Is defamation of a person crime against the society? What should have the primacy- punishment for the defamation of a citizen or fundamental right of freedom and speech-in a democratic country as ours? Should defamation cases be dealt by the state as a crime or it should be treated as a civil wrong for which damages can be claimed? This question has been agitating the minds of the people for nearly 70 years after India attained freedom. The right to unfettered freedom of speech has been conferred by Article – 19(1)(1) of the Constitution. It is basic and vital for the sustenance of the parliamentary democracy. That is the reason, that by catena of decisions the Supreme Court of India has termed it as the basic structure of the Constitution. However, in the same article i.e. 19(2) the Constitution also imposes reasonable restrictions. These are those restrictions which are meant to prevent the expression of thought that are intrinsically dangerous to public interests.
The recent case of ‘Subramanium Swami and Union of India’ decided by the Supreme Court of India has actually created a flutter, dissatisfaction, disenchantment and frustration among all media persons, whistle blowers and lovers of Freedom of Speech. Fundamental rights are conferred in the public interests and therefore they are no way connected with the defamation of a person. Right to reputation is a facet of Article 21 of the Constitution and this article is basically vis-à-vis the state and hence Article 19[2] cannot be invoked to serve the private individual. Crime is always against the society of which the state is a custodian. That is why,
there is no relationship between section – 499 of the IPC and Article – 19(2).
It was expected that the Supreme Court of India will put its imprimatur in favour of the freedom of speech rather than on sections 499 and 500 which are mostly used to harass the citizens particularly the journalists by those who are in power or influential in the society. But the judgement has come a jolt because the Supreme Court has said in the abovementioned case that the individual’s reputation is more important than fundamental rights. Although article 19(2) of the Constitution says that freedom cannot be absolute and that is why, it imposes reasonable restrictions on the individual’s freedom. However, defamation of one person by another cannot be said to be a criminal wrong, at the most it is a civil wrong and for which the remedy is provided in the civil law.
Reasonable restrictions are meant to prevent the expression of thought, which is intrinsically dangerous to public interest. The enabling power in article 19(2) is intended so safeguard the interests of the state and the general public and not of any individual and therefore, 19(2) cannot be regarded as the source of the authority for section 499 of the IPC. Here it may also be underlined that the defamation laws in India are more than one and half century old and they were enacted by the Britishers to serve their own interests. The Constitution of India, on the other hand, came into force from 26.01.1950. Therefore, the Constitution of India ought to have eclipsed those laws, which are incongruent to the constitutional provisions. It is strange that we are still carrying the baggage of those British Laws which clearly impinge on our freedom of thought and expression.
There is hardly any doubt that the defamation of an individual by another individual is a civil wrong or tort, pure and simple, for which the common law remedy is an action for damages. But how the defamation of one individual by another becomes a crime against the society is not understandable. A restriction that goes beyond the requirement of public interest cannot be considered as a reasonable restriction and would be arbitrary. When the provision that goes to the extent of declaring the speaking of truth as an offence punishable with imprisonment, it certainly deserves to be declared unconstitutional. It also defeats the cherished values as enshrined under article 51(a)(b) of the Constitution, which is associated with the freedom struggle. Reasonableness as conceptualized in the constitution is not a static because it varies from time to time. What is considered reasonable at one point of time may become unreasonable at subsequent point of time. That is why, the colonial law has become unreasonable and arbitrary in independent India which is a sovereign and democratic republic.
Another glaring inconsistency is Section 199 (2) of the CrPC which provides different procedure for certain category of persons and thereby it creates two kinds of procedures, one having the advantage over other. That apart, it also uses the state machinery by launching of the prosecution through public prosecutor which enables the State to take a different rote to curb the right of freedom of speech and expression.
Free speech encapsulates the right to circulate one’s independent view and not to join in a chorus or sing the same song. It includes the right of propagation of ideas. The freedom of speech and expression cannot brook restriction and definitely not criminal prosecution, which is an anathema to free speech. Needless to say, free speech has priority over other rights and whenever any conflict emerges between the freedom of speech and other interests the former would prevail. Freedom of speech cannot be curtailed or supressed unless it is dangerous to community interests.
The language employed in section 499 and 500 IPC is clearly demonstrative of infringement in excess and, therefore, they cannot be granted the protection of article 19(2) of the Constitution. Freedom of expression is a quintessential for the sustenance of democracy which requires debate, transparency and criticism and dissemination of information. Therefore, the prosecution in criminal law pertaining to defamation strikes at the very root of democracy because it disallows the people to have their intelligent judgment.
It may also be noted here that most of the democratic countries have done away with the criminal defamation. Nearer home even the island country Sri Lanka has struck down the provision for defamation. There is no doubt that the reputation of a person is dearer than his or her life itself and defamation is an injury to a person’s reputation but it cannot be a crime but a civil wrong. Undoubtedly, a person needs protection of his or her reputation, honour, integrity and character as much as the right to enjoyment of the property, health, personal safety and number of other privileges. In a civil action for defamation truth is defence but in criminal action the accused must prove both the truth of the matter and also that its publication or broadcast or telecast was for the public good. The defence of truth is not satisfied merely by proving that the publisher/broadcaster/telecaster honestly believed the statement to be true. He or she must prove that the statement was, in fact, true. There are many grey areas in defamation law. There is no denying that the Defamation Law has been used by the corrupt and influential persons to prevent and browbeat the honest persons from speaking the truth.
Earlier the Supreme Court of India had taken the side of those who have had waged struggle against corruption and it had provided protection to the people speaking against the authorities. There is a known case of ‘Harbhajan Singh vs. State of Punjab’,wherein the Supreme Court had set aside the conviction of the appellant Harbhajan Singh, who was prosecuted under section 500 of the IPC. The story in brief is that Surender Singh Kairon was the son of the then Chief Minister of Punjab Pratap Singh Kairon. The appellant Harbhajan Singh had published in the Blitz a magazine of Bombay in its issue of July 23, 1957, which read that ‘the son of our Chief Minister is not only a leader of smugglers but is responsible for a large number of crimes being committed in the Punjab. But because the culprit happens to be the Chief Minister’s son, the cases are also shelved’. The Supreme Court said that the statement published in the magazine was for the public good therefore, appellant was entitled to be protected.
In case after case like; Manaka Gandhi vs Union of India, M/s Laxmi Khandsari and other vs. State of U.P. and Others, In Ramleela Maidan incident, in re, the Court clearly opined that the restriction imposed in any form has to be reasonable and to that extent it must stand the scrutiny of judicial review.
In a very recent judgment of Shreya Singhal vs. Union of India, the Court fully supported the freedom of speech and expression and its application even at the cost of causing defamation to some individuals. The Court said that freedom of expression is a rule and defamation is an exception. Criticism and commentary on policies, enactments or opinions do not remotely constitute defamation. Disapproval cannot be defamation. The Supreme Court bench consisting of justices Justice Deepak Mishra and Justice P.C. Pant, however, decided after considering number of case laws, in favour of the retention of sections 499 and 500 of the IPC. The judgment has been authored by erudite Justice Deepak Mishra but this judgment has certainly disappointed a large section of freedom loving persons, who wanted these sections concerning defamation to go lock, stock and barrel from the IPC.