Defamation and the law: India
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Contents |
Introduction
India Today, May 19, 2016
Soli Sorabjee
In order to protect a person's reputation, defamation does not have to be a criminal offence.
The right to freedom of speech and expression has been guaranteed as a fundamental right under Article 19(1)(a) of our Constitution. Like all fundamental rights in our Constitution, this precious right is not absolute. It can be reasonably restricted, as is evident from Article 19(2), which envisages imposition of restrictions inter alia on the head of defamation. Right to reputation is also guaranteed as part of the fundamental right of personal liberty in Article 21 of the Constitution, as expansively interpreted by the Supreme Court. Hence no one can claim a fundamental right to defame a person. This was recognised by the Supreme Court in its judgment in Subramanian Swamy vs Union of India where the court was considering a challenge to the constitutionality of Section 499 of the Indian Penal Code whereunder a person found guilty can be punished with simple imprisonment of two years or with a fine or with both. In the course of the judgement, Justice Dipak Misra, speaking for the Bench, which included Justice Prafulla C. Pant, observed that the "reputation of one cannot be allowed to be crucified at the altar of the other's right of free speech" and that "the object of defamation, civil or criminal, is not to suppress dissent or criticism but to protect the reputation and dignity of an individual against scurrilous attacks.... Reputation being an inherent component of Article 21, it should not be allowed to be sullied solely because another individual can have its freedom of speech". Therefore, according to the bench, a balance between the two rights needs to be struck. In the result, the court upheld the constitutionality of Section 499 of the IPC. For whatever it is worth, the bench clarified that since the offence of criminal defamation has its own gravity, the magistrates have to be extremely careful in issuing summons. In reality and practice, this admonition will be honoured more in breach than observance. As a further sop, the bench stated that it will be open to the petitioners to challenge the issue of summons before the high court, either under Article 226 of the Constitution or Section 482 of the CrPC as advised, and seek appropriate relief. Unfortunately, the court failed to notice the actual trauma and harassment persons have to face in criminal prosecution for defamation. It did not appreciate the pervasive uncertainty and the expenses involved in adopting legal proceedings at all. To that extent, the judgement ignores the realities on the ground. Has the Supreme Court struck the right balance? I think not. In order to protect a person's reputation, defamation does not have to be a criminal offence. The court failed to appreciate that Section 499 of the IPC in reality and its actual operation undoubtedly have a chilling effect on free speech. That leads to self-censorship, stifling free speech, which is an unhealthy development in any democracy. The Law Commission has noted that the defamation law as it stands can lead to a chilling effect on the publication of free and independent news.
The court's reasoning that the legislature in its wisdom has not thought it appropriate to abolish criminality of defamation in the obtaining social climate is unconvincing. It is precisely because of the inaction of the legislature which results in the violation of the right to free speech that judicial intervention is warranted. Many democracies the world over which recognise the right to free speech as also a person's right to reputation do not treat defamation as a criminal offence. In 2010, the UK abolished criminal libel as anachronistic, recognising it was used less to protect reputations and more to silence dissent. There are exceptions as in the case of Pakistan, Malaysia and Singapore. India does not need to be in their company. Balancing is a difficult and delicate task, especially when it involves two fundamental rights, equally important and which also embody our constitutional values. Unfortunately, the court has unduly tilted the balance against free speech. This imbalance needs to be promptly rectified.
Decriminalization of defamation
The Times of India, Jul 25 2015
A Subramani
HC: Can't decriminalize defamation
While the Supreme Court is seized of a batch of petitions questioning the constitutionality of criminal defamation proceedings, the Madras high court stopped just inches short of decriminalizing the `offence' when it ruled that persons facing such cases could not be considered to have a `criminal background'. “The trend appears to be towards decriminalization of defamation. The SC is also seized of the issue. In such circumstances, it is not possible for us to convince ourselves that filing of a private complaint of defamation against a person for writing articles in a magazine could make him a person with criminal background,“ ruled a division bench of Justice V Ramasubramanian and K Ravichandrabaabu.
