Issue – In the age of #MeToo why criminal defamation must go.
Criminal Defamation – set out under Section 499 of the Indian Penal Code- is an
anachronistic, colonial – era legal provision, that has been historically used by powerful
individuals, corporations and government, to silence and suppress inconvenient speech.
Last year, Tathagat Satpathy introduce into Parliament the ‘Speech of Bill’, which aimed to
replace criminal defamation with a detailed, statutorily codified regime of civil defamation.
Last month, in Navtej Johar v Union of India when the Supreme Court decriminalised same
sex- relations, it was not only a vindication of civil rights and the Constitution, but something
more : the court acknowledged that its own judgement five years ago, in Suresh Kumar
Koushal v Naz foundation, upholding the validity of Section 377 of the Indian Penal Code,
had been grievously mistaken. And the court made amends.
Main Body :
In the wake of #MeToo movement, the court now has a chance to correct another recent –
error, in the last few weeks, women who have come forward to testify about sexual
harassment committed by powerful individuals, have had criminal defamation cases filed
against them. Criminal defamation – set out under Section 499 of the Indian Penal Code – is
an anachronistic, colonial – era legal provision, that has been historically used by powerful
individuals, corporations and governments, to silence and suppress inconvenient speech.
The constitutionality of criminal defamation was challenged by a coalition of politicians,
organizations and individuals, two years go. A two – judge bench of the Supreme Court,
upheld the constitutional validity of Section 499 and refused to read in any safeguards to
prevent abuse. The court held that criminal defamation struck an appropriate balance between
the right tofree speech and the right to reputation.
The Indian Supreme Court was swimming against the global tide. Countries around the world
had been steadily decriminalising defamation, on the basis that the criminal law was a
disproportionately severe infringement of free speech especially for what was essentially a
“private wrong”, and could be addressed by a regime of civil defamation. Even the United
Kingdom, which gave us our penal code, had decriminalised defamation. The High Court of
Kenya, also a former British colony, struck down criminal defamation as unconstitutional,
holding that the “ traumatising gamut of arrest, detention, remand and trial” in a criminal case
had the effect of chilling speech, and promoting self-censorship among people who would not
have easy recourse to a lawyer. The constitutional court of Lesotho also followed a suit
holding that criminalisation was a disproportionately severe burden on speech and that
reputational interests could be protected by a less onerous regime of civil defamation.
Both the courts have followed the jurisprudence of the African Human Rights Courts that has
emphatically ruled that criminal defamation was inconsistent with basic international human
Personal Opinion :
Our Constitution guarantees a right to freedom of speech and expression, which can only be
restricted by a “reasonsable” law. Our Supreme Court has held that facet of reasonableness is
that a law must not infringe rights to a degree greater than is strictly necessary to achieve its
goal. Criminal defamation is targeted at punishing what is privately wrong and is an
appropriate example of a law that disproportionately affects the freedom of speech.
The bill introduced by Tathagat Satpathy aims to replace criminal defamation
with a detailed codified regime of civil defamation. The recent spate of cases in
the wake of #MeToo gives the court colonial era rights- Section 377 and
Section 497 (adultery) to complete a hat-trick and in the process once again
cement its reputation as an institution that shed its own past and evolves
towards greater protection of rights.
credit: APEKSHA SUKHADIA
clg name: vivekanda eductional society of law college