Amend criminal defamation

FREE SPEECH : It is high time that Section 199 (criminal law) is totally junked by way of amend-ment for it resembles the obsolete concept of sedition

The Supreme Court has refused to declare criminal defamation as envisaged under Sections 499 and 500 of the Indian Penal Code (IPC) as unconstitutional. And there are varied reactions to the verdict of May 13, 2016.

There is no denying that free speech is the foundational value of modern democracies as the fundamental form of expression. However, it must also be acknowledged that a blind adherence to free speech values can threaten the equally important considerations of privacy and reputation. A joint declaration by the United Nations Special Rapporteur and other international bodies holds the view that criminal defamation is an unjustifiable restriction.

Several critics of criminal defamation point out that civil defamation laws are equally sufficient to curtail defamation to a large extent and prescribing criminal fines or imprisonment is unreasonable or disproportionate. But the implications of making a false allegation are serious and often immeasurable. 

There could be an element of mens rea (guilty mind) in the act. The harm is also direct, immediate and strikes at the root of one’s dignity. Right to privacy is an equally valuable right. It is said that privacy is “perhaps the most personal of all legal principles. It is also one of the newest, since only the more sophisticated of societies have the interest and the ability to nurture that subtle and most personal possession of man, his dignity” (Morris L Ernst and Alan U Schwartz, Privacy: The Right to Be Let Alone, 1962. Quoted by José F Anderson, 2012).

The long-term legal, social and emotional costs of a false allegation are grave and should not be overlooked. As held in the Canadian case of Hill v Church of Scientology of Toronto, “although much has very properly been said and written about the importance of freedom of expression, little has been written of the importance of reputation.”

It is doubtful if an overwhelming universal consensus exists in favour of abolishing criminal defamation. Despite following a significantly liberal approach to speech, several US states have retained defamation as a criminal offence even when it was put to disuse. A majority of the European countries also remain conventional by retaining the law (Out of Balance: Defamation Law in the European Union, Scott Griffen, International Press Institute, 2015).

However, in India, the colonial provision undoubtedly requires a thorough reformulation, in tune with free speech values and the right to receive information. But the answer to this severe problem may not lie in decriminalising defamation as such, but rather in carefully rephrasing it. The vocabulary of the law must be realistic and the interpretation must be strict. 

Significantly, the court has held that it could “strike down a provision if it is excessive, unreasonable or disproportionate, but (it) cannot strike down if it thinks that the provision is unnecessary or unwarranted” (paragraph 184 of the judgment). Thus the court has, by implication, expressed the inherent limitations in the process of judicial review.  In adjudication, unlike legislation, the court can either say that the provision impugned is valid or not. It cannot modify the provision or rephrase it, which the Parliament alone could do.

Numerous exceptions

And parliament needs to do it. The very fact that the offence of defamation carries numerous exceptions reveals its multi faceted character which warrants contextual analysis. When apparently, there is no possibility for any ‘guilt’ on an editor who may not even know the complainant, the presumption should be that there is no offence made out. The law, as it now stands, is otherwise. For instance, an editor of a newspaper is made technically liable as per the provisions in the Press and Registration of the Books Act, 1867 (PRB Act). This again is a colonial legislation.

The fact of the matter is that when a statutory fixation of liability is done by way of this enactment, substantial injustice is caused to do the editor, publisher or printer who might not have even thought of committing an ‘offence’ on an unknown potential complainant. This situation needs to be tackled by way of amendment to the IPC as well as the PRB Act.

One also needs to distinguish between the offence of defamation spelt out in Sections 499 and 500 of the IPC on the one hand, and that indicated in Section 199 of the CrPC, on the other. In the latter, the minister or such other authority can utilise the office of the public prosecutor and try the citizen, even when the imputation is related to the public conduct of the authority. This could lead to illegitimate impunity to the corrupt ministers. The inherent anomaly is that this stipulation in the procedural law – the CrPC – spells out a substantive offence.

This section is per se undemocratic and to be delegislated. This state-centric variant of ‘defamation’ is qualitatively and fundamentally different from the substantive law on defamation in the IPC that tries to protect reputation, privacy and dignity of the citizens and therefore it lacks legitimacy in terms of ‘constitutional fraternity’, a phrase coined by the Supreme Court. It is high time that Section 199 is totally junked by way of amendment for it resembles the obsolete concept of sedition.

The multi terminal jurisdiction now available for prosecution for defamation also needs a relook. The statutory indulgence, by which one can file the complaint from any part of the country on the ground of alleged defamation, has a chilling effect on media freedom. This again is a matter for legislative intervention which can safely and reasonably limit the jurisdiction to the place from where the imputations originated. In the Supreme Court, the Centre has defended the provisions. The task however, is to modify them democratically.

(Kaleeswaram Raj is a lawyer practising in the Supreme Court and Kerala High Court. Thulasi K Raj is a student at University College, London)