Repeal criminal defamation laws

We cannot protect the vulnerable unless we protect those who blow the whistle on abuse of power/people

While Section 499/500 of the Indian Penal Code (IPC), relating to criminal defamation, is a colonial legacy, its current relevance must be analysed along with the provisions of the Constitution. The law of defamation contemplates the clash of two fundamental rights – the right to freedom of expression, including freedom of press, and the right to reputation. The rules of defamation laws are said to be designed to mediate between these two rights.

Though defamation hurts a person’s dignity, criminal libel has a dreadful effect on free speech. Not only intimidating, the imprisonment for conviction also dampens the citizens’ drive to engage in legitimate public critique. Several jurisdictions have abolished criminal defamation laws; the rationale being it is not only antiquated but also a dangerous restraint on free speech. The defamatory provisions are incompatible with the basic democratic ideals. Most European countries are steadily doing away with their criminal libel laws.

Journalists and whistleblowers alert the public on impending disaster, substandard healthcare, unfair polls, faulty systems and procedures among others. That is why the Act to support whistleblowers has not seen the light of the day. Every neta knows that his/her dirty hands would be exposed once the police powers against whistleblowers are withdrawn. Threats of punitive criminal acts by the powerful would kick start libel journey that will enter into the realm of public good, decimating public debate.

The Law Commission has acknowledged that criminal defamation laws “violated international norms,” and that the penalty of incarceration up to two years is clearly “disproportionate”. Such remedies or sanctions can significantly limit the free flow of information. 

Defamatory acts that may harm public order are covered by civil provisions, and hence criminal defamation does not serve any dominating public interest. Though Sec 499 provides safeguards by means of exceptions, the threat of criminal prosecution is in itself unreasonable and excessive.

PILs have been filed in the Supreme Court to declare this law as unconstitutional. The Amnesty International recommended that “if defamation is retained as a criminal offence, the law should not use imprisonment as punishment for those convicted of defamation, in line with international standards of freedom of expression.  The onus of proof of all elements of the offence should be on the state.”

Acts like murder, rape, robber are punishable with imprisonment. They are a threat to public, too. But calumniation is between two parties and the defamed has an opportunity to respond to allegations unlike in the former where the individual liberty is snatched.

Political libel needs a different treatment. As opposed to a private individual, a political/ public figure has the benefit of a political stage and the media to launch counterattacks. Criminal defamation laws not only conflict with a commitment to freedom of expression but, in the context of public prosecutions, place the political elite at a distinct institutional advantage which uniquely enables them to forget critics and dissuade them from future dissent. It must be distinct from private libel, else one runs the risk of snuffing out criticism that is not malicious. 

A salutary lesson

Late Robert Maxwell, the owner of the British newspaper Daily Mirror, who plundered his own workers’ pension fund, when confronted by investigative journalists on his financial shenanigans, threatened them with defamation charges, thus shutting up media efforts to expose him. It is only after his death in 1991 that the truth came out, destroying many pensioners’ lives.

We are not dedicated to secrecy, silencing and authoritarianism. The Narendra Modi government should move towards a transparent system by adopting international convention of freedom of speech.

In the virtual world, anything can be seen as offensive; and something that is both true and important is bound to offend somebody. When a reader sha-res a possibly libellous article with a friend, is that “friend” lia-ble for libel, too? Truth emerges from free-speech systems, not from gags and controls. While social media enable everyone  to air their views, the present structure of the 19th century provisions, is very restricting.

Even though freedom of speech and expression is not absolute and is subject to “reasonable restrictions,” these checks should be in accordance with the current trends in society.  The defamation laws have always faced friction with Article 19(2) which gives freedom of speech “chilling effects.”

Socio-economic and political circumstances have enormously changed over the century.  Hence criminalising defamation can be an extreme step.  For public debate to remain robust, people should be able to express their opinions without fear of prosecution. 

Courts, in evaluating a comment, may look at the general tone as a whole, the content and context, and whether there are facts that can be proved to be true or false. We cannot protect the vulnerable unless we protect those who blow the whistle on abuse, whether of power, people or both. “Freedom of information,” according to Win Tin, a Burmese journalist, “is the freedom that allows us to verify the existence of all other freedoms.” Democracy requires informed consent to be governed.

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