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Criminal Defamation - Constitutional or Not


Next to his life, what man cares most is his reputation. As per Black’s Law Dictionary, defamation means “The offence of injuring a person's character, fame, or reputation by false and malicious statements”. Defamation in law, is attacking another’s reputation by a false publication tending to bring the person into disrepute by communicating the same to a third party. Generally, defamation requires that there is a false publication and without the consent of the allegedly defamed person. Injury only to feelings is not defamation, there must also be a loss of reputation. Actual truth of the publication is usually a defence to a charge of defamation.

Defamation is thus the publication of a statement which reflects on a person’s reputation and tends to lower him in the estimation of right-thinking members of society generally or tends to make them shun or avoid him.[1]

Types of defamation

For historical reasons, defamation can be divided into the following two types:[2]
Libel – Representation in a permanent form, e.g., writing, printing, effigy, picture or statue.

Slander –Through words spoken or gestures.

Essentials of defamation

i. The statement made must be defamatory.
ii. The said statement must refer to the claimant.
iii. The statement must be published i.e., it must be communicated to at least one person other than the claimant.

Defamation laws in India

The Select Committee of the House of Lords in 1843, recommended the assimilation of slander with defamatory libel.[3]While, therefore, in India there is no distinction between a spoken and a written defamation. Both libel and slander are criminal offence. For better understanding, it can be divided into two categories:
i. Criminal Defamation
ii. Civil Defamation

Defamation as a crime

Section 499 of the IPC,1860 defines ‘defamation’ as being committed:
i. Through: (i) words (spoken or intended to be read), (ii) signs, or (iii) visible representations;
ii. Which: are published or spoken imputation concerning any person;
iii. If the imputation is spoken or published with: (i) the intention of causing harm to the reputation of the person to whom it pertains, or (ii) knowledge or reason to believe that the imputation will harm the reputation of the person to whom it pertains will be harmed.

This definition is subject to four explanations and ten exceptions.[4]If a person is found guilty of having committed defamation in terms of Sec. 499 of the IPC, the punishment is stipulated in Sec. 500, simple imprisonment for up to two years or fine or with both. The Cr PC, 1973, which lays down the procedural aspects of the law, states that the offence is non-cognizable and bailable.

Defamation as a tort

As a general rule, as far as defamation under tort law is concerned, the focus is on libel (i.e., written defamation) and not on slander (i.e., spoken defamation). In order to establish that a statement is libellous, it must be proved that it is
(i) false,
(ii) written,
(iii) defamatory, and
(iv) published[5]

Constitutionality of Criminal Defamation

The apex court’s judgement in Subramanian Swamy v. Union of India[6]which was delivered on May 13, 2016, put a rest on the speculation of defamation being decriminalised when the constitutionality of the contended provisions were upheld.

Swamy’s petition: Subramanian Swamy filed a writ petition regarding the decriminalization of defamation. The two basic contentions of the seven issues raised in the writ petition Swamy were:[7]

i. Declaring Sec. 499 and 500 of the Indian Penal Code, 1860 as unconstitutional.
ii. Declaring Sec. 199(2) of the Code of Criminal Procedure, 1973 (Cr PC) as unconstitutional.

According to the appellant, these provisions cast an unreasonable restriction on freedom of speech, one that falls beyond article 19(2) of the Constitution of India.

The counsel appearing for the State of Tamil Nadu submitted that Sec. 499 and 500 could not be said to travel beyond the reasonable limits on freedom of speech, because article 19(2) itself imposes such a restriction.[8]Also, there has to be a debate with regard to the conceptual meaning of the term ‘defamation’ used in article 19(2) of Constitution and ‘defamation’ in Sec. 499,IPC, 1860. It was also pointed out that the freedom of speech and expression has to be controlled and does not include the concept of defamation as defined under Sec. 499.[9]

The bench raised a question that whether abolition of criminal action in other countries[10]could really have effect when the court decides on the constitutionality of a provision regard being given to India’s own written constitution.

Judgement: The division bench comprising of Dipak Mishra and Prafulla C. Pant JJ, wherein J. Mishra delivered the judgement, upholding the constitutional validity of Sec. 499, 500 of IPC, 1860 and 199 of Cr PC, 1973, pronounced that-“It is not necessary for all in the chorus to sing the same song. A magistrate should be extremely careful in issuing summons on a plea for the initiation of any criminal defamation case.”
It is noteworthy to note that to justify the penal provisions centre pronounced about the anarchical way of how Indian society works and opined about how criminal defamation deters people from practising freedom of speech and expression.

