Ignoring the tone and tenor of the Law Commission’s view in a recent consultation paper to weed out the provision of criminal defamation in the IPC, the Union government has sought to defend it in the Supreme Court that is examining its constitutionality. The Centre wants the provision to be retained as a deterrent against defamatory actions, ignoring the Commission’s view that threats of legal action by a coercive state can have a ‘chilling effect’ on freedom of expression and put undue pressure on free press. That the NDA government, voted to power on the promise of transparency, should defend such a regressive law is unfortunate.
All the more so because the colonial law, rooted in England’s notorious Star Chamber in the 1500s, has been dumped in its place of origin. The grounds cited by the Centre to defend the indefensible that recourse to the civil remedy for defamation are ineffective and that the citizens’ reputation can be protected only by making it an offence punishable by two years imprisonment are specious. The solution lies in ensuring that the system deals with civil defamation more efficaciously and not in retaining a draconian law deleted from statute books of most democratic countries because it chills criticism of those in power. The main feature of enforcement of criminal defamation provisions in India after Independence has been the reckless use of the state’s coercive power to stifle criticism.
It is an invidious tool those in power have used against their political opponents and critics. Because it restricts speech, defamation law needs careful scrutiny in a democracy. Free speech plays a vital role in gauging the informed consent of the people to the acts of a democratically elected government and powerful private entities. While striking down Section 66A of the Information Technology Act of 2000 as unconstitutional in Shreya Singhal case recently, the SC has remarked that a law that hits at the root of liberty and freedom of expression was unconstitutional. Even as the SC decides the constitutionality of the provisions in the IPC criminalising defamation, the Centre will do well to reconsider its stand. None can dispute that the reputation of citizens must be protected. But this can be done by making civil remedies against it more effective.