Defamation is no criminal offence

It has long been the demand of everybody who values freedom of speech that the provisions for criminal prosecution of defamation cases should be done away with. Sections 499 and 500 of the IPC make defamation a criminal offence punishable with jail for two years. The Supreme Court is now hearing a batch of petitions filed by political leaders as varied as Rahul Gandhi, Arvind Kejriwal and Subramanian Swami challenging the constitutional validity of these provisions. Defamation involves wrongly hurting the character and reputation of a person without justification, and the law prescribes civil and criminal remedies for this. It is the criminal option which is used by most people who feel they have been defamed, and this is with the clear purpose of intimidation and harassment. The psychology is that the harassment will remain even if the defamation petition fails.

Very often, the criminal provisions have served as means to curb free speech. It is often used against journalists, human rights advocates, political leaders and many others. Political leaders often get away but others are harassed. Cases are filed in distant places, and since it is a criminal charge, the accused has to make personal appearance in courts. The summons from the magistrate, possible detention before trial and a long trial are ways of punishment before the actual judgment.  The truth of a charge is not a defence against criminal defamation, and so the accused also has to prove that the charge was made in public interest. It is no wonder that the provisions have been used as tools of harassment. They are a threat to freedom of expression.

The Law Commission has disapproved the continuance of these provisions. Other democratic countries like the UK do not have criminal provisions to deal with defamation. The government’s arguments in the Supreme Court defending the provisions are faulty. It has said that the state is responsible to protect the reputation of citizens and therefore, the criminal provisions should stay. It also said that many of the people accused of defamation do not have the financial means to pay damages, as they may have to do in a civil case. Since they don’t have money for that, they can go to jail! The dignity and reputation of citizens should certainly be protected but this can well be done with civil defamation cases which have punitive consequences. There should be a balance between the right to reputation and the right to free speech. The criminal defamation provisions have upset and distorted this balance, which can be ensured with civil remedies.