Conflict between Art. 19(1) (a) and right to reputation under Art. 21

Another question which arose before the court was whether reputation of another individual(s) is absolutely ephemeral, so as to hold that criminal prosecution on account of defamation negates and violates right to free speech and expression of opinion. To answer this, the SC goes into the interpretational analysis of freedom of speech and expression under Art. 19(1) (a), 19(2) and right to reputation under Art. 21. After a detailed scrutiny, the court resorts to the rule of harmonious interpretation and adopts the doctrine of ‘balancing of fundamental rights’. With regard to the permissibility of criminal defamation, the Court opines that it can be tested on the touchstone of constitutional fraternity (also enshrined in the preamble) and fundamental duty. However, the court finds it difficult to come to a conclusion that the existence of criminal defamation is absolutely obnoxious to freedom of speech and expression but concludes that it does not invite the frown of any of the articles of Indian Constitution nor its existence can be regarded as unreasonable restriction.[11]

Sec. 499 and 500 IPC 1860 v/s Reasonable restrictions

The pertinent question which arose before the court was whether Sec. 499 and 500 of IPC, 1860 go beyond the scope of the reasonable restrictions imposed under art. 19(2) of the Indian Constitution?

While answering in negative, the SC gave a detailed reasoning of the explanations and exceptions appended to Sec.499. It was submitted by the petitioners that on two earlier occasions, R. Rajagopal alias R.R. Gopal v. State of Tamil Nadu[12]it had been observed as follows:[13]

In all this discussion, we may clarify, we have not gone into the impact of Article 19(1) (a) read with clause (2) thereof on Sections 499 and 500 of the Indian Penal Code. That may have to await a proper case.

In N. Ravi v. Union of India[14]wherein it had been observed as follows:[15]

Strictly speaking on withdrawal of the complaints, the prayer about the validity of Sec. 499 has also become academic, but having regard to the importance of the question, we are of the view, in agreement with the learned counsel for the petitioners, that the validity aspect deserves to be examined.

As defamatory speech is one such restriction prescribed under Art. 19(2) (1) of the Constitution. Therefore, in order to curb speech that is defamatory, court observed that the restriction imposed should be ‘reasonable’. In Chintaman Rao v. The State of Madhya Pradesh[16], the SC laid down the meaning of the term ‘reasonable restrictions’:[17]

The phrase "reasonable restriction" connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word "reasonable" implies intelligent care and deliberation, that is, the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Article 19 (1) (g) and the social control permitted by clause (6) of Article 19, it must be held to be wanting in that quality.

It had been the one of the contentions that the exceptions make the offence more rigorous, thereby making the concept of criminal defamation extremely unreasonable. Further, truth was not a defence and unnecessary stress on ‘public good’. The SC, after a detailed discussion concluded that neither the main provision nor the explanation nor the exceptions remotely indicated any vagueness and thus cannot be called unreasonable.[18]It also rejected the argument that criminal defamation was not saved by the doctrine of proportionality.[19]

There has been so many attacks on freedom of speech in India over the years. The problem occurs when it makes journalists and comedians like Gogoi[20]or Kiku Sharda[21]under the ambit of facing criminal action for their alleged defamatory remarks against powerful individuals or corporations. Indian laws are shown as dysfunctional institutions and manifest penal provisions as attractive.

The biggest irony of the present law system is that it seems reluctant to interfere in cases infringing upon the fundamental rights and on the other hand it also rushes into policy matters which is not relevant for them. Defamation laws embodied under Sec. 499 and 500 of IPC is a double-edge sword. If a false criminal suit is lodged for defamation by the appellant, the respondent can file a counter claim.

Replacing criminal sanction with the civil one cannot fulfil the criteria to balance the right of freedom of expression with the right to reputation. The main idea behind balancing the rights should be to exercise one’s freedom of speech and expression without compromising with the person’s reputation in the eyes of public.

[1]W.E. Peel, J. Goudkamp, Winfield & Jolowicz on Tort 360 (Sweet & Maxwell, 19th edn., 2014).
[2]These example make it clear that it is only broadly true to say that libel is addressed to the eye,slander to the ear.
[3]Cf. words of the Select Committee, printed in 2 Penal Law (4thed.). p. 2651, Sec. 5624
[4]Indian Penal Code, 1860, s. 499.
[5]Ratanlal and Dhirajlal, The Law of Torts 279 (Lexis Nexis, New Delhi, 26th edn., 2013).
[6]AIR 2016 SC 2728.
[8]Vijay Kant v. Union of India [T.P. (Crl) No. 94-101/2015].
[9]Arvind Kejriwal v. Union of India [W.P. (Crl) No. 56/2015)].
[10]Kenya, Zimbabwe, Cyprus, Estonia, Ireland, Romania, Sri Lanka and the United Kingdom (UK) have repealed criminal defamation as an offence against private individuals.
[11]Subramanian Swamy v. Union of India [AIR 2016 SC 2728].
[12](1994) 6 SCC 632.
[13]Id. at 651
[14](2007) 15 SCC 631.
[15]Id. at 631.
[16]AIR 1951 SC 118.
[17]Id. at 119.
[18]Supra note 1, para 184.
[19]Id., para 186.
[20]Samudra Gupta Kashyap, “Tarun Gogoi appears before court in Rs 100 crore defamation case” The Indian Express, January 18, 2016.
[21]Editorial, “Arrest of a comedian” The Indian Express, January 15, 2016.

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