A country that restricts its citizens to speak freely and limits the way they express themselves is a country putting up a façade in the name of democracy. While India portrays itself to be one, it doesn’t live up to in reality- why else, would people anonymously hide behind their computer screens to speak out their opinions? While India assigns you the Fundamental Right of free speech and expression, this gift comes with limited access due to reasonable restrictions placed on it. So be careful before you talk about others, you might hurt their fragile ego and end up in jail.
This article is an attempt to examine the theme of decriminalizing defamation in the light of the Subramanian Swamy v. Union of India and other such critical judgements, that plastered colonial ideologies in Modern India, once again.
Defamation is an act of cooking-up derogatory and false statements injuring a person’s character, fame or reputation in the society. The ingredients of this meal require you to make or publish such incorrect information and serve it to others without the consent of the allegedly defamed person, which causes a loss of taste and reputation. Alas, the only dessert that can save you from this burnt meal is the truth.
Defamation As A Tort:
As per Tort Law, there are four prerequisites that make-up defamation- (i) false (ii) written (iii) defamatory (iv) published.
In addition to this, a person apprehensive of being defamed in a publication may seek the grant of an injunction to restrain such publication. However, prepublication requests are rarely granted as Indian courts have tended to follow the principle laid down in the 1891 case of Bonnard v. Perryman, which is as follows:
‘The Court has jurisdiction to restrain by injunction, and even by an interlocutory injunction, the publication of a libel. But the exercise of the jurisdiction is discretionary, and an interlocutory injunction ought not to be granted except in the clearest cases.’
This principle has been followed by a division bench of the Delhi High Court in the 2002 case of Khushwant Singh v. Maneka Gandhi. As such, even if there is an apprehension that content may be defamatory, likely, the publication would not be restrained except in exceptional cases — presumably, those cases where the later payment of damages would not suffice to set right the wrong done to the person defamed.
The reality of this discretion might be slightly different. Defamation has often led to books being banned. Some years ago, Penguin Books India was banned from publishing Jayalalithaa – A Portrait, penned by senior political journalist Ms Vaasanthi (Selvi J. Jayalalithaa vs Penguin Books India). The Madras High Court granted an injunction against the book’s publication apprehending damage to Jayalalitha’s political image and violation of her right to privacy. The Court held that reasonable verification of the contents of the book had not been done. But what underlies this verification is the Court’s ignorance in understanding the difference between fair comment and malicious fact..”
While Section 499 and 500 of the IPC defines and stipulates the punishment for criminal defamation, CRPC labels it as a non-cognizable and bailable offence.
The Apex Court in the judgement of Subramanian Swamy v. Union of India, which was delivered on May 13, 2016, put to rest the speculation of defamation being decriminalized when the constitutionality of the contended provisions was upheld. However, the judgement received a mixed response, most swaying towards the opposing end of the spectrum. While some criticized it because it was a reductant colonial provision that needed to be replaced, others believed that by not decriminalizing defamation, unfettered powers are being vested with the political fora and big corporations to dominate the freedom of expression.
According to the petitioner, Sec. 499 and 500 of IPC cast an unreasonable restriction on free speech, one that falls beyond article 19(2) of the Constitution of India. Apart from this petitioner also submitted that in a democratic body polity, public opinion, public perception and public criticism, are the three fundamental pillars to guide and control the Executive action and, if they are scuttled or fettered or bound by launching criminal prosecution, it will affect the growth of a healthy and matured democracy. The individual interest in the guise of reputation cannot have supremacy over the more considerable public interest, for the dominant party in a democracy is the collective interest and not the perspective individualism.
On the other hand, the counsel appearing for the state of Tamil Nadu submitted that Sec. 499 and Sec.500 is not placing an unreasonable limit on the freedom of speech, because Article 19(2) itself imposes such a restriction.
To answer this, the SC goes into the interpretation analysis of freedom of speech and expression under Art. 19(1)(a) and 19(2) and the right to reputation under Art. 21. After detailed scrutiny, the Court resorts to the rule of harmonizes interpretation and adopts the doctrine of the balance of fundamental rights. Concerning the permissibility of criminal defamation, the Court opines that it can test on the touchstone of constitutional fraternity and fundamental duty.
Therefore, to curb defamatory speech, the Court observed that the restriction imposed should be ‘reasonable’. In Chintaman Rao v. The State of Madhya Pradesh the Supreme Court laid down the meaning of the term ‘reasonable restrictions’: The phrase “reasonable restriction” connotes that the limitation imposed on a person in the enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word “reasonable” implies intelligent care and deliberation, that is, the choice of a course which reason dictates. Therefore, the Court finds it that the criminal defamation is not an absolute restriction on freedom of speech and expression.
