A curious detail of the law applicable to the media is that defamation retains its place in criminal statutes even in countries that have long consigned blasphemy laws and criminal contempt of court laws to the dustbin. For example, in spite of the apparent international consensus that prison sentences are not an appropriate punishment for it, defamation is an offence punishable with imprisonment even in many Western European nations and several states in the United States.

In India too, the law of defamation has a criminal dimension. Under Section 500 of the Indian Penal Code, if it is proved during a criminal trial that a person had committed the crime of defamation as defined in Section 499, then the criminal court can sentence that person to be imprisoned for up to two years. Subramanian Swamy, who challenged the lawfulness of these provisions before the Supreme Court in October last year, found an unlikely ally two months ago in Rahul Gandhi. If the Court decides to strike these provisions down, India will be in the unique position of having set aside a law of criminal defamation while even more anachronistic restrictions on the freedom of speech remain in its criminal statutes.

File photo of the Supreme Court. ReutersFile photo of the Supreme Court. Reuters

File photo of the Supreme Court. Reuters

Defamation law provides us with a remedy when our reputation has been unjustifiably diminished as a result of some communication among people. We can approach a civil court for damages or for an injunction restraining the further publication of that communication. We can also trigger the criminal justice process.

To establish guilt, the prosecution does not have to establish that the communication in question actually hurt the reputation of any person. Under Section 499, it is sufficient to prove a set of surrounding circumstances on the basis of which the court can presume that the accused should have known that the communication would hurt the reputation of the victim.

Restricting speech, restricting public participation

Because it restricts speech, defamation law needs careful scrutiny in a democracy. Free speech plays a vital role in gauging the informed consent of the people to the acts of a democratically elected government and powerful private entities.

Like other laws that restrict the freedom of speech and expression, defamation law can diminish public participation in a democracy. In fact, threats to initiate litigation or trigger the criminal process can even be used strategically by powerful entities to deter some types of communication. Both the civil and criminal law of defamation already recognise this to varying extents.

Under the civil law of defamation, some news reports and articles on some subjects of public interest have heightened protections. In 1994, the Supreme Court of India in R. Rajagopal v. State of Tamil Nadu held that public officials did not have a right to bring an action for damages in defamation in relation to acts they perform in the discharge of their official duties, unless they can prove that the publication was false and was made by the defendant with “reckless disregard for the truth”.

Similarly, under Section 499, the communication of an opinion made in good faith about the conduct or character of a public servants in relation to the performance of their duties as public servants, cannot amount to a crime of defamation.

Moreover, laws that restrict the freedom of speech and expression also cause a “chilling effect” by threatening even speech that falls outside the prohibited area of the law. When faced even with a slim prospect of heavy damages or a prison sentence, people may choose to censor themselves.

The limits of reason

For these reasons, it is important that defamation law is subject to the limits placed on law by the fundamental right to freedom of speech and expression. Defamation is among the grounds under which the state may make laws that place reasonable restrictions on this fundamental right. Our constitutional courts therefore, can only strike down a law that restricts this fundamental right in the name of addressing defamation, if they find that the law is not reasonable.

To evaluate the reasonableness of a restriction, judges have to, among other tests, evaluate whether it is the least possible restriction that would overcome the harm that it is intended to address. In relation to Sections 499 and 500 therefore, the Supreme Court will have to look at whether a police investigation, criminal trial, and prison sentence are necessary to overcome the harm posed by defamatory communication. If the Supreme Court finds for instance, that the civil law of defamation is sufficient to protect reputations from unjustified harm, it has to hold that Sections 499 and 500 are unreasonable restrictions on the fundamental right to freedom of speech and expression.

In 2010, the UK abolished its criminal defamation laws, acknowledging that they belonged to an era when the freedom of expression was not seen as the right that it is today. When the Law Commission of India conducted a national consultation on media laws last year, many advocated the complete repeal of Sections 499 and 500.

The Supreme Court’s decision will also have an effect on the lawfulness of other criminal statutes that restrict speech, including the notorious Section 295A of the Indian Penal Code, which criminalises speech that insults religions and religious beliefs. Defamation remains a crime in many jurisdictions that have moved beyond laws that shield religion and faith from criticism. Following on from its judgment striking down Section 66A of the Information Technology Act, the Supreme Court now has a historic opportunity to show the way for jurisdictions where the freedom of speech is a stronger right.

The Court must strike the imprisonment penalty in Section 500 down. The threat of incarceration significantly deters democratic participation and chills speech, and is not at all proportional to the harm that can be caused by defamatory speech.

Aju John is part of the faculty at myLaw.net, where he teaches courses on Sports Law and Media Law.

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Supreme Court must show the way and strike down the criminal defamation law