BJP's Subramanian Swamy and Congress' Rahul Gandhi on Tuesday tore into the Narendra Modi government’s stand refusing to de-criminalise defamation saying even jokes or cartoons would attract criminal prosecution under the present law.
Swamy and Gandhi advanced their arguments on the issue by saying that the two provisions have an "inhibitive effect" on freedom of speech and expression, rather than operating for the protection of reputation.
The two leaders, who have been charged with criminal defamation under section 499 and 500 of the IPC for their political speeches in Tamil Nadu and Maharashtra, contended that the colonial law enacted in the 19th century has become "unreasonable and arbitrary" in independent India and was continuing without debate or a test on its constitutionality.
Along with them, Delhi Chief Minister and Aam Admi Party leader Arvind Kejriwal, who is facing cases under the same provisions lodged by BJP's Nitin Gadkari and others, has also challenged them and sought de-criminalisation of defamation law.
Currently, defamation is a punishable offence in India, which could attract a two-year jail term.
The Supreme Court said that lodging of cases for political speech and debates under the controversial provisions should be avoided.
"Political debates may not come under the definition of criminal offence for defamation," a bench comprising justices Dipak Misra and Prafulla C Pant observed while hearing a batch of petitions challenging the constitutional validity of section 499 and 500 of the IPC which deals with criminal defamation.
Swamy, while arguing his case termed the NDA government’s stand as strange and said: “The government has said that a person (defaming anybody) may not be able to pay. Hence, criminal defamation is an appropriate remedy. This paucity of funds is a strange argument.”
The BJP leader said it was strange that to defame someone, it must be presumed a person has the status to do so.
Swamy pointed out that the punishment in the statute book was “disproportionate” and made the law oppressive for every free-thinking person and had a chilling effect on public discourse in a democracy.
The law made limited defences available to a person in a defamation case and a magistrate could issue process against him, even though he may have spoken the truth in public interest.
“Truth is not a complete defence… in a country which has satyameva jayate as its motto. This is ironic,” he said. Even jokes and cartoons cannot escape the rigour of the law, he said, citing examples galore in which the law would be attracted even if he were to speak his mind.
Senior advocate P P Rao, on behalf of Gandhi, submitted that "it would be unreasonable to make speeches made by leaders during election while canvassing for candidates of their respective political parties, a crime punishable with imprisonment which affects the voters' right to know the views of the leaders on matters of public interest".
He submitted that the Constitution recognised the importance of freedom of speech in Parliament and state legislature vide Article 105(1) and (2) and Article 194(1) and (2) which grant immunity from legal proceedings.
Both leaders in their propositions harped on the concept of truth as a complete defence in criminal defamation.