This Blog is Written by Mishti Garg, 1st Year,
B.COM. LLB (Hons.), University Institute of Legal Studies, Punjab University, Chandigarh.
Blog 19 | Edition VII
How can one speak forthrightly
against those in power, even when they're right, if doing so risks punishment?
Defamation, covered under both civil and criminal law, refers to lowering the
estimation of a person(s) in the minds of the right-thinking members of the
society. This tension sits at the heart of Article 19(1)(a), which guarantees
freedom of speech and Article 21, which talks about reputation being an
important facet of right to life and personal liberty. Indian courts have tried
to balance these two rights in Subramanian Swamy v. Union of India (2016),
upholding the validity of criminal defamation and the importance of how both
Article 19(1)(a) and Article 21 should harmlessly coexist. What follows is an
argument that even though the court’s reasoning is sound, reform of the
criminal defamation process is important, so that truth-tellers are not
wrongfully punished.
Before examining the court's reasoning, it is first important to understand
what constitutes defamation. English law divides defamation into libel and
slander. Libel is representation made in some permanent form, such as writing,
printing or effigy. Slander, on the other hand, is publication of a defamatory
statement in a transient form. Examples include spoken words or gestures. Indian
law, however, does not maintain this rigid distinction; both forms are treated
alike. The essentials of defamation are threefold. First, lowering the
estimation of a person(s) in the eyes of the right-thinking members of the
society. Second, the statement should be communicated to a third party. Third,
the said statement shouldn't be vague or general in nature. It should be
specific enough to be referable to the plaintiff.
Even if all these ingredients are satisfied, one can escape liability using
certain defences. In civil defamation, truth is a complete defence. However, in
criminal defamation, truth alone isn't enough, it must also be proved to be for
the "public good." Next, fair comment. The law protects honestly-held
opinions on matters of public interest, but the said opinions must be made bona
fide, without malice. The law also recognizes that certain settings require the
right of free speech to outweigh the plaintiff’s right to reputation. It treats
such occasions to be "privileged" and a defamatory statement made on
such occasions is not actionable.
At a deeper level, defamation is not just a legal wrong but a constitutional
one, pitting the right to free speech against the right to reputation. Article
19(1)(a) guarantees freedom to share thoughts via speech, print or media,
including press freedom. On the other hand, Article 21 states that no person
can be deprived of their life or personal liberty, except according to a
procedure established by law. In the interest of sovereignty and integrity of
India, Article 19(2) empowers the state to make clauses imposing reasonable
restrictions on the exercise of this right. It mentions defamation explicitly
as a valid ground for restricting speech. Criminalising it therefore counts as
a reasonable restriction, not a violation of free speech. The existence of a
civil remedy does not stop the legislature from also providing a criminal
remedy for the same wrong. In Subramanian Swamy v. Union of India (2016), the
Supreme Court upheld the constitutional validity of criminal defamation under
Section 499 and 500 IPC, now mentioned under Section 356, BNS. The court ruled
that the right to free speech is not absolute. It is subject to reasonable
restrictions for the purpose of protecting the reputation of an individual and
is part of the integral force of the right to life under Article 21. The bench
emphasised that the right to free speech cannot trample upon another person's
right to dignity and reputation. Both rights must harmlessly coexist.
But in practice, this reasoning creates a real-world problem. Years of trials,
financial and mental strain, reputational damage, and potential misuse of power
are a sad reality for today's world. Powerful people weaponize this reality by
filing complaints not necessarily to win, but to punish critics through the
process itself. This reality creates a chilling effect. Journalists and
ordinary citizens self-censor their words or actions to avoid perceived legal
harm, even when these words and actions themselves are lawful. It is important
to understand here that genuinely false and malicious statements should lead to
real consequences. Reform doesn’t mean removing liability altogether, it refers
to providing a platform where one would be able to speak without the fear of
being punished through the process, even when telling the truth. The reform
should target how cases are handled, focusing on screening frivolous complaints
and providing speedy redressal mechanisms. People who are actually wrongfully
defamed deserve recourse. In the long run, this helps make those in power more
accountable for their wrongful actions and omissions. To provide such a
platform, legal rights would need to be translated into reality, not just be
present in text.
(Write to the author at mishtigarg13@gmail.com.)
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