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BRP Bhaskar: Criminal defamation — No respite
May 17, 2016
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India’s Supreme Court, which has occasionally used its wide powers to improve upon outdated laws, last week let go an opportunity to revise the colonial defamation law in tune with democratic ideals.

Defamation is actionable under both civil and criminal law. The Indian Penal Code, which makes it a criminal offence, was drafted by legendary British historian and politician Thomas Babington Macaulay and came into force in 1860. Its relevant provisions are based on the law then prevailing in Britain, which aimed at protecting the reputations of the supporters of the Establishment.

The IPC underwent changes 40 times during 87 years of British rule and 36 times more in the 68 years since then. Its basic approach towards defamation, however, remains unchanged.

It prescribes a jail term of up to two years for criminal defamation.

Historically, law has recognised two kinds of defamation: slander, or defamation committed by the spoken word, and libel, or defamation committed by the written word. In the feudal era, slander of the nobility was an offence akin to treason in Europe and could invite the death penalty. After India gained freedom, political leaders virtually converted themselves into a new feudal ruling class and they have been unwilling to do away with the defamation provision of the colonial period.

Human rights organisations have been asking governments to abolish criminal defamation as it intimidates citizens and dissuades them from exposing wrongdoing by people in high places. UN bodies have endorsed the demand.

In the United States, a defamation case will stand only if the complainant is able to establish that the impugned statement is false and was made negligently or with malice and its publication has caused him material harm. If the complainant is a public figure, the standard of malice must be met strictly. Expression of an opinion is not considered defamation.

To circumvent the tough conditions set by the US law, influential Americans, especially corporates, started seeking legal remedy in Britain, leading to what was called ‘libel tourism’. The UK responded by revamping its defamation law. The new law, which came into force two years ago, requires complainants to show actual or probable serious harm.

Britain has now taken seditious, blasphemous and defamatory libel out of criminal law. In India all these forms of libel remain intact and are slapped on those who meet with the disapproval of powerful political or religious interests.

Gandhi and BG Tilak were among the nationalist leaders whom the British charged with sedition. Few cases of sedition have succeeded since Independence but governments take delight in flinging the charge to harass opponents. Some student leaders of the Jawaharlal Nehru University in Delhi are currently facing sedition charges.

The state, bound by the constitutional principle of secularism, has desisted from resort to the blasphemy provision of the law but religious elements have been invoking it to intimidate critics. The celebrated artist MF Hussain fled to Dubai and spent his last years there as Hindutva elements who felt offended by his depiction of some Hindu goddesses filed a few thousand cases all across the country even after the highest courts ruled that the paintings were artistic representations and should be judged as such.

Sanal Edamaruku, President of the Indian Rationalist Association, has been living in exile in Finland since 2012 as the Catholic Archdiocese of Mumbai, angered by his busting of a claimed miracle in a church, filed a blasphemy case against him.

The Supreme Court examined the issue of criminal defamation on the basis of petitions filed, among others, by Congress Vice-President Rahul Gandhi, Delhi Chief Minister and Aam Admi Party leader Arvind Kejriwal and Bharatiya Janata Party MP Subramanian Swamy, all of whom are facing criminal defamation charges.

The Central government argued that criminal defamation must stay as cases took years to conclude and citizens would not be able to pay damages for civil defamation. Surely these problems can be overcome by speeding up trials and awarding affordable damages.

Yet the court endorsed the government’s arguments. It held the law did not have a chilling effect on free speech.

The court betrayed a confused approach in observing that freedom of speech and expression was the first condition of liberty and then declaring that free speech was not an absolute value under the Constitution. It glossed over the fact that the law, as it now stands, provides a shield to public servants facing serious allegations.

The judgment, given by a bench of two judges, is a big disappointment as it has failed to take defamation out of the feudal context. Considering the serious import of the issue, a Constitutional Bench should examine it at the earliest opportunity.

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 The author is a political analyst of reckoning

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