 "Tripods of television crew stand in front of the Supreme Court building in New Delhi")
Imagine a court case in which Arvind Kejriwal, Rahul Gandhi, Rajdeep Sardesai and Subramanian Swamy are on the same side. This happened recently in the Supreme Court when they all joined cause to constitutionally challenge the offence of defamation. The criminal offence of defamation is contained under Section 499 of the Indian Penal Code, 1860 which frequently has been used to prosecute politicians and journalists. The Supreme Court declined relief in their petitions holding criminal defamation to be constitutional. Some points are necessary to consider what was at stake and how the Supreme Court failed to substantively engage with the arguments of the petitioners.
This rare agreement between such diverse profile of petitioners converged on the interplay between the criminal offence of defamation and the fundamental right to freedom of speech and expression. The fundamental right to speech and expression is not an absolute right. The constitution itself contains exceptions to this right that are termed as, “reasonable restrictions”. If the legislature so wishes, it can make law in the categories of such exceptions.
One of the categories under which law can restrict free speech is defamation. On a plain reading it would appear that since the phrase, “defamation” is expressly mentioned as a, “reasonable restriction” there cannot be any challenge to criminal defamation. But such a reading is incorrect and limited, for it only considers the legislative competence to make a law, not the substantive reasonableness of its contents.
One of the categories under which law can restrict free speech is defamation. On a plain reading it would appear that since the phrase, “defamation” is expressly mentioned as a, “reasonable restriction” there cannot be any challenge to criminal defamation. But such a reading is incorrect and limited, for it only considers the legislative competence to make a law, not the substantive reasonableness of its contents.
It is at this point of, “unreasonableness” that the Supreme Court fails to engage with the arguments raised by the petitioners. Though it captures much of the court’s opinion that runs into 268 pages, its volume does not add any weight. The Petitioner’s arguments on unreasonableness rested on the practical effect of the criminal remedy of defamation. A key part of this was demonstrating that the offence is disproportionate to the harm caused by speech.
Given that a civil remedy to defamation already exists, no purpose is served by retaining the criminal remedy except to coerce, harass and threaten. A criminal remedy would allow a potential complainant to file a case anywhere in India which would be pending for years, requiring the accused to be personally present along with a lawyer on each date of hearing.
Given that a civil remedy to defamation already exists, no purpose is served by retaining the criminal remedy except to coerce, harass and threaten. A criminal remedy would allow a potential complainant to file a case anywhere in India which would be pending for years, requiring the accused to be personally present along with a lawyer on each date of hearing.
Given the case arrears and the slow pace of trials there have been few convictions for criminal defamation. Most cases are abandoned after a certain number of years. Till the point the case survives the cost of a criminal trial is enormous on the wallet, time and ultimately the mind of any accused. Criminal defamation does act as a deterrent, but not to defamation. It stifles legitimate speech itself given that it almost never results in a conviction. The chilling effect it causes is beyond doubt and for the court to state otherwise is absurd. A lack of dynamism ordinarily expected from a constitutional court does not end here.
In jettisoning the arguments of the Petitioner the Court adopts two key forms of analysis. It first crafts a right to reputation and it secondly gives a wide margin of tolerance to the statute by adopting a theory of balancing rights. The judgments stresses on the need for a balance between the right to reputation with the right to speech stating the best compromise to this, is the offence of criminal defamation. In doing so it not only upholds the remedy of criminal defamation but gives it a legal stamp of approval.
At some parts of the opinion it almost seems the Court is even commenting on the moral necessity of the criminal remedy. This is not only irregular but also distressing. Today criminal defamation is being repealed and even being held unconstitutional all over the world. Oblivious to this, ignoring the practical effect of the law the Supreme Court of India has decided to retain it on our statute books. In doing so the judgment does not move the law forward; neither does it move it back. It remains stuck in time. In the year, 1860 when the Indian Penal Code was first made.
Apar Gupta is a practicing advocate in New Delhi. He represented the Foundation for Media Professionals (FMP) that was one of the petitioners in the case.
