Context:

The Gujarat High Court has dismissed an opposition leader’s plea seeking a stay on his conviction in a criminal defamation case in which he has been sentenced to two years in prison.

 More on News:

• The Single Judge of the Gujarat High Court has held that the ‘Modi’ community or surname is a “well-defined identifiable and suable class”. 
• Justice Hemant Prachchhak outlined that said the opposition leader’s offence is all the more serious because his “thief” remarks affected a large section of society and not just the Prime Minister.

About Defamation:

• Defamation is the communication of a false statement that harms the reputation of an individual person, business, product, group, government, religion, or nation.

Defamation Law in India:

• In India, defamation is categorised as either criminal or civil, and both types are covered by the Indian Penal Code (IPC) and the Code of Civil Procedure (CPC).
• Defamation is an offence under both the civil and criminal law. 
• In Civil law, defamation is punishable under the Law of Torts by imposing punishment in the form of damages to be awarded to the claimant. 
• Under the Criminal law, Defamation is a bailable, non-cognizable offence and compoundable offences. The Indian Penal Code punishes the offence with a simple imprisonment up to two years, or with fine, or both.

Image Credits: Times of India

Constitutional Provisions:

• Article 19(2) has imposed reasonable exemption to freedom of speech and expression granted under Article 19(1) (a). Contempt of court, defamation and incitement to an offence are some exceptions.

Fundamental Rights vis-i-vis Defamation:

• It is often argued that defamation laws are a violation of fundamental rights guaranteed under Article 19 of the constitution. 
• The Supreme Court has ruled that the criminal provisions of defamation are constitutionally valid and are not in conflict with the right to free speech. 
• The court also held that the freedom of speech and expression is “absolutely sacrosanct” and is not absolute. 
• The right to life under Article 21 shall also include the right to reputation of a person and cannot be allowed to crucify by other’s right of free speech.

Defamation Laws around the World:

• Japan: Japan’s  laws allow both criminal and civil prosecution in defamation cases. Those convicted face a year in prison with an option of forced labour and a fine up to 300,000 yen.
• New Zealand: In New Zealand, criminal defamation was abolished in 1993. 
• USA: Defamation is not a criminal offence at the federal level, the American Civil Liberties Union notes that 24 states still retain criminal defamation provisions. 
• Europe: The Organisation for Security and Co-operation in Europe said in 2017 that three-fourths of member states have criminal provisions against defamation despite recommendations by international rights bodies.

Legal Provisions of Defamation:

• Section 499 of the Indian Penal Code (IPC): It states defamation could be through words, spoken or intended to be read, through signs, and also through visible representations.
  • Explanation 2 to Section 499 of the Indian Penal Code provides that criminal defamation extends to a “collection of persons”.
• Exceptions under Section 499: These include “imputation of truth” which is required for the “public good” and thus has to be published, on the public conduct of government officials, the conduct of any person touching any public question and merits of the public performance.
• Punishment under Section 500 of IPC: “Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.”

What is the procedural requirement for filing a criminal defamation case and how is the law set into motion?

• Criminal defamation provisions are read in conjunction with the procedural requirements laid down in the Code of Criminal Procedure (CrPC). 
• The offence has been categorised as non-cognisable and bailable and hence a mere filing of a police complaint by an aggrieved person does not entail arrest of an alleged offender. 
• Therefore, a complaint is more often than not filed before a magistrate, seeking prosecution of alleged offenders and their arrest. 
• The complainant needs to record his statement to convince the magistrate that the case warrants summons to the accused and their arrest. 
• Once summoned, the prosecution is set into motion and at this stage, it becomes imperative for the accused to move for bail before the magistrate. 
• If the complainant succeeds in establishing a prima facie case, the trial proceeds, otherwise the accused are discharged without being sent for a full-fledged trial.

Controversies around Defamation:

• Freedom of Expression: The Broad interpretation of defamation laws and the potential for abuse can have a chilling effect on individuals and media organisations, limiting their ability to express opinions or report on matters of public interest.
• Criminalising Defamation:  Critics argue that criminalising defamation is excessive and that civil remedies should be sufficient to address defamation claims.
• Misuse and Harassment: There have been instances where defamation cases have been filed against journalists, activists, and whistleblowers to silence them or deter them from exposing wrongdoing.

Attempt to Decriminalise Defamation:              

Protection of Speech and Reputation Bill, 2016:

• Tathagata Satpathy, a member of Parliament belonging to the Biju Janata Dal, drafted a private member’s Bill entitled “The Protection of Speech and Reputation Bill, 2016”.
• Objective: To decriminalise defamation and remove the “chilling effect” of old provisions that throttle free speech and encourage censorship.
• The Bill seeks to remove the criminal provisions while guarding the right to reputation with stronger, more effective remedies for civil relief, including apologies, corrections and retractions, and the award of reasonable damages.

Arguments in Favour of Decriminalizing Defamation:

• Freedom of Expression: It allows individuals to freely express their opinions and engage in robust public debate without the fear of criminal prosecution.
• Proportionate Response: Criminal sanctions, such as imprisonment, are considered excessive and may have a chilling effect on free speech.
• Deterrent Effect: The threat of criminal prosecution can deter individuals from expressing their opinions or criticising public figures or institutions. 
• Reduced Burden on Legal System: Criminal defamation cases often burden the already overloaded judicial system. 

Arguments against Decriminalizing Defamation:

• Protecting Reputation: Criminalising defamation holds individuals accountable for making false and damaging statements.
• Deterring Fake News: Criminal sanctions for defamation can act as a deterrent against spreading false information or malicious rumours. 
• Protecting Vulnerable Individuals: Criminal defamation acts as a safeguard against the potential misuse of free speech to harm the reputation of individuals who may be less able to defend themselves.
• Upholding Social Order: Criminal defamation laws contribute to maintaining social order by discouraging false and damaging statements that can lead to public unrest, enmity, or defamation of character.

Supreme Court’s Directives:

• In the Subramanian Swamy vs Union of India Case: The Supreme Court said that the fundamental right to freedom of speech and expression must be balanced against the right to reputation. 
• The Court also stated that the offence of criminal defamation does not violate freedom of speech and expression under Article 19 (1) (a) of the Constitution and is a proportionate or reasonable restriction as per the law laid down in Article 19 (2).
• The Court also said that while the right to free speech and dissent exist in a democracy, it cannot mean that a citizen can defame another as protection of reputation is a fundamental right as well as a human right.

Way Forward:

• Balancing Privacy and Public Interest: It is important to strike a balance between an individual’s right to privacy and the public’s right to know. 
• Reviewing Punitive Measures: It is important to examine the amount of punitive damages awarded in defamation cases to avoid imposing excessive penalties that may discourage individuals from freely expressing their opinions.
• Prevent Misuse of  Law: The State should act as a parent of all its citizens when it comes to the invocation of the law of defamation and laws cannot be misused by using the State as a tool to settle personal adversaries.

News Source: the Hindu