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Free speech no excuse to sully reputation: SC

The court held that the right to freedom of speech and expression is sacrosanct but not absolute.

Published: 14th May 2016 05:17 AM  |   Last Updated: 14th May 2016 05:17 AM   |  A+A-

NEW DELHI: In a significant verdict that disappointed proponents of free speech across the country, the Supreme Court on Friday ruled that criminal provisions of defamation are constitutionally valid. The ruling implies that individuals, media organisations and social media platforms can be criminally prosecuted for making false or derogatory statements about someone.

In the wake of the ruling, India becomes one of the few countries where criminal defamation still remains. Most developed nations have scrapped criminal provisions of defamation and have only civil charges, which stipulate a fine. Punishment for criminal defamation in India entails imprisonment of up to two years or fine or both.

Stressing that it is extremely difficult to accept that criminal defamation has a ‘chilling effect’ on freedom of speech and expression, the apex court upheld the constitutional validity of Sections 499 and 500 of the Indian Penal Code to protect the individual’s right to reputation. The court, however, clarified that since the offence has its own gravity, magistrates have to be extremely careful in issuing summons.

The court held that the right to freedom of speech and expression is sacrosanct but not absolute.

“Reputation of one cannot be allowed to be crucified at the altar of the other’s right of free speech,” it said. The apex court rejected pleas of Congress vice president Rahul Gandhi, Delhi Chief Minister Arvind Kejriwal, BJP leader Subramanian Swamy among others seeking to decriminalise the criminal provisions. They will now have to face criminal defamation cases lodged against them in respective courts.

The Supreme Court on Friday rejected pleas of Congress Vice President Rahul Gandhi, Delhi Chief Minister Arvind Kejriwal, BJP leader Subramanian Swamy among others to decriminalise the criminal provisions of defamation. They will now have to face criminal defamation cases lodged against them in respective courts.

While Swamy is facing three criminal defamation cases in Tamil Nadu, Rahul has a case against him in Maharashtra for blaming the RSS for Mahatma Gandhi’s assassination. Kejriwal is facing a number of defamation cases of which criminal proceedings are stayed in four. The cases against him have been filed by Union Ministers and BJP leaders Arun Jaitley, Nitin Gadkari, Congress leader Kapil Sibal’s son Amit Sibal and by others.

The court in its 268 page ruling on 27 petitions stated as to how balance between freedom of speech and right to reputation is essential. “One cannot be allowed to be crucified at the altar of the other’s right of free speech,” it said.

Analysing various provisions dealing with defamation, the court said it did not agree with the contentions that criminalising defamation attacks freedom of speech and expression guaranteed in the Constitution. However, it clarified that since the offence of criminal defamation has its own gravity, the magistrates have to be extremely careful in issuing summons. While dealing with the contentions, the bench held that the right to freedom of speech and expression is “absolutely sacrosanct” but “is not absolute” and “is subject to imposition of reasonable restrictions” and “it is difficult to come to a conclusion that the existence of criminal defamation is absolutely obnoxious to freedom of speech and expression.”The SC has in fact upheld each of Centre’s arguments in support of the criminal defamation law. Justifying the penal provisions, Centre had said there will be anarchy in the society and everyone will think he has a right to hurl abuses if the criminal defamation is repealed as a penal offence.

Arguing for retention of criminal defamation in the Indian Penal Code, Attorney General Mukul Rohatgi had said that punitive provisions are more relevant in modern times in view of the wide sweep of Internet and social media where every statement can reach millions of people.

“Interest of the people involved in the acts of expression should be looked at not only from the   perspective of the speaker but also the place at which he speaks, the scenario, the audience, the reaction of the publication, the purpose of the speech and the place and the forum in which the citizen exercises his freedom of speech and expression,” the court added.

What is defamation?

■ Harming someone’s reputation by making a false or derogatory statement 

■ It can be spoken, written or visual content that has been published

■ There are two types of defamation — civil and criminal

■ Section 499 and 500 of IPC deal with criminal defamation with punishment up to 2 years in jail

■ Civil defamation laws have lesser impact on freedom of speech than criminal laws

■ Criminal defamation dissuades citizens from exposing wrongdoings,  say UN experts

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