Tamil Nadu government is the biggest defamation complainant in the state, having filed more than 110 criminal defamation complaints since 2011.The bench was passing orders on a petition filed by freelance journalist M Nedunchezhian, whose application to be enrolled as an advocate was rejected by the Bar Council of TN and Puducherry, because a criminal defamation complaint was pending against him.
Constitutional validity of criminal defamation challenged
The Times of India Dec 22 2015
TIMES NEWS NETWORK
The maintainability of the criminal defamation case filed by finance minister Arun Jaitley against AAP leaders Arvind Kejriwal and five others hinges on the impending judgment of the Supreme Court on petitions challenging the constitutional validity of the criminal defamation provision in IPC.
A bench of Justices Dipak Misra and Prafulla C Pant is likely to pronounce its verdict in January on petitions filed by Congress vice-president Rahul Gandhi, BJP leader Subramanian Swamy and Kejriwal. After holding extensive hearing over 19 days, the SC had reserved its order on August 8.
The court will decide whether IPC Sections 499 and 500 are an infringement on the individual's right to freedom of speech and expression and whether remedy against defamatory statements can be sought only through civil process--defamation suit -seeking damages from offender. The SC will also consider whether the tone, tenor and stringency of Sections 499 and 500 of the IPC needs to be read down.
During the hearings, the Centre and many state go vernments had opposed the plea for quashing of criminal defamation provisions in IPC.They had argued the penal provision acted as a deterrent and prevented people from maligning reputations. They had contended that scrapping the law would lead to anarchy in society as people would get away with destroying the hard-earned reputation of a person.
Attorney general Mukul Rohatgi had told court that such a penal provision was a must in the present era of social media when a person's reputation could be sullied in a second. He had said such activities could not be allowed under the guise of constitutional right to freedom of speech and expression. “If Section 499 goes then it means that a person will have aright to hurl abuses at others.Can any civilised society permit such a thing? Someone's hard-earned reputation will be destroyed in a second. It will result in anarchy in society,“ he had said.
Swamy and other petitioners submitted that criminal defamation was unconstitutional as it put unreasonable restrictions on right to free speech and expression and it should be scrapped for violation of fundamental rights.
Prominent judicial rulings
Calling to police station not defamation: HC
The Times of India, Aug 8, 2016
Ajay Sura
The Punjab and Haryana high court has held that merely being called to the police station in relation to a complaint does not amount to criminal defamation.
The HC passed these orders while dismissing an application filed by a retired colonel from Rewari district, who had sought directions to prosecute a person for criminal defamation because he had to go to the police station after a false complaint was filed against him. The plea by Col Ranbir Singh Yadav (retd) had earlier been dismissed by a court in Rewari on May 2, 2015. In his plea, Col Yadav had sought registration of a case under sections 499 (defamation) and 500 (punishment for defamation) of the IPC against one Chet Ram. Col Yadav had said that he was a former Army officer with permanent disability and commanded respect in society for his achievements. He submitted that Ram had filed a police complaint accusing him of trespassing into his fields and axing a tree there with the intent to harm his reputation. Col Yadav said he was made to appear before police officials as if he was named as a culprit, and described the episode as humiliating and stressful. However, Justice Hari Pal Verma of the high court dismissed the plea on August 1. "Merely because the respondent has filed a complaint to the police and a consequence, thereof, police questioned the applicant, this act does not fall within the ambit of Section 500 of the IPC. The applicant has not been able to establish that in what manner filing of complaint by the respondent had harmed his reputation," Justice Verma observed.
Police did not find any substance in the complaint against Col Yadav and it was dismissed after a preliminary enquiry, it was submitted. Aggrieved that he was summoned to a police station, the retired Army officer had filed a complaint in the court in Rewari.
The Rewari court had observed that the retired Army officer was questioned by the police after receiving a complaint against him and it was duty of the police to ascertain facts. Not happy with the Rewari court's orders, the military veteran approached the HC.
