If defamation is to be decriminalised, then civil remedies and financial compensation for the loss of individual reputations must be strengthened.
Would you have ever imagined that the BJP’s Subramanian Swamy, Congress’s Rahul Gandhi and AAP’s Arvind Kejriwal could come together on a single issue? But united they are, at least in the Supreme Court, where this past week they (or their lawyers) have been arguing for defamation to be decriminalized.
A petition led by Swamy wants sections 499 and 500 of the IPC to be scrapped because, it says, that rather than protecting individual reputation, these sections have a chilling effect on free speech.
That is true, but only partially.
But first, a bit of background: The three petitioners have separate criminal defamation cases filed against them by their political adversaries. If convicted, they face a maximum sentence of two years in jail.
Second, before you start trumpeting this trio as crusaders for free speech, you might want to remember that at least two hold pretty pathetic records. It was Gandhi’s colleague, Meenakshi Natarajan who in 2012 wanted to introduce a draconian private member’s bill that would effectively muzzle the press and had to be hastily aborted in the face of media uproar. And it was Kejriwal who, as recently as May this year, instructed his officials to lodge complaints against news stories that damaged the reputation of the chief minister or his government.
Yet, regardless of their individual record on civil liberties, this is a deeply significant petition that has far-reaching implications. At its heart lies an old tension between individual rights (the right to redressal if defamed) and a larger social goal that considers free speech to be a cornerstone of democracy.
What is free speech? Our laws include strictures against hate speech. And despite the scrapping of Section 66A by the Supreme Court in a landmark verdict earlier this year, other sections of the IT Act place limits to free speech. Last week, for instance, Maharashtra police, using Section 67A of the IT Act, registered a case against a man for tweeting a photograph of chief minister Devendra Fadnavis, taken while he was on a family vacation to the US in 2011-12.
Our Constitution guarantees the right to freedom of speech and expression but subject to ‘reasonable restrictions’ elaborated in Article 19 (2): security of the state, public order and, yes, defamation. In other words, I do not have the right to call someone a scoundrel without any basis in fact.
But the truth alone is not a defense under the current criminal defamation law. I must not only establish that the person I called a scoundrel is based on fact, I must also, under section 499, establish that calling him (or her) a scoundrel is for the public good.
This is patently unreasonable, as advocate PP Rao, arguing for Gandhi, pointed out to the Supreme Court.
But if we were to ask where the threat to free speech comes from, then going by the very recent past, it comes very often from governments themselves. Ironically, on the day Swamy was arguing in court, Tamil Nadu chief minister J Jayalalithaa sent a criminal defamation notice to Rediff.com for an article that speculated on her health.
At one point in time, Tamil Nadu had filed as many as 125 criminal defamation cases against The Hindu. Though these were subsequently dropped, the Jayalalithaa government has at present more than 80 criminal defamation cases against various media outlets and rival politicians, according to an article on the website, Scroll.
Those of us in the newspaper business know only too well that the threat of litigation is the most effective way to kill a critical article.
A B-School entrepreneur used this tactic to ensure that those critical of his institution could be assured of fighting cases filed by him in courts as remote as Guwahati. And the mere whiff of expensive, time-consuming and energy-sapping litigation led Penguin India to pulp copies of Wendy Doniger’s The Hindus in February last year.
But the threat to free speech also comes from a perception of ‘law and order’ that leads governments to ban films that offend somebody. It also comes from sheer thuggery that resulted in the self-imposed retirement of Tamil author Perumal Murugun in January this year. So, yes, defamation has a chilling effect on free speech, but let’s not pretend that it is the only factor.
The government wants defamation to remain a criminal offence because, it argues, civil provisions alone are not an effective deterrent, particularly in an age of social media and when civil cases take far longer to decide than criminal ones. Moreover, what happens if a defamer cannot afford to pay?
This is a pretty weak argument. Compensation can be linked to the income of defaming individuals or organizations. And for a government to agree that civil cases take years to decide is astonishing. If something doesn’t work, you fix it. You don’t say, well, let it remain criminal because our civil system is broken.
The basis of criminal law is that crimes are against society and social order. That is why cases of murder, rape, theft etc are prosecuted by the state rather than individuals. How does defamation fit under this definition? If I am defamed, how is social order affected? You could argue that a society based on unfounded abuse is inherently negative, but in these days of social media where name-calling and abuse is now a national sport, the argument for criminalizing defamation has become obsolete.
Yet, the counter-argument for decriminalizing defamation stated in the Supreme Court so far is an incomplete one. If defamation is to remain only a civil offence, then what guarantee do I have as an individual that I will not only receive speedy legal redress but sizeable financial compensation as well? And if you remove the criminal provision, are you not then removing the only real relief I have in the existing practice of law?
Apart from government and big business, not many individuals have the resources for a court battle. The only exception recently has been Justice P.B. Sawant who was awarded Rs 100 crore in damages by the Bombay High Court against TimesNow for erroneously carrying his photograph along with a story on a public provident scam. But then, Justice Sawant is hardly your average citizen.
If you’re going to argue for defamation to be decriminalized then you must also argue for civil remedies to be strengthened – and stronger protection against state-sponsored repression of free speech. You need a system that works to provide civil relief and not continue using criminal laws to ensure justice.
The issue is not decriminalising or criminalising defamation. The issue is standing up for free speech and, at the same time, ensuring protection to individual reputation through extraordinary damages and swift civil procedures.