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Spectre Of Defamation.

India, May 23 -- May 13 could be termed a black day in the history of law in India as the Supreme Court upheld the constitutional validity of Sections 499 and 500 of the Indian Penal Code, 1860. Before we discuss the issue, we must know what these sections provide for. Does India today need this kind of legal provisions?

These vintage sections impose criminal liability for defamatory remarks made by a person in public. Not only written or verbal comments but also non-verbal conversation, signs etc. could be termed as defamation, if they are made with an intention to harm the reputation of a person as described in Section 499.

The code was enacted at a time when there was no such law in force in England. It was implemented to curtail public opinion and instigate fear amongst countrymen. There are no two opinions that the code needs to be replaced by a more contemporary law, designed to meet today's needs.

The recent controversy over the sedition law is a case in point. No doubt, the code has been amended many a times, though Sections 499 and 500 have remained intact.

In India, defamation is both a civil wrong and a criminal act. Now the question is: how can a crime be of two different natures? While a civil wrong can be redressed by awarding compensation, criminal defamation entails punishment in the form of imprisonment for up to two years. Civil defamation is covered under the law of torts, which does not have a statute to decide the course of action. An act which was considered wrong, say 20 years back, may not fall in the same category today. The law of torts allows this flexibility as it doesn't have a rigid definition to what could be termed as wrong.

Thus, defamation as a civil wrong is adjudged based on different case laws and judgements given by different courts. In a criminal case, defamation must be proved with concrete evidence while in civil cases, the decision can also be taken on the basis of assumptions and probabilities.

Generally, truth is accepted as a defence in civil cases. However, in criminal cases, it can act as a defence only in certain circumstances. For instance, a person may have doubtful parentage but to call him "illegitimate" is to invite trouble. It has to be proved that such a statement was made to serve "public good" and in good faith. This is one of the biggest flaws in the impugned sections.

Over the years, the sections came up for discussion in a number of cases before different courts. This time it came up before the apex court and the petitioners were Subramaniam Swamy, Arvind Kejriwal and Rahul Gandhi.

The trio pleaded before the court that the sections act as a hindrance to the fundamental right of freedom of speech and expression provided under Article 19(1) of the Constitution. Unfortunately, the well-worded arguments of the petitioners failed to impress the judges.

Instead of deciding upon whether criminal defamation is required in this era of technology when millions of people use social media to express their views, the court delved into the "concept of reputation", "vision of the ancients and thoughts of creative writers and thinkers".

Spread over 268 pages, the judgement comprises quotations and references to a plethora of decided cases. Unfortunately, it fails to put up a cogent argument to justify the conclusion the judges arrived at.

The language used in the judgement is as complex as the judgement itself. For instance, the judges have used the first 69 pages to describe the submissions of the respective counsels. Another 50 pages are used to define defamation and the freedom of speech and expression using some quotations from the Gita and Patrick Henry!

Towards the middle, on page number 123, the judges finally consider the argument of the petitioners that defamation is a private wrong and it should not be criminalised. Now what the judges express is entirely out of proportion. The judgement says, "Individuals constitute the collective. Law is enacted to protect the societal interest. The law relating to defamation protects the reputation of each individual in the perception of the public at large. It matters to an individual in the eyes of the society. Protection of individual right is imperative for social stability in a body polity and that is why the State makes laws relating to crimes. A crime affects the society. It causes harm and creates a dent in social harmony. When we talk of society, it is not an abstract idea or a thought in abstraction. There is a link and connect between individual rights and the society; and this connection gives rise to community interest at large"

Clearly, the judges have removed the distinction between an individual and a society. In other words, if individuals constitute society and any wrong done to an individual can be construed to be done to the society, then there is nothing which can be termed as individual wrong.

The judges take another four pages to finally conclude that there is a distinction between public and private wrongs.

However, in these lengthy discussions, arguments, analysis, repetitive quotations, the judges forget to discuss the main contention that criminal defamation is disproportionate and is an unreasonable restriction on the freedom of speech and expression. Much to the amusement of the reader, the judges on page number 175 conclude that "The principles as regards reasonable restriction as has been stated by this Court from time to time are that the restriction should not be excessive and in public interest."

The learned judges forgot to take into account that the principle of reasonable restriction under Article 19(2) cannot be applied quoting public interest. It is the individual rights that the article seeks to protect. The judges refer to Part IV of the Constitution, which are expressly not enforceable.

Be that as it may, the court without delving into the reasonableness of whether Section 499 or 500 is relevant in the current scenario concluded that anything that damages reputation is a serious public issue. From the contours of law, the judges ventured into an entirely different sector of moral psychology. They should have instead considered the repetitive misuse of these sections by political leaders for settling political scores.

There have been many defamation cases. Some were filed against journalists merely for expressing their opinion on certain government policies. In Tamil Nadu alone, 15 cases of criminal defamation were filed against the magazine Nakeeran.

Besides, the way the section is worded raises numerous points. A person who filed the case has to first prove that he is a man of character. This is what happened in a recent case filed by Union finance minister Arun Jailey. He had to bring two witnesses to prove his claim of possessing a good character. Almost all complainants know that prosecution may never take place considering the complicated process of proving defamation. And hence anyone who wants to drag someone in court files a defamation case.

And if the section actually protects the interests of the public at large and the state has the responsibility to prosecute, then why the state machinery does not take note of serious matters suo motu? And why only the person affected by a defamatory statement has to lodge a complaint?

If defamation is a crime against society, why every individual who makes a defamatory statement doesn't get prosecuted?

Sadly, the judges did not consider any of these points. And India Incorporated still have to bear with the restrictive provisions of these sections till wisdom dawns on our parliamentarians and an attempt is made to repeal the outdated code.

(The writer is a company secretary and director, communication, Deepalaya; can be reached at

Published by HT Syndication with permission from Indian Currents.

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Publication:Indian Currents
Geographic Code:9INDI
Date:May 23, 2016
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