There is nothing wrong in sending a person to jail for defaming someone, the Supreme Court has ruled.
The verdict has disappointed freedom loving individuals and organisations alike – journalists and activists included, for it will have a chilling effect on free speech. Criminal defamation law is often abused by corporate filing ‘Strategic Lawsuits Against Public Participation’ (SLAPP suits).
It was an interesting case where three prominent leaders espousing different political ideologies – BJP’s Subramanian Swamy, Congress’ Rahul Gandhi and AAP’s Arvind Kejriwal – were unanimous in their pursuit -- de-criminalising defamation law in India.
“A criminal defamation law... cannot be used punish a free people in India for having their say in matters of public concern,” Swamy had said contending it was extensively used in India as a tool of harassment.
But the SC disagreed. “Right to free speech cannot mean that a citizen can defame the other. Protection of reputation is a fundamental right. It is also a human right. Cumulatively it serves the social interest,” said a bench headed by Justice Dipak Misra said on Friday.
This is the second time that a challenge to the validity of criminal defamation law has failed. In 2003, an English daily had mounted an unsuccessful challenge against the use of criminal defamation on the ground that it violated the press freedom guaranteed under Article 19(1)(a) of the Constitution.
Defamation is one of the eight reasonable restrictions on free speech permissible under Article 19(2) of the Constitution. However, it’s often misused.
In the run up to the 2014 Lok Sabha polls, cutting across ideological divide politicians filed criminal defamation cases against each-other for comments that could have easily been left for the people to judge, instead of troubling the already overburdened courts.
Sections 499 and 500 IPC -- that prescribed a maximum two-year jail term and fine -- have often been misused against media. The AIADMK government in Tamil Nadu filed dozens of criminal defamation cases against media houses in various session courts across the state, particularly in Chennai for pointing out lapses on the part of the administration.
During 2002-06 tenure, the Jayalalithaa government had filed over 100 criminal defamation cases against the media. The DMK too had filed over 40 defamation cases against the media during 2006-11.
It was perhaps for this reason that the Editors’ Guild of India has been demanding decriminalisation of defamation law.
When Law Commission held wide-ranging consultations on the issue in 2014, the stakeholders overwhelmingly expressed dissatisfaction with the defamation law and favoured modifications.
The verdict goes against UN Human Rights Committee (which administers the ICCPR) that says defamation laws must be crafted with care to ensure that they do not stifle free speech. It’s perhaps for this reason that many countries, including the UK and Sri Lanka, have decriminalised defamation.
In any case the option of civil defamation has always been there.
The SC upheld the present defamation law under which even truth is not a defence unless it’s proved that the imputation made was for “public good”.
If truth is the basic foundation of justice, the verdict certainly needs reconsideration.
The author is Legal Editor, Hindustan Times. Views expressed are personal.