it restricts and not the ground on which it was imposed. 
Also, it was held in this case that “State action impacting the guaranteed right must be strictly scrutinized to test (a) whether it falls within the permissible area of restriction; (b) whether the restriction is reasonable; and (c) whether there are available less restrictive alternatives that the State ought to have pursued before resorting to the impugned action”.
It is against this background that the ‘reasonability’ of criminal defamation needs to be assessed. Therefore, first it needs to be examined whether criminal punishment for defamation is excessive, arbitrary, beyond ‘intelligent care and deliberation’ and whether it is the least restrictive alternative. Very apparently, criminal defamation seems unreasonable because a much less restrictive but equally adequate alternative exists i.e. a civil suit for damages. 
Criminal proceedings are long and harrowing, there is a lot of stigma attached to being named an ‘accused’ and more importantly there is a probability of imprisonment i.e. a curtailment of personal liberty. All this put together show that criminal defamation is clearly not ‘the least restrictive alternative’.
Further, this law was enacted in 1860 by the British, and the “standard of intelligent care and deliberation” prevailing by rulers in 1860 cannot be the same standard that an independent and ‘free’ society should/can be subjected to. As is generally known, punishments in those days were much harsher. 
But since we are living today in a more mature society, reasonable restrictions should take into consideration “the prevailing conditions including the social values whose needs are sought to be satisfied by means of the restrictions”, as held by the Supreme Court in Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal. We are surely suffering from a colonial hangover by retaining criminal defamation.
Moreover, defamation cases are individual disputes, unlike, criminal cases of theft, murder etc. where the State is a party and these crimes are believed to be crimes against the state at large i.e. in rem. Also, unlike most other ‘crimes’, defamation allows the victim to respond and set the record straight. Classifying defamation as ‘crime’ and providing similar punishments as for crimes (imprisonment), makes such a law arbitrary and disproportionate. 
From preliminary search, cases in relation to the test of “reasonableness” as a separate determination in cases of free speech have been lesser than in relation to other fundamental rights (e.g. freedom of trade). However, there have been cases that have gone into this determination. 
For example, in C.K. Daphtary v. O.P Gupta, the court considered whether the law of contempt itself constituted an “unreasonable restriction” on freedom of speech. Since contempt is also a separate ground under Article 19(2), the court only had to consider whether the law was “reasonable”.  
It was argued that the law places an unreasonable restriction as it serves no useful purpose since even an attack on a Judge does not itself affect the administration of justice. Briefly, it was held that this restriction was not unreasonable as first, the concept of contempt of court has not become obsolete and second, the restriction is imposed only for the proper administration of justice and is not placed on fair, legitimate criticisms. 
Even in the case of Shantilal v. State of Bombay, Section 11 of the Press (Objectionable Matters) Act 1951, though falling within ‘public order’ (Article 19(2)), was tested for ‘reasonableness’. In this case also it was found that Section 11 was reasonable since it contained certain safeguards that prevented it from being used arbitrarily. 
The ‘truth’ is not enough of a defence
However, this writ petition is not the first attempt to decriminalize defamation. In the landmark Supreme Court case of R. Rajagopal v State of TN the court left the question of constitutionality of criminal defamation open - “The concepts dealt with herein are still in the process of evolution. However, the impact of Article 19(1)(a) read with clause (2) thereof on Sections 499 and 500 of Indian Penal Code has not been gone into here. That may have to await a proper case.
The ‘appropriate case’ was unfortunately not the next case decided in 2002, where the Andhra Pradesh High Court upheld the constitutional validity of Section 499 and 500. The court held that since defamation falls under Article 19(2) “there is a constitutional protection” to these sections. And since there was no challenge to the First Constitutional Amendment that introduced defamation (in place of libel and slander), Section 499/500 cannot be ultra vires the constitution. 
This reasoning defies logic because it seems to suggest that in order to amendment Section 499/500 a constitutional amendment is required. Secondly, the court failed to consider the second prong of imposing restrictions on speech i.e. “reasonableness” of the restriction. 
The court also denied reading down the first exception to Section 499 i.e. the defence of truth. As per this section, for the defence of truth two conditions need to be satisfied: the comment should be factually correct and second it must be in the public interest. Therefore, even if a speech is defamatory but ‘true’ i.e. factually correct but not in ‘the public interest’, then the defence of ‘truth’ fails.
Even in the recent writ petition before the Supreme Court the respondents have argued that Section 499 provides enough safeguards and hence is constitutional. However, given that the very fundamental defence of ‘truth’ is itself so watered down, it becomes difficult to believe that these ‘safeguards’ are really ‘adequate’.
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