In deciding to unleash the criminal defamation law on its critics, the Arvind Kejriwal government appears to have tripped on the law that permits criticism of public officials in good faith.
In a controversial circular issued last week, the Delhi government gave officials a free hand to approach the home department for penal action against individuals who gave chief minister Kejriwal, his cabinet colleagues and officers a bad name.
The circular is couched in the language of Section 499 of IPC that defines criminal defamation, a provision that Kejriwal — going by his petition in the Supreme Court — believes is in violation of fundamental right to free speech.
Those who drafted the circular perhaps didn’t read the provisions which allow legitimate criticism of public servants.
In fact, it goes against second and third exceptions to Section 499 which protect anybody (not just journalists) from criminal defamation law for criticising the public conduct of public servants as also an individual’s conduct touching upon any public question.
According to second exception to Section 499, “It is not defamation to express in a good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further.”
The third exception to Section 499 goes even a step further. “It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further. “
The circular had stated: “If by words either spoken or intended to be read, or by signs or by visible representations, any person makes or publishes any defamatory imputation against the chief minister/ministers of the government of NCT of Delhi or any public servant, employed in connection with the affairs of government of NCT of Delhi, in respect of his conduct in the discharge of his public functions and if the person aggrieved believes that such imputation has harmed his/her reputation, he/she will report the matter in writing to the principal secretary (home), government of NCT Delhi.”
The circular violates right to free speech guaranteed under Article 19 ( 1 ) ( a ) of the Constitution.
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 should have been simply left for the people to judge.
According to the Law Commission of India which had invited views on the issue, respondents overwhelmingly expressed dissatisfaction with the present defamation law and wanted it modified.
Use of criminal defamation law by a government can have a chilling effect on freedom of speech as it can easily be abused against the media.