By Abhishek Jha:
On Wednesday, the government argued in favour of the criminal defamation law in the Supreme Court. “Here you can file a civil suit and it will drag on for another 20 years. Nobody cares. In criminal defamation, there is some deterrence,” Attorney General Mukul Rohtagi argued for the government. This was in response to petitions arguing for the removal of criminal defamation laws filed by, among others, BJP leader Subramaniam Swamy himself who has several defamation cases filed against him by Tamil Nadu Chief Minister Jayalalithaa. Delhi Chief Minister Arvind Kejriwal and Congress vice president Rahul Gandhi, both of who have criminal defamation charges against them, are also among the petitioners.
The government also argued that the petitions for the removal of the defamation laws be referred to a Constitution Bench as they need adjudication on whether the criminal defamation laws (section 499 and 500 of the Indian Penal Code) are ultra vires of Article 19(2) of the Constitution that puts reasonable restrictions on freedom of speech and expression granted to us by Article 19(1). Justice Misra, who is on the two judges’ bench hearing the petitions, replied that, “It was two judges’ benches and not constitution benches who decided cases of free speech like the section 66A of Information Technology Act and decriminalisation of homosexuality. Why do you say that every case requiring an interpretation of law has to go to a Constitution Bench (sic).”
In the several explanations, illustrations, and exceptions written into Section 499 of the IPC, safeguards are provided so that criticisms can be made. For instance, in relation to public conduct of public servants, “It is not defamation to express in a good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further.” However, even a true imputation can be made to a person only “if it be for the public good that the imputation should be made or published.”
Civil defamation, on the contrary, not being written specifically in any law, is judged mostly on basis of Law of Torts which is based on judicial precedent. However, criminal defamation may lead to a police investigation and imprisonment up to 2 years. It has been used mostly by the state to imprison those expressing dissent. Students and the Principal of a college were arrested in Kerala last year for publishing a photograph of Prime Minister Narendra Modi along with those of Adolf Hitler, Osama bin Laden and Ajmal Kasab in a college magazine. The FIR had been filed under Section 500 among others. While wealthy or powerful politicians have the ability to fight such cases among themselves, it is citizens who face trouble with it.
It is notable that United Kingdom, which gave this law to India abolished seditious libel and criminal defamation in 2009. If the law is abolished in India too, defamation can still be fought but will not lead to imprisonment. This will be a great boost for free speech, as, presently, the criminal defamation law forces one to self-censor even opinions that might invite the cudgel of powerful people. One hopes that the Supreme Court, which scrapped the controversial Section 66(A), will pass a judgement that gives more power to the common man.