NEW DELHI: The provision for criminal defamation should be retained in the Indian Penal Code as a deterrent against defamatory actions, the Centre has told the Supreme Court.
The Ministry of Home Affairs (MHA) in its affidavit said there was a need for retaining Sections 499 and 500 of the IPC, also because of the growing tendency to defame people through social media.
The Centre's submission came in response to the notice issued by the apex court on a batch of petitions filed by political leaders including Congress Vice President Rahul Gandhi, BJP leader Subramanian Swamy and AAP convener and Delhi Chief Minster Arvind Kejriwal, challenging the constitutional validity of penal provisions on defamation.
All three politicians had argued that Sections 499 and 500 violated the constitutional guarantee for free speech under Article 19(1)(a) and were anathema to right to life guaranteed under Article 21.
"It should be erased from statute books as there is a civil remedy for filing a defamation suit under which the courts could award damages," the leaders had contended.
However, the MHA in its affidavit before a bench headed by Justice Dipak Misra said, "Civil remedy for defamation is not an efficacious remedy. Civil remedies on an average take longer than criminal remedies. Furthermore, with the advent of new forms of technology, acts like online defamation cannot be adequately countered by means of civil remedies."
"With the advent of internet, any statement can be published to the world at large without any in-built checking mechanism. Further, there is always a possibility of the defamer being judgment-free, that is, not having adequate financial capability to compensate the victim."
While seeking dismissal of petitions filed by the leaders, the Centre also said since they have raised a substantial constitutional question requiring interpretation of law and constitutional provisions, the apex court should refer their pleas to a five-judge bench.
The ministry further said Sections 499 and 500 of the IPC criminalize only those kinds of speech that harm the reputation of another individual while having no inherent social utility. "Right to reputation is an important facet of right to life guaranteed under Article 21 of the Constitution," the affidavit said.
"There is nothing absolute in the Constitution. The right to free speech under Aritcle 19(1)(a) is subject to the restrictions under Article 19(2) which provides for defamation as a ground to restrict the free speech and expression.
Article 19(1)(a) protects all forms of speeches. Sections 499 and 500 are aimed at regulating only those speeches that do not add valued to public discourse and debate," it said.
The bench had on July 8, while granting three days to the Centre to file a response to the petitions, dealt with the submission for sending them to larger bench and said "in our considered opinion, the said facet shall be addressed to and dealt with while dealing with the merits of the case."
Fixing the bunch of pleas for hearing on July 14, it had said it would look into the laws of other countries which have abolished criminal defamation and whether such a course can be adopted in the context of India.
The petitioners had also argued that several democracies, including the US and UK, have dumped the criminal defamation provisions. Responding to the contention, the MHA said it was because the courts in those countries expeditiously award huge damages against those found guilty of sullying reputation.
"Moreover, suitability of criminal defamation provisions has to be tested by the court keeping in mind prevailing social and political situation in India and its Constitution.
"Criminal laws are society-centric and merely because certain countries have done away with some laws does not mean Parliament is not empowered to legislate on the same. The reasonability of a restriction cannot be tested by divorcing the socio-cultural context and merely comparing the same with the situation in other countries like Grenada, Republic of Serbia, Montenegro, Estonia and the like," it added.