Should Defamation offence be decriminalised?

Present status

Section 499 of the IPC criminalised intentionally defamatory statements. True statements were not exempted, unless they also happened to be made for the “public good”. In 2009, the United Kingdom abolished criminal defamation altogether. More recently, the Constitutional Court of Zimbabwe struck it down as an unconstitutional restriction upon the freedom of speech. The apex courts of the United States, Canada and South Africa have transformed criminal defamation out of all recognition, adding defences that make it far more protective of the freedom of speech and expression.

Indian Supreme Court dismissed a petition filed by Subramaniam Swamy and held that the right to “reputation” was protected under Article 21 of the Constitution which guarantees “life and personal liberty”. The right to free speech under Article 19(1)(a) had to be “balanced” against the right to “reputation” under Article 21. The two moves that the court made — the first, to elevate “reputation” to the level of a fundamental right, and second, to have it prevail over free speech — have no basis in either the text or the structure of the Constitution. Article 21 has been held to include the right to sleep, and the right to a pollution-free environment, among other things. For the most part, the court has used this expanded definition to force the state to undertake various “social justice” and welfare measures for the benefit of citizens. 

The court’s second argument was to invoke something that it called “constitutional fraternity”. It held that criminal defamation law protected the feeling of fraternity — or solidarity — between members of a society. While this may sound fair enough, there is a slight problem. “Constitutional fraternity” is not a part of Article 19(2) of the Constitution, which specifically limits the circumstances under which the state can restrict speech to eight enumerated categories.
Without equality, liberty would produce the supremacy of the few over the many. Equality without liberty would kill individual initiative. Without fraternity, liberty would produce the supremacy of the few over the many. Without fraternity, liberty and equality could not become a natural course of things. It would require a constable to enforce them.

The Indian Supreme Court has always had an ambivalent relationship with the freedom of speech and expression. From upholding the constitutionality of sedition, blasphemy and obscenity on the one hand, to Justice V.R. Krishna Iyer writing about how “books or bombs” might disturb public tranquillity, the court has treated free speech more as an annoyance to be swatted aside whenever “public interest” demands it, rather than the fundamental right at the foundation of our republican democracy. Its defamation law judgment continues that long, unfortunate history.

Way forward

At the very least, defamation should have been reduced to a civil offence, and the question of reputation to a dispute between the defamer and the impugned party. Reputation is not absolute. It is a social construct based on shared perceptions. Society agrees on a person’s reputation. It can likewise agree that it was mistaken, and reappraise reputation in the light of fresh facts.

Legal protection of reputation may have been indispensable earlier, when sources of information and communication were limited and opinion could be manipulated by the powerful. But today, the sheer volume of public access has made the information economy self-correcting. The law on criminal defamation is also problematic because the crime is broadly defined. It can be applied to any communication, visible or audible. A book, a newspaper article, a cartoon or even a poem may be read as defamatory, and moved against multiple times. The legislature and judiciary must strive to strike a right balance between protecting Right to freedom of speech and protection of reputation.

By: Jasmeet Singh