CRIMINAL DEFAMATION: CONSTITUTIONAL OR NOT

Article submitted by Divyansha Saluja.

INTRODUCTION

We are social animals, we express and share our thoughts about people, and on the other hand, we want reputed life, to live with dignity without any interference of others, so there arises a conflict between the right to freedom of speech and expression and the right to reputation. Out of all the fundamental rights given to us by the constitution, the right to reputation is not directly enshrined, but it can be inferred from the right to live with dignity under Article 21. This right is conferred against the offence of defamation, but whether it is constitutional? And if it is constitutional then is it a violation and negation of the right to free speech and expression?

WHAT IS DEFAMATION?

Defamation is an offence of injuring someone’s character, reputation, and fame. By a false statement and making a false publication (written or on media) without the consent of the defamed party/person. It constitutes an injury to feelings as well as the loss of reputation and breach of peace.

There are certain essentials for a statement to be called defamation:

· The statement must be defamatory,

· The statement must be in regard to the defamed person.

· The statement must be published or communicated to at least one person

DEFAMATION IN INDIA

There are two kinds of defamation in India:

1. Civil defamation- The law of torts covers the defamation in civil law. Any person whose reputation has been damaged by any other person by way of either spoken, written or published words which are false and defamatory, can move to the high court or subordinate courts and file a suit to seek damages in the form of monetary compensation.

2. Criminal defamation- Defamation is also covered under criminal law. Under criminal law, it is a bailable non-cognizable and compoundable offence. It is defined under section 499 of the Indian Penal Code, 1860-

“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.”

Section 499 also cites exceptions. These include imputation of truth which is required for the public good and thus has to be published on the public conduct of government officials, the conduct of any person touching any question, and merits of public performance.

So, if a person is found guilty of committing defamation as per section 499of the IPC, he shall be punished with, 2 years of simple imprisonment or fine or with both, as stipulated under section 500 of IPC.

CONSTITUTIONALITY OF CRIMINAL DEFAMATION

The constitutionality of defamation was challenged in the landmark case of Subramanian Swamy v. Union of India[1] where the Supreme Court delivered its judgment on May 13, 2016, upholding the constitutionality of 156 year old penal law under sections 499 and 500 of the Indian Penal Code.

Subramanian Swamy vs. Union of India

A BJP politician, Dr. Subramanian Swamy, made allegations of corruption against Ms. Jayalathitha, in 2014. In response to this state government of Tamil Nadu filed a defamation case against Dr. Subramanian and submitted that sections 499 and 500 could not be said to cross beyond the limit of restrictions provided under article 19. This case gained importance when Dr. Subramanian and other prominent politicians including Congress Leader Rahul Gandhi, Delhi Chief Minister Arvind Kejriwal, who have been charged with the offence of defamation filed a petition in the Apex Court, challenging the constitutionality of the offence of criminal defamation and drawing court’s attention to how section 499 and 500 are being misused by targeting politicians and arguing that it infringed the right to free speech and expression guaranteed under article 19(a) of the constitution of India.

Several other petitions were also filed under Article 32 of the Constitution of India, challenging the constitutionality of criminal defamation as provided under Sections 499 and 500 of Indian Penal Code and Sections 199(1) to 199(4) of the Code of Criminal Procedure.

Ø There were two main challenges before the Supreme Court:

1. Whether criminalizing defamation means, excessively restricting the right to freedom of speech and expression?

2. The law of criminal defamation as provided under Section 499 and 500 of IPC is vaguely phrased and thus, arbitrary?

The judgment of the court was delivered by Hon’ble Justice Dipak Misra and Hon’ble Justice Prafulla C. Pant, upholding the constitutionality of sections 499 and 500. The court emphasized that the law on criminal defamation is unambiguous and differentiated several cases in which it had stuck down legislations violating the right to free speech and expression such as Shreya Singhal vs. Union of India. The Court also found that Article 21 which guarantees the right to live with dignity protects the concept of reputation. The court analyzed the sanctities and importance of freedom of speech and expression in a democratic country like India and said that it is subject to reasonable restrictions and such restrictions should protect the public interest and should not be excessive. Restrictions should not infringe on other fundamental rights of citizens as well, so there must be a balance between freedom of speech and expression and other fundamental rights so that public interests sought to be protected.

