Decriminalise defamation

Legal provisions have been misused to muzzle free speech

Tathagata Satpathy, a member of Parliament belonging to the Biju Janata Dal, is drafting a private member’s Bill entitled “The Protection of Speech and Reputation Bill, 2016”. The Bill – it has already gone through 15 iterations – seeks to decriminalise defamation and remove the “chilling effect” of old provisions that throttle free speech and encourage censorship. At the same time, it will introduce better civil mechanisms to deal with defamation. Two Supreme Court judgments highlight ambiguities in the law as it stands. In May 2016, the apex court upheld the validity of criminal defamation as outlined in Sections 499 and 500 of the Indian Penal Code. This ruling was in response to petitions brought to the court by Rahul Gandhi, Subramanian Swamy and Arvind Kejriwal. The ruling noted that “the right to freedom of speech and expression is not an absolute right” and has to be “balanced with the right to reputation”. But in August 2016, the court also passed strictures on Tamil Nadu Chief Minister J Jayalalithaa for misusing the criminal defamation law to “throttle democracy” and, the court said, “public figures must face criticism”.

There is a need to find a balance between those two judgments and to eliminate, or at least reduce, the inherent ambiguities in the current provisions. As the law stands, the criminal provisions have often been used purely as a means of harassment. Given the cumbersome nature of Indian legal procedures, the process itself turns into punishment, regardless of the merits of the case. When criminal defamation cases are filed in obscure courts, the defendant is forced to travel around the country and to seek bail in many places. What is more, since criminal cases are prosecuted by law enforcement authorities directly, the accuser need not even allocate time or financial resources to pursue the matter.

These criminal provisions have often been used to pursue political vendettas. In the colonial era, the law was used, along with sedition, to jail freedom fighters. So-called SLAPP (or strategic lawsuit against public participation) suits have been used in the recent past to muzzle investigative journalists and prevent critical analysis of the financial information of listed companies. In one notorious instance, a financial analyst was arrested and the publication of a critical analysis of corporate results of a listed company was blocked. The impact on shareholder value of such suits may be considerable. Minority shareholders suffer if promoters unload shares before damaging information can be placed in the public domain.

However, it is also true that individuals and institutions need the means to protect their reputations. The explosive growth of social media has added another dimension to the dissemination of malicious gossip and disinformation. The Bill seeks to remove the criminal provisions while guarding the right to reputation with stronger, more effective remedies for civil relief, including apologies, corrections and retractions, and the award of reasonable damages. The Bill will also attempt to set the maximum claim limits and to bar governments, local bodies and other institutions, exercising statutory functions, from filing suits for defamation. Criminal defamation laws have been repealed in most democracies and it is high time India modernised its law to take cognisance of new modes of communication.