Criminal defamation has been a proven tactic used by political parties for intimidating their opponents. The recent cases being the criminal defamation cases against Delhi Chief minister and thus has been news.
Legal terms to understand before understanding the debate:
Section 499 of IPC:
It defines defamation as anything spoken, written or represented through signs or any visual representation which leads to harming the reputation of a person is said to be defamatory. Other than living beings, this is applicable also for deceased people and company. However, no such statement will be considered defamatory unless, in the estimate of others, it lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.
Section 500 of IPC :
It states the punishment for defamation. The punishment as stated in the section is "Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both".
Article 19 (1) (a) of the Indian Constitution read in accordance with Article 19 (2):
All citizens shall have the right to freedom of expression.
The right to freedom of expression is not absolute as Article 19(2) allows the state to make reasonable restrictions in the interest of
Sovereignty and integrity of India,
Friendly relations with foreign States,
Decency or morality or
In relation to contempt of court,
Incitement to an offence.
Exceptions to defamation as per Section 499 of IPC:
Truth published for the public good,
Something that is correct factually.
Public conduct of public servants.
The conduct of a person relating to a public question,
Court reporting or comments on merits of a case,
Expression over a public performance
Censure passed in good faith by person having lawful authority over another etc.
Right to Reputation (as given in Kishore Samrite vs. State of UP, 2013)
The reputation is an element of personal security and is protected by the Constitution equally with the right to enjoyment of life, liberty and property enshrined in article 21 of the Constitution;
Arguments in favour of Criminalisation of Defamation:
Right to speech and expression is not an absolute right and is subject to restrictions in the interest of the society.
Right to reputation is a fundamental right implicit in Article 21. Thus defamation needs to be criminalised to protect the hard earned reputation of a person.
At present, defamation is both a criminal as well as civil offence. If it is limited to just a civil offence, it will lead to no control over defamation from poor people who can be utilised by rich people for spreading defamatory rumours about their opponents.
Most of the countries have retained criminalisation of defamation with 23 out 28 EU countries retaining it. The exceptions are Cyprus, Estonia, Ireland, Romania and the United Kingdom. Mexico and the United States have no criminal defamation laws at the federal level, but certain states within these two countries still criminalize defamation.
Arguments against Criminalisation of Defamation:
Right to Reputation is not a part of Part III of the constitution. It has been added by Supreme Court through its judgments. The vastness of Article 21 has started encroaching on other fundamental rights especially Right to Freedom of speech and expression.
Constitutional fraternity is not a part of Article 19(2). Thus it cannot be imposed as a restriction on Article 19(1)(a).
It have a chilling effect on the freedom of speech and expression.
The law is used as a SLAPP(Strategic law against Public Participation) tool for harassment and intimidation.
The law is broadly defined and thus subjective.
It is a continuation of British legacy as defamation was added to IPC through Macaulay's 1860 report.
Supreme Court interpretation of criminal defamation in Subramanian Swamy vs, Union of India:
Right to Reputation under Article 21 is a valid argument against Freedom of Speech and Expression. There has to be balance between Right to reputation and right to freedom of speech and expression. The Supreme Court has asserted that in order to treat a right as a fundamental right, it is not necessary that it should be expressly stated in the constitution as a Fundamental Right. Political, social, and economic changes in the country entail the recognition of new rights. The law in its eternal youth grows to meet the demands of society.
Criminal defamation law protected the feeling of fraternity between members of society.
As Dr. B.R. Ambedkar rightly observed that Liberty cannot be divorced from Equality, Nor can liberty and equality be divorced from Fraternity. Thus we need to find a balance between the three which can be done by changing Defamation from a criminal conduct to a civil conduct. Also, the cases of defamation have to be decided sensitively by the judiciary so as to ensure that defamation doesn't function as a tool of intimidation which cause a chilling effect on person's right to expression.