Criminal defamation law needs reforms

The recent disqualification of Rahul Gandhi as a Member of Parliament (MP) due to a conviction for criminal defamation by a district court in Surat, Gujarat, over a comment made by him in 2019, stirred much political controversy. With criminal defamation brought back to the forefront of public and political discourse, many questions about its need and utility are being raised.

At present, defamation in India holds the unique status of being an offence under both criminal law and civil law. A vestige of colonial rule, Section 499 of the Indian Penal Code, 1860 (IPC) provides for defamation, and Section 500 provides for its punishment, which is imprisonment for a term of up to two years or a fine, or both.

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Section 499 states that whoever, by words either spoken or intended to be read, or by signs or 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 to defame that person.

The provision was enacted to protect the interests of the British Empire and its officials when India was under colonial rule. The extent of the stringency of the provision can be illustrated by its numerous absurdities, such as the fact that an imputation expressed ironically may also amount to criminal defamation and that an imputation to even a deceased person can be held as criminal defamation if it is intended to hurt the feelings of the family or other near relatives of the deceased person.

Further, it must be noted that truth in itself is not an absolute defence against criminal defamation unless it is demonstrated that it has the element of ‘public good’, meaning that the statement made must not only be true but have the additional burden that it must also have been made for the public good, which the provision deems to be a question of fact. Notably, such a necessity is not present in civil defamation.

The Constitution of India, under Article 19(1)(a), provides citizens with the right to freedom of speech and expression, a fundamental right. However, fundamental rights are not considered to be absolute, and Article 19(2) enumerates the exceptions to the fundamental rights in terms of “reasonable restrictions”, of which defamation is one. However, the article does not specify whether defamation includes civil defamation, criminal defamation, or both. Nevertheless, there is little doubt that criminal defamation has a chilling effect on free speech. There are also concerns regarding its weaponisation by corporates for filing Strategic Lawsuits Against Public Participation (SLAPP) suits and its potential to be used vindictively against survivors of workplace sexual harassment who spoke out during the #MeToo campaign on social media and for future victims as well.

In 1994, in the landmark judgement of R Rajagopal v. State of Madras, the Supreme Court applied the doctrine of ‘actual malice’ that was originally laid down by the Supreme Court of the United States in its 1964 ruling of New York Times v. Sullivan to civil defamation. The rule of actual malice states that liability will be attracted only when it can be shown that the statement was made with the knowledge that it was false or with reckless disregard for whether it was false or not. Thus, it granted ‘breathing space’ to free speech, i.e., the space to make honest mistakes.

More recently, in 2020, the Madras High Court pronounced a notable decision by extending the rule of actual malice to criminal defamation in Grievances Redressal Officer, M/s.Economic Times Internet Ltd. & Ors. v. M/s. V V Minerals Pvt Ltd & Anr. The court clarified that the principle of actual malice upheld in R Rajgopal has to necessarily be read into exceptions 2 and 3 of Section 499 (public conduct of public servants and conduct of any person touching any public question, respectively), thus progressing the jurisprudence on the protection of free speech vis-à-vis criminal defamation.

Unfortunately, the SC in Subramanian Swamy v. Union of India (2016) upheld the constitutional validity of the offence of criminal defamation and dismissed the writ petition, missing the opportunity to rid us of this undemocratic colonial relic. However, notably, the apex court did put in a word of caution regarding the usage of the law as a means to wreak personal vengeance. Significantly, criminal defamation was abolished in the United Kingdom in 2009 with the amendment to the Coroners and Justice Act, 2009.

Additionally, several other erstwhile British colonies have moved to strike it down. In 2017, the High Court of Kenya held criminal defamation to be unconstitutional and struck the provision from the country’s Penal Code. The court stated that in its view, the invocation of criminal defamation to protect one’s reputation was “unnecessary, disproportionate, and therefore excessive and not reasonably justifiable in an open democratic society based on human dignity, equality, and freedom”. The Constitutional Court of Lesotho, another former British colony in Southern Africa, also struck down criminal defamation from its Penal Code in 2018, thus clearly indicating that the Indian SC’s view is swimming against the global current in this regard.

Further, the structure of the Indian criminal justice system is such that even if an accused person is found innocent of criminal defamation in the end, it is still highly likely to have a chilling effect on free speech as the accused is likely to have undergone a “traumatising gamut of arrest, detention, remand, and trial,” as rightly acknowledged by the Kenyan High Court.

An opportunity for legislative intervention was squandered when a bill decriminalising defamation that was introduced in 2016 in the Lok Sabha by former Biju Janata Dal MP Tathagata Satpathy (The Right to Protection of Speech and Reputation Bill) failed to garner support. In its present form, the provision of criminal defamation is not only a reminder of an instrument of an oppressive colonial regime but also serves as a tool for legal harassment and is in urgent need of reform.

(The writer is a Mumbai-based lawyer)