Criminal defamation valid:SC
The Times of India, May 14 2016
Dhananjay Mahapatra & Amit Anand Choudhary
Upholding the constitutional validity of criminal defamation provisions in the IPC drafted during the colonial era, the preme Court said these do not muzzle free speech and asked politicians Rahul Gandhi, Subramanian Swamy and Arvind Kejriwal and others to face trial for alleged statements harming others' reputation. Bigger the stature of a person making the defamatory statement, the graver the offence, the court said.“Position of the persons making the imputation would regulate the standard of care and caution,“ it said as it favoured retention of criminal defamation as an option to redress hurt caused to the reputation of a complainant. The Supreme Court on Friday ruled that the current criminal defamation law is constitutionally valid and dismissed a batch of petitions that said the law has a “chilling effect“ on free speech.
“Right to free speech cannot mean that a citizen can defame the other. Protection of reputation is a fundamental right. It is also a human right. Cumulatively, it serves social interest...Each is entitled to dignity of person and of reputation.Nobody has a right to denigrate others' right to person or reputation,“ a bench of Justices Dipak Misra and P C Pant said in its 267-page judgment rejecting argu ments that criminal defamation was a legal tool to silence free speech.
Apart from Congress vice-president Rahul Gandhi, BJP member Swamy and Delhi CM Arvind Kejriwal, as many as 19 others, including many journalists, had challenged the validity of Sections 499 and 500 of IPC that permits a private citizen to file a criminal defamation complaint before a trial court for being subjected to insinuating utterances. The petitioners had said these provisions had a chilling effect on their fundamental right to free speech and expression guaranteed under Article 19 of the Constitution.
During pendency of the petitions challenging the validity of criminal defamation provisions, the SC had stayed all proceedings in trial courts. The bench said the stay on proceedings would continue for another eight weeks to facilitate the petitioners to move HCs concerned to challenge the trial court summons issued to them.
However, if before app roaching the apex court, any of them had already failed in the HC in challenging the summons, “he shall face trial and put forth his defence in accordance with law“, the bench clarified.
Writing the judgment for the bench, elucidating on concepts of free speech, democracy , dignity and reputation of individuals and referring to foreign case laws, Justice Misra said, “It is extremely difficult to subscribe to the view that criminal defamation has a chilling effect on the freedom of speech and expression.“
The court said reputation of a person was intrinsic to most precious right to life guaranteed under Article 21 and for its protection, Parliament has kept intact Sections 499 and 500 of IPC.
In multiple cases, HC to decide where to hear
The Times of India, May 14 2016
If multiple cases filed, HC where to hear
Taking note of concerns on multiple criminal defamation cases instituted to harass a person, the Supreme Court on Friday said the high courts concerned were empowered under the Criminal Procedure Code to determine which trial court was competent to hold trial on identical complaints filed in different courts.
“Section 186 of CrPC gives the HCs power to determine the issue if two or more courts take cognisance of the same offence. If cases are filed in two or more courts in different jurisdictions, then the jurisdic tion to determine the case lies with the HC under whose jurisdiction the first complaint was filed,“ a bench of Justices Dipak Misra and P C Pant said.
After a HC determines which court was competent to entertain the criminal defamation complaint, “proceedings in all other places shall be discontinued“, it said.
“CrPC governs the forum for the trial of cases of defamation. CrPC governs the territorial jurisdiction and needless to say, if there is abuse of the said jurisdiction, the person grieved by the issue of summons can take appropriate steps in accordance with law.But that cannot be a reason for declaring the provision unconstitutional,“ it said.
The SC said since there was no FIR registered in a criminal complaint filed before a trial court and no investigation carried out by police, “the offence has its own gravity and hence, the responsibility of the magistrate is more. In a way , it is immense at the time of issue of process (summons).“
SC: Sec. 66A of IT Act an impediment to free speech
The Times of India, May 14 2016
Provision of IT Act junked, IPC's upheld
Why did the Supreme Court quash Section 66A of Information and Technology Act as unconstitutional and term it an impediment to free speech but uphold the validity of Sections 499 and 500 of IPC?
The ruling quashing Section 66A of IT Act by Justices J Chelameswar and R F Nariman on March 24, 2015 on a petition by law student Shreya Singhal was quoted extensively by Justices Dipak Misra and P C Pant while upholding the validity of provisions on criminal defamation.
