It is Time to Get Rid of the Law of Criminal Defamation

The police power of the State has asserted itself once more against the right of free speech.

Journalists, party spokesmen and Subramanian Swamy have much to fear from the Supreme Court’s judgment upholding criminal defamation.

Justice Dipak Mishra, who wrote the judgment, has been in the news these past few weeks, for his handling of the Uttarakhand case, when he struck down president’s rule, for his comments in the Sabarimala case dealing with temple entry for women and now for the judgment upholding the validity of Section 499 of the Indian Penal Code. The Code itself is of 1872 vintage and that immediately makes it suspect and vulnerable to attack. It is noteworthy that at the time when it was enacted, there was no codified criminal law in England but this code was put in place for British India and it continues to carry those birthmarks. The recent controversy over the sedition law also drew attention to the colonial origins of the law and pointed out that time and political events required a different approach to what is a crime and what is not.

And indeed at the heart of the reasoning of the judgment is the question, what is a crime and what is not a crime? Why is one thing a crime and another not a crime?

In an attempt to answer that question, the judge makes an effort to distinguish civil wrong from a criminal wrong. We are told that while a civil wrong is a wrong against an individual, a criminal wrong is a wrong against society. Society here is a political and social construct, not a normative one. Hence the distinction itself is not well founded. The judge acknowledges that both wrong an individual but while a civil wrong harms the individual alone and not society as a whole, a crime harms society as a whole. Defamation is both a civil wrong and a criminal wrong in Indian law. By this very analysis, the judges ought to have asked the question: why did defamation need to be a criminal wrong at all ?

While in theory all crime is a crime against the state, all this means is that the state has the duty and the obligation to prosecute crime. The origin of this power to prosecute crime lies in the powers of the Church to try offenders and the jurisdiction to prosecute was with the Church. With the separation of Church and State, this power came to be transferred to the State. From being an ecclesiastic power it became the power of a sovereign that is the State. It can be more properly described as the “police power of the State”.

So what we are saying here is when prosecuting a person for defamation, the state is exercising its police power. We can now revisit the question: does defamation need to be a crime?

This is how it is defined: “Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the case hereinafter expected to defame that person.”

This can lead to hilarious arguments; for example that the person complaining of defamation has to prove that he was a person of some character. This happened recently, when Finance Minister Arun Jaitley had to prove while lodging a complaint that he was a man of character. Two friends of eminence had to be summoned to prove that he was a man of character; it is arguable that another two may say that he is not. How does one prove that one is a “ man of character ?” On the other hand, Ram Jethmalani threatened, that only a man of character could be defamed and no other and wanted the complaint dismissed. Every complainant would have to go through the same process, hence the process itself is flawed and one wonders why anyone would want to file a complaint for defamation.

This brings me to the question of process being the punishment. Almost all complainants know that there may never be a conviction during their lifetime for defamation, but the pendency of a complaint is harassment enough. The judicial process is fast becoming a substitute for the political process and the mere filing of a complaint can become a reason to disqualify a person from being in active political life, morally if not legally. A pending complaint gives a reason to put a person under a cloud, no matter that there will be an acquittal at the end of the dark tunnel.

In recent times, the law has hardly every been used by a man of reputation defending himself or herself, but been used to get complaints lodged against disgruntled political rivals. What makes this worse in the case of defamation, is that here, the theory that the State prosecutes breaks down and it is only the person affected or the person who perceives himself or herself as being defamed who lodges the complaint. It is not as if every defamation statement is being prosecuted by the State. This is also where the distinction between a civil wrong and a criminal wrong made by the Court breaks down. If defamation is a wrong against society, then why is every defamatory statement not prosecuted, why only when someone has the luxury to file a case is the criminal process activated?

Defamation is not a wrong against society

This itself should lead to the conclusion that defamation is not a wrong against society howsoever conceived, but against an individual.

It is here that the judge’s theory of the distinction between civil and criminal breaks down. This is how he sees the distinction:

“The distinction of public wrongs from private, of crimes and misdemeanors from civil injuries, seems principally to consist in this: that private wrongs or civil injuries are an infringement or privation of the civil rights which belongs to individuals, considered merely as individuals; public wrongs or crimes and misdemeanors are a breach and violation of the public rights and duties due to the whole community in its social aggregate capacity. In all cases the crime includes injury; every public offence is also a private wrong, and somewhat more. It affects the individual, and it likewise affects the community.”

But why and how does the defamation of one individual affect society? We are not told this answer except to say that it does. There are some crimes that are described as impact crimes, i.e. crimes which impact the community. Not all crimes impact the community. Racist crimes, crimes against SC and ST and rape are considered impact crimes, that is they are identity-based crimes, and a crime against one individual of that community is a crime against all, as it is based in identity. The impact of the crime is not the community as a whole, almost to teach the community a lesson. This is how rape is a crime of impact and of patriarchy, that is it is intended to teach all women a lesson not to step out of line, not to wear short dresses etc. Defamation is not one such crime as it impacts the “man of good reputation” alone.  We each have our own reputations, which cannot be interchanged with each other and hence are each individually impacted. There is no such analysis in the judgment of the nature of the crime.

Absent such an analysis, the judgment is vulnerable and it reads more like a judgment meant to protect men of honor from the press. Journalists more than any other section of society, are liable to be prosecuted under the law of criminal defamation

The law in the UK has been changed and defamation is no longer a criminal offence. Even the civil law has been codified and it can be known with some level of certainty. A civil law is a civilized way of dealing with defamation, libel and slander. It does not enable pre-censorship of speech, nor does it prevent a journalist from writing what he or she believes to be true so long as the writing is justified by the writer as being true. One of the most unacceptable thing about the judgment is that it hold that truth by itself is not defense to the offence. Examples were given why something even if true, should not be published, such as a persons HIV status . This is to confuse between the right to privacy and confidentiality on the one hand and the protection of reputation on the other hand . A doctor may not be permitted to disclose the HIV status of a patient   and if he or she does, they may be liable for breach of confidentially not for defamation; that is elementary and cannot be used to say that the truth can also constitute defamation .

All judges are in search of history–one wonders which side of history Justice Mishra who wrote this judgment would want to be. There is no denying that there is an underlying inarticulated premise to all judgments; sometime judges make this premise clear and sometimes they don’t. This judgment has the merit of being transparent.

The Supreme Court has upheld the criminal law of defamation with a vengeance, and the legislature has not codified the civil law. It is time to codify the civil law and delete the criminal law form the statue book.

The most disturbing part of the judgment was the refusal to strike down a criminal law, only for the reason that it is a criminal law. The judge says it is matter for the wisdom of the legislative to decide what should be a crime and what should not be a crime. This has frightening implications for the pending petitions challenging the constitutional validity of Section 377. It is time to scrap the Indian Penal Code and enact a post-Constitutional Penal Code.

The police power of the State has asserted itself once more against the right to free speech and undone much of the gains made by Shreya Singhal’s case.

Indira Jaising is a senior advocate at Lawyers Collective.