Why it is better to shut up than be sued in India

The Supreme Court judgment upholding criminal defamation is unconvincing. While the judgment gives too much weight to the right to reputation, it has not given due consideration to the fact that criminal defamation may be an unreasonable restriction on free speech with civil defamation already providing an adequate remedy against violation of the right to reputation.

Further, selective references to international covenants and foreign court judgments give a misleading picture about how the world viewed criminal defamation as an offence.

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The judgment cites the Universal Declaration on Human Rights, 1948, the International Covenant on Civil and Political Rights (CICCPR) and the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) on reputation being a coveted right but has omitted any reference to the fact that international bodies frowned upon criminal defamation as a means to protect reputation.

The judgment is silent on the fact that international opinion reflected in views expressed by various UN bodies and functionaries is clearly against providing jail terms for peaceful expressions. "Criminalising defamation limits the liberty in which freedom of expression can be exercised," United Nations special rapporteur on the promotion and protection of freedom of opinion and expression said in 2013.

While the court has specifically pointed to provisions in the ECHR recognising reputation as a right, it has made no reference to the fact that the Council of Europe Parliamentary Assembly had in 2007 recommended complete decriminalisation of defamation.

The judgment, which has upheld the validity of Sections 499 and 500 in the 1860 Penal Code, has quoted verdicts by courts in various countries, including that in the UK, recognising the right to reputation. Ironically, it has not placed on record the fact that defamation had been decriminalised in the UK.

While introducing an amendment in October 2009 to outlaw libel in the UK, parliamentary under-secretary of state, ministry of justice Lord Bach said: "They stem from a bygone age when freedom of expression was not seen as the right that it is today."

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The debate that ensued also talked about the moral authority that UK would get in seeking decriminalisation of similar laws in other countries which permitted suppression of free speech. "I would add that there are Commonwealth countries in Asia and Africa where those laws are used to suppress political dissent and criticism," a member said during the debate.

India allows a person to simultaneously file both a civil and a criminal case for defamation.

With a civil suit for compensation being allowed, the prospect of a criminal case for defamation with looming threat of imprisonment is perceived to have a chilling effect on free speech.

While Section 500 provides for punishment, Section 499 defines defamation as an imputation concerning any person "intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person".

The offence, which was incorporated in the Indian Penal Code enacted during the colonial regime in 1860, traces its origin to 16th century English Star Chamber.

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The court, which heard cases in-camera, created the offence to prevent public disorder through violent retaliation.

Though the essence of defamatory libel in the UK was its tendency to provoke breach of peace, in the IPC, defamation was made an offence without any reference to its tendency to cause acts of illegal violence.

Apart from penalising peaceful speech, the penal code does not allow truth as an absolute defence. True, there are exceptions to guard against complete gag on critics. But the fact that Section 499 has ten exceptions shows it can readily be misused for harassment.

It is generally the accused who has to prove during trial that his case falls under one of the exceptions. A person caught in the net of the loosely-defined provision (which ironically required ten exceptions) has to face all the harassment an accused has to go through till the court accepts his defence during trial.

(Courtesy of Mail Today.)