Criminal defamation

DESCRIBING the right to reputation as a facet of the right to life and personal liberty, guaranteed under Article 21 of the Constitution, the Law Commission has recommended retaining the criminal defamation law. In its 285th report submitted to the government, the panel said the right to reputation needed to be adequately protected against defamatory speech and imputation. Given that Article 19(2) provides for defamation as a ground for the imposition of ‘reasonable restrictions’ on the freedom of speech and expression guaranteed under Article 19(1)(a), the commission’s recommendation is understandable. Also, the Supreme Court had in May 2016 upheld the validity of the law under Sections 499 and 500 of the Indian Penal Code — which prescribed a maximum two-year jail term and fine — and ruled that there was nothing wrong in sending a person to prison for defaming someone.

There can’t be any disagreement with the basic proposition that the right to reputation ought to be protected. However, the misuse of the criminal defamation law to silence political adversaries, activists and journalists is causing a ‘chilling effect’ on free speech. The panel’s argument that the law ‘ensures a balance between freedom of expression and the right to reputation’ is not borne out by facts.

In the past decade or so, many politicians have filed criminal defamation cases against their rivals and media houses. During 2002-11, the Tamil Nadu government filed over 140 such cases against media houses and journalists. The law’s abuse is also evident in the filing of ‘strategic lawsuits against public participation’. It’s for this reason that the Editors Guild of India has been demanding decriminalisation of defamation. Several countries, including the UK, Australia, New Zealand, Ireland and Sri Lanka, have decriminalised it. India must move in this direction as civil remedies are already available to a person wronged in terms of harm caused to his/her reputation.