Defamation as crime

The judgment of the Supreme Court’s two-judge bench upholding defamation as a criminal offence is a setback to free speech jurisprudence.

Subramanian Swamy.

On May 13, a Supreme Court bench comprising Justices Dipak Misra and Prafulla C. Pant dismissed the challenges to the constitutionality of the provisions in the Indian Penal Code (IPC) and the Code of Criminal Procedure (CrPC) that make defamation a criminal offence. The judgment, written by Justice Dipak Misra, disappointed free speech enthusiasts, who were expecting the court to strike down these very provisions as being inconsistent with the constitutional guarantee of freedom of speech and expression.

The court had before it 23 writ petitions, and 12 petitions that were transferred from the High Courts, all making similar prayers that Sections 499 and 500 of the IPC and Sections 199(1) to 199(4) of the CrPC be declared unconstitutional.

Briefly, Section 499 of the IPC says that whoever makes any imputation concerning any person intending to harm, or knowing that such imputation will harm the reputation of such person, is said to defame that person. The provision, however, specifies 10 exceptions to such defamatory statements. Thus, it is not defamatory if a statement is made for the public good or if it deals with public conduct of public servants. Opinions, expressed in good faith, respecting the conduct of any person touching any public question, will also not constitute defamation. But the burden is on the accused to prove that these exceptions are attracted.

Section 500 of the IPC says that whoever defames another shall be punished with imprisonment for a term which may extend to two years, or with fine, or with both.

Section 199 of the CrPC deals with prosecution for defamation and how a court shall take cognisance of the offence of defamation.

The lead petition in the case was filed by the Bharatiya Janata Party (BJP) member of the Rajya Sabha, Subramanian Swamy, who made his disagreement with the Central government, which opposed decriminalisation of defamation, explicit before the court. Swamy argued that the government’s justification for retaining these provisions was not justified because a person accused of defamation may not be in a position to compensate the victim. Swamy argued that to defame someone, a person had to have the economic status to do so, which discouraged persons belonging to economically weaker sections from freely expressing their opinions. Swamy contended that the provisions made it oppressive for every freethinking person to express his views as they made expressing truth in the public interest a limited defence. Criminal defamation, he further argued, deterred public debate because of the fear of arrest and the very process of criminal prosecution.

Having been a victim of several cases of wrongful application of these provisions, he claimed that there was no application of mind by the authorities, whose sanction is a must for prosecution, and that very often the state exchequer was used for filing frivolous complaints.

The essence of Swamy’s submission was that these provisions cast an unreasonable restriction on free speech that was not covered under Article 19(2) of the Constitution, which lists specific grounds that make a restriction reasonable.

During the hearing, the bench wanted to know whether the abolition of criminal defamation in other countries could have an effect on the constitutional validity of these provisions in India, which had its own written and organic Constitution. The United Kingdom, the country from which we inherited these provisions, itself abolished criminal defamation in 2009.

The Central government, however, defended these provisions on the grounds that a criminal suit can deter defamation while a civil suit can drag on for years without really affecting the accused.

Apart from Swamy, the other petitioners before the Supreme Court included Congress vice president Rahul Gandhi and Delhi Chief Minister Arvind Kejriwal. In March 2014, the Rashtriya Swayamsewak Sangh (RSS) filed a defamation case against Rahul Gandhi for his remarks that it had a role in Mahatma Gandhi’s assassination. In February 2014, Nitin Gadkari, the BJP’s former president, filed a case against Kejriwal for including his name in a list of “India’s most corrupt politicians”. Swamy himself had a defamation complaint filed against him by Tamil Nadu Chief Minister Jayalalithaa for his remark that most boats apprehended by Sri Lanka Navy belonged to her.

These cases prompted these leaders, cutting across party lines, to come together and challenge the constitutionality of the criminal defamation provisions, as they realised that the very process of prosecution under these provisions constituted a punishment, even though they may be confident of proving their innocence after a protracted legal battle.

The Dipak Misra-P.C. Pant bench has held that the right to reputation is an insegregable part of Article 21 of the Constitution, guaranteeing right to life and liberty, relying on a similar submission made by the Central government during the hearing. The government argued through the Attorney General, Mukul Rohatgi, that the reputation of a person was an integral part of his sublime frame and that a dent in it was a rupture of a person’s dignity which negated and infringed on fundamental values of citizenry rights. Thus viewed, the right enshrined under Article 19(1) (a) could not be allowed to brush away the right engrafted under Article 21; but there had to be balancing of rights, the Attorney Geneal contended.

The government further argued that defamation under criminal law and civil law operated in different spheres, that monetary damage under civil law was not the only remedy, and that it was not always adequate. The government, in addition, also suggested that the freedom of speech could not be allowed to have a numbing effect on individual dignity, which was an integral part of Article 21. This position of the government was in striking contrast to its stand in the Aadhaar case before another bench that the right to privacy was not a fundamental right. Because of the government’s insistence, the case was referred to a Constitution Bench by a three-judge bench of the Supreme Court last year.

It was argued by P.P. Rao, counsel for Rahul Gandhi, that defamation, which is basically a dispute between two private individuals, cannot become a facet of the term criminal defamation as used in Article 19(2) of the Constitution because there cannot be a constitutional protection for such an action. This argument, however, failed to impress the bench.

Reputation being an inherent component of Article 21, the bench reasoned, it should not be sullied solely because another individual could have his freedom. It is not a restriction that had an inevitable consequence which impaired circulation of thoughts and ideas, the bench held. The provisions dealing with criminal defamation, the bench said, enabled a person to retrieve and redeem his reputation.

The bench found it extremely difficult to subscribe to the view that criminal defamation had a chilling effect on freedom of speech and expression. But the reasons cited by the bench are hardly convincing: reputation being a component of Article 21, the necessity to balance fundamental rights, and legislative wisdom in keeping the penal position alive.

It was argued in the course of the hearing that multiple complaints of defamation were filed in multiple places and that there was an abuse of the process of the court as a result. The bench, in response to this grievance, pointed out that Section 186 of the CrPC gave the High Court powers to determine the issue if two or more trial courts took cognisance of the same offence. Upon the decision of the High Court regarding the place of trial, the proceedings in all other places would be discontinued, the bench held. It was left to the facts and circumstances of each case to determine the right forum to conduct the trial of cases of defamation, the bench added.

The bench held that in matters of criminal defamation, heavy burden was on the magistracy to scrutinise the complaint from all aspects.

As the bench declared the provisions dealing with criminal defamation constitutional, it held that the petitioners were free to challenge the issue of summons to them before the High Court and seek appropriate relief within eight weeks.

During the hearing, the Attorney General made a fervent plea to refer the case to a Constitution Bench as it involved interpretation of substantial questions of law and the Constitution. The two-judge bench disagreed and promised to answer the plea in the judgment. But the answer is conspicuously absent in the May 13 judgment.

Swamy expressed satisfaction that the Supreme Court had granted the remedy of approaching the High Court for relief from prosecution if there was any abuse of the criminal defamation provisions by trial courts. But this limited remedy should not blind one to the glaring flaws in the judgment, which has serious consequences for freedom of expression as guaranteed by the Constitution. These flaws, as pointed out by experts, should lead to a review of the judgment by a larger bench so that the constitutional guarantee of freedom of expression is realised both in letter and spirit.