“The censorial power is in the people over the government and not in the government over the people.”
– James Madison, Founding Father of the US and its fourth President
Defamation could be breach of Right to Reputation which is considered part of Right to Life under Article 21. Defamation is causing unjustifiable harm to good name of a person. There are two kinds, libel permanent form, and slander in spoken form- and they are both the creatures of English law, but in India both are the same.
Spoken word could be chilling crime of defamation, which is almost non-existing in the world. Civil law of Defamation is not codified and remains a judge-made law, while Crime is comprehensively defined in SS 499 & 500 of Indian Penal Code in 1860.
In civil action, also called tort, the complainant has to prove that a statement injured his reputation and was published. Then it is publisher’s burden to prove that imputation was either true or a fair comment or stated in circumstances amounting to absolute or qualified privilege. Truth is completely a defence. Fair comment as defence really ensures the freedom of criticism. Another defence privilege allows certain leverage to those in power or performing certain responsible duties such as judicial or parliamentary.
To establish a crime of defamation, prosecution has to prove defamation beyond reasonable doubt and there was an intention to do so. Then burden shifts to the accused to prove that any one of ten exceptions to S 499 protect his expression. The protections include: truth of fact against person stated for public good; expressing a fair opinion in good faith about act of a public servant; or even when making imputations on the character of another provided, it’s in good faith and for the public good. Defences of truth, fair comment and privilege are codified in these ten exceptions.
Constitution guarantees free speech under Article 19(1)(a) but ‘defamation’ is one of grounds in 19(2) to impose reasonable restriction on it through law. It is criticized that Constitution did not specify ‘crime of defamation’, hence S 499 is ‘unreasonable restriction’.
Most of the democratic countries, including Britain, have decriminalized defamation. India lost a chance to do away with it. It has been resurrected with the judgment of the Supreme Court. Now political libel or corporate libel remains a dreadful crime threatening the free speech. Free speech caters to the right to know of the people at large, which is essential to empower them and equip them to effectively participate in decision making process.
The British rulers wanted to jail freedom fighters for raising slogans like “British Raj down, down” or “Quit India” or for burning the effigies. Lord Macaulay’s code came handy for them, and they used s 499, which defined ‘crime of defamation’, and s 500 to imprison or fine. None can use these sections for shouting slogans such as ‘down’ or ‘murdabad’ or ‘zindabad’, etc., in the present day scenario in India. Every day somewhere in India an effigy is burnt and ‘Murdabad and ‘Zindabad are shouted, without necessarily attracting the criminal prosecution.
Earlier in retaliation to ‘harm to reputation’, victim used to challenge an accuser to a duel to settle the score. Such duels disturbed the peace and, therefore, to maintain ‘public order’ the English state started prosecuting them for criminal defamation, some 400 years ago. A private criticism by a citizen of another person became a crime because ‘public order’ is considered to be involved. If truth causes breach of peace, crime of defamation is made. It is even said ‘the greater the truth, the greater the libel”. Action for defamation is not known to India till the advent of British rule.150 years old classic Telugu Drama, ‘Kanyashulkam’ by Mahakavi Gurjada Apparao of Vijayanagaram in Andhra Pradesh incorporated this as a frequent dialogue for negative hero Gireesham, threatening others for even a slight opposition to his views [that he would file “Damage Dava (suit for damages)”].
This British concept was codified into a crime in IPC in 1860 as sec 499. The British themselves have abolished this in 2009. Recently the Constitutional Court of Zimbabwe has struck it down as unconstitutional. The Supreme Courts of the US, Canada and South Africa diluted criminal defamation with addition of more defenses to protect the free speech. But the judgment of our Apex Court has supplied enough oxygen to it now. The political leaders such as Rahul Gandhi, Subrahmanian Swamy and Arvind Kejriwal challenged this piece of ‘criminality’, but it survived.
