Sending a person to JAIL or even tagging him as an ‘ACCUSED’ for comments which may or may not be defamatory, in this day and age, appears to be ridiculous!
We are all aware that freedom of speech and expression is not absolute and is subject to ‘reasonable’ restrictions. Defamatory speech is one such restriction prescribed under the constitution. Therefore, in order to curb speech that is defamatory, the restriction imposed should be ‘reasonable’. In the case of Chintaman Rao v. The State of M.P. the Supreme laid down the meaning of the term ‘reasonable restrictions’ –
“The phrase “reasonable restriction” connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word “reasonable” implies intelligent care and deliberation, that is, the choice of a course which reason dictates.”
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Also, whether the law that imposes the restriction is reasonable should be judged in accordance with current social, economic and political circumstances of the nation. One of the rules of statutory interpretation is to interpret the words of a statute in light of the current facts and situations and not based on the facts/situations of the past. In the Senior Electric Inspector v Lakshmi the court expounded – “In a modern progressive society it would be unreasonable to confine the intention of a Legislature- to the meaning attributable to the word used at the time the law was made, and unless a contrary intention appeared, an interpretation should be given to the words used to take in new facts and situations, if the words are capable of comprehending them.”
The IPC under Section 499/500 criminalizes defamatory speech. This means that a person can be imprisoned for a maximum period of 2 years, if found guilty. Therefore, Section 500 in order to be lawful must withstand the test of a ‘reasonable restriction’.
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It is, therefore, necessary to check whether Section 500 of the IPC is excessive i.e. beyond what is required in the interest of public or whether it is a ‘reasonable’ course of action. Fundamental rights and reasonable restrictions interact closely on the basis of the principle of proportionality. If a restriction is disproportional or excessive it defeats the purpose of the fundamental right and hence is ultra vires the constitution. One of the tests of checking proportionality of a restriction is that the punishment/restriction should impair ‘as little as possible’ the freedom in question. This test was laid down in R v Oakes and followed by the Supreme Court in Santosh Kumar Bariyar v. State of Maharashtra and other cases.
Defamatory speech can be effectively curtailed in a number of ways other than imprisonment.
First and the most reasonable remedy, is to write a reply to the allegations made or to publish a separate advertisement countering the allegations. This not only gives the aggrieved party a chance to respond but also furthers free speech and debate. However, some may argue that this recourse may not be adequate for blatantly defamatory speech. In such situations, the aggrieved can complain to the Press Council of India or even file a civil suit claiming reasonable damages. The benefits of going to the Press Council is that this forum will provide a speedier remedy than a court and being a watchdog of the press, this body can restrict/change unfavourable journalistic practices.
These alternatives appear more ‘reasonable’ and impair ‘as little as possible’ the fundamental right to free speech. Given these alternatives, a criminal proceeding, with a threat of imprisonment, would certainly be considered excessive, disproportional and unreasonable.
Moreover, proportionality of a restriction is also to be tested on the ground of whether the punishment imposed by the statute is disproportionate to the gravity of the offense, as held in Bhagat Ram v. State of H.P. If it is, then it would be considered arbitrary and hence unconstitutional.
Acts of murder, rape, theft etc. are punishable with imprisonment i.e. the personal liberty of the accused is
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taken away. These are ‘crimes’ / ‘in rem’ and the society at large has a reason to be afraid of these ‘criminals.’ However, a matter of defamation can be distinguished in gravity from these crimes. Defamation is usually personal i.e. between two individuals. Moreover, unlike a victim of rape, murder or theft, a person who has been defamed has an opportunity to respond to the allegations made against him and set the record right. Given these crucial differences, curtailing the liberty of an individual and treating him at par with a murder, rapist, thief, appear to be disproportional and hence arbitrary.
Moreover, the IPC and section 500 was drafted in 1860 – 153 years back! Surely, times have changed and so have mindsets. Imprisoning a person for speech that hurt another person’s reputation, today, seems prima facie ridiculous. Unless the defamatory speech disturbs public order, the person making such speech should not be imprisoned. 153 years back, punishments were generally harsh but society has grown and matured so must the law.
Criminalizing defamation can be very counter- productive. Big companies can use it as a tool to harass, threaten and bully individuals to a greater extent than if defamation was merely a civil action. Being tagged as an ‘accused’ for litigation that may never end along with the fear and consequence of imprisonment is enough to shut a vulnerable individual up for good. This will lead to self-censor which will in turn freeze speech and debate to a large extent.
