Some of the famous cases which made headlines Melania Trump v Daily Mail where Melania Trump filed a defamation action in the New York state commercial court and in the UK High Court against the Daily Mail over allegations that she previously worked as an escort. Ms Trump claimed damages in the sum of $150m. In another cases cricket sensation Chris Gayle succeeded in his defamation lawsuit against Fairfax Media, contesting articles published by the media outlet claiming that Gayle had exposed himself to a female masseuse in a changing room at Drummoyne Oval in 2015. And who doesn’t know about Jasleen Kour and Sarvjeet, where a girl claimed latter has passed an obscene comments on her and but what unfolded was altogether different.
With the world shifting towards online medium defamation, cyber bullying is becoming common. Not even big superstars, eminent personalities are spared. Memes, trolls etc. are order of day. A person has a fundamental right to protect his reputation, honour and character as much as he has right to protect his property , health, personal liberty etc.
Under Indian Penal Code defamation is covered from Section 499 to Section 502, where Section 499 defines what defamation is and Section 500 provides for punishment for defamation. Sections 501and Sections 502 punish the act of printing or engraving matters known to be defamatory, and sale of printed or engraved substances containing defamatory matters. In India, defamation is both civil and criminal offence where in civil defamation is covered by Law of Torts which gives monetary compensation to affected person whereas in case of criminal defamation person can be jailed for two years or fined or both if found guilty. The fact to be noted here that it is very unusual since defamation as a crime is non-existent anywhere else in the world.
For any act to be defamation following four elements should be satisfied 1. The statement must be defamatory; 2. It should refer to the plaintiff; 3. Publication of it by defendant; and 4. The statement must be substantially untrue. Under Section 499 of IPC ten exceptions have been given to the defendant like true statement for public good; expressing an opinion in good faith of a public servant; making imputations on the character of another in good faith and for public good. Defamation can be in the written as well as verbal form known as Libel and Slander respectively.
Article 19 of Indian Constitution and Section 499 and 500 of IPC
Article 19 of Indian Constitution gives the right to freedom of speech and expression to all its citizens. But this freedom is not absolute and is subjected to reasonable restrictions under Article 19(2). They key arguments against sections 499 and 500 IPC are that they are not reasonable restriction on speech. They are considered to be remnants from India’s colonial past and therefore are not appropriate for a modern democracy. The Supreme Court of India has repeatedly reiterated that the question of the constitutional validity of sections 499 and 500 of the Indian Penal Code is awaiting a proper case. The Supreme Court of India has said that restrictions should be narrow because if restrictions are too broad they will have chilling effect on speech and hence will be arbitrary. And if we see the ten exceptions under Section 499 they are extremely broad. The first exception under section 499 of IPC is that truth shall be a defence if the statement is made for the public good which needs to be assessed by the courts. The people deter from making statements against politicians, eminent personalities and political events even when they know them to be true because there is every possibility of a court not finding the statement to be for the public good. It clearly shows that Sections 499-500 IPC do not constitute a “reasonable restriction” on speech. The another loophole is that the Section 499 gives the accused the burden of proving that the statement was not only true but also for the public good instead of making the plaintiff prove that the accused made a false statement. These Sections are misused by the politicians, eminent personalities, corporations etc. to silence the media and other activists. There is an increasing number in cases where people are slapped with legal proceedings just because a big corporation feels that irreparable damage has been caused to them by publishing certain things which they deem as uncomfortable. There are many other vices that these Sections suffer from.
The case of Subramanian Swamy vs Union of India in which politician from state of Tamil Nadu challenged provisions of the Indian Penal Code and Criminal procedure Code that criminalize defamation in India, namely Section 499 and Section 500, and Section 199 respectively. The petitioner submits that above provisions fall beyond Article 19(2) of the Constitution of India and cast an unreasonable restriction on free speech. But Supreme Court of India upheld their constitutionality and held them to be valid. The Supreme Court in this case based their reasoning by balancing between right to reputation with right to free speech. In the judicial history of India this judgement will be remembered for its obscurely colourful language rather than its progressive values. The court here bent towards fear and paternalism, rather than liberty and rights with many terming it as atrocious blow to freedom of expression.
Need for change
Indian Penal code was framed in the year 1860 which is way before the Constitution of India came into picture. Criminal defamation law was created by alien power to curb liberty of subject nation. The time and conditions of society has changed altogether since then. There is a dire need that provisions in Indian Penal Code needs to revised to suit the present times. Present criminal defamation leads to people being put in jail for something they have said publicly. This law needs to be replaced by a modern and progressive law. Wherein in many countries defamation is treated as civil action, the laws dealing with criminal defamation in India are still colonial. Law Commission of India has acknowledged that criminal defamation in IPC violated international norms and the penalty of two year jail term is disproportionate. United Kingdom, the country that gave India Indian Penal Code in its original form, itself has repealed criminality in its defamation law in 1996 and passed Defamation Act 2013 reasonably defining what constitutes defamation. The time has come to abolish these colonial laws and protect the fundamental right of freedom of speech.