“Criminal defamation is not a justifiable restriction on freedom of expression; all criminal defamation laws should be abolished and replaced, where necessary, with appropriate civil defamation laws.” – United Nations, OSCE and OAS

We have been hearing a lot about criminal defamation in India in the last few days. The Magistrate’s Court has just framed charges against Aam Aadmi Party leader, Arvind Kejriwal in a criminal action initiated under Sections 499 and Sections 500 of the Indian Penal Code. Conviction under the section could result in imprisonment of two years.

Smriti Irani, the recently appointed Union Minister for Human Resource Development, has been served a court notice in another complaint of criminal defamation filed by Congress politician Sanjay Nirupam. Not many years ago, Tamil Nadu chief minister, J Jayalalithaa had initiated a case of criminal defamation against another politician, Murasoli Maran. There have been other cases of civil servants and policemen resorting to Section 499/500 against individuals they seek to harass. I have also had to contend with a complaint of criminal defamation by an ex-policeman which was ruled without any merit but not before routine appearances before the criminal court. Not to mention the concomitant fiscal expenditure and persistent stress. And very rarely do the courts award punitive damages against those who bring frivolous charges. In other words, Sections 499/500 have become tools of harassment in the hands of those who hold power.

In order to understand the problem, one has to delve into the definition of defamation as it is commonly understood. Lord Scarman in his Oration at Lincoln’s Inn came up with the following definition: Defamation is the communication of a false statement that harms the reputation of an individual, business, product, group, government, religion or nation. 

Clearly there needs to be an effective redressal mechanism against defamation or slander and the damage they can inflict. Most countries recognise defamation as a civil matter. In fact, the United Nations ruled as recently as in 2012 that criminalisation of libel violates the freedom of expression. Most of the criminal actions were brought against journalists and the penalties included imprisonment and losing the right to practice journalism.

It is all the more astounding therefore that the Fourth Estate has not raised cudgels against this very archaic piece of legislation which primarily affects their fraternity. The two sections (499 and 500) read as follows: Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person. Explanation 1. It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives. (Section 499)

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Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both. (Section 500)

I shall not delve into the merits of either the Kejriwal case or the Irani case as they are both sub-judice. Kejriwal is supposed to have made disparaging references about Nitin Gadkari relying on a series of ongoing investigations. I am not entirely clear as to the grievance Nirupam has against Irani as details are not available. But if I correctly recall the programme Nirupam alludes to, the disparaging and highly sexist references came from Nirupam himself.

The Courts would doubtless examine the case from a legal angle. My point is whether we should have a provision to criminalise libel in the first place. The United Nations has made its position very clear and it’s fitting that we initiate a serious debate on it. The Indian Penal Code was drafted by the British rulers and they felt it was necessary to have this provision which they used as an oppressive tool. Many a courageous newspaperman/editor was prosecuted under this section and incarcerated. But do we still need it now that we profess to be a free country?

Some of my colleagues who believe in retention of this provision argue that civil cases in India do take an inordinately long time to resolve – if they are resolved at all. And, therefore, such a provision is necessary. While in sympathy with the contention that the civil legal process in our country is excruciatingly frustrating (as is the defamation process in the US and UK), I reject the contention that criminalisation is the only answer. We need to streamline our legal process and institute alternate dispute resolution mechanisms.

It is true that several countries still retain this provision but a serious debate is in progress following the landmark ruling by the European Court of Human Rights in Castells vs. Spain: The dominant position which the Government occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to the unjustified attacks and criticisms of its adversaries or the media.

In the same ruling, the Court made it clear that while the state has every right to institute criminal proceedings to preserve public order even in cases of libel, it did not believe that preservation of an individual reputation constituted “public order”.

Robust debate is taking place in several European countries and there is every likelihood that criminal defamation may be a thing of the past. As things stand, United Nations Human Rights Commission has expressed strong reservation on the misuse of the provision of criminal defamation not just in countries like Cameroon and Azerbaijan, but in placid Norway as well.

I can foresee the UNHCR expressing similar concerns about India. The time is ripe for this country to take a lead in campaigning against the concept of “criminal defamation”. And the Fourth Estate should take a lead in doing so.