The Supreme Court in its wisdom held that an individual’s right to reputation, which is inseparable part of right to life, need to be secured. Right to life is naturally preferred to right to free speech. Nevertheless, the judgment was a great and scholarly essay on the topic, whether we agree with the conclusion or not. Sufficiency of civil remedy for monetary compensation to secure right to reputation or necessity to imprison citizen for expression is just amatter of opinion. The Supreme Court preferred to chose the later.
To protect an individual’s reputation, the SC has allowed the continued use of the prosecution, and considered nothing wrong in preventing possible help the society might get due to free communication and the free speech. In recent times the top political leaders are found using S 499 against their opponents to suppress the ‘criticism’. One should understand the potential harm of the fact that the IPC definition of this crime has become a political weapon. Can we prefer an individual’s right to the social interest or an essential democratic need?
Generally the journalists are the worst victims of S 499. For instance in Tamil Nadu, Governments do not hesitate to slap any number of prosecutions for writing against establishment. Then S 499 was used to attack the opposition leaders, their statements, press notes and remarks in press conference or public meeting. They all are accused of criminal defamation. Most of the times crime cannot be proved, but scribes are punished by the tortuous process itself. Still, journalists rarely challenged the constitutional validity of this provision. But when political leaders used it, their rival leaders filed dozens of writ petitions for decriminalization of defamation. In all, 24 writ petitions were filed that failed together on 13 May 2016.
Rajiv Dhavan has rightly argued: “Defamation cases [are] a weapon by which the rich and powerful silence their critics and censor a democracy.” This was not accepted by the apex court. The rich and powerful, politico-legal personalities don’t mind taking the risk of losing case because it will have a chilling effect on their critics. It is a potential persecution of expression and criminalization of criticism, killing debate and denting democracy too.
The criminals in power make their critics ‘criminals’. With all investigating agencies at their command, it takes decades to file a chargesheet against them, while they can send the journalists to jail within a couple of years as it takes less time to prove publication, and intention is presumed in the publication itself. It is difficult for a journalist to prove that he did not ‘intend’ to defame, because he knew that he was making a defamatory charge. Truth is, undoubtedly a defence, though partial. It is almost impossible for a scribe to prove the truth of his statement and also public good in publication.
A citizen or a journalist or a citizen journalist without any corporate support or political party to lean on, will be facing the risk of arrest anytime, and case hangs as Damocles sword. We have several examples of chief ministers chasing opposition and the media with this weapon.
By upholding of Section 499 of IPC, the Supreme Court intends to punish lie in the form of libel to protect the ‘truth’! If the allegation in defamatory statement is ‘truth’, the accused should be acquitted, but law does not allow it, because the first exception to S 499 says “unless it is proved that ‘truth’ is stated for public good”, the accused cannot escape the imprisonment. A truth that harms an individual’s reputation cannot be stated unless public good achieved by it is higher in proportion. It means a lie in libel is punished but truth in it is not protected. Truth should have been elevated as complete defence for charge of criminal defamation. It was not done.
In India, civil courts started awarding Rs 100 crore as damages to claimants of defamation. This has emboldened corporate giants and powerful persons to file suits for 200 to 500 crore as damages. Besides this, criminal defamation continues to hurt freedom of speech but also will lead to serious threat to personal freedom and physical liberty. The people will be continued to be deprived of truthful criticism. Satyamev Jayathe is a great slogan but became empty. It’s a beautiful poetic thought but not legal reality. If you are telling truth and criticize another person, you can still be jailed because truth is not supported with ‘public good’. Every court can interpret ‘public good’ as per its ‘conscience’ which means, nowadays, the Court’s will and pleasure. If the accused is spokesperson of a ruling party, punishing a defamer could be for public good. All the three Estates will come to rescue of those rich and powerful persons even when they are involved in worst sexual exploitations and caught in sleaze videos. The new principle like ‘doctrine of postponement of publication’ was evolved to help them.
