Home >Opinion >Supreme Court’s curious approach on defamation

While our fundamental rights are guaranteed by the Constitution, they are shaped and expanded by our judges. Generally, from the mid-1980s, the Supreme Court has interpreted the right to life to include the right to legal aid, the right to health and the right to a clean environment.

While elevating the right to a reputation, such as it may be, to the level of a fundamental right, the court should have asked itself the question, does the right to a reputation stand on the same footing as these non-enumerated rights?

At a time when we still don’t have a fundamental right to food as part of the right to life or the right to housing as a fundamental right, we are told that the right to a reputation is a fundamental right, such that it can be enforced by criminal sanctions. This is how the right to life was used to scuttle another precious right—the right to free speech.

Surely, on the scale of necessity, one of the most fundamental of needs of all humans is the need to communicate, speak, read and write. It is a capability, as Martha Nussbaum and Amartya Sen recognize, that comes with being human.

How could the court have found a contradiction between the two rights that needed to be managed through the policing powers of the state?

Freedom of expression and communication is not only part of being human, but is also essential to an enlightened democracy, and is a basic political right. While referring to the Preamble and noting fraternity as a desirable goal, the court seems to have overlooked political justice, which is also an essential part of the Constitution.

Traditionally the Preamble and the right to life have both been used to expand, not shrink, our rights, as seems to have happened in this case of upholding the validity of the law of criminal defamation.

The reference to Vishaka guidelines against sexual harassment at workplaces is not only misplaced but also ironic. That judgement expanded the right to work to include the right to work free from sexual harassment, based on the application of international law.

If anything, this judgement takes away from the Vishaka guidelines, by preventing women from complaining of sexual harassment or revealing the names of their aggressors on pain of being prosecuted for defamation.

Such is the horrendous implication of the judgement that it protects wrongdoers; since truth cannot be pleaded as a defence in a prosecution, one has to go a further step and prove that it is in public good to disclose the names of the offender.

The Indian Penal Code was drafted in 1860 by an imperial power and it bore the birthmarks of colonialism. The law of criminal defamation belongs to that period and the challenge to the law provided the ideal opportunity to explain why it needs to be a criminal offence.

A wrong may be a civil wrong or a criminal wrong—or both.

In the case of defamation, it is both a criminal and a civil wrong. The distinction, as claimed, is that a civil wrong is a wrong against the individual while a criminal wrong is one against society. By this definition, the court ought to have come to the conclusion that defamation is not a wrong against society, as reputation after all belongs to the individual, not society.

The justification then appears to be that we need to protect “people like us" from society, not the other way round as claimed.

Many famous men have sued women for allegedly defaming them with allegations of sexual harassment—justice Swatanter Kumar and R.K. Pachauri, to name two. These examples give us an idea of the users of the law of defamation.

Civil law is inaccessible to most people given the large court fees that are to be paid. If reform is what the court was looking for, it was in the realm of civil law.

Given that we collectively express ourselves through the media, the rights of the media are have also been shrunk rather than expanded and no benefit to society seems to emerge from making defamation a crime. Journalists are at great risk from this judgement, as is free speech for all of us.

While demanding civilization of conduct, we need to factor in the dysfunctional nature of the criminal justice system; it is the process that is the punishment. The world over, defamation has been decriminalized, in recognition of its chilling effect on free speech and in recognition of the fact that it produces no social good.

The approach of the Supreme Court is curious—when all arguments fail, the court falls back on the “wisdom of the legislature", meaning a hands-off approach to the policy decisions of the government of the day. The Supreme Court of India seems adrift, as it has in the past when faced with difficult political challenges, and this more than anything else is such a time.

Indira Jaising is a senior advocate at the Supreme Court and former additional solicitor general for India.

Jaising has appeared in court for the petitioners in the sexual harassment cases against Swatanter Kumar and R.K. Pachauri.

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