Defamation is a criminal offence, confirms Supreme Court4 min read . Updated: 14 May 2016, 11:01 AM IST
The Supreme Court on Friday ruled that the criminal provisions of defamation are constitutionally valid
New Delhi: The Supreme Court on Friday upheld the constitutional validity of the country’s colonial-era criminal defamation laws, ruling that they are not in conflict with the right to free speech.
The judgement will put politicians and media figures, some of whom are already facing charges of criminal defamation, on the defensive. Some expressed concern that it could muzzle the freedom of speech.
Explaining the interplay of defamation and free speech rights, the apex court concluded there will be “no chilling" effect on the latter because of criminal sanctions.
Dissent is required, but it does not grant an unfettered right to damage a reputation, said a bench comprising justices Dipak Misra and Prafulla C. Pant.
The ruling was delivered on a petition filed first by Bharatiya Janata Party (BJP) politician Subramanian Swamy against provisions criminalizing defamation. Congress vice-president Rahul Gandhi and Delhi chief minister Arvind Kejriwal, among others, later became parties to the case. They now have to face criminal defamation proceedings initiated against them.
“One is bound to tolerate criticism, dissent and discordance but not expected to tolerate defamatory attack," the apex court said.
The court described freedom of expression as a “highly treasured value under the Constitution".
Then it added a caveat.
“Notwithstanding the expansive and sweeping ambit of freedom of speech, as all rights, right to freedom of speech and expression is not absolute. It is subject to imposition of reasonable restrictions," the judgement said.
The court said that the reputation of a person is an integral part of the right to life granted under Article 21 of the Indian Constitution.
“Reputation of one cannot be allowed to be crucified at the altar of the other’s right of free speech," the court said in its 268-page judgement.
Justices Misra and Pant, however, cautioned judges handling criminal defamation cases to be “extremely careful while issuing summons". It is a judge’s duty to scrutinize every side of a defamation complaint, the court said.
Swamy took to social networking site Twitter to say that “though the judgment didn’t strike down criminal provisions (it) serves our purpose".
Under sections 499 and 500 of the Indian Penal Code, defamation is a criminal offence. Defamatory acts can include “words either spoken or intended to be read", signs or visible representations, which are published or put up in the public domain.
The offence is punishable with up to two years imprisonment, a fine or both.
Experts were critical of the ruling.
“My preliminary reading of the judgement is this has narrowed the freedom of speech jurisprudence we had in the country," said Alok Prasanna Kumar, senior resident fellow at the Vidhi Centre for Legal Policy.
“This case had nothing to do with the right of reputation. By bringing that concept in under Article 21 and pitting it against right to free speech, the court has created a false dichotomy," he said. “Criminal defamation is only a particular method to enforce this right. It’s a classic case of one step forward, two steps back. That’s the real damage done here."
The Aam Aadmi Party (AAP) headed by Kejriwal expressed concern.
“We wish that the Supreme Court would take a reformist view. This law is being abused by scammers and is being used to put whistle-blowers in a tangle and harass them. But we respect the decision. We won’t be scared by the misuse of such a draconian law," said Deepak Bajpai, spokesperson for the AAP.
The BJP and the Congress said the ruling was balanced.
“The Supreme Court has made it clear that while freedom of speech is important, it cannot be used to ruin the image of a person," said Shrikant Sharma, national secretary of the BJP.
“To my mind, it is a very balanced judgment where the court has tried to strike a balance between the two key rights—namely, right to reputation and right to freedom of expression," said K.C. Mittal, senior Congress leader and secretary of the party’s legal and human rights department.
Media figures voiced concern over the scope for misuse of criminal defamation provisions.
N. Ram, chairman at Kasturi and Sons Ltd, publisher of English-language daily The Hindu, said the judgement was “most disappointing".
“We were expecting the Indian jurisprudence to move in line with international practices where many countries, including Sri Lanka and the United States, have done away with these practices... It’ll have a deeper chilling effect on the freedom of speech in this country," he said.
During the hearings, the Union government opposed the petitions against criminal defamation, saying the absence of the laws could lead to social anarchy.
Attorney general Mukul Rohatgi argued that comparing India with other jurisdictions where there are no criminal sanctions for defamation would not be appropriate.
Greenpeace activist Priya Pillai, journalist Rajdeep Sardesai and news channel IBN7 were also party to the case.
R. Jagannathan, editorial director of Swarajya magazine, said: “Anybody can use defamation to muzzle people with allegations. The only remedy to this is to expedite cases in civil defamation. While the media needs to self-discipline itself, criminal defamation is not the answer."
The apex court had earlier stayed summons issued to people facing criminal defamation cases in various lower courts. On Friday, the court said the stay on these cases would stand lifted as the law on criminal defamation had been upheld.
The Supreme Court last year struck down a sweeping law that allowed police to jail people for online posts thought to be offensive. The court found section 66A of the Information Technology Act, 2000, to be unconstitutional, in a ruling praised by free speech defenders.
Vidhi Choudhary, Anuja, Gyan Varma and Pretika Khanna contributed to this story.