With S 499 in place, investigative journalism and anti-establishment criticism become the things of past. A new entrant in profession finds it better to plant a story rather than going to jail for investigative piece. It is said that corruption is not in reporting, but in not reporting a news story. The invisible spiked stories in media speak volumes of unspeakable bribery. Watchdogs can be easily converted into lapdogs. Of its 155 years of life, S 499 was used by British rulers for 87 years against nationalist leaders including Congress, and after independence, it has been profusely used by Independent Indian leaders for 69 years and still continuing.
Free speech is a necessity of a democratic society. Law or threat of lawsuits that stifle political debate or legitimate expression will amount to having a chilling effect on the freedom of speech. The US evolved a legal concept of ‘chilling effect’. The defamation should not deter the legitimate expression or scuttle political debate to have chilling effect on freedom of speech.
Justice Brennan in New York Times v Sullivan in 1964 laid down a new Constitutional proposition that a public official if defamed could recover damages only if he proved that such a statement was made with ‘actual malice’, i.e., with knowledge that it was false or with reckless disregard for truth. This New York Times rule has expanded the scope of public criticism and opinion as it laid down very high burden of proof on public officials to secure huge damages from critique. This has halted spree of awarding big amounts in civil defamation suits to reduce the chilling effect.
Free speech in India is free because of independent decisions of Indian judiciary. There are several landmark orders of Supreme Court upholding the free speech. Last year SC came to rescue of freedom of criticism on social media by striking down Section 66A of Information Technology Act, 2015. We also saw a new standard of obscenity law applicable to ‘historically’ respectable personalities. This year will be remembered for infusing life in criminalization of defamation. With this the section 499 of Penal Code stands like a rock against weak guarantee for free speech under Article 19(1)(a). ‘Defamation’ is one of the eight grounds specified under Article19(2). Section 499 is fortified as reasonable restriction by the Supreme Court. It is the Supreme Court that saved free speech from onslaughts by the political masters. It has contributed rich jurisprudence on ‘reasonability’ of restrictions, consolidating the principle that the restriction must be “narrowly drawn”, i.e., the State must frame its laws in such a way that they restrict speech only to the extent necessary to achieve a legitimate goal. If law crosses this limit it has to be invalidated.
When a private person defames another, the defamed can demand compensation. Then why society or state should prosecute a defamer? Can we find public order when one defames the other? British rulers drafted ‘criminal defamation’ without any connection with ‘public order’. Is it not public remedy for private wrong? Not only that, it has two kinds of severe legal consequences for one wrong, if at all it is a wrong. For exercising freedom of speech the person’s physical freedom is threatened. At any time he can be arrested, and jailed for a couple of years if proved. Economic criminals swindling thousands of crores of public money can easily escape, and the bloody criminals are rescued by senior lawyers with face value, while the ordinary writers will fill the jail for expression of strong views.
It is, in fact, a double jeopardy, which means none can be prosecuted or punished twice for same offence; basic tenets of criminal justice. Among consequences for defamation one is civil wrong, hence, technically there are no two prosecutions, but looking at the tormenting consequences of prolonged process, it is. Whopping amounts of damages are being granted by courts. Thus the rich found new avenues demanding few hundreds of crores, besides prosecuting the writers.
It was argued before the apex court that for all these reasons, having a criminal penalty for a wrong that can be dealt with satisfactorily by civil law is a disproportionate restriction upon free speech, and which fails the reasonableness requirement of Article 19(2). This was not accepted.
British repealed seditious libel, we still profusely use S 124A; they removed blasphemous libel, but the section 295A of the IPC continues to haunt us; English rulers abolished criminal libel, but we find a fine balance between libel and free speech. At the end, what we did was what was undone in several democratic countries. We have lost our right to criticize British for giving us their worst laws, because we abuse and retain all those worst laws, though the country of their origin abandoned them. Alas, British continue to be our ‘father-in-law.w
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