The Union government's statement before the Supreme Court that it favours retaining the criminal provisions of the country's defamation law is unfortunate and will be seen as a blow to freedom of expression and democracy. The government has taken this stand in an affidavit submitted to the apex court in response to petitions filed by members of more than one political party, urging that criminal defamation be declared unconstitutional. Most of the reasons cited by the government against decriminalising the defamation law, however, are specious. The argument that retention of defamation as a criminal offence would be necessary to counter online attempts at tarnishing of reputation is as flawed and lacking in credibility as the government's explanation that defamation should not be decriminalised because the defamer in India may be too poor to compensate the victim. Regrettably, such arguments fail to recognise that the real problem in the criminal provisions of the defamation law is the potential for harassment that can be caused to the alleged defamer. It is relatively easy to file a criminal defamation case and this can be used to drag the alleged offender to courts across the country since physical presence of the accused is compulsory for all criminal cases until a bail application is heard and granted. The fear of such harassment is certainly detrimental to free expression of views.
It is nobody's case that a defamer should be allowed to go scot-free. Nor have the petitioners asked for such a relief. All that they have sought is the removal of the criminal provisions of the defamation law that can send the offender to jail for up to two years. It is important to note that the government's argument that Sections 499 and 500 under the Indian Penal Code have no "chilling effect" on free speech has few takers. Even the Law Commission does not agree with the government. The Human Rights Committee of the International Covenant on Civil and Political Rights and other international bodies have urged countries to abolish criminal defamation. The United Kingdom, from whom India borrowed this pernicious provision of the defamation law, abolished criminal libel five years ago. The Indian government should have taken the cue from such developments and exhortations from global bodies.
Continuing with criminal defamation can also be harmful for institutions of democracy. These provisions can be used against the media and political leaders. It is not that the Indian statute book will have no legal recourse left to tackle defamation if the criminal provisions of the law were to be abolished. Defamation proceedings can continue under the civil provisions of the law and necessary steps can be taken to expedite the hearings of such civil cases and introduce safeguards, if necessary. The government must opt for a defamation law that is not prone to misuse by anybody for harassing its citizens. It is a rare occasion that political leaders from different political parties are all together seeking decriminalisation of defamation for the right reasons. The government should have grabbed this opportunity to help reform the country's defamation law by pressing for its decriminalisation. It is still not too late for it to reconsider its stand.