The court highlighted the importance of the concept of fundamental duties and constitutional fraternity, thus every citizen is expected to respect other’s rights.

It observed that “the Truth is a defense, only when a statement serves the public good but if that statement is not made for any public purpose but only to malign the person then this should not be protected constitutionality. Finally, it said that the reason for a restriction should be understood from the standpoint of the interest of the general public therefore, the provisions of defamation are not inappropriate. Thus, SC dismissed the challenge, upholding that it is a reasonable restriction on the right to freedom of speech and expression.

RIGHT TO REPUTATION VS RIGHT TO FREE SPEECH AND EXPRESSION

The main question which was challenged before the court was whether criminal defamation excessively negates and violates the right to freedom of speech and expression. Courts examined Articles 21, 19(1)(a) and 19(2) and adopted the doctrine of balancing fundamental rights and concluded that the right to free speech is a sacrosanct but it’s not absolute, thus criminal defamation is not an unreasonable restriction to the freedom of speech and expression and it important for the protection of individual’s reputation. Thus defamation is aimed to be a balancing tool, by maintaining the balance between the right to free speech and expression and the right to be respected and no legal system shall allow any false statements to be allowed publicly to induce breach of peace

Therefore there can be a wider interpretation of section 499 and freedom of speech is not absolute it is subject to reasonable restrictions, the concept of social interest has to be kept in mind when considering reasonable of a restriction, and that should not go beyond a certain degree and should not cause any stake on the reputation of individual as such.

WHY SECTION 499 AND 500 SHOULD BE DECLARED UNCONSTITUTIONAL?

1. Even if a person has spoken the truth he may be prosecuted for defamation and a statement can only be considered as true only if it is made in the public interest. So this is an arbitrary rule which deters a person from making any statement regarding politicians or powerful people even when they knew it is true but could not take the risk of being prosecuted for the offence of defamation( in case it was not found to be a statement made for the public good.)

2. It is very easy for a person to lodge a complaint against another person for causing defamation and a prima facie case can be established easily. It is a tool mostly used by people to drag anyone to the court.

3. It is considered to be an ideal weapon for powerful Indian citizens to silence critical and inconvenient situations.

4. A person can also be prosecuted for making a statement about a deceased person, which is an excessive restriction. Article 19(2) restricts speech to protect the private interest in a reputation.

5. Even an ironical statement can amount to defamation. A defamation case can be filed even for a political speech.

6. Lastly, reputation is treated as property, the aggrieved parties themselves decide their compensation on the basis of their reputation damaged.

ARGUMENTS WHY SECTION 499 AND 500 SHOULD NOT BE DECLARED UNCONSTITUTIONAL?

· The reputation of one person cannot be aspersed at the sake of other’s right to freedom of speech and expression. So therefore there is a need to maintain a balance between Article 19 and Article 21.

· In India, citizens have enough resources to pay damages for civil defamation but if it would be criminal defamation it would prevent them to do that again.

· It is also believed that online defamation is increasing day by day and it can only be countered effectively by making it an offence.

WAY AHEAD FOR INDIA

· The defamation law has much changed after the #meetoomovement, where the powerful men filed criminal defamation cases in order to silence people, a significant change was thus made. Now it is no longer a tool to harass or silent the inconvenient speech courts and the government should make sure that is not a weapon to blackmail and harass people for any inconvenient speech.

· No one should be convicted for defamation, unless the party defamed, proves beyond a reasonable doubt all the necessary elements of defamation.

· The offence of defamation shall not carry on unless it is proved that the statements under the issue are false and were made with the knowledge of falsity and that they were made with the intent to malign the person concerned.

CONCLUSION

Defamation law was formulated by Britishers to suffocate political criticism and now also it is a weapon in the hands of powerful people, celebrities, and politicians to make silent the critical and inconvenient situations. The right to freedom of speech and expression has been criticized so many times in India when it comes in conflict with other provisions. From so many years defamation cases had been filed by powerful individuals or corporations against journalists and comedians which becomes one major problem under this penal law, though changing criminal sanction with that in civil law cannot be said to balance the right to freedom of speech and expression and right to reputation but the main idea to balance both the rights is to exercise freedom of speech and expression keeping in mind the right to reputation of another person.

[1] (2016) 7 S.C.C 221