Freedom of speech and expression, which is a fundamental right, suffered a setback when the Supreme Court recently refused to consider criminal defamation as anachronistic. This 400-year-old British law which became part of the Indian Penal Code (IPC) was long back condemned to the dustbin in the land of its origin. Many other countries, including the US, Canada and neighbouring Sri Lanka, have taken out criminal defamation from their statute books. In India, the apex court has been stoutly defending it in the belief that, otherwise, it would lead to a situation in which people would defame one another without restraint.
It is significant that the petitioners who wanted the archaic law to be jettisoned were Subramanian Swamy, Arvind Kejriwal and Rahul Gandhi who among them represent a broad spectrum of public opinion. Alas, the significance was lost on the court which elevated the non-existent right to reputation to the level of the right to speech. It did not consider truth as a mitigating factor in a criminal defamation case. Nor did the court give any consideration to the argument that the criminal defamation law — Section 499 and 500 of IPC — could be misused. As per an estimate, there are over 30 million such cases pending in various courts. Needless to say that all of them are genuine cases filed by innocent people.
Dissent, criticism and critique are central to the practice of democracy and any attempt to smother them will take the sheen off democracy. The sooner the verdict is reviewed the better it will be for the country. This is not to say that people should be allowed to intentionally defame others with baseless allegations. An appropriate deterrent could be put in place to prevent the unhealthy policy of shoot and scoot adopted by some people. This other side of the story surely merits consideration. But giving the nod to what could effectively be negation of freedom of speech is dangerous.