Defamation Law in India

IN NEWS:

• Recently, Congress leader Rahul Gandhi has been disqualified from the Lok Sabha after he was convicted in a defamation case by a Surat court.

MORE ON NEWS:

• Rahul Gandhi was held guilty and sentenced to two years in jail by a Surat court in a 2019 defamation case, over his remarks about the "Modi" surname.
• He was sentenced by the court under Sections 499 and 500 of the Indian Penal Code (IPC), which deal with criminal defamation.
• A notice issued by the Lok Sabha Secretariat said Rahul Gandhi stood disqualified from the House from March 23, the day of his conviction.
• Section 8(3) of The Representation of The People Act (RPA), 1951, mandates the disqualification of any lawmaker who is 'convicted of any offence and sentenced to imprisonment for not less than 2 years."
  • Under the RPA, Section 8(4) stated that the disqualification takes effect only "after three months have elapsed" from the date of conviction. Within that period, lawmakers could file an appeal against the sentence before the High Court.
  • However, in the landmark 2013 ruling in ‘Lily Thomas v Union of India’, the Supreme Court struck down Section 8(4) of the RPA as unconstitutional.

WHAT IS DEFAMATION?

• Defamation means injury or damage to the reputation of an individual.
• The term defamation comes from the Latin word diffamare, which means to circulate or spread information about an individual that may harm their reputation. Therefore, defamation is nothing but causing injury to one's reputation.

DEFAMATION LAW IN INDIA:

• Article 19 of the Constitution grants various freedoms to its citizens. However, Article 19(2) has imposed reasonable exemption to freedom of speech and expression granted under Article 19(1) (a).
• Contempt of court, defamation and incitement to an offence are some exceptions.
• Defamation is both a civil and a criminal offence. The criminal law of defamation is codified, but the civil law of defamation is not.
• Civil Defamation:
  • In Civil Defamation, a person who is defamed can move the competent Court having pecuniary jurisdiction and seek damages in the form of monetary compensation.
• Criminal Defamation:
  • It is nothing but a defamation for which simple imprisonment may be awarded.
  • Under Criminal Law, Defamation is bailable, non-cognizable and compoundable offence.  
  • Section 499 and 500 of Indian Penal Code (IPC) deals in criminal defamation.
    • Section 499 defines what defamation is while section 500 lays down the punishment for people convicted of criminally defaming a person.
    • Section 499 states that any words spoken, read, or gestured with the intention of harming a person’s reputation is to be considered defamation and attract legal punishments.
  • Under sections 499 and 500 of the IPC, a person guilty of criminal defamation can be sent to jail for two years.

NEED FOR DEFAMATION LAW:

• Reputation is an integral part of Article 21:
  • The Supreme Court has ruled that the criminal provisions of defamation are constitutionally valid and are not in conflict with the right to free speech.
  • The court also held that the freedom of speech and expression is “absolutely sacrosanct” and is not absolute.
  • The Supreme Court has upheld the constitutional validity of Section 499 in Subramanian Swamy versus the Union of India (May 2016), holding that the right to life under Article 21 shall also include the right to reputation of a person and cannot be allowed to crucify by other's right of free speech.
• Criminal defamation is a deterrent:
  • In response to petitions challenging criminal defamation (sections 499 and 500 of the IPC) as a weapon to kill free speech, the government told the Supreme Court that criminal defamation offers "some deterrence" to people from maligning others, whereas civil cases take over 20 years and "nobody cares."
  • Wilful defamation is an assault on the character of a person. The person who has been defamed has to get quick justice, especially as civil cases drag on for a long time.
  • To counter online defamation:
    • As there is no proper mechanism to censor the content on the Internet, online defamation could only be countered by retaining defamation as a criminal offence.

CRITICISMS AND CONCERNS:

• Chilling effect on free speech:
  • Criminal defamation as defined in Section 499 of the Indian Penal Code has a chilling effect on free speech in India.
  • It has been used intermittently to stifle free speech, deflect criticism, or crush voices, such as the women’s testimonies during the #MeToo movement.
  • Under Article 19(2), free speech can be curtailed only by way of reasonable restrictions. Such a restriction must not be arbitrary or excessive, and the impairment of freedom must be ‘as little as possible'.
  • But criminal prosecution of defamation in India can be incredibly harassing and intimidating, and have a chilling effect, thus being an ‘unreasonable’ restriction.
• Criminal Defamation:
  • Experts opined that dealing with defamation as a civil wrong and taking remedial action is normal, but its criminalization with a two-year jail stint will only shackle public-spirited activists, intellectuals, investigative journalists, and whistle-blowers who are needed to speak the truth to those in power.
  • For instance, in other democracies such as Australia and New Zealand, defamation is only a civil offence.
• Cases on frivolous grounds:
  • Government leaders file defamation lawsuits against each other on frivolous grounds, followed by cross-defamation lawsuits.
  • This has sparked debate about highlighting the need to revisit India's defamation laws.
• Violates international norms, and the penalty is disproportionate:
  • A joint consultation paper published by the Law Commission of India in September 2014 notes that the respondents "overwhelmingly expressed dissatisfaction with the present state of defamation law".
  • Considering the need to repeal Section 499, it acknowledged that criminal defamation laws violated international norms and that the penalty of incarceration up to two years was clearly disproportionate.
• Pernicious effect on society:
  • Criminal defamation has a pernicious effect on society.
  • For instance, the state uses it as a means to coerce the media and political opponents into adopting self-censorship and unwarranted self-restraint.

WAY FORWARD:

• Democratic opinion in many countries is of the view that defamation should be treated as a civil wrong and not be pursued as a criminal case. So, there should be a serious discussion on whether defamation should be decriminalised. Also, civil defamation should be reformed to make it fairer and simpler.
• The aim of defamation law is to protect people's reputations. But there should be a balance between this goal and conflicting demands for freedom of expression since both of these interests are highly regarded in our society, the former as perhaps the most cherished trait of civilised humans and the latter as the bedrock of a democratic society.

PRACTICE QUESTION:

Q. “Criminal defamation as defined in Section 499 of the Indian Penal Code is a relic that continues to have a chilling effect on free speech in India”. Critically analyse.