- The Supreme Court has upheld a colonial and pre-Constitutional law criminalising defamation.
- The challenge to the validity of Section 499 and 500 of the IPC was undoubtedly the biggest free speech issue to have arisen in recent times.
- The two-judge Bench could have referred the matter to a Constitution Bench.
- The judgment holds far-reaching implications for political dissent and a free press
- It observed, “Sections 499 and 500 of the Indian Penal Code make defamation a criminal offence. A person’s right to freedom of speech has to be balanced with the other person’s right to reputation and therefore the two Sections are necessary.”
Sections 499 and 500 in the IPC deal with criminal defamation. While the former defines the offence of defamation, the latter defines the punishment for it.
- Section 499:Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.
- Section 500:Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.
What is defamation all about?
Defamation refers to the act of publication of defamatory content that lowers the reputation of an individual or an entity when observed through the perspective of an ordinary man. If defamation occurs in spoken words or gestures (or other such transitory form) then it is termed as slander and the same if in written or printed form is libel. Defamation in India is both a civil and a criminal offence.
- In Civil Law, defamation falls under the Law of Torts, which imposes punishment in the form of damages awarded to the claimant (person filing the claim).
- Under Criminal Law, Defamation is bailable, non-congnizable and compoundable offence. Therefore, the police cannot start investigation of defamation without a warrant from a magistrate (an FIR cannot be filed). The accused also has a right to seek bail. Further, the charges can be dropped if the victim and the accused enter into a compromise to that effect (even without the permission of the court).
- Presence of defamatory content is required.
- Claimant should be identified in the defamatory statement. (General statements not defamation.
- Publication of the defamatory statement in either oral or written form.
Under a criminal suit, intention to defame is an important element.
Arguments for criminalising defamation
- Reputation of an individual was an equally important right and stood on the same pedestal as free speech.
- The right to reputation is a constituent of Article 21 of the Constitution. It is an individual’s fundamental right
- Mutual respect is the fulcrum of fraternity that assures dignity. It does not mean that there cannot be dissent. One has a right to freedom of speech and expression. One is also required to maintain the idea of fraternity that assures the dignity of the individual
- The court held that criminalisation of defamation to protect individual dignity of life and reputation is a “reasonable restriction” on the fundamental right of free speech and expression.
- Defamation should remain a penal offence in India as the defamer may be too poor to compensate the victim in some cases.
- Since there is no mechanism to censor the Internet from within, online defamation could only be adequately countered by retaining defamation as a criminal offence.
- Also, criminalisation of defamation is part of the state’s “compelling interest” to protect the right to dignity and good reputation of its citizens.
- Unlike in the U. S, defamation in India cannot be treated only as civil liability as there is always a possibility of the defamer being judgment free, i.e., not having the adequate financial capability to compensate the victim.
- Besides, Sections 499 and 500, framed in 1860, cannot be said to obsolete in a modern democratic polity as there are 10 exceptions to Section 499 of the IPC. These exceptions clearly exclude from its ambit any speech that is truthful, made in good faith and/or is for public good.
Arguments against criminalising defamation