Need for Reforms in Defamation Laws in India

Introduction:

A person cares more about his reputation next to his life. The reputation of a person is a vulnerable entity which is built up through years of “integrity, honourable conduct and right living”.[1] This right to reputation is a very important right to a person. Right to the reputation of a man is protected under Article 21[2] of the Indian Constitution. Talking ill about a person or defaming him spoils his reputation and livelihood in the society. Thus, defamation is considered very serious in the society.  

According to Black’s Law Dictionary, defamation means “the offence of injuring a person’s character, fame, or reputation by false and malicious statements.” In layman terms, it is a false and damaging statement which is made by one person about another in the presence of a third party. It can be both written and spoken. In India, many provisions talk about and punishes defamation. Some of them are noteworthy- Sections 499-502 of the IPC make defamation as a crime; Section 124A of IPC contains ‘Defamation against the state’ also known as sedition; Section 153 of the Code provides for defamation of a class i.e., community and Section 295A deals with hate speech with regards to outraging religious sentiments. In India defamation is both civil and criminal offence. Decriminalizing defamation is one of the hottest topics going on in the present times. There are various debates and discussions on the same. This article talks about the need for reform in the defamation law in India.

Criminal Defamation

In India defamation is both civil and criminal offence. Under Civil law, the defamed person can move to the court and seek damages in the form of monetary compensation. This safeguards the right of the person whose reputation is being tarnished. On the other under criminal law, the accused are imprisoned. The main aim of the criminal law is maintaining the social order and to punish the person who commits crimes against society. That is why crimes like rape and murder are prosecuted by the state under criminal offence. But now arises a question of how defamation becomes a crime?  Debate and discussions on this, makes people think about decriminalizing defamation.

Section 499 of the IPC deals with the offence of ‘defamation’ and 10 of its exceptions with illustrations. According to this section, if a person makes or publishes a statement made by words or signs or visual representations with an intention to harm the reputation of a person amounts to defamation.[3] These 10 exceptions can be used as a defence by an accused charged with the offence of defamation and can exempt him from criminal liability. These are defence of truth, an opinion expressed in good faith on a public servant, judicial decision, conduct of witness, public performance, or for the good of a person etc. Section 500 of the IPC deals with the ‘punishment for defamation’. It states that one who defames another will be punished with a maximum imprisonment of two years or with fine or with the both.[4]

There are many criticisms regarding Sections 499 and 500 of IPC as it is being misused for various reasons. Many notable situations can be seen where influential and powerful people try to threaten journalists and other publishers. Some kind of reform is necessary for the defamation laws in India.

In most of the countries of the world, defamation is a civil wrong and not a criminal offence. Rather in India we can make proper provisions for defamation and change it to civil wrong alone and decriminalise defamation or to reform the sections of IPC. Subramanian Swamy v. Union of India[5] is a landmark case in which the main issue was the decriminalization of defamation. Here, the constitutional validity Sections 499 and 500 of the IPC was challenged. The case had been brought by several petitioners charged with criminal defamation. They argued that the offence of criminal defamation inhibited their speech. Even though there were proper arguments, in this case, the Supreme Court upheld the constitutional validity of those sections. The Court found that there existed a constitutional duty to respect the dignity of others. Here, the disproportionality was not considered by the court.

Decriminalizing Defamation

This had become one of the important topic among the politicians and common people of the country. The constitutional validity of this is constantly being questioned. The main contention of this is that it violates the freedom of speech and expression which is guaranteed by the Indian Constitution. Decriminalizing defamation will bring the IPC in accord with Article 19(2), ensuring that the means used to discourage defamation do not end up damping legitimate criticism. Not all criticisms amount to defamation. Misuse of these defamation laws should be brought into control by fixing proper parameters for these laws. 

If we need to reform or repeal this section, the following needs should be met. Some of the recommendations and suggestions for the new reforms are listed below.

