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Business News/ Opinion / Online-views/  Right to offend qua defamation | Manish Tewari
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Right to offend qua defamation | Manish Tewari

Perhaps it is time for the legislature to consider the criminality of defamation, and decide as to whether the act of defamation is civil tort or criminal wrong

The fundamental right to freedom of speech and expression encapsulates within itself the right to offend. The limited matrix for judicial consideration therefore ought to have been what is the legal remedy that those who are offended by the articulation of another. Photo: MintPremium
The fundamental right to freedom of speech and expression encapsulates within itself the right to offend. The limited matrix for judicial consideration therefore ought to have been what is the legal remedy that those who are offended by the articulation of another.
Photo: Mint

The recent judgment of the Supreme Court upholding the constitutional validity of criminal defamation has been critiqued as an opportunity lost for striking down criminal defamation from the statute books, primarily because defamation is only a civil wrong, and nothing more. When the petitions filed by an unusual mix of politicians and journalists from across the spectrum challenging the provisions, there were prodigious prospects that the Victorian provisions relating to criminal defamation would be off the statute books as being an unreasonable restriction on free speech. However the Supreme Court in its wisdom found otherwise.

The fundamental right to freedom of speech and expression encapsulates within itself the right to offend. The limited matrix for judicial consideration therefore ought to have been what is the legal remedy that those who are offended by the articulation of another.

The petitioners unfortunately were constantly confronting an arduous struggle, primarily because the ‘defamation" is a ground for reasonable restriction on free speech in Article 19(2) of the Constitution of India. The principal argument made on behalf of the petitioners was that to have defamation as a component of criminal law was an anathema to the idea of free speech as enumerated in our Constitution, and therefore an unreasonable restriction on a basic fundamental right. The court, while examining the reasonableness of a restriction on a fundamental right held that “the principles as regards reasonable restriction as has been stated by this Court from time to time are that the restriction should not be excessive and in public interest. The legislation should not invade the rights and should not smack of arbitrariness. The test of reasonableness cannot be determined by laying down any abstract standard or general pattern. It would depend upon the nature of the right that has been infringed or sought to be infringed. The ultimate “impact", that is, effect on the right has to be determined."

The court has also examined the aspect balancing of the fundamental right to free speech on one hand and the fundamental right of reputation which is an inherent part of the right to life and personal liberty on the other hand guaranteed by Article 21, holding that the latter should not be “allowed to be sullied solely because another individual can have its freedom". Unexpectedly, the court has also taken aid of the constitutional value of fraternity which is found in the Preamble, and also fundamental duties under Article 51A (e) to promote harmony and the spirit of common brotherhood amongst the people of India.

While the first limb of the reasoning given by the court may perhaps be accurate, the second limb was perhaps avoidable. The Preamble has been held to not form a part of the Constitution in the seminal case of Kesvananda Bharati, and to only enumerate the goals of the Constitution. While, the Preamble to the Constitution can be used a tool of interpretation, and the Perambulatory values of the Constitution may be employed while understanding the true purport of the Constitutional scheme, it is debatable whether the values of the Preamble can be drawn upon to provide the underlying basis for a decision of the court. Similar is the fate of the fundamental duties, which were included in the Constitution by the rather contentious and contested 42nd Amendment.

Although, the chapter of fundamental duties exists, it is not enforceable; that is to say, if one doesn’t comply with the duties enumerated, no action is proposed and therefore none can obviously be taken. The court has brushed the argument advanced by the petitioners that the provisions relating to criminal defamation were vague after a detailed examination of the provisions in the Indian Penal Code, namely Sections 499 and 500. The court has come to the conclusions that the provisions, the explanation and the exceptions are neither vague, nor arbitrary.

By applying the time tested doctrine of proportionality, the court found that a statute would be struck down, if it would impose more than constitutionally permissible limitations on fundamental rights, especially because the right to freedom of speech and expression a highly valued and cherished right. But in the same breath, the court has held that the right to free speech does not one a right to defame another. Like the judgment in Naaz Foundation (relating to the constitutional validity of Section 377 which is currently referred to a Constitution Bench), the court held that the legislative wisdom has found that the provisions relating to criminal defamation must remain on the statute.

Although all the legal aspects of the constitutionality of the criminalization of defamation were ably argued and considered, the reality of the civil nature of defamation ought to be taken into account by the legislature. Unfortunately, the effect of defamation being on the penal statute is that on the slightest provocation in the political or journalistic sphere leads to a criminal complaint alleging defamation being filed.

Although the ultimate result of these frivolous defamation cases is dismissal, it causes grave harassment to the so-called accused. Most of the defamation cases are only filed to silence critics, and not because of any damage to the so-called reputation of the complainant. It is pertinent to note that the primary basis for this judgment of the Supreme Court is the balance of right to free speech and the right to reputation, and as a result of this balance, the court upheld the provisions of criminal defamation.

Perhaps it is time for the legislature to consider the criminality of defamation, and decide as to whether the act of defamation is civil tort or criminal wrong. In a former avatar as minister for information and broadcasting I had publicly mooted that Section 499 and 500 of the Indian Penal Code should be repealed. If Section 66-A of the Information Technology Act can be held to be ultra vires why can’t these regressive penal provisions be legislated off the statute. It is an idea whose time has come.

The writer is a lawyer and former Union minister of information and broadcasting. Views are personal.

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Published: 23 May 2016, 02:41 PM IST
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