CRIMINAL DEFAMATION: UNCONSTITUTIONAL OR NOT?

THIS ARTICLE WAS WRITTEN BY NAMRATA LANGADE, A STUDENT OF BHARATI VIDYAPEETH DEEMED UNIVERSITY, PUNE.

Introduction

Besides his life, what man minds most is his reputation. According to Black’s Law Dictionary, defamation signifies “The offence of harming a man’s character, distinction, or notoriety by false and pernicious proclamations”. Defamation in law is assaulting another’s notoriety by a false distribution having a tendency to bring the individual into unsavoriness by imparting the equivalent to an outsider. By and large, defamation requires that there is a false publication and without the assent of the concerned individual. Damage just to emotions isn’t defamation; there must likewise be lost reputation. The genuine truth of the distribution is generally a protection to a charge of defamation.

Defamation is along these lines the distribution of an explanation which ponders a man’s reputation and tends to bring down him in the estimation of right-considering individuals society for the most part or tends to influence them to disregard or stay away from him.[1]

The Select Committee of the House of Lords in 1843 suggested the recommendation of criticism with defamatory libel. While, thusly, in India there is no refinement between a talked and a composed slander. Both defamation and criticism are criminal offense. For better understanding, it very well may be separated into two classes:

1. Criminal Defamation
2. Civil Defamation

Criminal Defamation

Section 499 of the IPC,1860 defines ‘defamation’ as being committed:
i. Through: (i) words (spoken or intended to be read), (ii) signs, or (iii) visible representations;
ii. Which: are published or spoken imputation concerning any person;
iii. If the imputation is spoken or published with: (i) the intention of causing harm to the reputation of the person to whom it pertains, or (ii) knowledge or reason to believe that the imputation will harm the reputation of the person to whom it pertains will be harmed.

This definition is liable to four clarifications and ten exceptions.[2]If a man is discovered liable of having submitted slander as far as Sec. 499 of the IPC, the discipline is stipulated in Sec. 500, straightforward detainment for up to two years or fine or with both. The Cr PC, 1973, which sets out the procedural parts of the law, expresses that the offence is non-cognizable and bailable.

Constitutionality of Criminal defamation

The apex court’s judgment in Subramanian Swami v. Association of India[3] which was passed on May 13, 2016, put a lay on the hypothesis of defamation being decriminalized when the legality of the fought arrangements were maintained.

Subramanian Swamy recorded a writ appeal to in regards to the decriminalization of slander. The two essential disputes of the seven issues brought up in the writ appeal to Swamy were:

1. Announcing Sec. 499 and 500 of the Indian Penal Code, 1860 as unlawful.
2. Announcing Sec. 199(2) of the Code of Criminal Procedure, 1973 (Cr PC) as unlawful.

As indicated by the appealing party, these arrangements cast an unreasonable restrictions on the right to speech freely, one that falls past article 19(2) of the Constitution of India.

The council showing up for the State of Tamil Nadu presented that Sec. 499 and 500 couldn’t be said to go past as far as possible on the right to speak freely, in light of the fact that article 19(2) itself forces such a restriction.[4] Also, there must be a discussion as to the reasonable import of the term ‘slander’ utilized in article 19(2) of Constitution and ‘maligning’ in Sec. 499,IPC, 1860. It was likewise called attention to that the right to speech and expression must be controlled and does exclude the idea of criticism as characterized under Sec. 499.[5]

The bench raised an issue that whether abrogation of criminal activity in other countries could truly have the impact when the court settles on the lawfulness of an arrangement of respect being given to India’s very own composed constitution.

Judgment: The division bench involving Dipak Mishra and Prafulla C. Gasp JJ, wherein J. Mishra conveyed the judgment, maintaining the sacred legitimacy of Sec. 499, 500 of IPC, 1860 and 199 of Cr PC, 1973, articulated that-“It isn’t essential for all in the melody to sing a similar tune. A justice ought to be to a great degree watchful in issuing summons on a request for the inception of any criminal defamation case.” It is essential to take note of that to legitimize the punitive arrangements focus articulated about the revolutionary method for how Indian culture functions and opined about how criminal criticism hinders individuals from rehearsing the right to speech and expression.

