The Supreme Court verdict upholding the provisions of the Indian Penal Code that make defamation a criminal offence is retrograde and out of tune with the times. Many countries, including neighbouring Sri Lanka, have decriminalised defamation, which should be a civil offence alone. The court has unfortunately accepted the self-serving argument by the Centre that criminal defamation does not have a chilling, inhibiting effect on the freedom of expression. In fact, there is enough anecdotal evidence that its existence on the statute book leads to self-censorship, and that it is often used to stifle legitimate criticism. The court has sought to create an artificial balance between the fundamental right of free speech under Article 19(1) (a) and the right to reputation as part of one’s right to life under Article 21. When an individual has the recourse to sue respondents in civil courts for damages against loss of reputation, there is hardly any justification to keep the criminal option open. It is true that ‘defamation’ is one of the reasonable restrictions to free speech envisaged in the Constitution, but this is not enough to justify retaining its criminal component. In the Indian context, criminal defamation is not generally a dispute between two individuals. It is invariably a shield for public servants, political leaders, corporations and institutions against critical scrutiny as well as questions from the media and citizens. The challenge to the validity of Section 499 and 500 of the IPC was undoubtedly the biggest free speech issue to have arisen in recent times. The two-judge Bench could have referred the matter to a Constitution Bench.
If criminal defamation is really needed to protect reputations, it is befuddling how the right to reputation under Article 21 can be extended to collectives such as the government, corporations and institutions, which presumably have the resources to set right damage to their reputations. The origins of criminal defamation lie in the Court of the Star Chamber of King Henry VIII, where it was used as a means of “punishing disrespect towards authority”. Some State governments seem to go by this principle while filing defamation complaints against political rivals, media organisations and journalists. The outcome is often of little significance, as it is the process that is the punishment. The court could have read down Section 199 of the Code of Criminal Procedure that allows public prosecutors to step into the shoes of allegedly defamed public servants. It is patently unfair to allow the State to use its legal machinery to suppress criticism without public servants concerned being required to testify in court on the actual injury or loss of reputation suffered by them. The faith the court has reposed in the ability of prosecutors and lower court judges to apply their mind before instituting cases or issuing summons is worrying. Given the presence of key political figures among those who challenged the provisions, perhaps the last hope is that Parliament may be rallied to scrap it
