‘Right to reputation’ is a fundamental right
The right to free speech cannot be read to mean that one citizen can defame another
The recent judgement of the Supreme Court rejecting the constitutional challenge to criminal defamation stands as a landmark verdict in the context of the world’s largest democracy. There have been several judgements on fundamental rights of freedom of speech and expression and their importance in the context of democracy; however, this judgement highlights the other fundamental principles that are equally important and raises reputation to the level of “shared value of the collective” and elevates it to the status of a fundamental right.
In the context of harmful content, more so, in the context of the virtual world: Can it be said that reputation does not need to be protected? Can it be said that defamation is only a private wrong and, therefore, there cannot be any redressal, especially in the light of just exceptions put as a safeguard to weed out genuine loss of reputation as opposed to frivolous complaints? Can it be said that the State is under no obligation to protect the human dignity of an individual? Can it be said that the fundamental right to speech and expression includes speech laden with harmful intent, made with reckless disregard?
The well-reasoned judgement authored by hon’ble justice Dipak Misra addresses each of these concerns and holds the right to reputation to be an integral part of Articles 21 and 19(2) of the Constitution.
The court held that one cannot be oblivious to the fact that the right to freedom of speech and expression is a highly valued and cherished right, but at the same time, one cannot be unmindful of the fact that the Constitution conceives of reasonable restrictions. The right to free speech cannot be read to mean that one citizen can defame another. The theory of balancing of rights in the particular context of the fundamental right to speech and expression alludes to the imperative need for protecting the human dignity of an individual. The theory of balancing of rights dictates that along with the right to freedom of speech and expression, there is a correlative duty on citizens not to interfere with the liberty of others, as everyone is entitled to the dignity of person and of reputation.
The argument of availability of civil remedy as adequate in terms of monetary compensation was also repelled. It was held that the State has a legitimate interest to regulate the freedom of speech and expression and ensure that no defamatory or libellous speeches are made. The guiding rationale, as enumerated in various previous judgements of the apex court, hold that nobody has a right to denigrate the others’ right to person or reputation. In this context, criminal defamation, which exists in the form of Sections 499 and 500 of the Indian Penal Code (IPC), is not a restriction on free speech that can be characterized as disproportionate, as cumulatively, it serves the social interest in holding “reputation” to be a shared value of the collective.
The provisions governing criminal defamation are clearly laid down. The intention to cause harm and the existence of knowledge that one’s speech is likely to cause harm upon utterance of defamatory words are essentials to convict a person accused of an offence under these provisions. No person can be criminally held liable for defamatory speech merely on the utterance of slanderous or libellous statements. Additionally, knowledge or proof of recklessness (absence of good faith) that is enlisted as an “exception” or defence in the IPC is also incorporated in Section 499 as essential to hold a person liable under these provisions.
Interestingly, in the current milieu of wide-ranging media coverage, journalists also have to be held accountable for making imputations/allegations sufficient to ruin the reputation of an individual. Given the fact that in today’s world there is an increasing awareness, it has become more important now than ever that reckless or wild allegations made by any section of the society, be it an individual or sections of media, be held accountable for such brazen impunity.
In the meantime, the universal value of “reputation” as a cherished constituent of life, making it as relevant today as it was yesterday, must be vehemently protected. This idea has been immortalized in the beautiful words of William Shakespeare in his play Othello:
“Good name in man and woman, dear my lord,
Is the immediate jewel of their souls:
Who steals my purse steals trash; ’tis something, nothing;
’Twas mine, ’tis his, and has been slave to thousands:
But he that filches from me my good name
Robs me of that which not enriches him,
And makes me poor indeed.”
Pinky Anand is an additional solicitor general of India.
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