Criminal Defamation: Need for a paradigm shift

By Anjali Rawat, RMLNLU, Lucknow.

Defamation generally can be defined as publication of a statement which lowers or deteriorates the reputation of an individual in the eyes of the society which results in bad treatment of that individual by the members of society in ways such as avoiding or shunning. Defamation is of two types- libel i.e. by publication on paper or something which makes it permanent, and slander i.e. by words or gesture.

Defamation on the basis of punishment has been divided into civil defamation in which a person when found liable is said to compensate and criminal defamation in which a person when found guilty is sent to prison. Between these two simple distinctions of defamation there lies a great difference in the quantum of punishment, on one hand when compensation is done the defendant is free but in case of criminal defamation when the accused is found guilty he  is sent to prison his reputation, his self-esteem and his family’s reputation are greatly deteriorated. And his suffering doesn’t only stop at this point but goes on to a great extent where the taunts of society haunts him for the rest of his life.

Section 499 and 500 of Indian Penal Code deals with the concept of defamation and its punishment respectively and from a long time there has been a question upon their constitutional validity which remains unanswered to this day. In India the advocates of decriminalization of  criminal defamation theory say that the whole concept of criminal defamation interferes with the right to free speech and expression, that it goes beyond the reasonable restrictions given under Article19(2) of Indian constitution. With the same reasoning, criminal defamation has been recognized by many countries to be a bad provision and thus they have gotten rid of it, England being the recent one. In England the situation was so rough that the corporation of the country or outside was just suing bloggers, media people, scientists or anyone who just said or wrote anything wrong about them including legitimate criticism. Thus, in 2009 criminal defamation was decriminalized. In the same context Jo Glanville, Editor of Index on Censorship, said:

“We are well rid of these insidious laws. Every month, we receive reports from around the world of governments using sedition and defamation laws to suppress legitimate criticism.  In many cases, just the threat of prosecution is enough to scare journalists and campaigners into silence. I hope that the removal of these laws in the UK will inspire other countries to follow suit.”

It has been stated that criminal defamation has now become a tool for politicians and conglomerates to threaten the journalists or the truth seekers so that their reputation remain unscathed which is very contrary to the actual goal of this concept. However, one should take note of the fact that there is a difference in a provision being wrong from the start and a provision being used for wrong means. Criminal defamation falls in the former group and has loopholes in itself.

Illustration-Two different individual are alleged to have committed defamation. In one case the plaintiff goes for filing a case on civil defamation and in other case the prosecution goes for criminal defamation. Then proceedings begin. In the former case the defendant is found to be liable and thus gives compensation whereas in the latter case the accused is found to be guilty and is sent to prison.

Number one flaw of this concept is that there is no crisp methods which state that when a civil defamation or criminal defamation should be filed i.e. it simply depends upon the prosecutor or plaintiff in which of the above does he want to bring the case to the court. And on that basis the court decides whether the defendant should compensate or should be punished or both. This is quite wrong because they basically committed the same crime and just because of the arbitrariness of the plaintiff/prosecutor they get punishment of different quantum. Secondly, an individual found guilty of criminal defamation may have to pay compensation and has to get imprisonment as well (Section 500 of IPC). This is wrong because in this case the accused is losing more and the prosecutor is getting a clean name, damages and his thirst of revenge has been taken care of in a great way. Taking these perks of criminal defamation into consideration the prosecutor would usually go for criminal defamation rather than civil defamation.

All the statements given above aren’t mere hypothesis, unfortunately there have been incidents which prove that criminal defamation is now just a tool and is in clear violation of the reasonable restriction mentioned in Article 19(2) of the Indian Constitution. In fact the Supreme Court of India in cases of harassment of ‘Nakheeran’ editor R R Gopal in 1994 for attempting to publish the autobiography of criminal ‘Auto Shankar’ explaining his nexus with IAS and IPS officials; and the filing of 125 defamation cases by the state government against the ‘Hindu’ newspaper editor and journalists in 2004, had said that there is indeed a need to look upon the provision of Section 499 and 500 of IPC but didn’t attempt to do so because they wait for a proper case. Both these cases are related to misuse of criminal defamation provision. In 2014 once again the constitutional validity of criminal defamation has been challenged, this time by Subramanian Swamy against whom J.Jayalalithaa, former Chief Minister of Tamil Nadu, initiated the proceedings of criminal defamation. Although, the Supreme Court has stayed the charges against Subramanian Swamy but the Supreme Court has finally decided that the time for deciding the constitutional validity of criminal defamation has come.  Thus the Supreme Court has formed seven legal propositions from the submissions of Subramanian Swamy and asked the Centre and the Tamil Nadu government to respond to these in six weeks. The propositions are as follows:

1. Section 499 and 500 of IPC travel beyond the Article 19(2) restrictions constricting freedom of speech beyond the reasonable limit envisaged by the Constitution

  1. Purpose of Article 19(2) was not meant to put such unreasonable restrictions as provided under Section 499 and 500 of IPC

    3. In a democratic body polity, public opinion, public perception and public criticism are the three fundamental pillars to guide and control executive action and if they are scuttled or fettered or bound by launching criminal prosecution, it would affect the growth of a healthy and mature democracy

  2. Individual interest in the guise of reputation cannot have supremacy over the larger public interest, for a dominant interest in a democracy is the collective interest and not the perspective individualism5. Liberty and free speech, even though not absolute, have their own significance and those voices which are critical of certain government actions cannot be gagged

    6. It is impermissible for the executive to first muzzle free speech by filing criminal defamation cases and then pursuing them through public prosecutors by spending from public exchequer

    7. The concept of sanction for prosecution under Section 199(2) is a conferment of unfettered power on executive to silence critical voices from among the general public.

Indeed the time for shifting the paradigm has come. There is a need to decriminalize criminal defamation. The biggest example we can have is of United Kingdom. Imprisonment doesn’t seem to be a plausible punishment for expressing oneself even if one did defame other. This is said because it discourages people from expressing themselves and that shouldn’t happen in a democratic country. The Supreme Court should be appreciated as it didn’t only recognize the need but also took an action towards it though a bit late. Let’s hope that everything turns well regarding decriminalizing criminal defamation and the silver lining which is appearing right now doesn’t get diminished.