Whether the law that imposes the restriction is reasonable should be judged by current social, economic and political circumstances of the nation. One of the rules of statutory interpretation is to interpret the words of a statute in light of the current facts and situations and not based on the facts/concerns of the past.
In The Senior Electric Inspector v. Laxminarayan Chopra, the Court expounded that … ‘in a modern progressive society it would be unreasonable to confine the intention of a Legislature to the meaning attributable to the word used at the time the law was made, for a modern Legislature making laws to govern a society which is fast moving must be presumed to be aware of an enlarged meaning the same concept might attract with the march of time and with the revolutionary changes brought about in the society.’ With such intentions in mind, we need to cultivate a new culture of free expression- a legal system that in the light of protecting the dominant, does not continue to marginalize those who lack social power, into the shadows.
Individual Vs Public Remedy:
As far as the dichotomy of defamation being a public or individual remedy is concerned, it was contended that reputation had been held to be a facet of Article 21 in Dilipkumar Raghavendranath Nadkarni. Now since defamation involves marring the importance of an individual, therefore, criminal defamation cannot form an available remedy.
To this, the apex court gives reasoning that individuals constitute the collective and the law relating to defamation protects the reputation of each individual in the perception of the public at large. Further, a nexus is sought to be established via definitions of crimes that every crime is an injury; every public offence is also a private wrong, and somewhat more. It affects the individual, and it likewise affects the community. For instance, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, the Noise Pollution (Regulation and Control) Rules, 2000 under the Environment (Protection) Act, 1986 regulate the fundamental rights of citizen’s vis-a-vis other citizens.
The problem with this line of reasoning is that it effectively dissolves the distinction between private and public wrongs altogether. If individuals make up society, and if therefore wrong to an individual is ipso facto a wrong to society, then there’s no such thing as an individual wrong in the first place. Thus, the fact that the Court continues to criminalize a private wrong of defamation means that they continue to place an unfair and misplace burden on free speech.
Internet Defamation: A Comparison With The Shreya Singhal Judgement
In the backdrop of Shreya Singhal’s case, and context of the contemporary age of information technology and social networking, how desirable was it to on the part of the judiciary to decriminalize defamation (Section 66A of the Information Technology Act)? Shreya Singhal’s case is a landmark judgement in the field of freedom of speech and expression. This epic case brings forth various dimensions which are essential facets of Article 19(a).
The apex court struck down section 66A which was widely criticized for its over-breadth and vagueness on speech as it was unconstitutional. An over-arching arm in legal context describes a situation where a lesson or conduct is suppressed by the fear of penalization at the interests of an individual or group. It is the inhibition or discouragement of the legitimate exercise of natural and legal rights by the threat of legal sanction.
According to the Court, none of the grounds, which the state sought to invoke in defending the law, in this case, public order, defamation, incitement to an offence and decency or morality, each of which is contained in article 19(2), was capable of being justifiably applied. However, in Swamy’s case, Justice Mishra takes a different route and points out that there is a difference in the canvas on which the Shreya Singhal’s case has been made. In that case, there was a narrow interpretation of the provision. However, in Swamy’s case, ‘reputation’ (which is implicit in Article 21) was also involved, and a narrow interpretation couldn’t have been taken. This justification seems to be an easy detour from the main route of explaining why an equal balance could not have been made when the map is pointing towards the same direction.
Conclusion: “unreasonable” Restriction
Defamation is a knotty issue and remains a polarizing subject, used and abused by some, and profoundly affecting professions and trades of others. Although judicial precedent has tried to sort some questions out, there are fundamental constitutional questions around the criminality of the offence, that remains unanswered. For instance, in an advanced economy like India, is resorting to penal provisions justified, especially in an era, where reformative justice is replacing retributive justice. Besides the growing intolerance in the nation is another issue which might get a reason due to this judgement. In such situations, there becomes a need to shed one’s inhibition and discuss viable solutions. The biggest irony of the present law system is that it seems reluctant to interfere in cases infringing upon the fundamental rights and on the other hand it also rushes into policy matters which is not relevant for them.
Despite a host of protections and exceptions in place, defamation suits tend to be used for strategic purposes, to muzzle critics and naysayers into silence. It becomes even scarier when our journalists and comedians continue to face criminal action for what was believed to be their profession. Underlying the abuse of the remedy of defamation is the considerable delays in our courts. Given that verdicts will rarely be reached; a large number of cases exist only as a process. Hence, in this judicial duel between free expression and reputation, truth is defeated, and the only victor is case pendency.
The health of our democracy has worsened over the last few years, and maybe the only anti-body to fight this disease is that of our freedom to be able to speak against it.