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Therefore, there is a need to get rid of this diseased law!
Dear Aparajita,
While posts like this are enlightening, I feel this may not be the forum for the same. SpicyIP, as per my understanding, should be restricted to IP issues (including interaction of IP laws with other laws. However, freedom of speech is definitely not an IP issue (I may be wrong here).
I appreciate the issues being highlighted by SpictIP team but feel non-IP issues should be addressed through another forum.
Thanks
Considering the current events,I understand the reason behind this post and so do all the readers of Spicy IP, I guess. Though, this is definitely not the forum to discuss such an issue, but I agree with Aparajita. Defamation should be decriminalized and the action should lie under the law of torts alone.Anyway,good luck lady.You are doing pretty good and you have got the backing of your readers.:)
Dear Someshwar and Swati thank you for your support!
I understand your concerns of SpicyIP not being the appropriate forum for such discussions. However, given that SpicyIP is a blog, and threats of criminal action have been made against me (a blogger), there was an urgent need to address this issue.
Campaigns need to start and need to start somewhere!!! SpicyIP has a large reader base – conducive to starting a campaign.
I welcome suggestions and comments on this issue. And also welcome suggestions of other forums where i can take this issue to!
Aparajitha,
I read your blog and really look forward to your posts. They are informative, coherent and lucid.
Sometimes, they also direct the reader towards a certain opinion.
In case of the threat of a legal action against you, I think that is the cost one has to pay for writing against those with big and deep pockets.
The law of defamation is mostly there to protect the high and mighty and I don’t think its going to go away anytime soon. Such laws are present in the western legal system too, I think.
As far as you are concerned, either be ready to take a stand and brush aside what comes your way, or in all humility, I submit, don’t write.
There will always be people who get pissed off with what you write and there will always be admirers. take a stand, and stick to it.
And don’t worry about these jokers.
Chances are those who will support you and stand besides you are a zillion times more in number than those who challenge you.
you are a budding lawyer. these things happen. take it with a pinch of salt and move on.
And if things go out of hand, retaliate in kind, big time.
regards
A regular reader
Very well said and absolutely appropriate
Many regular readers may feel that this strays outside the narrow confines of IP Law. How true ! However, the present issue is fundamental and dire; it threatens any and all discourse altogether. Therefore, I would argue that any forum where discourse happens, is a right place to discuss such a fundamental matter !
The problem with Criminal process is that the process itself is punishment. Defamation is a matter of words written or spoken, and the punishment, as we believe in justice, must fit the deed (if proven to be a crime). The problem with viewing defamation as a crime is that there is gross injustice in the process itself and imbalance in the remedy. It is very one-sided. The other issue is a very complex one of examining the alleged words and determining if they are indeed untruth purveyed as truth, or are mere opinions or simple insult. Often the onus of proving truth is upon the defendant. Apparently there is a right to feel injured but and there is no right to insult when insult is deserved.
And yes, all of that in practice leads to the Chilling Effect. Discourse dies. So, SpicyIP would no longer discuss important IP matters out of fear. For the benefit of the reader who advised you “don’t write”… that is exactly the desired chilling effect that the bully wants.
Decriminalizing defamation is only part of the story. It would remove actions u/s 499, 500 but SLAPPs will continue as hefty civil suits nevertheless. Or they can take the form of IT Act 66(A) based attacks especially when the medium is online. These are equally potent especially during the earlier days when certain Cyber Crime cell personnel went about with a free hand, as a simple Google search for this reveals.
And you are not alone in making this call. The UN HRC (Human Rights Committee) reiterates the call to all States to decriminalize defamation [PDF].
Hello Spicy IP,
First of all,as you are quite aware, you are not alone in this battle against the “censor-ers”, and the crime of a defamation is a powerful tool in their hand. While i believe that the crime of defamation may at times be too harsh, here are my views with regards to your article, as too why it should not be de-criminalised but much rather used ala the Death penalty in rarest of rare cases.
1. You claim that crimes like Murder, theft etc are in rem and as a result of which people have more reason to be afraid. Secondly you have spoken about the gravity of the act, and how treating him like a rapist or a murder is disproportional and arbitrary.
