A blow to free speech

The Supreme Court’s ruling on criminal defamation comes as a disappointment. The state uses criminal defamation to intimidate media, political opponents, whistleblowers and NGOs, coerces them to adopt self-censorship and dissuades them from exposing wrongdoing. Justices Dipak Misra and PC Pant have observed that “criminal defamation doesn’t have any chilling effect on freedom of speech”. The fact that they chose to caution the judges handling defamation cases to be “extremely careful while issuing summons” shows they recognise the harassment caused in the pursuit of the case itself. Editors and journalists are frequently put to inconvenience as defamation suits are filed on flimsy grounds, sometimes deliberately in remote areas. Chief Minister Jayalalithaa’s government alone has initiated 100-odd defamation cases against media and politicians.

Defamation is treated as a civil offence in countries across the world. The Human Rights Committee of the International Covenant on Civil and Political Rights has called upon nations to abolish criminal defamation. In India criminal defamation invites a jail of two years; in a civil suit only damages are paid on conviction. Truth is a complete defence in a civil case but not so in criminal defamation where the court has to be satisfied that it is uttered in public interest. The government’s arguments were: (1) In India citizens may not have money to pay damages for civil defamation (2) civil cases can take up to 20 years to settle (3) a criminal offence alone can effectively counter defamation in social media and (4) the law is part of the state’s “compelling interest” to protect the dignity and reputation of citizens.

The petitioners — Subramanian Swamy, Rahul Gandhi, Arvind Kejriwal, who all face defamation cases — had rightly pleaded that criminal defamation was used as a weapon to kill free speech. It is a tool not only in the hands of the government to stifle criticism but also powerful politicians and crooked businessmen who use the threat of criminal defamation to intimidate critics. Civil defamation is a sufficient deterrent to misuse of the constitutional right to free speech. There is merit in the argument that the case should have been decided by a Constitution Bench since the constitutionality of Sections 499 and 500 of the IPC was challenged.