Abstract:

In India, 'defamation' is a criminal as well as civil offence that is punishable with imprisonment (under Sections; 499 – definition and 500 – punishment of the Indian Penal Code (IPC) / Defamation law) and by the award of damages (under the law of torts). For defamation to be said to be done, an individual must have either created or disseminated content that is defamatory, i.e., that causes injury to a third party's reputation. Thus, while the purpose of Defamation law is to protect or safeguard the interest of persons in their reputation, in a number of cases it becomes quite evident that Defamation law can (and is) quite easily misused and manipulated to further personal and political agendas. This has been highlighted quite lucidly by the recent conviction and disqualification of Mr. Rahul Gandhi, the leader of the largest Opposition Party, from the Lok Sabha. Further, the sentence meted out in this case is two years, which happens to be the maximum sentence prescribed for this offence; regardless of the technical aspects and merits of the case, this case is doing no favours to India's image as a democracy and puts forth a regression rather than maturity as a democracy.

The present article provides its analysis on: i) the constitutionality and validity of Defamation law provisions under the IPC and, ii) whether the conviction of Mr. Gandhi for the remark made by him during the political speech has pushed the limits of Defamation law provisions under the IPC.

Part-1

History of defamation law and background behind inclusion in the IPC:

Defamation as a criminal offence originated in the English Star Chamber, in the 16th Century. The objective of criminalising defamation was two-fold: first, to prevent breaches of peace - in other words, to preserve public order. On many occasions, the persons defamed responded to attacks on their honour or reputation by challenging the other party to a duel, which resulted in the disruption of public order. Other rationale to criminalise defamation was to preserve state security. Imputations in the context of the latter, came to be known as the crime of "seditious libel".

In India, criminal defamation was introduced by Lord Macaulay in 1837, which was later codified in 1860. The primary reason for criminalising the act of defamation in India was to protect the interests of British Raj, the state security and public order. Consequently, section 499 of the India Penal Code 1860 was established. The Indian Penal Code prepared by the Law Commissioners & The Making of the Indian Penal Code, 1860; state that the original objective behind inclusion of Defamation law was to criminalise a private wrong. The offence of criminal defamation came to be primarily used to curb political speech in the reign of British Raj.

Doctrine of Chilling Effect:

The offence of criminal defamation is procedurally unreasonable because of the burden that it places on the speaker which often tends to cast a chilling effect on his/her speech. The chilling effect occurs when a wide or vague speech-restricting provision "chills" speech because speakers undertake self-censorship even with regard to legitimate speech, because they are unsure of where the boundary between legality and illegality lies, or do not wish to take the risk of being caught on the wrong side of it.

The doctrine of chilling effect has often been invoked by the Supreme Court to strike down a speech-restricting provision in Shreya Singhal v. Union of India[1], invalidate executive action in Khusboo v. Kanniamal[2], and modify common law so as to bring it in conformity with Article 19(1)(a) in R. Rajagopal v. State of Tamil Nadu[3]. Hence, this doctrine constitutes an essential part of Indian free speech jurisprudence as is evident from the above quoted Judgments of the Supreme Court.

Position of Criminal Defamation laws Internationally - citing couple of precedents:

Constitutionality of criminal defamation has been in question and in consideration by the judiciary for a long time not only in India but even internationally. Numerous countries around the world have completely or partially removed the offence of criminal defamation from their statute on account of its restrictive effect on free speech. These include Cyprus, El Salvador, England and Wales, Estonia, Georgia, Ireland, Jamaica, Macedonia, Maldives, Montenegro, Romania, Sri Lanka, etc.

While announcing repeal of the offences of seditious libel, defamatory libel, obscene libel and sedition, the UK Secretary of State at the Ministry of Justice, Ms. Claire Ward was quoted in the UK Press Gazzette, 13th January, 2010, as having said that:

"Sedition and seditious and defamatory libel are arcane offences – from a bygone era when freedom of expression wasn't seen as the right it is today...The existence of these obsolete offences in this country had been used by other countries as justification for the retention of similar laws which has been actively used to suppress political dissent and restrict press freedom...Abolishing these offences will allow the UK to take lead in challenging similar laws in other countries, where they are used to suppress free speech."

Zimbabwe: In 2014, a nine-judge bench of the Zimbabwe Supreme Court in Nevanji Madanhire v. Attorney General, CCZ 2/14 unanimously held that the offence of defamation was not reasonably justifiable in a democratic society within the contemplation of s 20(2) of the former Zimbabwe Constitution.

