Should criminal defamation be abolished?

Should criminal defamation be abolished?

Intolerance is being widely debated in the Parliament nowadays. A recent SC judgement held that political leaders should not see criticism as a personal insult. This judgement is in light of a new form of intolerance where public figures use criminal defamation proceedings to stamp out adverse comments. Consider that the TN government launched more than one hundred prosecutions against media and politicians on charges of criminal defamation. So, this particular form of intolerance continues to flourish. Criminal defamation obstructs free speech and undermines public interest, The recent case of folk singer Kovan arrested on sedition charge is an example of this. Does defamation deserve to be categorised as a crime? Is it better to see it as a civil wrong? What are the implications of abolishing criminal defamation. Let us weigh the pros and cons to see how justice can be better served.

Yes

1. Democratic opinion holds that defamation should be a civil wrong - In the year 2011, Human Rights Committee of the International Covenant on Civil and Political Rights called on states to banish criminal defamation on the grounds that it harasses and intimidates citizens.

2. People are otherwise prosecuted without preliminary examination - If a prosecutor’s complaint is registered, it is taken at face value and routine notices are sent out for appearance of defendants without preliminary notices for defendants based on preliminary examination. The process of litigation itself carries a penalty.

3. Public officials should be stopped from using criminal defamation for image management - The higher the status of a public official, the more likely he or she will be to use this route to prevent image damage and expand his or her reach to the public.

4. Section 66A is already unconstitutional - SC has already struck down section 66A of the IT Act as unconstitutional . SC has also observed the question of constitutional validity of S499 and 500 of the IPC which makes criminal defamation an offence.

5. Criminalisation of speech is a obstacle for freedom of expression - Article 19(1)(a) of the Indian Constitution guarantees citizens the right to freedom of speech and expression. Only reasonable restrictions are allowed in the right of sovereignty and integrity of India, its security relations with other states, law, order or public decency and morality. But this law has been misused to punish innocent comments and opinions which citizens have the full right to express.

6. Criminal defamation evades the concept of reasonable restriction - Criminal defamation also ensures that reasonable restriction has become broader rather than narrower in scope. Considering that the latter was the intent of the Indian Constitution, criminal defamation goes against the very spirit of the Constitution.

7. Even truth cannot be a defence - Sections 499 and 500 of the IPC do not constitute reasonable restriction on speech and not even truth is considered as a valid defence. Persons are prosecuted for defamation under draconian laws which can even punish them for speaking the truth.

8. Prosecution under section 499 possible in the absence of verbal or written statement - A person can be prosecuted under criminal defamation laws even if there is a lack of written or verbal statement. Mere allegations that the defendant has made defamatory statements are enough. Section 499 is even used to settle business and personal scores.

9. Even criticising the dead is a crime - People say one must not speak ill of the dead. But the law goes a step further and makes it a crime punishable by law, even if the truth is being spoken about that person. Purpose of defamation law is to protect the private person so his or her capacity to earn a livelihood is not negatively impacted. This is not valid in the context of deceased persons.

10. No room for irony - Even ironical or humorous statements can be taken as amounting to defamation. Who gets to decide what is ironical and why is that there is no provision in Section 499 regarding this? Can comedy and free speech survive in such a scenario?

11. Even public officials are targeted - Cases of public figures suing each other to settle scores or malign images are widely rampant in society today. Criminal defamation has been reduced to a game of tit-for-tat in the political arena.

No

1. Everyone has the right to sue for defamation - Protecting one’s reputation from false slander is imperative. Criminal defamation ensures that even a private citizen has recourse to legal actions for wrongs committed against him or her.

2. Deters persons from making inflammatory statements - This provision in the legal statutes prevents people from making false or slanderous statements by acting as a deterrent

3. Statements made in good faith are excluded from criminal defamation - This ensures that criminal defamation is not used as a political tool or a means of engaging in vendetta

4. People deserve to be penalised for wrongful acts - If defamation is not made a criminal offence, jungle law will operate in civil society where people will resort to defamation without any restraint. This can impact society in adverse ways.

5. Criminal defamation deters incorrect political speech - Our leaders have the responsibility to be careful about what they say because even one small statement can create a massive unrest in society. Criminal defamation proceedings ensure that people will not use this as a tool for furthering public interests or gaining ascendancy in public life.

6. Prevents hate speeches - Hate speeches are a crime against society because they incite people to violence. This should be prevented

7. Reasonable restriction is a safeguard - Criminal defamation laws cannot be misused because freedom of speech and expression is protected by reasonable restrictions.

8. Criminal defamation does not violate freedom of expression - It merely encourages responsible conduct and speech in society. People are able to express legitimate criticism without being penalised for it. This is a sign of a democratic and law abiding society

9. Laws making defamation a crime preserve balance and equity - Criminal defamation ensures the interests of individuals are given equal weightage as against interests of society and an even balance is made between upholding law and preserving freedom of speech.

10. Public officials should be held accountable - Criminal defamation should not be barred against public officials, because as officers of the public, they have a duty to engage in morally correct behaviour and ensure that they do not engage in slander.

Conclusion

In the ultimate analysis, criminal defamation is not a deterrent for free speech, otherwise India would be a police state. We are still a democracy where people have the freedom to express their opinions without fear of reprisals. Certainly, intolerance rears its ugly head and has to be combated time and again. But changing the laws to reflect a society where there are no limits on an individual’s freedom are equally detrimental. However, a balance also needs to be preserved between individual and community interests. SC is there to prevent misuse of criminal defamation proceedings. The citizens should also join it in this worthy endeavour.