By: Siddharth Sijoira [Author is an advocate at the Supreme Court of India]
The Supreme Court verdict upholding the constitutional validity of criminal defamation under sections 499 and 500 is timely and conforms to the larger societal needs. The court has correctly opined that the right to freedom of speech under Indian constitution is not unbounded but is limited by imposition of reasonable restriction to prevent defamation. Also, it is the duty of the state to protect and adequately remedy a person’s reputation. However the judgment failed to reason the need and utility of criminal provisions, in absence of an effective civil code, in preventing and providing effective remedy against intentional defamatory imputations. The Court also missed the opportunity to draft guidelines to prevent potential abuse of criminal process as argued before it. Though abolition is a legitimate demand but without developing our own civil defamation code, like the U.K, as an effective alternate will be a precipitate action and may being more hardships than good.
Why retain Criminal Defamation?
The offence is relevant in cases where the person publishing the libel is of limited means. In such cases, pursuing civil litigation becomes a futile exercise and therefore the existence of criminal prosecution would act both as deterrent and a mechanism to ensure accountability against such “judgment proof” individuals. For instance, in Australia, a student accused her professor of being a pedophile on an online blog. The professor sued the student for defamation and consequently won an apology and a whopping sum of $3 million as damages against the student. The student later declared that she would neither apologize nor pay the damages.
In these circumstances the plaintiff is left without an effective remedy against the accusations that have been published with the sole purpose of destroying the plaintiff’s reputation in the full knowledge that they were untrue. However if the defendants know that their reckless behavior may put them behind bars then they might think twice before publishing any libelous statement.
23 out of 28 E.U states still retain criminal defamation. In Italy, the law still stands notwithstanding the protest, particularly after the imposition of prison sentence to a journalist. In Zimbabwe, the court declared criminal defamation ultra vires under the old constitution, yet justified it under their new constitution. Similarly the Canadian Court and South African Court held criminal defamation to be consistent with their constitution. Though prosecution is strongly protested, there is no evidence to show that free speech is arbitrarily muzzled as these countries provide effective measures to be taken before issuing a criminal process.
Establishing an effective alternate
Without an effective alternative to criminal defamation, its removal or absence may signify that it is an acceptable conduct in society. A British student received damages worth $17,500 for alleged defamation but a similar case in India would not be so lucky. In England the abolition was a gradual process through conscious efforts of the U.K Parliament and the Courts. The summary to the U.K Defamation Act, 2013 explains that “civil law on defamation was developed through common law over a number of years, periodically being supplemented by statutes, most recently being the Defamation Act 1952 and the Defamation Act 1996”. In contrast, not a single legislation has been framed by Indian Parliament to develop civil defamation since the independence. Moreover prolonged litigation deters individuals from invoking civil jurisdiction. Therefore provisions for speedy disposal must be provided. The payment of damages should be made at reasonable time, otherwise abolishing would in effect have no meaning since the courts will be invoked in case of failure of execution of the decree burdening an already burdened judiciary. Showing of serious harm to reputation and larger penalty in case of malicious prosecution will also play an effective role in evolving our civil code.
Keeping a check on abuse
Effective guidelines should be framed to keep a check on abuse of criminal prosecution. The elaborate exceptions to defamation should be considered at the time of summoning of accused to enquire if any prima facie case is made. The veracity of the complaint should also be tested by the Court in order to prevent abuse. Similarly the requirement to obtain leave of the Court before prosecution can be imposed as a necessary safeguard against frivolous and vexatious prosecutions. The Judiciary can also deter frivolous complaints by granting damages for malicious prosecutions. Under the present law, a complaint can be filed anywhere in the country, where the defamatory statement can be viewed or read. It will be an important step to impose territorial jurisdiction in the place where the defamatory content was made rather than creating multiple jurisdictions to save the potential harassment of an individual.
The interference with free speech can be provided by a law formulated with sufficient precision to enable citizen to regulate his conduct, to pursue a legitimate aim. The laws must be stable to provide adequate and effective relief to the person who has suffered injury of reputation. Extant criminal defamation laws serves as an outlet to individuals to defend their reputation The laws must conform to the times and must keep in mind the social interest. The scope of implementation of the law and the circumstances that may arise after a law ceases to operate must be considered. It is highly likely that crooked individuals will resort to gullible and “judgment proof” persons to defame others in absence of fear of criminal sanctions.
The roads to abolition must be travelled and not be ignored. The right course is to develop effective civil defamation law which shall pave the way for abolition of criminal defamation. If the civil norms works effectively, the Parliament may consider the abolition.
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