The SC had quashed Section 66A on finding that it was beyond the eight reasonable restrictions on free speech imposed by the Constitution under Article 19(2). It said, “The law could be used in such a way as to have a chilling effect on free speech and would, therefore, have to be struck down.“
The jurisprudence enunciated in the Shreya Singhal judgment was cited by petitioners as an important ground for quashing of Sections 499 and 500 of IPC. The bench of Justices Misra and Pant clarified that Section 66A was quashed as it did not concern itself with injury to reputation, which was part and parcel of right to life. It said the bench of Justices Chelameswar and Nariman had observed that Section 66A restrictions were different from defamation.
Free speech is no right to sully reputation
The Times of India, May 14 2016
Dhananjay Mahapatra
Otherwise a champion of free speech, the Supreme Court ruled that an individual's reputation was part and parcel of the most fundamental right to life which could not be allowed to be besmirched in allowing free speech to others. “Reputation of one cannot be allowed to be crucified at the altar of the other's right to free speech. The legislature in its wisdom has not thought it fit to abolish criminality of defamation,“ a bench of Justices Dipak Misra and P C Pant said.
Appearing for the Centre, attorney general Mukul Rohatgi and additional solicitor general P S Narasimha had said that given the social and political climate in the country, protection of an individual's reputation was important to allow him to live a life with dignity .
The bench accepted this argument in its totality while referring to case laws from the UK, the US, SA and European Court of Human Rights.It referred to the importance of reputation and dignity of individuals by quoting thoughts of William Shakespeare, Socrates, Aristotle and William Hazlitt.
It said right to freedom of speech and expression could not be allowed so much room that even reputation of an individual, which was part and parcel of Article 21, would have no entry into that area.
Criminal defamation doesn't stifle free speech: SC
The Times of India, May 14 2016
Dhananjay Mahapatra & Amit Anand Choudhary
Upholding the constitutional validity of criminal defamation provisions in the IPC drafted during the colonial era, the preme Court said these do not muzzle free speech and asked politicians Rahul Gandhi, Subramanian Swamy and Arvind Kejriwal and others to face trial for alleged statements harming others' reputation. Bigger the stature of a person making the defamatory statement, the graver the offence, the court said.“Position of the persons making the imputation would regulate the standard of care and caution,“ it said as it favoured retention of criminal defamation as an option to redress hurt caused to the reputation of a complainant. The Supreme Court on Friday ruled that the current criminal defamation law is constitutionally valid and dismissed a batch of petitions that said the law has a “chilling effect“ on free speech.
“Right to free speech cannot mean that a citizen can defame the other. Protection of reputation is a fundamental right. It is also a human right. Cumulatively, it serves social interest...Each is entitled to dignity of person and of reputation.Nobody has a right to denigrate others' right to person or reputation,“ a bench of Justices Dipak Misra and P C Pant said in its 267-page judgment rejecting argu ments that criminal defamation was a legal tool to silence free speech.
Apart from Congress vice-president Rahul Gandhi, BJP member Swamy and Delhi CM Arvind Kejriwal, as many as 19 others, including many journalists, had challenged the validity of Sections 499 and 500 of IPC that permits a private citizen to file a criminal defamation complaint before a trial court for being subjected to insinuating utterances. The petitioners had said these provisions had a chilling effect on their fundamental right to free speech and expression guaranteed under Article 19 of the Constitution.
During pendency of the petitions challenging the validity of criminal defamation provisions, the SC had stayed all proceedings in trial courts. The bench said the stay on proceedings would continue for another eight weeks to facilitate the petitioners to move HCs concerned to challenge the trial court summons issued to them.
However, if before app roaching the apex court, any of them had already failed in the HC in challenging the summons, “he shall face trial and put forth his defence in accordance with law“, the bench clarified.
Writing the judgment for the bench, elucidating on concepts of free speech, democracy , dignity and reputation of individuals and referring to foreign case laws, Justice Misra said, “It is extremely difficult to subscribe to the view that criminal defamation has a chilling effect on the freedom of speech and expression.“
The court said reputation of a person was intrinsic to most precious right to life guaranteed under Article 21 and for its protection, Parliament has kept intact Sections 499 and 500 of IPC.
