Section 499-502 of the Indian Penal Code, 1850 penalises defamation with imprisonment extending to two years, or with fine, or with both. The law of criminal defamation was enacted by the British in the pre-independence era with the objective of suppressing all anti-colonial voices. Even post-independence, government authorities, multimillion corporation, and various political parties have ubiquitously used this Victorian leftover to choke free speech, criticism, and the voice of dissent.
In July 2016, the Supreme Court of India expressed alarm and concern over the row of criminal defamation cases (213 in total) filed by Tamilnadu Government on its political opponents in order to deter them from their legitimate right of criticising and questioning the actions of the Government.[1]Multinational corporations such as Reliance Natural Resource Ltd. and Sahara Media Group Ltd. have filed several criminal defamation cases against their critics in an attempt to silence them with the fear of imprisonment.[2] In 2011, two activists were arrested under criminal defamation provisions for criticising the environmental degradation being carried out by Jindal in its Raigharpower plant.[3]In 2017, a high-ranking police officer who exposed the special treatment being offered to AIADMK leader Sasikala in the Bangaluru Central Prison was sent a legal notice threatening criminal and civil defamation proceedings against her. [4]Earlier this year, Adani Group filed criminal defamation cases against the Wire for questioning the legality of various investments made in the company.[5]These are a few of the many instances where Sections 499-502 of the Indian Penal Code have been used to silence Fundamental Right of free speech enshrined in Article 19(1)(a) of the Constitution.
The constitutionality of criminal defamation finallycame underscrutiny of the Supreme Court in Subramanian Swamy vs Union of India.[6]This writ petition filed by various prominent politicians accused in criminal defamation cases was one of the most important free speech cases to have come before the Apex court.
However, in its judgement the Supreme Court upheld the Constitutionality of Section 499-500 of the Indian Penal Code while ignoring the disturbing impact it had on free speech. In its 268-page analysis, the Supreme Court reproduced the arguments made on behalf of petitioners and respondents at length and quoted a number of previous Supreme Court judgements on defamation and free speech. However, it failed to engage with them in any meaningful manner. The Supreme Court began the judgement by expounding on the concepts of reputation, defamation, and free speech with the help of various judicial pronouncements from around the globe.
After shedding light on the meaning, usage, and depth of these concepts, the Court examined whether or not the Founding Fathers of the Constitution of India intended to include criminal defamation as a reasonable restriction on right to freedom of speech under Article 19(2).
The Court noted that the Founding Fathers of the Constitution never intended to restrict the meaning of the word “defamation” under Article 19(2), and thus, it includes criminal defamation as a reasonable restriction to free speech. This observation of the Supreme Court set the orthodox tone of the judgement.
Right at the beginning of its analysis, the Court made it clear that in adjudicating the constitutionality of criminalising defamation, it would rely on antiquated debates, laws, and morality rather than the needs of the modern Indian society.
In its substantive analysis, the Supreme Court made an unsuccessful attempt to understand the consequence of criminalising defamation on free speech. At first, the Court emphasised that the right to freedom of speech and expression enshrined in Article 19(1)(a) is not the same as the free speech promised under the First Amendment to the Constitution of the United States of America (U.S. from herein). In providing a rationalefor the same, the Court cited a number of cases which lay down that the decisions of U.S. Supreme Court on free speech, though persuasive, are not conclusive in the Indian context.
The writer is a student of B.A.LL.B at Symbiosis Law School, Pune and the views expressed in the article are his own.
Based on the above-mentioned observation, the Supreme Court of India refused to appreciate any judicial pronouncement of the U.S. Supreme Court relating to criminalisation of defamation and its effect on freedom of speech.
The Court gave no reasoning as to why relevant U.S. Supreme Court judgements, related to the matter being adjudicated, could not be applied to the Indian constitutional jurisprudence. Moreover, the Apex Court also failed to acknowledge that not only the developed western countries but also a number of previously colonised African and Asian countries with similar socio-economic characteristics as India have decriminalised defamation.[7] This unintelligible aversion of the Court to foreign jurisprudence, in its entirety, disregards the growing universal nature of human rights jurisprudence.
