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After 66A, Writ to Decriminalize Defamation before Supreme Court


 

In what seems like a great month for freedom of speech in India, Subramanian Swamy filed a Writ Petition before the Supreme Court asking the court to decriminalize defamation in India (here). This news was brought to us by Sai Vinod, a former blogger and an integral part of the SpicyIP team.

After the Times Publishing House issued a defamation notice to me, threatening criminal action, I wrote a post on SpicyIP analyzing whether Sections 499/500 of the IPC (which prescribe criminal punishment for defamation) are constitutionally valid (here). Through the post I argued that freedom of speech and expression can be curtailed only by way of “reasonable restrictions” that fall within one of the clauses of 19(2) (in this case defamation). In order for a restriction to be “reasonable”, various Supreme Court cases have held that the restriction should not be arbitrary or excessive i.e. beyond what is required in the interest of the public. The restriction should impair the freedom ‘as little as possible’.  In the case of defamation, a reasonable remedy already exists i.e. a civil suit for damages. In these circumstances, a criminal proceeding with punishment of imprisonment is excessive and hence unreasonable. Moreover, equating defamation with crimes such a theft, murder etc. by taking away the personal liberty of an individual through imprisonment, is arbitrary. This is because unlike theft, murder etc. which are ‘crimes’/ ‘in rem’, defamation is a personal dispute between individuals which can be settled via civil litigation. Criminal threats have been used by resource rich persons as a means to stifle speech and debate to a large extent.

This post was subsequently tweeted by Subramanian Swamy in late 2014, following defamation notices that he himself received. It is heartening to note that this issue has made its way to the Supreme Court and some of the arguments are along the lines of the arguments taken in my previous blog post on this subject.

Yesterday, a two judge bench of the Supreme Court Dipak Mishra and P.K.Pant.J, issued a notice to the Centre in response to PILs filed by Subramanian Swamy to decriminalize defamation. The main contention of Swamy is:

“(a) The provisions contained in Sections 499 and 500 IPC, travel beyond the restriction clause enshrined under Article 19(2) of the Constitution of India, for that really constricts the freedom of speech beyond reasonable limit.

 (b)The very purpose of Article 19(2), as would be  evident from the debate  in the provisional Parliament, was not meant to put such restrictions          and,   therefore, such an enormous restriction cannot be thought of under Article 19(2) to support the constitutionality of the said provisions and further it will violate the concept of rule of law.”

The respondents argued that since defamation is mentioned in Article 19(2), the contention that Section 499/500 travel beyond the constitution is unsustainable.  Moreover, it was argued that Section 499/500 provide safeguards and hence they cannot be violative of 19(1)(a).

Mr. Andhyarujina, the amicus curiae, prima facie suggested that given the development of free speech in recent times, reference to the provisional parliamentary debates may not be relevant. Though I could not locate the debates of the provisional parliament online, in this case they still may be very valid. This is because unlike the debates that surrounded acquisition of property in the 1950s, where the government was trying to acquire property from the “Zamindars”, today acquisition of land in not from Zamindars but, for a large part, from the poorer sections of society. Clearly, in this scenario, the socio economic conditions are different and reliance on provisional parliamentary debates may be misplaced. However, with regard to freedom of speech, maybe the Provisional Parliament’s intention for the inclusion of “reasonable” restrictions, as a check on the government’s power to restrict speech, still remains valid today. Even in the 1950s the target of the restriction was the press, people who spoke out etc. and today too, the target remains the same. Therefore, unlike the property debates, the freedom of speech debates, especially those in favour of greater freedoms may still remain valid.

Additionally, his prima facie view was that ‘incitement to an offense” and “defamation” should be read disjunctively. Incitement to an offense should attract criminal punishment, but defamation should be limited to civil liability.

Mr. K. Parasarn, also an amicus curiae, suggested that the words “Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law” stood separately from the rest of the clause thereby “saving” Sections 499 and 500. He also argued that “reputation” is the greatest treasure of man and freedom of speech has to be controlled. In response the petitioners submitted that though existing laws are saved they still need to pass the test of “reasonableness” in order to function as valid restrictions on speech.

The matter is listed for July and it will be exciting to track developments on this front.

It is pertinent to note that ‘reasonableness’ has been used as a ground for testing violations of freedom of speech in the past, especially by High Courts. In some cases this argument has failed whereas in some it has been successful. For example, in Shantilal v. State of Bombay, the Bombay High Court was asked to consider the constitutionality of Section 11 of the Press (Objectionable Matters) Act 1951. This section allowed the Government to forfeit books that had objectionable content, pending a judicial proceeding. It was argued that such a restriction though in the interest of ‘public order’, was ‘unreasonable’ as it did not allow the person affected be heard before the books were forfeited. However, the court held that Section 11 had various safeguards which ensured that Section 11 is not applied arbitrarily. However, in Lakshmi Ganesh Films v. State of Andra Pradesh (2006), the AP HC held that the State Government’s order to suspend the exhibition of the film the ‘Da Vinci Code’ was an ‘unreasonable’ restriction on the freedom of speech. The court in this case quoted the test laid down in Chintaman Rao v. M.P., “The word ‘reasonable’ implies intelligent care and deliberation, that is, the choice of a course, which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in article 19(1)(g) and the social control permitted by Article 19(6) it must be held to be wanting in that quality”.  Moreover, it was held that though restrictions may be imposed on different rights under 19(1), the reasonableness of the restriction is to be judged not with reference to the ground on which it can be imposed but with reference to the fundamental right which is restricted. It was also stated that “State action impacting the guaranteed right must be strictly scrutinized to test (a) whether it falls within the permissible area of restriction; (b) whether the restriction is reasonable; and (c) whether there are available less restrictive alternatives that the State ought to have pursued before resorting to the impugned action

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Aparajita Lath

Aparajita graduated from the WB National University of Juridical Sciences, Kolkata. She was formerly an editor of the NUJS Law Review. She is a lawyer based in Bangalore. All views expressed by her on the blog are her personal views.

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