BackRight to reputation
A legal threat is often the quickest way to stifle criticism from the media, civil society and those who speak truth to power
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And now the Supreme Court of India has become part of what the novelist Salman Rushdie calls “the but brigade", which is of the opinion that freedom of expression is a fundamental right, but… and then offers explanations of exceptions, exemptions, excuses, caveats, conditions and circumstances where, naturally, some restraints must be placed on free speech. You simply can’t have too much freedom.
I am not a lawyer, but that is the irresistible conclusion I reached as I waded through the colourfully phrased and somewhat ponderously argued judgement in Subramaniam Swamy vs the Union of India, Ministry of Law and Others, which upheld criminal defamation. Several petitioners had challenged sections 499 and 500 of the Indian Penal Code, which make defamation a criminal offence with a jail term for those found guilty.
The petitioners argued that the sections placed an unreasonable restriction on freedom of expression, and “criminalization" was contrary to public interest and prevented fair comment, particularly as a civil remedy—defamation—was available. The UN Human Rights Committee has called on governments to consider decriminalizing defamation, saying that “public interest" should be seen as legitimate defence in the criticism of public figures.
“Wading through" the judgement is a fair description, for the judgement is viscous in its verbosity and vapid in its vocabulary. Even that loquacious luminary, the late justice V.R. Krishna Iyer, would have found it doubtlessly difficult to traverse through the extravagant expressions. Indeed, it reads as if it is written to exhaust the reader, who might lose patience before the eye rests on that elusive full-stop in its exceptionally long sentences. Consider this 73-word effort: “This batch of writ petitions preferred under Article 32 of the Constitution of India exposits cavil in its quintessential conceptuality and percipient discord between venerated and exalted right of freedom of speech and expression of an individual, exploring manifold and multilayered, limitless, unbounded and unfettered spectrums, and the controls, restrictions and constrictions, under the assumed power of ‘reasonableness’ ingrained in the statutory provisions relating to criminal law to reviver and uphold one’s reputation…"—and that is only the first sentence. Two hundred and sixty-five similar pages follow.
In the first sentence itself the court has suggested a new right—to reputation— which must be concealed rather cleverly in the Constitution, because a regular search does not reveal it. To be sure, several Indian court judgements have referred to reputation as a right.
Forget the assumption that reputation is earned, not demanded; that reputation is too powerful to be stained by mere words; that reputation is best defended by deeds and not through the use of laws to intimidate an accuser; that a legal threat is often the quickest way to stifle criticism from the media, from civil society and from those who speak truth to power.
The judgement last week recognizes that when someone’s reputation is smeared through defamation, that individual has the right to use civil laws to defend reputation. It should be noted, however, that the civil remedy itself can deter free speech—for example, a large news organization may be able to face lawsuits; a small newspaper or a non-governmental organization may not be able to do so. Companies can threaten lawsuits to silence criticism from brokerage firms who might write critical reports.
But the judgement says that monetary compensation may not be sufficient to deter defamation and retains criminal defamation. Terming defamation a crime against society, the court held that nobody has the right to denigrate another’s reputation. It is a matter of mystery how this would not chill freedom of expression.
The sections are also relics of the past. Thomas Babington Macaulay drafted the Indian Penal Code (1860) in the immediate aftermath of the 1857 War of Independence, when Victorian imperialists scrambled to create laws to control a mutinous India. Inspired by Jeremy Bentham, the code was a product of English Utilitarian thinking. Britain has moved on from that time; it had criminal defamation and seditious libel on its laws, but it removed them from its statute in 2009.
Rather than cling to that outdated British world view of crime and punishment, and how India should be governed, India would do well to listen to a more modern view from the UK.
At the Justice K.T. Desai Memorial Lecture in Mumbai last October, liberal barrister and politician Lord Anthony Lester said, “It is in the best interest of the peoples of India for the media to be free, uncensored and unhindered in informing them about public issues and holding their governors to account, subject only to foreseeable and proportionate restrictions. It is in the best interests of India as the world’s largest democracy to demonstrate its commitment to the international rule of law and the effective protection on human rights. That was the promise of India’s independence Constitution, but the promise cannot be fulfilled until the flawed British imperial legacy is replaced… by a Penal Code that is fit for modern India."
Salil Tripathi is a writer based in London. Your comments are welcome at salil@livemint.com.
To read Salil Tripathi’s previous columns, go to livemint.com/saliltripathi
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