Towards decriminalising defamation

By Satya Prakash

Almost three years after the Supreme Court dismissed petitions seeking to decriminalise defamation, there are fresh attempts to sanitise the law often used against political adversaries, journalists and activists to silence legitimate criticism.

In its manifesto released on April 2, the Congress promised to decriminalise defamation to render it a mere civil wrong.

Rejecting the constitutional challenge launched by Congress president Rahul Gandhi, AAP chief Arvind Kejriwal and BJP leader Subramanian Swamy against Sections 499 and 500 of Indian Penal Code (criminal defamation), the top court had in May 2016 said: “Right to free speech cannot mean that a citizen can defame the other. Protection of reputation is a fundamental right. It is also a human right. Cumulatively it serves the social interest.”

A Bench headed by the then Chief Justice of India, Dipak Misra, had said: “One cannot be unmindful that right to freedom of speech and expression is a highly valued and cherished right but the Constitution conceives of reasonable restriction. In that context, criminal defamation, which is in existence in the form of Sections 499 and 500 of IPC, is not a restriction on free speech that can be characterised as disproportionate.”

Article 19(1)(a) of the Constitution guarantees right to freedom of speech and expression. But defamation is one of the eight grounds listed as reasonable restrictions on right to free speech under Article 19(2) of the Constitution.

In simple language, defamation means harming someone’s reputation by making a false and derogatory statement against that person without any lawful justification. It can be by publication of spoken or written words or by visual representation and a single statement can result in both civil and criminal defamation. But to constitute criminal defamation, intention to harm reputation is a must. What is important is that even truth is not a complete defence in criminal defamation as it’s qualified by public good.

Section 500 of IPC prescribes a maximum two-year jail term and fine for criminal defamation.

Is the criminal defamation law being misused in India? If yes, against whom — media or political adversaries or both?

Criminal defamation law has been abused by corporates filing ‘Strategic Lawsuits Against Public Participation’ (SLAPP) suits across the globe. But in India even the political class has been using it. There are instances of individual politicians filing criminal defamation cases against baseless and malicious allegations. But that’s different from misusing the law against the media on a large scale to silence legitimate criticism.

In August 2016, the Supreme Court was shocked to know that the AIADMK government in Tamil Nadu had filed 213 defamation cases against political opponents and media for “derogatory statements” against the then Chief Minister J Jayalalithaa in five years. Fifty-five of these cases were against journalists/media houses. Before that, the DMK had also filed more than 40 defamation cases during 2006-2011.

After having upheld the validity of criminal defamation law, the top court was forced to comment in July 2016 that “a person cannot be prosecuted for defamation for calling a government corrupt or unfit… It amounts to curbing of free speech. There has to be tolerance of criticism... The defamation law can’t be used as a political counter-weapon.”

It was for this reason that in a consultation paper on media law released in May 2014, the Law Commission noted 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.”

Media bodies such as the Editors’ Guild of India have also demanded decriminalisation of defamation with regard to journalists.

Many countries such as the UK, Sri Lanka, El Salvador and Jamaica have decriminalised defamation. In November last year, Maldives Parliament passed a Bill to repeal a draconian law that had re-criminalised defamation in the South Asian nation.

Given its widespread misuse against the media, India needs to move towards decriminalising defamation and treat it as a civil wrong for which law already provides for damages.