(Present) Position of Criminal Defamation laws in India:

In the case of Subramanian Swamy v. Union of India[4] the Supreme Court upheld the constitutional validity of Section 499 of the IPC, while opining that since society is a collection of individuals – what affected individuals, would ultimately affect society, and thus, it is right and valid to treat defamation as a public wrong. Thus, the Supreme Court concluded, that criminal defamation is a reasonable restriction on the fundamental right of freedom of speech and expression (Article 19) as the protection of one's reputation is a fundamental right (Article 21) as well. It has been argued that through the abovementioned Subramanian Swamy case, the Supreme Court has bent the jurisprudential arc towards paternalism and fear and is indicative of a much more deep-rooted problem with our justice system – where the line of public and private wrongs is drawn.

Conclusion and Analysis (Part 1)

It can quite safely be argued that one of the cornerstones of a democracy, is the fundamental right of freedom of speech and expression, as enshrined in Article 19 of our constitution. It not only empowers people to share their beliefs and opinions (political or otherwise), but also provides a fair balance between peace and social change by allowing people i.e. the citizens of India to efficiently and wholly engage in the nation's social and political processes.

Freedom of speech and expression under Article 19(1)(a) now includes the right to dissent against government and thereby negates the utility of the offence of criminal defamation. This view finds support in various decisions of post-independence.5 The observations of the Supreme Court in these decisions make it clear that political speech, as a part of speech and expression in India is entitled to the highest possible protection.

Since the concepts of "free speech" and "reasonable restrictions" have undergone considerable change with the transforming perceptions of society, the (criminal) Defamation law provisions serve no utility in addressing the contemporary issues surrounding free speech. While being in violation of the fundamental right to freedom of speech and expression, they clearly fall outside the scope of a "reasonable restriction" when present-day standards of freedom of speech are applied. The object and purpose of the Defamation law provisions has been rendered obsolete due to the evolving nature of the right to free speech.

Various national and international judicial pronouncements support the nullification of archaic laws that hamper the effective operation of an individual's rights under the Constitution. In this regard, as noted in various jurisdictions the world over, including England, from where the IPC derives its provisions, the criminalisation of defamation acts as fetter on the freedom of speech and expression under Article 19(1)(a).

Therefore, in our view, it is time that the constitutionality of these Defamation law provisions is revisited, as these provisions fail to reflect the changes that have occurred in the society in relation to the right of free speech, as protected under the Constitution.

Part-2

Coming back to the most recent demonstration of this and the second limb of this article, it is interesting to note that while political leaders in our country often resort to name-calling and poking fun of each other's names in order to gain points against their opponents in the public playing field, it would appear that Mr. Rahul Gandhi's attempt at humour has cost him more than he bargained for. The remark inter alia was against the Modi Group/Community – Let us examine whether this falls within the ambit of an identifiable group.

Defamation of a group, while covered in Explanation 2 to Section 499 of the IPC, was more closely looked at in the case of S. Khushboo v. Kanniammal[6]. In the said case, the Supreme Court ruled that for the offence of defamation to be established against a group of people, the group must be an identifiable one, i.e., it should a distinguishable from the rest of community, such that members can be precisely identified and that they have been defamed. Thus, it follows that if such a group having a collective identity cannot be established relative to the alleged defamatory remarks, then no case of defamation can be entertained. Further, the court while discussing the Khusbhboo case in the previously mentioned judgement in the Subramanian Swamy case, has opined that such 'defamation' must not lie against "mankind in general, or against a particular order of men, e.g., men of gown", but rather must "descend to particulars and individuals"7, for it to qualify as criminal defamation.

Conclusion and analysis (Part 2)

Therefore, interestingly, if one is to apply the test that is enshrined in the Khusboo and Subramanian Swamy cases to the statement made by Mr. Rahul Gandhi, in our view it cannot be said that the reference made to the last names of three individuals without any elaboration of particulars amounts to criminal defamation – especially when none of the three individuals personally filed any defamation suits or alleged defamation. The 'Modi community' cannot be qualified as an 'identifiable group' given the fact that there are about 13 crore Modi's only in India.

Footnotes

1. (2015) 5 SCC 1 (at para 90, pages 168-169)

2. (2010) 5 SCC 600 (at para 47, page 620)

3. AIR 1995 SC 264 (at para 19, pages 646-647)

4.(2016) 7 SCC 221

5. Secretary, Ministry of Information and Broadcasting, Govt. of India and others v. Union of India and others, (1995) 2 SCC 161, Dr. D.C. Saxena v. Hon'ble the Chief Justice of India, (1996) 5 SCC 216, Ramlila Maidan Incident v. Home Secretary, Union of India (2012) 5 SCC 1.

6. AIR 2010 SC 3196

7. WP (C) 184/2014

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