Open Forum

New Delhi, 27 May 2016

Decriminalizing Defamation

LEGAL REFORMS IMPERATIVE

By Dr.S.Saraswathi

(Former Director, ICSSR, New Delhi)

While the nation is rejoicing the Supreme Court’s verdict of annulling Section 66A of the IT Act 2000 as restoration of freedom of speech and expression, it received a shock when the Court decided   to continue the 150-year old Indian Penal Code section wherein defamation is both a civil and criminal offence. 

Plainly, Tort Law states: “A is liable for saying anything to C about B which would apt to make the average citizen think worse of the latter”.  The assumption is that personal reputation is as important as freedom of speech and its limits have to be fixed by law.

Thereby, the Supreme Court rejected Arvind Kejriwal, Subramanian Swamy and Rahul Gandhi’s petitions seeking decriminalization of defamation in the Indian Penal Code by upholding the validity of the colonial pre-independent view. 

Notably, all three are facing many defamation suits. Further, the Court rejected apprehensions that criminal defamation would reduce the nation to a “frozen democracy”.  In its view, the reputation of individuals is as important as free speech and a fundamental right of every citizen.

In fact, the judgment considered protection of individual right as “imperative” to maintaining “social stability”.  The argument for making laws relating to crimes is applied to “defamation” which is also treated as a crime that creates a “dent in social harmony”.

This verdict, some believe is an affront to freedom of speech, particularly to investigative journalism which has been instrumental in exposing a number of corruption cases recently.  

Undeniably, for main petitioner Subramanian Swamy this is a setback and adds obstacles in his journey towards clean politics. Besides, him, Gandhi and Kejriwal other prominent leaders including Karunanidhi, ex-Assam and Delhi Chief Ministers Tarun Gogai and Sheila Dikshit are facing defamation charges in different courts.                                         

As it stands, political speeches and media discussions are marked by personal allegations and accusations based not always on court verdicts but many times on the findings of individual searches, news reports and investigative journalism. Leading to several defamatory litigations by affected people and organizations which are pending in courts.

Besides, under Section 499 of the IPC, a speech that is intended to harm the reputation of any person is treated as a crime and is punishable with fine and imprisonment which might go up to two years. 

Thus, defamation is made a dual offence – civil and criminal. The wording of this Section is broad and has the effect of discouraging and even silencing critics for fear of defamation cases. Criminal slander places many constraints on free speech than civil defamation.

Still, a large number of defamation cases are pending in courts against journals for articles and against individuals mostly for their public speeches and publicized opinions.

Notably, criminal defamation is an invention of 16th Century British Common Law which was made with the object of preventing duels in public places which were common then to settle private disputes as they were causing serious disturbances in public order. 

It was limited to only a civil crime. However, this law was incorporated in the IPC without reference to duels or public order. The English Law allows actions for libel in High Courts for any published statements alleged to defame “named or identifiable individuals”. 

Companies are also considered legal persons and permitted to bring libel suits for defamation which might cause loss in their trade or profession and damage their reputation in the opinion of sensible persons.  Exemption is given for fair criticism and for privileged statements like Parliament speeches.

Furthermore, a defamatory statement is presumed to be false unless the defendant can prove its truth. Similar is the effect of the law on defamation in India.

However, the UK law was reformed in 2013 by changing the criteria for a successful claim.  Presently, the claimants are required to establish actual or probable serious harm before filing a defamation case.

Its critics feel that this law grants public remedy to private wrong and needs a fresh look. The judgment in the present case, links individual rights and the society which gives rise to “community interest at large”.

One’s reputation is considered as a basic element of Article 21 pertaining to life and liberty. The judgment states that balancing fundamental rights is a Constitutional necessity and it is extremely difficult to subscribe that criminal defamation would have a “chilling effect on freedom of speech”.

In the legal context, “chilling effect” refers to the presence of actual or potential threat of legal sanction which inhibits or discourages legitimate exercise of natural and legal rights by a person.  The term is frequently used with reference to freedom of expression.

While the onus is in on the defendant to prove the truth of his statements, affected individuals have to prove actual malice in the declarations to claim damages.

In the USA, the Speech Act 2010 makes foreign libel judgments unenforceable in courts which are not compatible with American Free Speech Law. This was amended in 2013 by strengthening the criteria including geographical relevance for a successful claim, mandating evidence of actual or probable harm.  And curtailed the scope for claims of defamation and enhanced the scope of defences.

In Australia, defamation is a mixture of Statute and Common Law and the law differs from State to State except for three States which have adopted a Common Law.  Free speech is implied in the Constitution but not protected as a right. It is felt that existing law seriously inhibits investigative reporting and vigorous political debate in the media.

Recall, the question of unreasonable restriction on freedom of speech arose in the Supreme Court in 1994 in a case involving the Tamil Nadu Government. Following the judgment of the American Supreme Court, which stressed the importance of “breathing space” for free speech, the Supreme Court was inclined to put spokes on “defamation” by applying it only to deliberate statements of falsehood and those made with malicious intent.

The verdict introduced protective standards for speeches on the lines of the American law.  But, this applied to civil defamation while criminal libel continued strictly as before. In the latter case, the defendant has to prove that his statements are made in “public interest”.

Clearly, there are differences of opinion on defamation law in countries. However, the general trend in democratic countries is that criminal defamation law is more likely to curb freedom of speech and expression than positively protect the reputation of anybody. 

After all, reputation cannot be safeguarded by silencing critics with threat of imprisonment.  Civil law has enough powers to prevent false propaganda.  

In regard to cancerous growth of corruption, nepotism and misuse of official power and positions, we need more openness in transactions, more dissemination of information and constant exchange of facts and opinions.    

No wonder, the UN Commission on Human Rights has been advocating abolition of criminal defamation laws and its replacement with appropriate civil laws.  We need to research and amend our law on defamation in such a way as to encourage constructive criticism and exposure of truth however unpalatable, without encouraging circulation of falsehood. ---- INFA

(Copyright, India News and Feature Alliance)