Polity > Institutions/Bodies > Fundamental rights
Syllabus: GS 2 > Polity > Fundamental rights
The 22nd Law Commission, chaired by Justice Ritu Raj Awasthi, has recommended retaining criminal defamation as an offence within the legal framework of Bharatiya Nyaya Sanhita.
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The Commission, in its 285th report titled “The Law of Criminal Defamation”, recommended retaining the offence of criminal defamation to safeguard the protection of an individual's reputation, which the Commission views as a crucial aspect grounded in Article 21 of the Constitution of India.
Article 21 safeguards the right to life and personal liberty, underscoring the significance of reputation as an integral part of these rights.
The Law Commission, in its report stated that “reputation is something that can’t be seen and can only be earned. It’s an asset that is built in a lifetime and destroyed in seconds. The whole jurisprudence around the law on criminal defamation has the essence of protecting one’s reputation and its facets."
The Commission's report highlights the importance of balancing the right to freedom of speech with the need to protect individuals' reputations, aiming to maintain harmony within society.
Subramanian Swamy vs Union of India, 2016:
The Law Commission states that it chose to undertake this extensive study on the law of defamation following the Supreme Court’s decision in the Subramaniam Swamy vs. Union of India (2016) case.
In this case, the court upheld the constitutionality of defamation as a criminal offence and held that it was a reasonable restriction to the freedom of speech and expression.
The ruling noted that “the right to freedom of speech and expression is not an absolute right” and has to be “balanced with the right to reputation” which is protected under Article 21 of the Constitution.
LAWS RELATED TO DEFAMATION IN INDIA:
Defamation refers to destroying the reputation of an individual or organisation by means of slander (speech), libel (written) or both.
Slander: Means to make a false spoken statement that causes people to have a bad opinion of someone.
Libel: Means to publish a false written statement that causes people to have a bad opinion of someone.
Defamation in India is both civil and criminal offence. The criminal law of defamation is codified, but the civil law of defamation is not.
In Civil Defamation, a person who is defamed can move the competent Court having pecuniary jurisdiction and seek damagesin the form of monetary compensation.
There are 2 sections under the Indian Penal Code (IPC) that deals with criminal defamation
Section 499: deals with what constitutes defamation
Section 500: deals with punishment for defamation
Defamation is a non-cognizable offence i.e police cannot register a case and start an investigation without the court’s permission. Defamation is a compoundable offence i.e criminal court can drop the charges if the victim and accused enter into a compromise (even without the court’s permission).
Bharatiya Nyaya Sanhita(BNS) and Criminal Defamation:
To address concerns about the potential misuse of criminal defamation laws, the Bharatiya Nyaya Sanhita introduces community service as an alternative punishment, reflecting a balanced approach to penalizing defamation while minimizing opportunities for abuse.
This amendment signifies a shift towards more rehabilitative measures, aligning with practices in other jurisdictions where defamation remains a criminal offense but is approached with a view towards balancing rights and promoting societal harmony.
NEED FOR CRIMINAL DEFAMATION IN INDIA:
Balancing Freedom of Speech with Right to Reputation:
The reputation of one cannot be allowed to be crucified at the altar of the other’s right of free speech.
There is a need to strike balance between article 19 and article 21.
Defamation is one of the reasonable restrictions on freedom of speech & expression under Article 19(2).
Protection of the Social Fabric:
The Law Commission of India emphasizes that India's diverse linguistic, ideational, and thought landscapenecessitates the protection of reputation as an integral part of the right to life and personal liberty under Article 21. The commission underscores reputation as a lifetime asset that is crucial for the individual and societal harmony?.
Misuse of law is not a justification for its withdrawal:
A mere misuse or abuse of law, actual or potential, can never be a reason to render a provision unconstitutional.
Free and fair elections:
Absence of criminal liability will give rise to hate speeches during elections, and it may negatively affects fair elections
Deterrence against fake news:
Criminal defamation acts as a deterrent against the spread of false information and rumors with malicious intent. This is particularly relevant in the digital age, where misinformation can spread rapidly online?
Increasing threat of cyber-bullying:
It is argued that online defamation in the Internet age can be effectively countered only by making it a criminal offence.
ARGUMENTS AGAINST CRIMINALIZING DEFAMATION
Against the spirit of Article 19:
Criminalizing defamation has a harsh effect on the right to freedom of speech and expression provided under Article 19
It is an ideal weapon for powerful individuals to silence critical or inconvenient speech. It is a colonial-era law introduced by the British regime to suppress political criticism.
Even truth is not a defence:
Even if a person has spoken the truth, he can be prosecuted for defamation.
Under the first exception to section 499, the truth will only be a defence if the statement was made for the public good, which is a question of fact to be assessed by the court.
It is an arbitrary and overbroad rule that deters people from making statements regarding politicians or political events even which they know to be true
Lead to state high-handedness:
The state uses it as a means to coerce the media and political opponents into adopting self-censorship and unwarranted self-restraint.
Implications for democracy:
Only the “imputation” or accusation is enough to be interpreted as harming the reputation of a person.
Thus even an ironical statement can amount to defamation and a criminal suit can be filed even for political speech which is the most protected speech in a democracy
The process is itself a punishment:
The accused has multiple defences open but they are available only after the trial commences. Hence an accused person has to undergo the long-drawn-out trial process which in itself a punishment.
Disproportionate Impact vs. Right to Respond:
Treating defamation similarly to serious crimes is disproportionate. Unlike severe crime victims, those accused of defamation can counter allegations, suggesting that civil defamation laws might offer a more balanced remedy.
Several instances of misuse:
The criminal provisions have often been used purely as a means of harassment.
Global trend towards decriminalisation:
International support, including from the United Nations, favours shifting from criminal to civil defamation laws to better protect freedom of expression.
Countries like the United Kingdom, Norway, Denmark, Ireland, etc. have moved away from criminal defamation, favouring reforms that emphasise free speech and media freedom.
The Indian judicial system is infamous for its delays, and criminal defamation cases add to the backlog, exacerbating the problem of delayed justice.
Criticism vs. Defamation: Supreme Court in Subramanian Swamy vs. Union of India, 2016, underscored that criticism was not defamation, and hence trial court must be “very careful” in scrutinising a complaint before issuing the summons in a criminal defamation case.
Pre-trial Resolution Mechanism: Encourage and facilitate pre-trial resolution mechanisms, such as mediation and conciliation, for defamation disputes.
Digital Age Considerations: Adapt defamation laws for the digital era, addressing the unique aspects of online speech. Include criteria for online defamation that consider content virality, platform roles, and anonymous speech.
Decriminalization with Strong Civil Remedies: Consider decriminalizing defamation while strengthening civil remedies.
Awareness and Education Campaigns: Launch awareness campaigns to educate the public about the importance of reputation, the responsibilities that come with free speech, and the legal implications of defamation.
Clarification and Narrowing of Definitions: Clarify and narrow the definitions of defamation to ensure that they are not overly broad or vague, reducing the potential for abuse
Q. Critically evaluate the necessity of criminalizing defamation within the context of balancing conflicting rights in a democratic society.(15 marks, 250 words)