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Why Criminal Defamation, a relic of colonial era, must go

The timeless wisdom of the ancient Indian mantra Satyameva Jayate found  in Mundaka Upanishad and meaning “Truth Alone Triumphs” was adopted as the National Motto of India. But truth is often unpalatable to those in power and thus a decision was taken to retain S.499, S.500 of the Macaulay Code to control natives, also known as Indian Penal Code, 1860. These sections on Criminal Defamation enacted in year 1860, penalise even “Truth” unless it is in “Public Good” whatever that imprecise, vague, pro-British colonial/Government policy term may mean. The aim of English masters to fetter truth by “Public Good” was to completely restrict freedom of speech as anything critical of the Imperial British power.

The purpose of not following the national motto in criminal law, even after independence is simple, it is done to restrict free speech, as a person even though he may speak the truth, he may still have to face a criminal trial to prove  his truthful statement was in “Public Good” or “Good Faith”. During such a trial the person will be referred to as accused with all its resultant stigma, quite apart from the hardship and expenses of criminal trial, and thus citizens knowing the consequences, will prudently decide not to speak freely.

Comparisons are odious, yet oddly informative. It makes a stark study in contrast to observe how politicians enacted constitutional amendments in the USA and India after coming to power. The First Amendment to the Constitution of the US, states- “Congress shall make no law abridging the freedom of speech, or of the press”. Thus by the first amendment, the Government recognized the fundamental right of citizens to free speech and that no law shall abridge it. In India unfortunately the First Amendment to Constitution did the opposite, it severely restricted right to free speech recognized by Article 19 (1) (a) by adding Article 19(2) which retained the existing law i.e. Criminal Defamation and also gave further power to make laws to restrict Free Speech on various grounds.

Thus while American Government after coming to power gave Free Speech rights, by its first amendment, The Indian Government by its very first amendment, decided to restrict Freedom of Speech. In these first amendments lies the destiny of citizenry right to free speech.

This tendency in Indian Politicians to suppress the voice of people after assuming power was not restricted to the past, it is alive even now as was evidenced from recent circular of AAP Government to file Criminal Defamation cases, to supress voices and scare people from sharing opinion. It was stayed by the Hon’ble Supreme Court, which took a dim view of the hypocrisy of the situation where on one hand Chief Minister Arvind Kejriwal took shelter under Dr Subramanian Swamy’s petition to quash Criminal Defamation law and on other hand issued a circular to file Criminal Defamation cases on others. Later AAP Government withdrew the circular, though this writer will not be surprised if in case the Supreme Court does not strike down the law, such a circular may be issued again.

The Hon’ble Supreme Court in recent years has usually given a liberal interpretation to the fundamental rights of citizens. This was necessary to curb the Government’s desire to restrict peoples’ right and control them. By the first amendment which brought Art 19 (2) into the Constitution, the Government got power to restrict freedom of speech. The language of Art 19(2) had term “reasonable restrictions….on freedom of Speech”, The court considered the phrase “reasonable restrictions” which prefaces Government powers in Article 19 (2) to make laws to restrict speech to be of importance, and has interpreted it to mean that the law has to be “reasonable”. Many jurisdictions consider laws restricting basic freedoms reasonable only if they  do not unduly restrict the freedom sought to be restricted. Such “restrictions” have direct nexus with an important aim sought to be achieved and other effective alternatives are not available.

Further as Criminal Defamation has penal consequences it’s important to keep in mind that under Article 21 “Protection of life and personal liberty”- No person shall be deprived of his life or personal liberty except according to procedure established by law. The word ”law” used in Article 21 is of utmost importance as Supreme Court has interpreted it to mean law which is “Just, Fair and Reasonable” and not any arbitrary or capricious law.

Based on above parameters of interpretation of fundamental rights as evolved by SC S.499 has to be declared unconstitutional on various grounds amongst which some in brief are-

1) Any law in which a person can be sent to jail even though he spoke only the truth is not Just, Fair or Reasonable and violates Fundamental Rights

2) Sarcasm, Irony can also be defamation. The very purpose of sarcasm, irony is often exaggeration to highlight a point, frequently used by cartoonist, comedians and various people in public life. To consider it defamation will have “Chilling Effect” on public debate vital in a democracy.

3) S.499 criminalizes making imputations against a company or association, e.g. of doing corruption, environmental damage, malpractices etc. Thus for allegedly harming reputation of a financial/legal entity by words, a person can be sent to jail, which is violative of Art 19, 21 as recourse to financial loss of reputation for a company cannot be jail for a human being. It can only be civil damages.

Beyond this there are various other grounds including International Treaties, S 199(2) of CRPC, and arguments on interplay of fundamental rights which have been taken up in Supreme Court but due to space constraints not being set out here.

In western countries including America, laws have been passed restricting even civil suits of damages as they were being used by rich, powerful, influential individuals and corporations to stifle free speech by bringing – Strategic Lawsuit Against Public Participation called (SLAPP). Under this type of legal action the aim is to  frighten and silence critics due to costs of mounting a legal defence by them. This goes on until the defendant decides to abandon criticism or opposition and thus restricts their right to free speech.

In India unfortunately mere speech without any physical action still has criminal consequences and can land you in jail. In order for citizens to regain freedom including of speech for which freedom fighters fought, which the Constituent Assembly recognized, which was enshrined in the original Constitution and which was taken away by the very first amendment it is essential that the challenge mounted in the Supreme Court in Subramanian Swamy Vs Union of India succeeds.

By- Ishkaran Singh Bhandari

Disclaimer- Author of this article is assisting Dr Subramanian Swamy in the Constitutional Challenge to abolish Criminal Defamation. The opinions expressed within this article are the personal opinions of the author. OpIndia.com is not responsible for the accuracy, completeness, suitability, or validity of any information on this article. All information is provided on an as-is basis. The information, facts or opinions appearing in the article do not reflect the views of OpIndia.com and OpIndia.com does not assume any responsibility or liability for the same.

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