Criminal offence of defamation is woefully out of date

  • Brinda Kumar, Hindustan Times
  • Updated: Dec 23, 2015 00:18 IST
The spread of the Internet has brought some new challenges. In recent times, the State has often used the threat of communal propaganda as a pretext to suspend Internet services in states like Gujarat (during the Hardik Patel agitation) and in J&K. (AFP Photo)

Today in India there are two potent threats to free speech: First, the provision of criminal defamation in the Indian Penal Code, and second, the power of the State to suspend the Internet whenever it wants to.

Criminal defamation has often been used to settle political scores. For example, in 2014, Delhi chief minister Arvind Kejriwal made a statement against Union minister Nitin Gadkari for which the latter filed a criminal defamation case against the CM. This legal provision is also often used to intimidate journalists.

The spread of the Internet has brought some new challenges. In recent times, the State has often used the threat of communal propaganda as a pretext to suspend Internet operations in states like Gujarat (during the Patel agitation) and in Jammu and Kashmir.

These new challenges can be tackled by creating a balance between public interest and free speech. And this balance must be based on objective and predictable legal principles. According to the law, even the truthfulness of an allegedly defamatory statement is not considered to be an absolute defence against criminal liability. The nature of criminal law demands that an offence be objectively and specifically defined in a statute. The penal law on defamation is a brazen violation of this basic principle of law. The offence of defamation is subject to contentious, personal and strictly non-objective considerations. On these grounds alone, the criminal offence of defamation is liable to be struck off the statute book.

In the case of Shreya Singhal v. Union of India, the Supreme Court held that the vagueness and the arbitrariness of a penal provision is reason enough for it to be held in violation of the Constitution. The Supreme Court added, “In creating an offence, Section 66A suffers from the vice of vagueness unlike the offence created by Section 66, none of the aforesaid terms are even attempted to be defined and cannot be defined ... the enforcement of the said section would really be an insidious form of censorship which impairs a core value contained in article 19(1)(A).”

As the court has already held that an arbitrary restriction of free speech is per se a violation of the rights guaranteed under the Constitution, the direct corollary of the aforesaid crystallised legal principle is that defamation should be reduced to a civil offence alone.

The argument in favour of the criminal offence of defamation is that civil remedy may not afford effective relief due to judicial delays. The failure of the State to dispense with its duty to provide civil justice cannot become a pretext for it to encroach upon the basic rights of its citizens.

In this context, it is important to note the history of the IPC, in which the British government incorporated a number of criminal offences, which were considered to be civil offences only. The primary reason behind that was that even if an aggrieved person were to succeed in a civil action, the decree he would receive would never be executed, given the general state of penury of the Indian public at that time under British rule. The original rationale of the provision itself shows that the criminal offence of defamation is woefully out of date and runs in contradiction to the reality of present-day India.

The second emerging threat to free speech has been the State’s attitude towards the Internet. The State in many instances has suspended Internet facilities under the pretext of maintaining communal harmony. There is no codified law that prescribes the considerations for the exercise of this power of the State.

The Supreme Court in the landmark case of the Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal, held unequivocally that the medium of expression is an inextricable part of the freedom of expression. The court ruled: “In a democracy, people govern themselves and they cannot govern themselves properly unless they are aware. To enable them to make a proper judgment on issues, they must have the benefit of a range of opinions. Right to receive and impart information is implicit in free speech.”

Consequently the distribution of airwaves (the medium) despite being a State monopoly was required to conform to the constitutional guarantee of free speech. So in accordance with this principle, any restrictions placed on a medium of expression (such as the internet) ought to be ‘just, fair and reasonable’. The need of the hour is that the powers of the State be proscribed by written, procedural and substantive law that acts as a safeguard against the arbitrary use of its powers.

It is these two issues that are inimical to journalists and the media. One endangers the position of journalists with the threat of criminal prosecution and imprisonment, while the other prevents the media from discharging its duty to inform the public. So there is an urgent need for a wide-ranging public debate on these issues to demand that the State be put back in its place and the majesty of the rule of law be resurrected to protect free speech.

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