Should defamation be done away with as a criminal offence? BJP leader Subramanian Swamy’s petition in the Supreme Court challenging the constitutional validity of Sections 499 and 500 of the Indian Penal Code (IPC) has triggered a fresh debate on the contentious provisions, often used against the media and politicians alike.
Maintaining that it has been extensively used in India as a tool of harassment, in his petition Swamy contended: “A criminal defamation law, fashioned to be in tune with ancient Anglo-American norms re (concerning) reputation, cannot be used punish a free people in India for having their say in matters of public concern.”
This is the second serious challenge to the constitutional validity of criminal defamation law. In 2003, an English daily had mounted an unsuccessful challenge in the top court 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 a ground for a reasonable restriction to this freedom under Article 19(2) of the Constitution. But it seems it’s being 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 should have been left for the people to judge, instead of troubling the courts. (See graphics)
Sections 499 and 500 IPC have often been used against media as well to muzzle freedom of speech and expression.
The AIADMK government in Tamil Nadu has 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 her previous term (2002-06), 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.
No wonder as the Editors’ Guild of India has demanded decriminalisation of defamation as applicable to journalists.
According to the Law Commission of India which had invited views and suggestions on the issue, "Respondents overwhelmingly expressed dissatisfaction with the present state of defamation law. All but 3 respondents saw the need for modifications to the law of defamation."
Criminal defamation laws violate international norms on the freedom of speech. According to UN Human Rights Committee (which administers the ICCPR), defamation laws must be crafted with care to ensure that they do not serve, in practice, to stifle the freedom of expression.
Many of those who responded to the Law Commission pointed out that criminalising criticism in this disproportionate fashion will have a chilling effect on freedom of speech. Also, the criminal defamation law can easily be abused by filing ‘Strategic Lawsuits Against Public Participation’ (SLAPP suits).
Many countries, including the UK and Sri Lanka, have decriminalised defamation.
So, should India decriminalise defamation?
"Certainly yes", says noted jurist Rajiv Dhavan. "This provision was put in the IPC by Lord Macaulay in 1835 and then enacted in 1860 at the instance of Sir Barnes Peacock (First Chief Justice of Calcutta High Court) and Justice James Fitzjames Stephen (a British Judge).
“It is a 19th century statute to oppress the press and free speech. Although Article 19(2) says that restrictions can be made in the interest of defamation, such restriction has to be reasonable,” Dhavan told HT.
“To criminalise free speech to harass private persons using freedom of speech and expression is abominable. They have the option of civil defamation, which after the Auto Shankar case, is possible even against public figures. “What makes it more unreasonable is that it is used to harass. Apart from the punishment prescribed, the process itself is a punishment,” the senior advocate said.