"Reputation, reputation, reputation! Oh, I have lost my reputation! I have lost the immortal part of myself... my reputation!"
-Cassio (Othello, Shakespeare)
The Supreme Court's recent decision in Subramanian Swamy v. Union of India (read the judgement here) is reminiscent of the quote above. Its response to petitions filed by Subramanian Swamy, Arvind Kejriwal, Rahul Gandhi and Rajdeep Sardesai, upholding the constitutional validity of criminal defamation, has revived the perennial debate surrounding the right to free speech in India, and the brunt of "reasonable restrictions" it is ordained to bear.
The criminal law on defamation
Section 499 of the Indian Penal Code (IPC) defines defamation as making or publishing any statement "intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation" of a living or deceased individual, company or association. The penal consequence is a fine and/or imprisonment of up to two years.
Today, defamation is a criminal offence even without evidence of malicious intent or actual consequent harm; a reasonable knowledge of likeliness of harm attracts criminal liability.
Sections 499 and 500 of the IPC were inspired by the English concept of "criminal libel" created to obviate the need for violent duels to avenge insults, and present a classic example of the colonial hangover the Indian legal system suffers from. Today, defamation is a criminal offence even without evidence of malicious intent or actual consequent harm; a reasonable knowledge of likeliness of harm attracts criminal liability. The heavy burden of proving an exception to defamation also lies on the accused. "Truth" is not a complete defence, as was the case with English libel, and is admissible only when the statement furthers "public good".
Free speech and criminal defamation
The fundamental right to free speech and expression enshrined in Article 19(1)(a) of the Constitution of India has been consistently undermined by invoking "reasonable restrictions" to the same. Article 19(2) imposes limitations on the right "in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence." The broad and over-inclusive phraseology of these restrictions facilitates arbitrary curtailment of the freedom of speech. Further, Section 499 governs "any imputation concerning any person" directly impeding free political speech and criticism.
"Truth" is not a complete defence, as was the case with English libel, and is admissible only when the [defamatory] statement furthers "public good".
The International Covenant on Civil and Political Rights (ICCPR), to which India is a party, recommends that restrictions on the right to free speech be strictly necessary, proportionate, in service of a legitimate aim and the least intrusive method in furtherance of such legitimate aim (United Nations General Comment 34). Since defamation is a private wrong, criminalization in itself seems a disproportionate action.
In 2014, Amnesty International made a representation to the Law Commission of India exhibiting the extensive exploitation of the law of defamation to intimidate journalists, curtail investigative journalism and suppress political dissent. The United Nations Special Rapporteur on the Promotion and Protection of Freedom of Opinion and Expression, Frank La Rue, believes that "judicial harassment" in the form of unnecessarily long trials, during which the accused are kept imprisoned, has a chilling effect on the freedom of speech and expression. Often, powerful businesses and politicians exploit defamation laws to suppress negative press coverage and obtain pre-publication "gagging writs". This is evidenced by the example, cited in the University of Toronto's report "Imposing Silence", of collusion between the publication house Bloomsbury and former Aviation Minister Praful Patel, who in 2013 entered into an agreement to withdraw Jitendra Bhargava's book The Descent of Air India which placed responsibility on Patel.
Globally, the criminal law of defamation has been recognized as an unreasonable restriction on the right to freedom of speech...
Globally, the criminal law of defamation has been recognized as an unreasonable restriction on the right to freedom of speech, the importance of which has also been elevated with changing times. South Africa and the USA have introduced numerous defences which render the penal provision virtually ineffective, while the UK and Zimbabwe have abolished it altogether.
Subramanian Swamy v. Union of India: A critique
In Shreya Singhal v. Union of India (read the judgement here) the Apex Court opined that in order to be reasonable, any restriction under Article 19(2) of the Indian Constitution must be "narrowly interpreted so as to...restrict only what is absolutely necessary." However, the judgement of the Supreme Court in Subramanian Swamy v. Union of India conferred an overarching interpretation on the law of defamation, undermining free speech and rendering the law vulnerable to abuse. The court has upheld the constitutionality of criminal defamation, overlooking its historical background and the contemporary challenges to its application. Justices Dipak Misra and Prafulla C. Pant held that defamation is a reasonable restriction to the freedom of speech, and that imprisonment is a proportionate consequence of a deviation.
Academic discourse is rife with scathing criticism of this judgement, which defies the provisions, spirit and sanctity of the Indian Constitution.
Academic discourse is rife with scathing criticism of this judgement, which defies the provisions, spirit and sanctity of the Indian Constitution. The judgement has interpreted Article 21 to include the right to reputation, and has prescribed an ambiguous "balancing" test to be undertaken between the right to freedom of speech and the right to reputation. The Supreme Court also invoked the idea of "constitutional fraternity", holding that the criminal law of defamation fosters a spirit of unity among all Indians, and must be preserved. However, this is not a recognized restriction on the right to free speech under Article 19(2) of the Constitution, which already contains a broad spectrum of exceptions fraught with possibilities of abuse.
Lawyer Gautam Bhatia points out the loopholes and omissions the judgement is interspersed with. It has been held that defamation is not a mere private wrong, but the Court fails to address how it constitutes a public wrong, and in any event, why it requires criminalization. Contrary to the petitioners' fears of criminal litigation having a chilling effect on free speech, the apex court actually affirmed a no-fault liability standard for criminal defamation, which has definitively been held in R. Rajagopal v. State of Tamil Nadu to be unconstitutional. The blatant disregard for this judgement has also led to criticism that Subramanian Swamy v. Union of India is per incuriam -- characterized by a lack of due regard to the law. Further, the Court attempts to add a dimension of "public interest" to the restrictions under Article 19(2), which has been held to be legally incorrect in Sakal Papers v. Union of India, as well as the Shreya Singhal judgement.
Advocate Apar Gupta has rightly opined that "though the Court's opinion runs into 268 pages, its volume does not add any weight."
In fact, advocate Apar Gupta has rightly opined that "though the Court's opinion runs into 268 pages, its volume does not add any weight."
Concluding thoughts
In a democracy that prides itself on its Constitution and the rights enshrined therein, the Indian State's responsibility to uphold the freedom of speech and expression and prevent its arbitrary curtailment must outweigh its duty to protect an individual's reputation. The civil law of defamation will suffice to give effect to the restriction on "defamation" under Article 19(2) of the Constitution, without the inclusion of disproportionate penal consequences. If the court finds retention of penal consequences essential, "truth" and "honest mistake" must be made complete, unqualified defences, and the burden of proof of all elements and the lack of application of an exception must be placed on the prosecution.
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