Seven Reasons Why Criminal Defamation Should Be Declared Unconstitutional

Sections 499-500 of the IPC are vestiges from India’s colonial past that are not appropriate for a modern democracy

The Supreme Court of India has repeatedly observed that the question of the constitutional validity of sections 499 and 500 of the Indian Penal Code (IPC) which make defamation a criminal offence awaits a proper case.

Following the spate of arrests under section 66A of the Information Technology Act, for innocuous comments by teenagers, cartoons, political satire and political speech which was magnificently struck down by the Supreme Court in March, the time has certainly come for it to examine the criminalisation of speech under the IPC. The proper cases have also presented themselves with figures across the political spectrum such as BJP’s Subramanian Swamy and Congress’s Rahul Gandhi facing cases under s. 499 IPC for political speeches in Tamil Nadu and Maharashtra and AAP’s Arvind Kejriwal facing a criminal defamation case filed by BJP’s Nitin Gadkari.

Article 19(1)(a) of the Constitution of India guarantees all Indian citizens the right to freedom of speech and expression. Article 19(2) allows the state to make laws which impose reasonable restrictions on this right in the interests of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. Of these, only defamation protects the private interest in protecting an individual’s reputation. All the other interests are essentially public interests. The test in determining the constitutionality of a law under Article 19(2) is whether the law is a “reasonable restriction” on free speech.

In order to be reasonable, the Supreme Court has laid down that a restriction must be “narrowly tailored or narrowly interpreted so as to abridge or restrict only what is absolutely necessary.” Reasonable restriction “means that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature beyond what is required in the interests of the public.” In other words, the restriction must be narrow and restrict only what is necessary and should not be arbitrary or excessive. If the restriction is too broad, it will have a “chilling effect on speech” which will make it unconstitutional.

Sections 499-500 IPC do not constitute a “reasonable restriction” on speech because, to begin with, even truth is not a defence. Even if a person has spoken the truth, he can be prosecuted for defamation. Under the first exception to section 499, truth will only be a defence if the statement was made for the public good, which is a question of fact to be assessed by the court. This is an arbitrary and over-broad rule that deters people from making statements regarding politicians or political events even which they know to be true because they run the risk of a court not finding the statement to be for the public good. Instead of making the plaintiff prove that the accused made a false statement, section 499 gives the accused the burden of proving that the statement was not only true but also for the public good.

Second, a person can be prosecuted under section 499 even if he or she has not made any verbal or written statement at all. In a particular case, a magistrate has issued criminal process on the mere allegation that the defendant conspired with the person who actually made the allegedly defamatory written statements. There is nothing in section 499, nor in the case law, which protects a person who has not made any statement at all from being roped into a defamation case as a defendant on the bald allegation of having conspired with someone who did make a statement. Thus section 499 is used to settle business scores as even companies can be prosecuted for criminal defamation on the wily theory that they conspired to defame the plaintiff.

Third, a person can be prosecuted even for a statement about the dead. While Article 19(2) permits restricting speech in the interests of protecting the private interest in a reputation, restricting speech to protect the reputation of the deceased is excessive and over-broad. The purpose of defamation law is to protect the reputation of a private person so that his ability to earn a livelihood and his respect in the community is not damaged. It is arbitrary and overbroad to extend this protection even when the person is deceased and there is no longer any damage caused to his ability to earn a livelihood or live his life with respect.

Fourth, even an ironical statement can amount to defamation. Explanation 3 to section 499 states that an imputation expressed ironically may amount to defamation. This provision is also excessive and arbitrary as who is to decide what is ironical? The provision in section 499 is not narrow and is not intended to restrict only what is necessary as it is unclear why ironical statements need to be prohibited.

Fifth and foremost, section 499 applies to “any imputation concerning any person.” This means anyone can file a criminal defamation suit under sections 499-500 even if that person is a public official holding high office, as in the case of Nitin Gadkari suing Arvind Kejriwal or a public institution.

Section 499 expressly states that making an imputation concerning a company or an association or collection of persons may amount to defamation. Therefore, public institutions too can file suit for defamation. However, the law of defamation cannot be intended to protect the private reputation of individuals or public institutions at the cost of inhibiting political speech about the actions of public officials or public institutions.

In a democracy, the public interest in protecting political speech must surely outweigh a public official’s private interest in protecting his reputation. The right to sue for defamation must exist as a right of a private citizen which public officials and institutions cannot exercise, since, by doing so, one can easily suppress political speech in the name of protecting the reputation of a public official or institution.

The second exception to section 499 states that it is not defamation to express in good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further. The third exception to section 499 states that it is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further.

While these exceptions are possible defences in a case filed by a public official or institution, a magistrate will still issue process and criminal proceedings will be instituted. The accused then has the burden of proof to show that these exceptions are applicable while the criminal suit continues for many years. Therefore, these exceptions do not convert section 499 into a reasonable restriction on speech. Instead, section 499 should have precluded public officials and public institutions from being eligible to file suit for criminal defamation as there is no public interest in silencing political speech for the narrow personal objective of protecting their reputation.

Sixth, since section 499 applies to “any imputation concerning any person,” a criminal suit can be filed even for political speech – which is the most protected speech in a democracy. Section 499 does not distinguish between the most desirable speech in a democracy, that is, political speech, and the least desirable – such as hate speech or speech inciting crimes. Protecting political speech is the highest goal of Article 19(1)(a) and there is no competing public interest in protecting private reputations. The provisions of section 499 are overbroad and place fetters on even political speech in the name of protecting private reputations. In order to be a reasonable restriction, at a minimum, section 499 should have excluded political speech from its purview.

Finally, it is unclear why defamation has to be a criminal offence at all and why civil remedies are not sufficient. In India, both a civil suit for defamation under the common law and a criminal suit under sections 499-500 IPC can be filed with respect to the same allegedly defamatory statement. Since a remedy exists at common law, it is both excessive and overbroad to make defamation a criminal offence – punishable by up to two years imprisonment. Is it really necessary to put people who damage a person’s reputation in jail with hard-core criminals? In fact, monetary damages recoverable in a civil suit should be a sufficient legal deterrent against defamation. The government has argued that criminal punishment is required as some defendants may be impecunious. However, using that reasoning, the entire civil justice system should be dismantled and all violations of law made subject to imprisonment.

Sections 499-500 of the IPC are vestiges from India’s colonial past that are not appropriate for a modern democracy. Just as it did in the case of section 66A of the IT Act, the time has come for the Supreme Court to once again take a stand in defence of freedom of speech in India.

Aparna Viswanathan is a Delhi-based lawyer.