The Precedent that should not be named
Arvind Kejriwal-Rahul Gandhi-Subramanium Swamy- as much as these three names sound like a perfect recipe for political disaster, these three politicians along with 21 others joined forces to challenge the constitutionality of Criminal Defamation before the Supreme Court of India. Their primary bone of contention in a gist was that these colonial era provisions acted as a fetter to the constitutionally guaranteed provisions of the right to freedom of speech and expression. What made the outcome this case even more important was the fact that the Apex Court was entertaining a constitutional challenge to Sections 499 and 500 of the IPC for the first time since it was enacted way back in 1860. However in May 2016, the court handed down a judgment which could at best be termed to be disappointing and regressive, upholding criminal sanctions as a constitutional remedy for the protection of reputation.
A lot has been said and written about the judgment and the language it employed to send out the message it sought to deliver. However what is interesting to note in the judgment is the non-inclusion of some of the key submissions made by the petitioners. In light of the same, there are three critical issues that merit our attention.
The first issue that we would be dealing with is the idea of our Constitution as a ‘transtemporal document” derived from the studies of Laurence H. Tribe, a professor of Constitutional Law at Harvard Law School. Under this transtemporal understanding of the Constitution, provisions that were once considered to be in the letter and spirit of our Constitution can at a subsequent stage be deemed to be unconstitutional, based on our contextual and advanced understanding of the Law. This perspective is further validated by Justice Oliver Wendell Holmes, former justice of the US Supreme Court who in his seminal article published in 1897 writes that “it is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from the blind imitation of the past.” Thus, the presence of a provision on a Statute is inconsequential to its Constitutionality, more so in the case of criminalization of Defamation.
Defamation as an offence was first incorporated by Lord Macaulay in the initial draft of the IPC in 1838 and in its subsequent codification in 1860. Macaulay’s notes on Defamation inherently justify the idea of viewing Defamation as a criminal offence- to primarily secure the interests of the British Raj, the British Empire and Public Order. Therefore, Section 499 was enacted in an environment where discussion and dialogue by the feudal society against the policies of the Raj were frowned upon and the maintenance of power in the Empire was of utmost importance. Ever since 1860, for 155 years thereafter, there has been no change in the status quo. Looking at the modern day democratic structure of India, the existence of such provisions acts as an impediment to the exercise of our right to free speech and places a disproportionate burden on the concept of discourse; especially at a time when the very notion of free speech has undergone a massive overhaul.
While the apex court in all its wisdom makes reference to this very fact in its judgment, there is a lack of clear analysis for the same. Apart from continually emphasizing the fact that the legislature in its wisdom does not deem it appropriate to declare this provision as ultra vires the Constitution as it is not appropriate to abolish the same in the ongoing social climate, the infirmities in this judgment arise from non-interpretation of terms which require extensive interpretation. Therefore, apart from referring to the ‘social climate’ of our country but not clearly specifying why the social climate of our country is conducive for retaining Section 499 and 500 of the IPC, the implication that seems to be made here is that political inaction by itself lends credence to the constitutionality of a provision in the statute books. One cannot help but reminisce on a similar line of reasoning undertaken by this very Court in the Naz Foundation Case, where the Court interpreted Parliament’s failure to repeal Section 377 from the Statute Books as evidence of its Constitutionality. In the recent US Supreme Court Ruling upholding the constitutionality of same-sex marriages, Justice Kennedy dismisses such a line of argumentation noting that, “regardless of the democratic process envisaged by the US Constitution and evident legislative disagreement, “the dynamic of our [American] constitutional system is that individuals need not await legislative action before asserting a fundamental right” and can approach the courts to assert their rights.” Sadly enough, our Indian Courts have failed to incorporate such a line of reasoning while dealing with the double-edged sword of legislative inaction and constitutionality of a legislative provision.
The second issue deals with the concept of ‘process as punishment’. Explanation 2 to section 499 includes making an imputation concerning a company, an association or a collection of persons to constitute defamation. Under explanation 4, even indirectly lowering the intellectual character of an individual, or discrediting him/her or making implications which leads to the belief that the individual’s body is in a state generally considered disgraceful in the eyes of others may constitute defamation. Procedurally, defamation complaints are filed by someone aggrieved of the defamatory insinuation and not necessarily the person defamed. By virtue of Section 499 and additionally, Section 199 of the CrPc, it is not difficult to file a criminal complaint for defamation and drag the accused to court.
The Apex Court dismissed the arguments advanced by the Petitioners and noted that Section 499 focused on a definite identity of the aggrieved individual or the collection of persons aggrieved and as such these considerations eventually boiled down to questions of fact. However, the belief in such a view bankrupts the entire system of well founded principles in Law, since in India a magistrate is not required to give a reasoned order while issuing summons to the accused and the defence of the accused cannot be heard until the time of the trial. Therefore what this does is allow for instances where a mere prima facie allegation makes it easy for the aggrieved person to institute criminal proceedings, which then requires the accused to attend court proceedings, get bail and even face the possibility of conviction. It can also lead to immediate disqualification for members of the Parliament, doubling up as a potent tool of political influence; a fact that can be very well ascertained if one were to merely look at the class of petitioners who have filed this case.