Post its unconvincing observation on the non-applicability of U.S. Supreme Court judgements, the Supreme Court of India stated that the right to freedom of speech and expression is not absolute and is subject to the imposition of reasonable restrictions. The Court cited a plethora of case laws stating the same. In its previous decisions, the Supreme Court has laid down a number of tests for the purpose of ascertaining the reasonability of a restriction on the right to freedom of speech and expression.
However, in this case, the Supreme Court made no attempt to use those tests in order to determine whether or not the criminal defamation falls within the ambit of “reasonable restriction” under Article 19(2) of the Constitution. Instead, the Court abruptly shifted its focus to“the right to dignity” which is an integral part of Article 21 of the Constitution (i.e. the right to life and personal liberty).
The Supreme Court stated that though the criminalisation of defamation may have some detrimental effects on the freedom of speech, it plays an important role in protection an individual’s right to dignity. Accepting that two constitutional pillars (i.e. Article 19(1)(a) and Article 21 of the Constitution) clash by criminalising defamation, the Court concluded that there is a need to “balance” these Fundamental Rights.
In its endeavour to do the same, the Supreme Court produced a number of case laws where it had balanced two competing rights and concluded that criminal defamation under the Indian Penal Code strikes a proper balance between Article 19(1)(a) and Article 21 of the Constitution. The Supreme Court’s reasoning behind this conclusion was that one’s right to reputation should not be soiled just because someone else has a right to the freedom of speech and expression.
This reasoning of the Court is unintelligible. In the name of “balancing” the above mentioned rights, it only focused on the detrimental effect of free speech on the right to reputation and completely ignored the plight of Article 19(1)(a) of the Constitution resulting from the criminalisation of defamation.
The Supreme Court did not appreciate the argument that decriminalising defamation would strike a better balance of the competing rights as the reputation of individuals could still be protected under civil action for defamation and free speech would flow freely without being deterred by the threat of imprisonment.
Perhaps the weakest part of the entire judgement is the Supreme Court’s analysis on whether or not criminal defamation under the Indian Penal Code causes a chilling effect on the freedom of speech and expression. The Court held that criminalising defamation does not cause a chilling effect on the freedom of speech because:
a) the right to reputation is an integral part of Article 21 of the Constitution,
b) balancing of fundamental rights is a constitutional necessity, and
c) the legislature has decided to keep the penal provisions relating to defamation alive.
None of the above-listed factorscontribute to determine the chilling effect caused by penalising defamation. The Supreme Court here not only put forward a frail analysis but it also failed to acknowledge all the recent instances where the law of criminal defamation has been used in the country to silence free speech, criticism, and dissent.
In several instances, the Supreme Court emphasised that the Parliament deciding to keep the penal provisions relating to defamation alive gives credibility to their constitutionality.
This stance of the Court implies that legislative inaction, somehow by itself, lends support to the constitutional validity of a provision. This viewpoint is reminiscent of the Supreme Court’s approach in the Naz Foundation case[8], where it was guided by the legislative inaction to repeal Section 377 of the Indian Penal Code in upholding its constitutional validity.
The Supreme Court also failed to acknowledge that it is India’s international obligation as a State Party to the ICCPR (International Covenant on Civil and Political Rights) to decriminalise defamation.[9]In the end, the Supreme Court put forward an incoherent argument emphasising that criminal defamation facilitates the ideals of “harmony” and “fraternity” enshrined in the Directive Principles and the Preamble respectively and upheld its constitutionality.
Democracies of the world are headed towards the consensus that criminalising defamation has a chilling effect on free speech. It is a tool in the hands of the rich and powerful to choke free speech, criticism and the voice of dissent with the fear of imprisonment. Therefore, it is imperative to review the judgement of the Supreme Court in Subramanian Swamy v. Union of India in order to have a more just and reasonable stand on the constitutionality Sections 499-502 of the Indian Penal Code, 1860.
The writer is a student of B.A.LL.B at Symbiosis Law School, Pune and the views expressed in the article are his own.