Defamation law

GS Paper 2

 Syllabus: Indian Constitution—Historical Underpinnings, Evolution, Features, Amendments, Significant Provisions and Basic Structure

Source: TH

Context: The defamation law in India has come under scrutiny once again following the conviction of a Congress leader (Rahul Gandhi) in a 2019 defamation case.

Background: In 1860, the British imported their idea of criminal defamation into the newly-minted Section 499 of the Indian Penal Code (IPC).

The law of defamation and right to free speech [Article 19 (1)(a)]:

• Exceptions to defamation: Absolute truth and what is for the public good.
• The criminality of defamation was challenged in the SC on the grounds that it was an unreasonable restriction on the constitutionally-guaranteed right to freedom of speech and expression.
• However, the apex court upheld the British-era Section (Subramanian Swamy V. The Union of India 2016).

Analysing the 2016 SC verdict:

Article 21 vs 19 (1)(a):

• The court held that the right to “reputation” was protected under Article 21 of the Constitution which guarantees “life and personal liberty”.
• The right under Article 19(1)(a) had to be “balanced” against the right to “reputation” under Article 21.
• Thus, the court elevated “reputation” to the level of a fundamental right and made it prevail over free speech.
• Over the years, the court has expanded the scope of Article 21 to force the state to undertake various “social justice” measures.
• But in this case, the SC used Article 21 as a sword to cut down the fundamental right to freedom of speech and expression (“death by Article 21”).

Invoking ‘constitutional fraternity’:

• The court held that criminal defamation law protected the feeling of fraternity (mentioned in the preamble as an aspirational goal alongside “liberty” and “equality”)/solidarity between members of society.
• However, “constitutional fraternity” is not a part of Article 19(2), which specifically limits the circumstances under which the state can restrict speech.
• “Liberty cannot be divorced from equality; equality cannot be divorced from liberty. Nor can liberty and equality be divorced from fraternity.” (B.R. Ambedkar)

Issues with the court’s verdict:

• No mention of the fact that Section 499 does not allow for “honest mistake” as a defence.
  • The SC (previously) had found the civil law of defamation unconstitutional/disproportionate restriction upon free speech since it did not allow for “honest mistake”.
• Dismissal of the claim that criminal defamation creates a chilling effect upon speech.
• The SC has always had an ambivalent relationship with the freedom of speech and expression.

Conclusion: The court had to construct novel arguments which will have serious and unfortunate implications for the freedom of speech and expression in the coming years.

Insta Links:

Making sense of the disqualification of a Lok Sabha MP

Prelims Links: (UPSC 2020)