Fresh debate on need to revisit archaic criminal defamation law

More than nine years after upholding the validity of criminal defamation law, the Supreme Court has reignited the debate over decriminalisation of defamation in India.

“I think time has come to decriminalise all this…,” Justice MM Sundresh said while hearing a petition challenging summons issued to ‘The Wire’ in a criminal defamation case filed by Prof Amita Singh of Jawaharlal Nehru University.

Defamation means harming a person’s reputation by making a false and derogatory statement against that person without any lawful justification. A defamatory statement can result in both civil and criminal defamation cases.

Section 356 of the Bharatiya Nyaya Sanhita (BNS), which replaced Section 499 and Section 500 of the Indian Penal Code (IPC), criminalises defamation and prescribes two-year jail or fine or both or community service as punishment.

Interestingly, truth is not a complete defence in criminal defamation cases as it’s required to be proved that the ‘defamatory statement’ in question was made ‘for the public good’.

However, there is a constitutional justification for criminal defamation law. Article 19(1)(a) of the Constitution guarantees the right to freedom of speech and expression. But defamation is one of the eight grounds mentioned under Article 19(2) of the Constitution on which the state can impose reasonable restrictions on the right to free speech.

In May 2016, the Supreme Court dismissed petitions filed by BJP leader Subramanian Swamy, Congress leader Rahul Gandhi and the then Delhi Chief Minister Arvind Kejriwal challenging the validity of Section 499 and Section 500 of the IPC that dealt with defamation.

“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 the social interest,” the top court had said upholding the constitutional validity of criminal defamation law.

Politicians file criminal defamation cases against their rivals and journalists to silence criticism. The Jayalalithaa government in Tamil Nadu had filed over 100 criminal defamation cases against journalists and media houses during 2002-06, while the DMK lodged more than 40 defamation cases against the media during 2006-11.

It’s also abused by big corporations by filing ‘Strategic Lawsuits against Public Participation’ (SLAPP suits) to stop publication of information of public importance that they thought were detrimental to their interest.

But the 2016 verdict meant that individuals and media platforms would continue to be vulnerable to threats of being prosecuted for defamation.

Citing its chilling effect on free speech, the Editors’ Guild of India has been demanding decriminalisation of defamation as applicable to journalists. The UN Human Rights Committee maintained that defamation laws must be crafted with care to ensure that they did not lead to stifling of free speech.

Defamation has already been decriminalised in most parts of the democratic world. The UK, Australia, New Zealand and Ireland have done away with it. The US doesn’t have criminal defamation laws at the federal level. Even neighbouring Sri Lanka has decriminalised it.

Originally introduced by Lord Macaulay in the Indian Penal Code, 1860, the criminal defamation law is an anachronism in 21st century democratic India. It’s time to get rid of it. In any case, those wrongly defamed have the option of filing civil suits to claim damages.

Having triggered a fresh debate on the issue, the top court should refer the issue to a larger Bench to reconsider its 2016 verdict on criminal defamation law.