Indian Constitution, significant provisions and basic structure
Separation of powers between various organs , dispute redressal mechanisms and institution
Structure, organization and functioning of Executive and Judiciary
Upholding Criminal Defamation
The origins of criminal defamation lie in the Court of the Star Chamber of King Henry VIII, where it was used as a means of “punishing disrespect towards authority”.
Defamation originates from the concept of scandalum magnatum – the slander of great men – which protected the reputations of aristocrats. The crime was linked to sedition, so insulting a lord was akin to treason
Defamation can be committed by the spoken word, which is slander, or the written word, which is libel. The historical distinction between these two modes of defamation is based on the permanence of written words
In largely illiterate societies, the spoken word was more potent and that’s why films and radio have long attracted censorship and state control in India. Before mass publishing forked defamation into libel and slander, there existed only the historical crime of libel. Historical libel had four species: seditious libel, blasphemous libel, obscene libel, and defamatory libel.
Seditious libel, which has been repealed in Britain, prospers in India as the offence of sedition which is criminalised by section 124A of the IPC.
Blasphemous libel, repealed in Britain, fares well in India as the offence of blasphemy under section 295A of the IPC
Obscene libel, as the offence of obscenity, is criminalised by section 294 of the IPC.
And defamatory libel, repealed in Britain, which is the offence of criminal defamation that the Subramanian Swamy case upheld, continues to exist under section 499 of the IPC
Article 19(1)(a) of the Constitution of India guarantees all Indian citizens the right to freedom of speech and expression.
Article 19(2) allows the state to make laws which impose reasonable restrictions on this right in the interests of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
Of these, only defamation protects the private interest in protecting an individual’s reputation. All the other interests are essentially public interests. The test in determining the constitutionality of a law under Article 19(2) is whether the law is a “reasonable restriction” on free speech.
Supreme Court has laid that there should be reasonable restriction—the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature beyond what is required in the interests of the public
Creation of an artificial balance between the fundamental right of free speech under Article 19(1) (a) and the right to reputation as part of one’s right to life under Article 21—
Politics and censorship
Political interests have adopted defamation law to settle scores and engage in performative posturing for their constituents—a new front for political manoeuvring
The three that received the most news coverage were those of Subramanian Swamy, Rahul Gandhi, and Arvind Kejriwal—rarely, if ever, suffer punishment
There are numerous cases which politicians have filed against private members of civil society to silence them and when presented with these concerns, the Supreme Court simply failed to seriously engage with them
Powerful entities such as large corporations have exploited weaknesses in defamation law to threaten, harass, and intimidate journalists and critics—Powerful elites frighten journalists into submission and vindictively hound those who refuse to back down. Such actions are called Strategic Lawsuits against Public Participation (SLAPPs), thus creating a new system of censorship
The Supreme Court’s refusal, in Subramanian Swamy vs. Union of India, to strike down the colonial offence of criminal defamation is retrograde and out of tune with the present times—criminalising defamation serves no legitimate public purpose; the vehicle of criminalisation – sections 499 and 500 of the Indian Penal Code, 1860 (IPC) – is unconstitutional
Failure to recognise the harm that criminal defamation poses to a healthy civil society in a free democracy
Supreme Court’s failure to distinguish between private injury and social harm
Declares that reputation is protected by the right to life guaranteed by Article 21 of the Indian Constitution but it offers no sound reasoning to support this claim—Reputation is not absolute- is a social construct based on shared perceptions. Society agrees on a person’s reputation and can likewise agree that it was mistaken.
Fails to explain why the private civil action of defamation is insufficient to protect reputation
Failure to understand the concept of Crime— When an action is serious enough to harm society it is criminalised.
Rape strikes at the root of public safety, human dignity, equality, and peace, so it is a crime.
A breach of contract only injures the party who was expecting the performance of contractual duties; it does not harm society, so it is not a crime.
Similarly, a loss of reputation, which is by itself difficult to quantify, does no harm to society and so it should not be a crime.
The judgment is delivered by one judge speaking for a bench of two—Such critically significant constitutional challenges cannot be left to the whims of two unelected and unaccountable men
Retreat of the SC from being the guarantor of individual freedoms— will have far-reaching and negative consequences for India’s citizenry
Two core constitutional questions posed by the Subramanian Swamy case—
Does the crime of defamation fall within one of the nine grounds listed in Article 19(2) of the constitution?
Article 19(2) contains nine grounds in the interests of which a law may reasonably restrict the right to free speech. Defamation is one of the nine grounds, but the provision is silent as to which type of defamation, civil or criminal, it considers. However, B.R. Ambedkar’s comments in the Constituent Assembly arguably indicate that criminal defamation was intended to be a ground to restrict free speech
Are sections 499 and 500 of the IPC which criminalise and punish defamation reasonable restrictions on the right to free speech?
Criminalising defamation serves no legitimate public purpose because society is unconcerned with the reputations of a few individuals. Even if society is concerned with private reputations, the private civil action of defamation is more than sufficient to protect private interests. Further, the danger that current criminal defamation law poses to India’s free speech environment is considerable
Can lies invite criminal liability?
Supreme Court has argued saying that society is premised on the need for truth; so lies should be penalised
Wanderings of defamation law into moral policing— The Supreme Court quotes from the Bhagavad Gita on the virtue of truth. But while quotes like these are undoubtedly meaningful, they have no utility in a constitutional challenge. In reality, society is composed of truth, lies, untruths, half-truths, rumour, satire, and a lot more (more shades of opinion there are, the livelier that society is)
If the law criminalises untruth, then it must sanctify truth— In addition to proving the truth, the journalist must prove that her writing serves the public good. So speaking truth is illegal if it does not serve the public good (example)
Connecting the Dots:
Defamation cases are a weapon by which the rich and powerful silence their critics and censor a democracy. Discuss
Note: Today not many important issues, so we have stuck to only to One Issue in today’s Daily News Analysis.