In the Age of MeToo, why criminal defamation must go
Last month, in Navtej Johar v Union of India, when the Supreme Court decriminalised same-sex relations, it was not only a vindication of civil rights and the Constitution, but something more: the court acknowledged that its own judgment five years ago, in Suresh Kumar Koushal v Naz Foundation, upholding the validity of Section 377 of the Indian Penal Code, had been grievously mistaken. And the court made amends.
It is human to err, and judges are human, after all. However, it is substantially more difficult to acknowledge error, and to correct it. The Supreme Court’s willingness to do so is a good sign that the institution can listen to its critics, and change its mind if it is persuaded that it has, indeed, erred.
In the wake of the #MeToo movement, the court now has a chance to correct another — recent — error. In the last few weeks, women who have come forward to testify about sexual harassment committed by powerful individuals, have had criminal defamation cases filed against them. Criminal defamation — set out under Section 499 of the Indian Penal Code — is an anachronistic, colonial-era legal provision, that has been historically used by powerful individuals, corporations, and governments, to silence and suppress inconvenient speech.
Two years ago, the constitutionality of criminal defamation was challenged by a coalition of politicians, organisations and individuals. A two-judge bench of the Supreme Court, however, upheld the constitutional validity of Section 499, and refused to read in any safeguards to prevent abuse. The court held that criminal defamation struck an appropriate balance between the right to free speech and the right to reputation.
Even in 2016, the Indian Supreme Court was swimming against the global tide. Countries around the world had been steadily decriminalising defamation, on the basis that the criminal law was a disproportionately severe infringement of free speech, especially for what was essentially a “private wrong”, and could be addressed by a regime of civil defamation. Even the United Kingdom, which gave us our penal code, had decriminalised defamation. And in the time that has passed since the judgment, this has only become more evident: in February 2017, the high court of Kenya, also a former British colony, struck down criminal defamation as unconstitutional, holding that the “traumatising gamut of arrest, detention, remand and trial” in a criminal case had the effect of chilling speech, and promoting self-censorship among people who would not have easy recourse to a lawyer. This would result in “the citizenry remaining uninformed about matters of public significance and the unquestioned and unchecked continuation of unconscionable malpractices.” Then, in May 2018, the Constitutional Court of Lesotho followed suit, also holding that criminalisation was a disproportionately severe burden on speech, and that reputational interests could be protected by a less onerous regime of civil defamation. Both courts followed the jurisprudence of the African Human Rights Court that had emphatically ruled that criminal defamation was inconsistent with basic international human rights standards.
It is, therefore, clear that, across the world, more and more countries are acknowledging that modern, democratic nations do not jail people for things they might say about others. India is no different: our Constitution guarantees a right to freedom of speech and expression, which can only be restricted by a “reasonable” law. Our Supreme Court — most recently in its judgment on Aadhaar — has held that an essential facet of reasonableness is that a law must not infringe rights to a degree greater than is strictly necessary to achieve its goal. In other words, if there exists an alternative mechanism that can also achieve the goal without compromising on individual liberty to such a degree, the impugned law must be struck down. Criminal defamation — which is targeted at punishing what is essentially a private wrong (a wrong that one person commits upon another, rather than upon society) — is a stark example of a law that disproportionately affects the freedom of speech.
Legislators have recognised this as well. Last year, Tathagat Satpathy introduced into Parliament the “Speech Bill”, which aimed to replace criminal defamation with a detailed, statutorily codified regime of civil defamation. The bill is pending consideration. But the recent spate of cases in the wake of #MeToo gives the court, which recently invalidated two colonial-era rights-invasive provisions — Section 377 and Section 497 (adultery) — to complete a hat-trick, and in the process, once again cement its reputation as an institution that sheds its own past, and evolves towards greater protection of rights.
Gautam Bhatia is an advocate in the Supreme Court
The views expressed are personal