When, in the middle of 2016, the Supreme Court of India upheld the constitutionality of the colonial-era criminal defamation law in the case of Subramanian Swamy vs Union of India, it elected to set itself an opposition to a worldwide legal trend. Countries across the world are increasingly beginning to view criminal defamation as a disproportionate restriction upon the freedom of speech at the altar of personal reputation. For instance, in 2009, the UK repealed criminal defamation, leaving in place only civil remedies for the protection of reputation (ironically, of course, it is the UK to whom we owe our own law of criminal defamation – as well as our law of sedition, which was repealed that same year in the country of its birth). In December 2014, the African Court of Human and Peoples’ Rights, on an appeal from an imprisoned journalist in Burkina Faso, not only reversed his sentence, but also noted that criminal defamation was inconsistent with constitutional principles of free speech. In February 2016, Zimbabwe’s highest court struck down criminal defamation as unconstitutional. The UN special rapporteur for freedom of speech and expression has repeatedly recommended that nations decriminalise defamation and limit it to a civil wrong.
This international trend was bucked further last week, when Judge John M. Mativo of the High Court of Kenya – also a former British colony – ruled that criminal defamation was inconsistent with its constitutional guarantee of the freedom of speech and expression, striking it down. While the Kenyan constitution is not identical to the Indian constitution, its standard for restricting rights – the internationally accepted standard of proportionality – is also the standard that has been applied by the Supreme Court of India since the 1950s. And, in fact, the arguments made before the High Court of Kenya, and which it accepted, were not necessarily tethered to any specific constitutional text, but were arguments of a universalistic character, when considering the balance between free speech and other “interests”.
In particular, the High Court of Kenya found three arguments to be particularly persuasive. First, it held that to criminalise speech, it must be shown that there was some “social interest” at stake (such as, for instance, public disorder). The protection of reputation was only an “individual interest”. Consequently, the machinery of criminal law was not required to step in and protect individual reputation. Secondly, the High Court of Kenya held that the criminal process was qualitatively different from the civil process and was much more far-reaching in its effect upon individual freedom. A person accused of a criminal charge faced arrest, a lengthy trial and the possibility of time in jail (the Kenyan law of criminal defamation carried a penalty of two years in prison). And thirdly, the rigours of the criminal process were specifically problematic when it came to the freedom of speech, because of the “chilling effect”: that is, persons faced with the possibility of criminal sanctions for defamation would tend to self-censor and steer well clear of the legal/illegal line, thus impoverishing public discourse.
The High Court of Kenya then analysed these three arguments in the context of the role played by freedom of speech and expression in a democratic, constitutional republic. It observed that the crucial purpose of free speech was to ensure accountability from powerful individuals and groups in society. Through the exercise of freedom of speech, the doings of such powerful figures could be brought to light and placed before the public. Or, in the words of a famous American judge, “sunlight is the best disinfectant”. Implicit within the court’s reasoning was the understanding that, more often than not, criminal defamation is used by powerful persons and groups against investigative journalists and other inconvenient dissident figures, and used with the specific purpose of silencing uncomfortable speech.
For these reasons, the High Court of Kenya held that criminal defamation was a disproportionate restriction upon the freedom of speech and expression. The interest of individual reputation could be adequately protected by civil remedies, such as payment of damages. However, exposing speakers to criminal trials and the possibility of imprisonment for their speech would have the effect of chilling vital expression and crippling journalists (and others) from adequately scrutinising public action, or action with public ramifications.
To substantiate its argument, the High Court of Kenya relied extensively upon international jurisprudence and the opinions of UN bodies. It tapped into a growing, cross-border jurisprudence that is increasingly coming to understand that, whatever the wrinkles in national constitutional texts, arguments against criminal defamation go beyond parochialism and are applicable in any constitutional democracy that claims to value the freedom of speech and expression as a foundational commitment.
In this context, the Indian Supreme Court’s judgment last year in Subramanian Swamy seems even more of an outlier than it did at the time. Before the Supreme Court, the same arguments that were made before the High Court of Kenya, were made there as well: that defamation was effectively a private wrong and only merited a response in civil law; that criminal proceedings were a disproportionate method of addressing the problem and consequently could not be justified under Article 19(2) of the Constitution; and that criminalising defamation had the inevitable effect of chilling vital speech. Unfortunately, these arguments were effectively ignored by the Supreme Court, which chose instead to elevate personal reputation to the status of the “right to life” under the constitution and invoked notions of “constitutional fraternity” to keep this 1860 law still standing. But in light of what is increasingly growing to be an international consensus, we can hope that the Supreme Court will reconsider its position sooner rather than later.
Gautam Bhatia is a Delhi-based lawyer and author of Offend, Shock, or Disturb Free Speech under the Indian Constitution, published by Oxford University Press in 2016.