NEW DELHI: There is a need to decriminalise penal provision for defamation and the "colonial law", which has been inevitably abused, needs to be re-examined rigorously, Delhi Chief Minister Arvind Kejriwal told the Supreme Court on Wednesday.
Toeing identical line adopted by BJP's Subramanian Swamy and Congress Vice President Rahul Gandhi who have also challenged constitutional validity of sections 499 and 500 of the IPC, the Aam Aadmi Party leader told a bench comprising justices Dipak Misra and Prafulla C Pant that there are several grounds to scrap them as these provisions violated Articles 14, 19(1)(a)(g) and 21 of the Constitution.
Senior advocate Rajiv Dhawan submitted that the provisions were liable to be struck down on the basis that "the pathology of their litigational use suggests inevitable abuse".
Swamy and Gandhi have been charged with criminal defamation under sections 499 and 500 of the IPC for their political speeches in Tamil Nadu and Maharashtra respectively, while Kejriwal is facing cases under the same provisions lodged by BJP's Nitin Gadkari and others.
He further the internal norms of the penal provisions were irrational, overboard and unnecessary and they did not meet the criteria laid down by the apex court in civil defamation.
Like Swamy and Gandhi, he too suggested that the penal provisions conceived in the British era were now "outmoded" and they are "over-protective of public servants and inconsistent with democratic discourse."
"Given the continuance of defamation as a civil wrong and various other public order provisions, to retain criminal defamation would be unreasonable and not meet the 'least invasive' test," the senior advocate submitted and added that incarceration and fine for criminal defamation was unreasonable.
Dhawan said that Article 19(1)(a) must be interpretated in the widest possible way so that freedom of speech and expression becomes a "priority" right, which includes the freedom of the press.
"Freedom of speech and expression is not just a right but a duty to further democracy," he said.
He criticised the continuance of the pre-Constitution law saying that depending on their continuing longevity, they must also not just meet the constitutional test but also be examined whether they have outlived the utility and are to be re-examined rigorously.
The stand of Kejriwal, Swamy and Gandhi that defamation be treated as a "civil wrong" has been opposed by the Centre which has advocated retaining of sections 499 and 500 in the IPC, saying that criminal defamation will work as deterrent against growing tendency to defame people through social media.