Criminal Defamation: Relic of The Raj, This Act Harasses More Than it Helps

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As proving allegations of sexual harassment are extremely difficult in a court of law, particularly if they refer to incidents that took place two or three decades ago, the hope is that by such public actions, a stronger movement builds towards creating a safer working environment for everyone – at least in the formal sector.

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But India’s #Metoo movement encountered its first major obstacle earlier this week when an accused, a junior Union minister and former editor, filed a private criminal defamation complaint against a female journalist, who had recently accused him of sexual misconduct.

Without getting into the particulars of the current case filed against the female journalist, let us take a look at the problematic provisions of criminal defamation in our statute books.

Section 499 of the Indian Penal Code criminalises speech that is intended to mar the reputation of any person. Section 500 details the punishment for defamation, making a person liable for imprisonment up to two years (with or without a fine).

These two sections are unfortunate remnants of colonial rule and impose unreasonable restrictions on the exercise of free speech and expression—crucial if you want to hold governments and corporations accountable.

From counters to the #MeToo movement to the Tamil Nadu government filing 125 defamation cases against The Hindu newspaper at one point, Indian politicians, business leaders and large corporations have extensively filed criminal defamation case against rivals, journalists and critics.

These cases come with the threat of arrest and imprisonment, the requirement for the accused to be present at the place of the hearing (which is where the case was filed no matter where the “speech offence” happened), and no limit to the number of cases that can be filed.

Never mind average citizens, this deters even senior journalists and academics from voicing their opinions against the government, the wealthy or the well-connected.

What makes the above even more abhorrent is that criminal defamation cases are neither the first nor the last option if you have been defamed. Our statute books already have provisions for ‘civil defamation’, which provides for damages that an offender must pay for maligning a person’s reputation (but no jail term).

To add to that, criminal defamation also fails what jurists often call the “proportionately test” – whether the punishment fits the crime.

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“In general, criminal defamation is disproportionate because it uses the criminal law to prosecute a wrong that is purely private in nature. A private wrong is one that is purely between the offender and her victim and has no implications for the society at large. For example, if I fail to control my dog, and it bites you, then you may sue me for compensation in a civil court. Society, the state, and the criminal law have nothing to do with it. However, if I murder a person, then it is not just about one individual taking the life of another but has ramifications for public peace, order and security.

This is why murder is a criminal offence, involves a term in jail, and is prosecuted by the state,” argues leading advocate Gautam Bhatia, whose book – ‘Offend, Shock, Or Disturb: Free Speech Under the Indian Constitution’ describes India’s legal tryst with such concerns.

According to Bhatia, the very concept of criminal defamation emerges from medieval England. Before the introduction of this provision, a public insult – perceived or otherwise – would result in a physical duel between the parties.

This was generally disastrous for public order, and the provision for criminal defamation was introduced into law as a corrective measure – to maintain public order.

Centuries later, duels for honour passed out of history. So allegations of defamation no longer affected public order, i.e. they were no longer ‘criminal’ acts.

However, when creating the Indian Penal Code, the British kept the provision anyway as a useful tool to suppress local dissent against colonial rule.

The law came into force via the 1860 Indian Penal Code, even though without the ‘affecting public order’ part, criminal defamation as a whole had already lost its ‘raison d’etre’ (reason for existence).

Failing the constitutional test

Article 19(2) of the Constitution, which governs free speech and expression, only places ‘reasonable’ restrictions based on eight separate categories, which include, among other things, ‘public order’, ‘decency or morality’ and ‘defamation’.

Since Independence and through multiple cases, our courts have categorically drawn up what constitutes a ‘reasonable’ restriction on free speech. When interpreting the ‘reasonableness’ of a restriction, the courts have argued that it must be ‘narrowly drawn’. In other words, the court or state can only restrict speech up to the extent where its legitimate objective is achieved.

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Going beyond this scope, when a law restricting free speech is considered ‘overbroad’, it is liable for invalidation. These safeguards were put in place to protect civil liberties and soften the ‘chilling effect’ of such broadly defined laws against critics.

On the subject of sedition, for example, the court stated that only speech that amounts to ‘incitement to imminent lawless action’ can be criminalised and not any speech the government or anyone else considers ‘seditious’.

This is the same rationale the court used in striking down the draconian provisions of Section 66A of the IT Act, saying it “arbitrarily, excessively and disproportionately invades the right of free speech and upsets the balance between such right and the reasonable restrictions that may be imposed on such right.”

Interestingly enough, the R Rajagopal vs State of Tamil Nadu civil (defamation) case in 1994 saw another bench of the Supreme Court making the argument that it wasn’t merely enough to prosecute someone for making an untrue assertion about another person. But one had to prove they did it despite knowing the claim to be false or made defamatory statements with reckless abandon.

For example, if a newspaper published an article on a personality where some of the facts were wrong or ‘defamatory’, the publication could defend itself by stating it was an honest mistake, despite rigorous research.

While civil cases are held to this standard in the protection of civil liberties, the same isn’t the case with criminal defamation.

Going through the provisions of Section 499, it is clear that the accused has to not only prove that his/her statement is true but also made in the ‘public interest’, a phrase that is as vague as they come.

It does not provide any scope for even honest mistakes. Such a standard is not only wholly inconsistent with the fundamental right to free speech and expression but the Supreme Court’s very own interpretation of defamation laws.

As a relic of colonial law, which has been done away by many democracies across the world, India must also do her part and get rid of it.

No, it isn’t okay to malign another person’s reputation, and we have provisions for civil defamation to deal with such cases. But to imprison someone for this offence is unbecoming of a free society.

(Edited By Vinayak Hegde)

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