In an interview, Raju Ramachandran, senior lawyer at the Supreme Court and a constitutional expert, said the court’s ruling was correct in its assessment of the constitutionality of the law, but added that the verdict failed to streamline the law. Edited excerpts:
Do you think the judgement on criminal defamation law was right in finding the law constitutional?
On the test of constitutionality, which was the limited issue before the Supreme Court, the court’s judgement is correct. There are two issues within the constitutional validity part. First, whether criminal defamation is acceptable under our constitutional scheme; second, whether Section 499, 500 of the Indian Penal Code (IPC) needed tweaking or reading down.
On the first part, considering the fact that Article 19(2) (of the Indian Constitution), which speaks of reasonable restrictions on fundamental right (to speech and expression), itself includes the law of defamation, it is clear that the Constitution makers had envisaged this as a reasonable restriction. The argument of the petitioners in the Subramanian Swamy case that only civil defamation was contemplated and not criminal defamation has been rightly rejected by the court. From the time the Constitution was framed to now (present day), the only codified law with regard to defamation was criminal defamation and clearly the Constitution makers had this in mind.
But there is valid criticism against the judgement for not tweaking the provisions of the IPC in the light of the fact that the court had in 1994, while dealing with the civil law of defamation, said that no fault liability or liability in spite of due diligence would be unconstitutional. If that be the law, surely the threshold of criminal law which results in conviction and imprisonment should be higher. Here, it is rightly pointed out that the effect of the judgement is (that) the threshold of criminal law is now lower than the threshold of civil law.
Was there any scope for the court to strike down criminal defamation, since it was part of Article 19(2)?
Apart from Article 19(2), the court also relied on the expanded meaning of the right to life under Article 21, which has been interpreted as the right to live with dignity. Defamation affects an individual’s dignity and, therefore, for the protection of his/her dignity, an individual must have effective legal recourse. It is no answer to say that such legal recourse is available under the civil law, because the civil law is expensive to invoke and a defamed person in addition has to bear the burden of paying court fees on a civil suit. So, this is not an equally efficacious remedy. Secondly, monetary recompense is not always a possibility because the defendant would not be in a position to pay heavy damages.
How could the law have been tweaked to make it more constitutionally sound?
It could have been tweaked the same way in which the Supreme Court dealt with the case of civil defamation in the Rajagopal case (R. Rajagopal vs State of Tamil Nadu, 1994).
Just as the law with regard to sedition has been tweaked by the Supreme Court to say that there must be an incitement to violence, here also, the court could have indicated that where a person has acted innocently and with due diligence, it would not amount to criminal defamation and dealt with truth as a defence. The court could have interpreted public good to mean the truth as well, because there is public good in the truth being spoken.
One aspect which doesn’t appear to have been debated before the court is criminal defamation as a safeguard for freedom of speech itself. The debate was broadly on the lines of media’s right to free speech versus the threat of prosecution for defamation. Shouldn’t media also have the right to invoke defamation against those who are trolling them and preventing them from exercising their right of free speech?
The other aspect which has been missed is that criminal defamation is necessary to protect women. Women in professions are often the victims of the most vicious defamation about how they have progressed in their careers, etc. Should every woman who is subjected to this kind of defamation at the workplace only have an expensive civil suit as the remedy?
How do the two rights—right to free speech and right to reputation—play out against each other when it comes to upholding the criminality of defamation?
Courts constantly have to grapple with the issue of balancing fundamental rights. The two should not be pitted against each other, but seen as balancing different fundamental rights. For instance, in the ongoing Sabarimala case, the fundamental issue is how to balance an individual’s fundamental right to worship with an equally important fundamental right of the religious denomination to regulate its own affairs in matters of religion. The court has to balance the rights of citizens against fellow citizens and not just those against the state. In this delicate balancing task, the court has given due importance to the individual’s right to reputation, which must necessarily include the right to effective redress against loss of reputation. As has often been said, your freedom ends where my nose begins; this is always an example given when you are testing the limits of an individual’s freedom. I have the right to twirl my umbrella in the air, but it cannot hit you.
What are your thoughts on the Supreme Court’s decision in the Shreya Singhal case where it struck down Section 66A of the Information Technology (IT) Act (which punished sending offensive messages on the Internet) as against this decision? Do you think the understanding of Shreya Singhal has been watered down in this decision?
I think the Supreme Court has rightly distinguished Shreya Singhal case because the case itself made it clear that the provisions of Section 66A of IT Act, 2000, have nothing to do with reputation. Section 66A was widely worded and the Supreme Court noticed that it had not dealt with the question of reputation and I do not see any inconsistency or watering down.
What are your thoughts on the fact that the court strikes down amendments by a democratically elected Parliament but upholds a colonial law?
That’s interesting and rhetorically nice. The court has not struck down too many constitutional amendments; this number is not more than four or five. The mere fact that a particular law is of colonial origin does not make it inconsistent with the Constitution because the Constitution has expressly provided for continuance of laws, subject to their being in accord with the Constitution. Section 302 (of IPC), which is the law relating to murder, is also colonial. So, are we going to dump all our laws only because they are colonial? It’s one thing to say that laws should be updated; I don’t think that the mere fact that it is of colonial origin can be held as a reason to get rid of them. Of course, I am also equally disappointed by the fact that Section 377 (of IPC criminalizing consensual same sex relations) was upheld; that was a wrong decision.
Has the court managed to define what chilling effect entails?
I don’t think this case deals in detail with what chilling effect means, but the concept was very much present in the mind of the court. If the prospect of a civil action for defamation does not have a chilling effect on freedom of speech, then logically the prospect of criminal action should not have a higher chilling effect.
Does the court pay too much deference to the fact that the legislature has not repealed this law?
The mere fact that the legislature has not repealed a particular law doesn’t mean that a court would abdicate its duty to test the constitutional validity of the law. The distinction between the 377 case and this is that in the former case there was a clear abdication, but here the challenge was confronted head-on and dealt with on merits. To be fair, even the Section 377 judgement did not refuse to look at the validity, but the broad tenor of the judgement was that Parliament should look at it.