Here is where I differ. The law of Defamation particularly as a criminal offence is valid because goodwill and reputation are so sacrosanct to people all the more today than yesterday! In fact the need for defamation laws in a competitive market is definitely required. This can be attributed to the rise in commercial disparaging advertisements also, which this blog had earlier written down. The law relating to trespass for example, or attempt to commit suicide, are not crimes because they cause fear to the public, but much rather because they are seen as activities which the public must not engage in.
With regards your argument of arbitrariness I agree with you to the extent that its unfair to compare a defamer and a murderer, however I tell you that the law does not compare both. Firstly the law assigns a much lesser degree of Punishment for defamation than murder, and secondly the number of criminal defamatory suits filed are comparably less, and are usually filed with a hint of malice, which courts have taken into play.
I do not believe that defamation must be de-criminalised, but much rather be punishable only when the act of defamation is very severe, and as you know the wonderful law on subjectivity points us in the direction of “case-by-case basis”.
I completely agree with you that the defamation law has been used as a tool to harass individuals. The action is gaining popularity in India, and resembles ” TradeMark Bullying” in the United States where a larger company “bullies” a small, usually insignificant company using a similar name or logo, to pay a huge sum or change its name. The solution to this cannot however be de-criminalisation but much rather Indian Courts take the route of American Courts by imposing exemplary fines and penalties for issuing such claims.
The balance scale, according to me still tips in favour of defamation being a crime, but the extra load of weight added to the other side being that it should be so only in the rarest of rare cases.
But hey apart from that great article and I love Spicy IP’s fight, and for your sake, I hope that the defamation law is de-criminalised!
Dear Author,
a late comment:
But please read this article and the comment below.
Yes, the author has the advantage of forbes backing, but my guess is, she is with forbes because she has courage and not the other way around.
http://www.forbes.com/sites/kerryadolan/2013/03/05/prince-alwaleed-and-the-curious-case-of-kingdom-holding-stock/
Warm regards
Anony
Dear Anonymous 12:19, 1:47 and 12:01, thank you for your support. Anonymous 1:47, agree fully with your arguments!
Heartfelt Notions: thank you for your response and support otherwise.
However, I disagree with your points. First, I understand that reputation and dignity of an individual is of utmost importance. Im not saying that defamation should be allowed without any sanction. At least for the narrow scope of this post, i argue that there is no requirement of a criminal sanction for regulating such acts. An action in tort/complaint to the Press Council will provide adequate remedy and is enough to protect/uphold the reputation of a person (in addition to the fact that he always has the right to reply to those comments).
Secondly, im not sure if every activity that the public must not engage in can be termed ‘crimes’. Surely, breaking a contract/ a promise is an activity public should not engage in, but does that ipso facto make it a ‘criminal activity’? I think not. Similarly, though defaming a person is something the public must not engage in, there are other more ‘reasonable’ ways of regulating it than treating it as a ‘criminal act’.
Sure at some level the law doesn’t equate a murderer and a person who defames someone – if you murder you get say 14 years in jail but if you defame you get 2 years. But the fact still remains – both the murderer and the person who defamed are in JAIL, their liberty is still taken away. Moreover, both of them are subject to the rigors of defending a criminal trial. At these levels the law makes no distinction.
I completely disagree with the ‘case-by-case’ subjective argument. As anonymous 1:47 rightly pointed out the punishment is the process of itself. Its every easy to say “let the court decide upon the facts and on a case by case basis”. But the implications of this is that you still are labeled an ‘accused’, you still have a criminal charge against you, you still need to defend your case in various corners of the country – for how many ever years it takes the court to decide that in your case there was no ‘defamation’.
I think we need a reality check. Defamation cases have been mostly used by the rich and powerful – big companies and influential people. We, average income citizens, are not going to run to a criminal court if someone in our community makes a statement that hurts our reputation. We would make counter statements, negotiate and maybe in the rare circumstance ask for compensation, but that’s really all. Approaching the court, let alone a criminal action, would be non-existent in our approach. This, if nothing else, exposes the futility of such laws.
what is defamation? For defameing someone first he has to be famous as good , socially oriented philanthropic person. if he is not famous this way how can he be defamed. Ordinary eole and firms cannot claim that they were defamed by comments of someone.
Defamation is a ridiculous word which restrict the constitutional rights of speech.
Now the Supreme court of India is also discussing to remove or restrict section 499/500
I am working in a Government Department and one of my colleagues have made a false complaint against me to the competent authority. The competent authority has not varified the contents of the complaint and filed the complain without taking any action.
What type of action against the complaint who has made false complaint could be taken by me ? please suggest.