Criminal Defamation v. Reasonable Restriction

The pertinent question which emerged under the watchful eye of the court was whether Sec. 499 and 500 of IPC, 1860 go past the extent of the sensible limitations forced under workmanship 19(2) of the Indian Constitution?

While replying in negative, the SC gave an itemized thinking of the clarifications and special cases annexed to Sec.499. It was presented by the applicants that on two prior events, R. Rajagopal assumed name R.R. Gopal v. Province of Tamil Nadu [6] it had been seen as follows:

In this discourse, we may illuminate, we have not gone into the effect of Article 19(1) (a) read with condition (2) thereof on Sections 499 and 500 of the Indian Penal Code. That may need to anticipate a legitimate case.

In N. Ravi v. Association of India[7] wherein it had been seen as follows:

Entirely talking on withdrawal of the protests, the supplication about the legitimacy of Sec. 499 has additionally turned out to be scholastic, however having respect to the significance of the inquiry, we are of the view, in concurrence with the educated guidance for the candidates, that the legitimacy viewpoint has the right to be inspected.

As defamatory discourse is one such confinement endorsed under Art. 19(2) (1) of the Constitution. In this manner, with the end goal to check discourse that is defamatory, court saw that the confinement forced ought to be ‘sensible’. In Chintaman Rao v. The State of Madhya Pradesh[8], the SC set out the importance of the term ‘reasonable restrictions’:

The expression “reasonable restrictions” implies that the impediment forced on a man in happiness regarding the privilege ought not to be discretionary or of an over the top nature, past what is required in light of a legitimate concern for the general population. “Reasonable” suggests smart consideration and pondering, that is, the decision of a course which reason directs. Enactment which self-assertively or exorbitantly attacks the privilege can’t be said to contain the nature of sensibility and except if it strikes an appropriate harmony between the opportunity ensured in Article 19 (1) (g) and the social control allowed by condition (6) of Article 19, it must be held to need in that quality.

It had been one of the conflicts that the exemptions make the offence more thorough, in this manner making the idea of criminal slander to a great degree nonsensical. Further, the truth was not a safeguard and superfluous weight on ‘open great’. The SC, after an itemized dialogue reasoned that neither the primary arrangement nor the clarification nor the special cases remotely demonstrated any ambiguity and therefore can’t be called unreasonable. It likewise dismissed the contention that criminal criticism was not spared by the precept of proportionality.

Conclusion

There has been such a large number of assaults on the right to free speech in India throughout the years. The issue happens when it makes writers and comics like Gogoi [9]or Kiku Sharda under the ambit of confronting criminal activity for their supposed defamatory comments against ground-breaking people or partnerships. Indian laws are appeared as useless establishments and show reformatory arrangements as alluring.

The greatest incongruity of the present law framework is that it appears to be hesitant to meddle in cases encroaching upon the central rights and then again it likewise races into approach an matter which isn’t important for them. Maligning laws encapsulated under Sec. 499 and 500 of IPC is a twofold edge sword. In the event that a false criminal suit is held up for maligning by the appealing party, the respondent can document a counter case.

Supplanting criminal authorize with the common one can’t satisfy the criteria to adjust the privilege of opportunity of articulation with the privilege to notoriety. The fundamental thought behind adjusting the rights ought to be to practice one’s right to speak freely and articulation without trading off with the individual’s notoriety according to open.

[1] W.E. Peel, J. Goudkamp, Winfield & Jolowicz on Tort 360 (Sweet & Maxwell, 19th edn., 2014).

[2] Indian Penal Code, 1860, s. 499

[3] AIR 2016 SC 2728.

[4] Vijay Kant v. Union of India [T.P. (Crl) No. 94-101/2015].

[5] Arvind Kejriwal v. Union of India [W.P. (Crl) No. 56/2015)].

[6] (1994) 6 SCC 632.

[7] (2007) 15 SCC 631

[8] AIR 1951 SC 118.

[9] Samudra Gupta Kashyap, “Tarun Gogoi appears before court in Rs 100 crore defamation case” The Indian Express, January 18, 2016.