A case for India decriminalising defamation

Free speech, especially in political matters and public affairs, is highly valued in any democratic society.
Image used for illustrative purposes only. (Express illustration | Soumyadip Sinha)
Image used for illustrative purposes only. (Express illustration | Soumyadip Sinha)

Should defamation at all be a criminal offence? Has the time come for a constitutional court to read down Sections 499 and 500 out of the Indian Penal Code just as Section 377 was read down to decriminalise same-sex relationships?

Part of the reason defamation continues to be criminalised in India and other jurisdictions is the historical link between defamation and public disorder. The genesis of criminal defamation can be traced back to the 1275 Statute of Westminster, which created the offence of Scandalum Magnatum.

In his grand account of English Law, William Holdsworth notes that the defamation law’s purpose was to safeguard the kingdom’s security, for back then, many “great men” whose persons were injured with words were ready to resort to its arms to stitch back their tattered reputations.

During the time of King Henry VIII, the English Star Chamber became a forum for prosecuting critics of the monarch. That Star Chamber was abolished in 1641. The United Kingdom removed defamation as a crime in 2009. Other countries, such as New Zealand, Australia, Sri Lanka, and Maldives, have abolished this archaic criminal offence.

The historical justification underpinning this offence no longer exists. Is there any serious argument that can be made regarding defamatory statements leading to serious public disorder?

Given the 24X7 media ecosystem that we live in it is very easy for someone to take offence anywhere in the world and proceed to criminally prosecute the person who was the protagonist of that particular political articulation. In such a situation, a statement made in Malayalam in Thiruvananthapuram or Kanyakumari may invite a criminal complaint of defamation in Kashmir just because someone chose to feel offended reading the translation of that statement. That is when the process itself becomes the punishment.

First and foremost, treating defamation as a crime with attendant penal consequences for merely exercising the freedom of speech and expression provided for in Article 19(1)(a) of our Constitution is singularly conflicting, notwithstanding the reasonable restrictions that caveat the exercise of this right. Freedom of Speech and Expression is a right that is so sacrosanct that without it, democratic government is an impossibility.

The chilling effect of criminal prosecution against political opponents and civil society activists spells the death knell on the doctrine of accountability intrinsic to any democracy. How can any representative order function if a person cannot critique the government or those in government for fear that the reprisals would be debilitating?

Second, unlike other crimes, criminal defamation is rarely decided with reference to the mental guilt of the accused, which is referred to as mens rea in legal parlance. In actual cases, this would have required courts to seek proof of knowledge of falsity or, at least, reckless disregard on the part of the accused. But such fundamental legal standards, unfortunately, are rarely applied and given a go-by.

International legal standards attest to the need to limit the remedy to defamation to civil action. The European Court of Human Rights notes that a prison sentence in defamation cases is only permissible in exceptional circumstances where other fundamental rights have been impaired, such as hate speech or incitement to violence (Paraskevopoulos v. Greece, ECHR, 2018).

The UN Human Rights Committee observed that the International Covenant on Civil and Political Rights, 1966, to which India is a party, places a “particularly high value” upon uninhibited expression, especially in circumstances of public debate in a democratic society concerning figures in the political domain.

In Sahib Singh v. State of Uttar Pradesh (1965), the Supreme Court held that “the collection of persons must be identifiable in the sense that one could certainly say that this group of particular people has been defamed as distinguished from the rest of the community”. If a person complains that he has been defamed as a member of a class, he must establish the definite nature of that class and that the imputation was made against him personally. Indeed, a zealous disciple of a religious head is afforded no ground to prosecute for defamation even though the feelings of the disciple may have been hurt. (Vide: Dhirendra Nath Sen and another v. Rajat Kanti Bhadra, AIR 1970 Cal 216). Thus, class action suits or complaints on defamation were and continue to be proscribed by the apex court.

The House of Lords puts it best: “A class of persons cannot be defamed as a class, nor can an individual be defamed by a general reference to the class to which he belongs.” (Knupffer v. London Express Newspaper Ltd., 1944)

Lord Atkin makes it clear in Knupffer that the focus should ultimately be on whether the plaintiff was identified, not whether the plaintiff was a member of the group. In Milkovich v. Lorain Journal Co. (1990), the US Supreme Court ruled that mere insults, name-calling, “imaginative expression,” and other forms of loose language are not actionable. It held that an assertion incapable of being proved true or false based on objective evidence is not actionable.

Free speech, especially in political matters and public affairs, is highly valued in any democratic society. Justice William Brenner Jr. of the US Supreme Court famously emphasised in New York Times v. Sullivan that “debate on public issues should be uninhibited, robust, and wide-open” and that this “may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials”.

As Minister of Information and Broadcasting in the erstwhile UPA government, I had publicly advocated decriminalising defamation. Unfortunately, I could not get the requisite support from our colleagues, who then sat on the opposition benches for their support was critical for repealing the penal provisions about defamation.

My contention is, and was then too, that defamation is a civil wrong; therefore, the law on torts for pecuniary damages for defamation has to attain maturity, given the meagre compensation that is given in civil defamation matters, but the criminal aspect needs to be weeded out of our penal provisions at the earliest.

Decriminalising defamation, therefore, is an idea whose time has come.

(Views are personal)

Manish Tewari

Lawyer, MP, Former I&B Minister

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