Defamation remains a crime

Defamation is not only a civil wrong, it also continues to be a crime in India. That has been the position under Indian law, and it remains unchanged as ruled by the Supreme Court recently. Handing down this verdict on Friday, the SC bench of Justices Dipak Misra and Prafulla C Pant sought to strike a balance between two fundamental rights ‘as a constitutiol necessity’ — Article 19(1)(a) guaranteeing freedom of speech and expression, and Article 21 guaranteeing protection of life and persol liberty. According to the apex court, ‘reputation’ of an individual is a basic element of Article 21, and needs be protected both as human right and fundamental right. So the right to free speech has to be tempered with the knowledge that another wronged and abused person can go to court to redeem his reputation, which serves the social interest — the SC bench has reasoned. Needless to say, the landmark ruling has given much food for thought to politicians, activists and jourlists, holding far-reaching implications for political dissent and a free press. The case had drawn countrywide interest with three leaders from different sections of the country’s political spectrum — Rahul Gandhi, Arvind Kejriwal and Subramanian Swamy — arguing from the same position that crimil defamation has a chilling effect on freedom of speech. After hearing the matter over a month, the apex court reserved its judgment on 13 August last. Its ruling now means that Article 19(1)(a) will continue to be read with Article 19(2), which imposes upon it eight ‘reasoble restrictions’ including defamation.

As a crimil offence, defamation will remain punishable by up to two years imprisonment, or a fine, or both under Sections 499 and 500 of the IPC. This apart, the offender can simultaneously face a civil suit with damage claims. While arguing in the apex court that pel provisions against defamation must stay as ‘deterrent’, the Central government made a veritable admission about how long it can take for aggrieved people to get justice in Indian courts. ‘We are not like other countries. Here you can file a civil suit and it will drag on for another 20 years. Nobody cares. In crimil defamation, there is some deterrence’ — said Attorney General Mukul Rohatgi before the SC bench. That the apex court accepted this argument does not rule out the possibility that courts in India may also be deluged by crimil defamation cases filed by vengeful governments, public authorities and corporations. Governments in states like Tamil du have been notoriously touchy over media criticism; if the Jayalalithaa regime filed at least 100 crimil defamation cases against the media in 2002-06, its successor DMK too followed suit with over 40 such cases against the media. As for corporate groups, they have the strategic lawsuits against public participation (SLAPP) to haul activists and jourlists repeatedly to court. However, the Attorney General also pointed out in the Supreme Court that while in countries like the UK, civil action is faster than crimil prosecution, ‘a person courts bankruptcy if he is found liable under civil defamation.’ This is an obvious reference to the huge damage claims courts in the UK and other countries are willing to award.

So for an Indian politician, activist or jourlist taking on the powers-be, the altertive to coughing up large damages is to keep making appearances in court under crimil action! When it comes to defamation laws, should public servants be considered ‘a different class’? This question came up in the apex court as Section 199(2) to (4) of the CrPC entitles a public servant to file a defamation complaint through the public prosecutor. It was argued that giving public servants the right to use State machinery to fight a defamation case against another citizen is ucceptable discrimition. However, reasoning that ‘public functions stand on a different footing’, the SC bench held that while public servants may tolerate criticism or dissent, they are ‘not expected to tolerate defamatory attack in the discharge of their due functions’. This means Section 199 giving protection to public servants for official acts, will stay as well. As for the media, the ruling does not change anything. The apex court, while calling a free press ‘the heart and soul of political intercourse’ and a ‘public educator’, has also noted that the press has ‘great power in impressing minds’. Since freedom of the press in India is interpreted only as part of the larger freedom of speech and expression, jourlists are in no better position than any other citizen. The media remains vulnerable in its efforts to dig up the truth, with officialdom determined to sabotage the law granting right to information, while hitting back at criticism. Will it not be difficult to differentiate genuine (and deserved) criticism from defamation? On this point, the Supreme Court has put the onus on trial courts to be ‘very careful’ in scrutinizing a complaint before issuing summons in a crimil defamation case. It remains to be seen how lower court judges and public prosecutors across the country measure up to the faith reposed upon them by the apex court.