1. A criminal complaint should be made only for serious damage of reputation. It should not be on any normal reason. This seriousness of the damage of reputation should be defined properly in Section 499. Punishment of imprisonment of 2 years should be given to only to very serious defamation cases which resulted in greater riot and which was a threat for public order. For other defamation cases only fine should be imposed. That too the range of fine should be fixed.
2. The chapter should talk about the issue regarding who should be punished for defamation and how. This is much needed in this new era of the internet. Some of the intermediaries like Facebook and Google should not be made liable for defamation as they have no creative control over the statements made.
3. Protecting the reputation of the deceased persons when violated leads to defamation. It is very excessive to make it a crime. This right to reputation is to protect people’s reputation and to support them to be the same of what they are. But it is not necessary to extend this protection for the deceased people. This can be removed from Section 499 of IPC. The main aim of defamation law is to protect the reputation of a private person, so that his reputation in the society is not ruined. It is arbitrary and unreasonable to extend this protection to the deceased or dead person since there is no longer harm to his reputation and ability to earn a livelihood.
4. Also a special provision can be made for the journalists. In that all the aspects like How far a journalist criticise one? How can an exception provided for them? should be covered in that. A form of defamation insurance can be made for them. “The fear of being arrested by the police, held in detention and subjected to a criminal trial” will be there in the mind of a journalist when he/she decides to expose and big shots or politicians, for example, a case of high-level corruption of a politician. We can also take an example of Arnab Goswami, a journalist in Republic TV who faces many criticisms than the other journalists. Numbers of defamation cases were also filed on him, which is the result of the news that he is broadcasting in his channel. Those issues include the Rafael issue, the Palgarh lynching and so on. Only some of the brave people come out and speak up. Not everyone is ready to face these criminal allegations against them. And this right to criticise with some restrictions which should also be included in Chapter 21.
5. The Supreme Court should revisit the constitutionality of defamation is a criminal offence. Wider interpretation can be given to Section 499 of IPC.  It should be ensured that defamation laws are no longer be used by the powerful people to harass and blackmail.

Need for Reforms

1. It can be said that this section violates Article 19[6] of the Indian Constitution. The ‘right to reputation’[7] may be protected by the Constitution, but it should not be at the cost of freedom of speech. Free speech is necessary because, among other things, it enables the media to hold governments and individuals accountable. Any limitation on the freedom of speech should be specific, reasonable and narrow. But this is an unreasonable restriction.
2. Freedom of speech and expression of media is very important for a democracy. Only then the people will come to know the truth. So, if there exists a criminal defamation people and media out of fear of criminal proceedings would not come out. This law has a harmful effect on the society. For instance, the state and politicians can use it a means to coerce the media and the political opponents which forces them to adopt self-censorship and unauthorized self-restraint.
3. Unlike India, in most of the countries defamation is only a civil wrong. In India, it is very easy for a person to lodge a complaint on criminal defamation. But the accused gets the chance to prove themselves correct only after the trial begins. The accused has to show that his/ her accusation was true and it was of public interest. It can be seen that the criminal proceeding are harsher towards the accused. The requirement of proving such an act of defamation through audio-visual records means that only public figures get protection. The general public has no way to fight for their dignity. It is also very hard to prove the mens rea.
4. It acts as an ideal weapon for the powerful individuals to silence the criticisms and allegations made about them. The MeToo movement can be taken as an instance. The people who were famous, powerful and have money can easily file a criminal defamation suits. For instance, we can the criminal defamation suit filed by former union minister M J Akbar against Priya Ramani who was a victim of the MeToo movement.[8] Here, M J Akbar filed a defamation suit against her.
5. Section 124, 153 and 153 A of IPC covers and gives punishments to all the acts that are defamatory which may harm the public order. So, this criminal defamation does not overreach any public interest. The intention of Article 19(2) is to include a public law remedy in respect of a grievance and not an actionable claim against an individual.[9]
6. It has been used over the years for political vendetta. Many people do not understand the difference between criticism and defamation. This works as a shield for the politicians, public servants, corporations and institutions against critical scrutiny and questions from media. In August 2016, the court also passed criticisms on Tamil Nadu Ex-Chief Minister Late J. Jayalalithaa for misusing the criminal defamation law to “suffocate democracy” and the court said that “public figures must face criticism”.

Conclusion

There is more harm that is flowing from over-criminalisation of defamation because of which there is a serious need for reforms in these laws. Defamation should be decriminalized otherwise it will greatly subvert the legitimacy of the Indian justice system. The punishment provided in criminal law is very harsh and invasive which is not proportionate to the harm caused due to any defamatory statement. The law which is in use makes the right to reputation more important than the freedom of speech. The right to free speech is meaningless without the right to criticise. Both the judiciary and the legislation should intervene in this and make changes according to the modern democracy. Thus, it is very important to decriminalize defamation in order to safeguard the sanctity of the criminal law of the country.

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References:

[1]The History and Theory of the Law of Defamation II, 4 Colum. L. Rev. 33, 33 (1904).

[2] Indian Const. art 21.

[3] Indian Penal Code 1860 § 499.

[4] Indian Penal Code 1860 § 500.

[5] (2016) 7 SCC 221.

[6] Indian Const. art 19.

[7] Indian Const. art 21.

[8] MJ Akbar defamation case, https://www.firstpost.com/living/mj-akbar-defamation-case-ex-minister-accuses-priya-ramani-of-knowingly-tarnishing-his-reputation-next-hearing-on-17-march-8101281.html (Sept. 17, 2020 3.47 pm).

[9] Indian Const. art 19(2).