Defamation Laws in India – Is Criminal Defamation a ‘Reasonable Restriction’ on Freedom of Speech?

Criminal Defamation

Defamation is an all-encompassing term that covers any intentional false communication, either written or spoken, that harms a person’s reputation; decreases the respect, regard, or confidence in which a person is held;

or induces disparaging, hostile, or disagreeable opinions or feelings against a person, entity, group, government etc. Written defamation is called “libel,” while spoken defamation is called “slander.” Libel and slander, both forms of defamation, derive its origins from English common law, but they are not treated as distinct from each other in Indian jurisprudence. Under existing Defamation Laws in India, defamation is both a civil as well as a criminal offence.

History of Defamation Laws in India

Defamation laws in India were conceived by Lord Macaulay in 1837 in the first draft of the Indian Penal Code and subsequently codified in 1860. The offence of defamation was along the same lines of the prevailing English law. The intention behind criminalizing the act of defamation in British India was certainly linked with protecting the interests of the British Raj, the security of the state, and public order. Consequently, Section 499 of the Indian Penal Code, 1860 (“IPC“), was enacted and has remained unaltered for the last 158 years.

In July 1988, Rajiv Gandhi’s administration, injured by allegations of the Bofors affair, introduced a defamation bill, which sought to create new offences of “criminal imputation” and “scurrilous writings”. The bill widened the definition of the term ‘Defamation’ and shifted the burden of proof from the aggrieved to the accused. The Lok Sabha had passed the bill and the bill was to be introduced in the Rajya Sabha thereafter. A highly successful nationwide strike by the newspaper industry and increasingly strident popular protests forced the government to withdraw the bill. The press release withdrawing the bill stated: “A free press is an integral part of the inner strength and dynamism of our democracy. Without a free press there can be no democracy. The imperishable values of our freedom struggle have gone into the making of the press in India. We uphold this legacy”. (See).

 

Defamation in India in its Present Form

Defamation in India is both a civil as well as a criminal offence. The defamed is offered a remedy both in civil law for damages and in criminal law for punishment. Section 499 of the IPC provides for defamation and Section 500 of the IPC for punishment in respect of the said offence. Civil defamation is not codified under a specific legislation.

Section 499 states -: Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the case hereinafter expected to defame that person.

The Section further goes on to provide explanations to determine what would constitute defamation. Defamation under the IPC may constitute an imputation of a deceased person that would harm the reputation of that person if living and is intended to be hurtful to the feelings of his family or other near relatives. It may also amount to defamation to make an imputation concerning a company or an association or collection of persons as such.

The Section however does state that no imputation is said to harm a person’s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.

The Section sets forth ten exceptions to defamation as well, wherein the first exception states that the absolute truth is an exception to defamation, if it is for the public good. Section 500 of the IPC sets forth the punishment of defamation as simple imprisonment for a term which may extend to two years, or with fine, or with both.

 

Supreme Court of India on Criminal Defamation

Criminal defamation, a British relic in India has been in the news recently for multiple reasons. Questions have been raised on whether defamation should be treated as a civil wrong or criminal offence or both. The IPC that lists defamation as a criminal offence, making it punishable by fine or imprisonment or even both.

For many, criminalizing defamation is an unwarranted restriction on free speech when the global norm is that a civil suit for damages is sufficient for protecting reputation. However, the Supreme Court of India (“Supreme Court“) has as recently as in 2016, upheld criminal defamation and its constitutional validity. The judgment delivered on May 13, 2016 by the Supreme Court in Subramanian Swamy V. The Union of India [AIR2016SC2728] (“Judgement“) was delivered by Justice Dipak Misra, with whom Justice Prafulla C. Pant agreed.

In 2015, Subramanium Swamy along with several other petitioners that included well-known politicians like Rahul Gandhi, Arvind Kejriwal, Jayalalithaa and others came together to challenge the constitutionality of criminal defamation (Sections 499 and 500 of the IPC) before the Supreme Court. Their argument was that these colonial-era criminal defamation provisions were an unreasonable restriction on the constitutionally guaranteed right to freedom of speech and expression and have a chilling effect on the right to freedom of speech and expression.

The Judgment begins by analyzing the meaning of the terms ‘defamation’ and ‘reputation’, and the interaction of these terms with right of the freedom of speech and expression. The Supreme Court held that:

  1. reputation of an individual was included in the protection of ‘dignity’, which was part of the constitutionally protected right to life;
  2. the right to freedom of speech and expression in a democracy, but pointed out that it is subject to reasonable restrictions. The Judgement recognizes that the principles as regards reasonable restriction are that the restrictions should serve the public interest and should not be excessive;
  3. once we have held that reputation of an individual is a basic element of Article 21 of the Constitution and balancing of fundamental rights is a constitutional necessity and further the legislature in its wisdom has kept the penal provision alive, it is extremely difficult to subscribe to the view that criminal defamation has a chilling effect on the freedom of speech.

Examining the four explanations included in the Penal Code provision on defamation, the Supreme Court concludes that these were neither vague nor ambiguous. The Supreme Court noted that an imputation can only be treated as defamatory if it has been made with the intention of causing harm or having reason to believe that such imputation will harm the reputation of the person about whom it is made. The Supreme Court also took note that an imputation can only be treated as defamatory if it directly or indirectly, in the estimation of others, lowers a person’s character or his credit. The Supreme Court additionally held that truth is a defense only when a statement also serves the public good but states that if a truthful statement is not made for any kind of public good but only to malign a person, this should not be constitutionally protected.

Finally, the Supreme Court holds that the penal code provision is not disproportionate. The reasonableness and proportionality of a restriction is examined from the stand point of the interest of the general public, and not from the point of view of the person upon whom the restrictions are imposed. Applying this standard, the Court judged the criminal defamation laws to be proportionate. The Supreme Court dismissed the challenges to the constitutionality of the criminal offense of defamation, holding that it was a reasonable restriction on the right to freedom of expression.

While the right to reputation may be protected by the Constitution of India, it should not be at the cost of freedom of speech. Free speech is necessary because, among other things, it enables the media to hold governments, entities, political parties and individuals accountable. There has always been a delicate balance between one person’s right to freedom of speech and another’s right to protect their good name. Former justice of the US Supreme Court, Oliver Wendell Holmes in his pivotal 1897 article, the ‘Path of the Law’ wrote that “it is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from the blind imitation of the past.” The mere fact of a provision continuing to remain on the statute book is irrelevant to its constitutionality. This is especially apposite for defamation. Keeping in mind justice Holmes’ comments, two questions stand to be answered – is it revolting that we continue with a colonial era law, when the UK itself decided to de-criminalise criminal defamation? Is it not time that we codify civil law to make it more certain?

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