Defamation is an actionable offence according to the present law. The law of defamation as an offence recently survived an onslaught on it at the Supreme Court made on the ground that it violates the fundamental right of freedom of speech .The Supreme Court in a very elaborate judgment repelled the attack and protected the law. Fortunately the right of a maligned citizen to sue for damages was not challenged in India till now. Attackers only targeted the criminality of defamation created by the penal law for which they focused on right of the defamed citizen to proceed against publishers through prosecution in criminal courts. No sooner had the Supreme Court pronounced its judgment than there arose strident criticism against the judgment mostly from persons connected with the media.
What would have been the consequence if the Supreme Court had upheld the challenge and overturned the penal provision? At a time when the media acquires elephantine potentialities through advanced technology, every citizen is vulnerable to be tarnished in public sight, particularly if anyone has hostility towards him. The victim could then only be told: “If you feel aggrieved your only remedy is to file civil suit for damages, which in the Indian litigative situation, would drag on for years and even if you succeed in getting a decree at last, the realisation of the amount is uncertain”. Now, the concerned citizen can heave a sigh of relief that any miscreant disposed to cast epithets against his reputation could do it at the risk of being prosecuted in a criminal court.
The right to freedom of speech is, no doubt, a fundamental right under Article 19 (1) of the Constitution. But it is not absolute or unrestricted as the right is subject to “reasonable” restrictions in the interest of any of eight topics enumerated in clause (2), one of them being the law of “defamation”.
The Attorney General for India pointed out in the Supreme Court that the State is under the obligation to protect individual dignity and any wrong against it requires action to deter others from committing it. Parliament has the duty to enact laws for protecting the person and property of every citizen. It has been held that right to life includes the right to reputation. If somebody impairs it through publication the victim must have a remedy through the legal process. That is the raison d’etre of Section 499 and 500 of the IPC. The penal provision stood the test of time and helped legions of people in protecting their reputation.
Sufficient safeguards are included in the penal provision itself in defending the publisher. One is that the complaint can be made only by the person aggrieved (to alleviate the torments of public servants law now permits prosecutions to be initiated by Public Prosecutors) The person against whom the prosecution is launched is entitled to claim protection under any one of the 10 exceptions enumerated in Section 499. Of course, it is an uphill task to prove that the imputation was true as required in the first exception. In all the remaining exceptions, the accused need only satisfy that the imputation was published in “good faith”. Section 52 of the Code defines “good faith” as what is done with due care and attention. So if the publisher establishes that he published the imputation with due care and attention no court can punish him.
Occasions when the courts in India subjected the penal law of defamation for judicial review were several. But it was only in Subramanian Swamy case that the Supreme Court considered its constitutional validity. In the judgment in Harbajan Singh Vs Punjab (1966 SC 97), which has become locus classicus, the Supreme Court dealt with different aspects of the law in extenso. The learned judges adverted to two aspects: (i) standard of proof which the prosecution or the defence may could adopt; (ii) ambit of “good faith” when the publisher resorts to any of the exceptions.
The Supreme Court pointed out that when any imputation is per se defamatory, the burden of the aggrieved person would stand discharged by proving that the accused published the imputation. The court would presume that the publication would have lowered the complainant in the estimation of the right-thinking public. The burden would then shift to the accused to show that the imputation has not affected his reputation or that the imputation was published in “good faith” . The Supreme Court further held that the standard for testing “good faith” is whether the publisher had adopted due care and attention before he published it. Here the publisher has to satisfy that he made an enquiry in such degree as a reasonable man would adopt in the situation.
The Supreme Court said that the burden of the publisher is far less than the standard of proof required on a prosecution to prove the guilt of the accused (where the standard is beyond all reasonable doubt). When the accused in a prosecution relies on “good faith” as his defence it is enough to show it by preponderance of probability as is required in civil cases.
So the present legal position as against a publisher is just, fair and reasonable within the parameters of Article 21 of the Constitution. If the penal law of defamation is not available to the citizen, his reputation would be vulnerable to the risk of being destroyed by miscreants prone to do mischief claiming their fundamental right.
Thus, it is of relief to the average citizen that his reputation in society will remain by and large guarded, particularly at a time when the media has proliferated to alarming dimensions.
ustice K T Thomas is a former Supreme Court judge Email: firstname.lastname@example.org