By Vaishali Mahlyan, University Institute of Law and Management Studies.

The concept of Criminal Defamation is a hot piece of cake in front of the Supreme Court. To get an insight, we need to know, “what defamation is?” Defamation is derived from a Latin word ‘Diffamare’ which means ‘spreading evil report about someone’. It causes damage to another person’s reputation. Defamation, occurred in spoken words or gestures is slander, whereas if done in written or printed form, it’s libel. Defamation is punishable as a civil wrong under the Law of Tort and as a criminal wrong under sections 499 and 500 of the Indian Penal Code. Sections 499 and 500 of IPC make defamation punishable with a maximum imprisonment for two-year, or with fine, or with both.

The concept was called into question, when criminal defamation proceeding was initiated  against Delhi Chief Minister Arvind Kejriwal by Union Transport Minister Nitin Gadkari and city lawyer Surender Sharma for allegedly making defamatory remarks. The complainant claimed that his reputation has been lowered in the Bar and society by the “defamatory, unlawful and derogatory words (which) have been used by the accused person”. Another well-known name, Congress vice-president Rahul Gandhi, was charged for blaming the Rashtriya Swayamsevak Sangh for the assassination of Mahatma Gandhi.  Both of them were of the view that defamation should be treated as a civil offence and have appealed to quash the concept of criminal defamation. Giving defamation a criminal dimension would travel beyond the ambit of reasonable restrictions as stipulated by the fundamental right given by our Constitution under Article 19(2). Mr. Gandhi contended that carrying a two-year maximum imprisonment violated the principle of proportionality in comparison to the gravity of the offence. The opposition lawyer defended by saying that civil cases relating to defamation take years to settle in India and even quoted several cases where Re. 1 was sought as damages.

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Recently a Chennai City Public Prosecutor filed a criminal defamation complaint against Tamil bi-weekly Nakkeeran. The complaint was filed on behalf of Tamil Nadu Chief Minister J Jayalalithaa for an article suggesting that she needed a kidney transplant. This was the second such complaint filed on behalf of the CM. A few days ago a defamation complaint was filed against Rediff.com for an editorial on Jayalalithaa’s health.

We all are aware that freedom of speech and expression is not absolute and is subject to ‘reasonable’ restrictions. A defamatory statement is one such restriction. “Reasonable restriction” connotes that the enjoyment of the right should not be arbitrary or excessive in nature which is beyond what is required in the interest of the public. Also, there should be intelligent care and deliberation in the choice of that course. The Parliament had decided to retain criminal defamation provisions as safeguards against persons making wild and baseless allegations against others. The Supreme Court Bench led by Justice Dipak Misra and P C Pant was of the view that criminal defamation as an offence under IPC was framed in 1860 that is much before 1950 when the Constitution came into force and it was high time to judge its validity.

Despite years of extensive campaigns calling for the abolition, criminal defamation law still exists in more than 100 countries around the world, including mostly west European countries. Among the 28 European Union member states, five have repealed criminal defamation as an offence against private individuals: Cyprus, Estonia, Ireland, Romania and the United Kingdom (UK). But insulting the armed forces, foreign heads of state and libeling the memory of the deceased remain criminal offences. The Republic of Macedonia (Former Yugoslav Republic of Macedonia (FYROM)) and Montenegro, recently decriminalized defamation and insult in 2012 and 2011, respectively. Serbia decriminalized defamation in 2012, but still insult is considered as a criminal offence, although it is no longer punishable with imprisonment.

It is considered that criminal defamation laws are inherently harsh and have a disproportionate chilling effect on freedom of expression which is our key human right. Without freedom of expression, there can be no democracy and the main feel of press and critics would be lost. The Court in Brij Bhushan v. State of Delhi (AIR 1950 SC 129) as well as R. Rajagopal v. State of Tamil Nadu(1995 AIR 264)  held that prior restraint on the press would amount to infringement of the freedom of speech and expression under Article 19(1) (a). So, there can be no prior restraint on publication on any grounds including defamation.

But, is this sufficient to freely present one’s views? An individual constantly faces a threat of being arrested saddled with a criminal record and the social stigma. It dampens the citizens’ drive to engage in legitimate public critique. But de-criminalizing defamation is a very big step which has to be considered carefully. A criminal defamation acts as a deterrent against the growing tendency to defame people. In criminal law, the burden rests on the prosecution to prove the commission of the offence beyond reasonable doubt. But in case of a civil action, the claimant needs to prove that the statement injured the person’s reputation, and then, the onus shifts on the defendant to prove the imputations either not true or amounted to fair comment.

Defamation serves an important social purpose, but a free society depends on exchange of opinions and on the ability of citizens to scrutinize and judge those who rule in their names. Criminal defamation laws are hindrance to honest public discourse and without criticism, the feel of the media would be lost. Also, those laws fail to promote appropriate balance between the need to protect reputation and the fundamental right of freedom and expression. Hence, it poses a big threat of turning critics into criminals. We all know that this law has been abused frequently by government officials and public persons to suppress criticisms. I am not saying that defamation must not be discouraged, but the means used to discourage defamation should be carefully targeted. Instead of imprisonment, they should face loss of political rights such as the right to vote, hold public office or right to practice a particular profession. Decriminalizing of defamation will bring IPC in accordance with Article 19(2) and that will ensure the means used to discourage defamation without ending up with damping legitimate criticisms.

At last I would conclude by saying that, “defamation law needs careful scrutiny in a democracy in such a manner that it does not dampen legitimate criticism, but simultaneously have a deterrence effect on growing tendency to defame people”.

William Shakespeare in his famous work ‘Othello’ has written:
“He that filches from me my good name, Robs me of that, which not enriches him, and makes me poor indeed.”

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