The problem is further enhanced by the application of the principle of territoriality- which essentially implies that a sovereign state has the right to prosecute individuals committing crimes within its territory. With the advent of technology and the internet therefore, what has happened is a sudden boom in the number of people feeling aggrieved by a Facebook post or a Tweet for instance. As a consequence, more and more cases are being instituted against the same individual in different jurisdictions as SLAPPs (Strategic Lawsuit against Public Participation). The accused as a result has to travel across the country in multiple jurisdictions to defend the allegations levied against him. In a very recent case, the Tamil actress Khushboo was at the receiving end of 23 criminal complaints from Tamil Nadu and Madhya Pradesh for her remarks on pre-marital sex, due to which she eventually had to fight her case out in the Supreme Court. The constant and looming threat of criminal persecution produces the ‘chilling effect’ or the ‘persecution syndrome’ which stifles debate necessary for the functioning of a healthy democracy. A democracy cannot really function to its optimum level when its own citizens live under the assumption that the State exists not to enhance the civil liberties granted to them by the Constitution but rather to reinterpret the same and narrow its scope of application. What is even more disappointing is the fact that the Court has ignored its own jurisprudence against the futility of criminal sanctions on the functioning of a democracy.
The third issue under consideration here is the Court’s egregious failure to comprehend the precedent it would be setting by criminalizing defamation in a healthy, civil society. Fundamentally, the error stems from the failure on the part of the Court to distinguish between private injury and social harm. While two people who feel aggrieved by the actions of another may litigate amongst themselves and recover compensation for the damage caused via a civil suit, the question that arises here is why should the State undertake the responsibility of protecting the reputation of individuals while expending public resources to do so? A possible answer to that could be found by analyzing the concept of a crime, wherein actions serious enough to harm society are criminalized. Therefore, by criminalizing defamation, the implication that can be derived is that lies and deception are harmful for society and hence need to be penalized. While conceptually that may be true, there is still an inherent problem with the same. If we were to concede to the moral debate for a moment and arrive at a consensus that the purpose of this legislative provision is to privilege truth over lies, shouldn’t truth then be an absolute defence to defamation? If the purpose of the Law is to criminalize the untruth, it must also go further to sanctify the truth. Therefore hypothetically speaking, if a journalist has criminal charges of defamation pending against her and if she can prove that what she has claimed in her article/broadcast is true, she should be acquitted. But the problem arises herein as mere truth cannot absolve this journalist of her liability as long as she does not also show that the truth she is speaking of serves the public good as well. Thus, a truth might be illegal if it does not serve the public good. The social foundations of criminal defamation are thus severely undermined under the status quo.
BREAKING DOWN THE JUDGMENT
Now that we have focused on what the judgment did not engage in, let us focus on the two key concepts the judgment brought out to justify the reinforcement of the status quo.
Firstly, the Court held that the Right to Reputation was protected under Article 21 of our Constitution which guarantees every individual the right to life and personal liberty. With this, the Court declared that the Right to Free Speech had to be balanced with the Right to Reputation under Article 21. Thus, by elevating the concept of Reputation to that of a Fundamental Right and consequently have it prevail over Freedom of Speech and Expression, the Court set a precedent that has no basis in either the text or structure of the Constitution. Agreed that the Right to Life and Liberty under Article 21 have over time incorporated the Right to Sleep and the Right to a Pollution-free Environment among other things, but the object and intent of such additions was to force the state to undertake social welfare programs for its citizens. This is perhaps the first time in history that instead of using Article 21 as a shield to enforce the State to carry out its obligations towards it citizens, it is being used as a weapon to infringe upon the fundamental right of freedom of speech and expression vested in each and every constituent unit of the State.
Second, the Court invoked the ideal of Fraternity enshrined in the Preamble of the Constitution to justify how the status quo enhanced the feeling of solidarity and brotherhood among the members of the Society. Now there are two ways of nullifying this argument. Looking at it first from a strictly legal sense, while the pursuit of fraternity is noble in itself, fraternity itself is not one of the grounds enlisted under Article 19(2) of the Constitution which talks about the reasonable restrictions that can be imposed by the State on the exercise of the Freedom of Speech and Expression. There are a very limited number of grounds on which the State can infringe upon the exercise of an individual’s right to freedom of speech and expression and Fraternity does not feature in that list. Furthermore, as an aspirational value, Fraternity was mentioned alongside Equality and Liberty in the Preamble- the three slogans that inspired the French Revolution- and it was meant to be an abstract concept and a rallying cry signifying what Independent India was supposed to be like. It was never meant to be used as a tool for expanding the circumstances under which the State could legitimately trample upon the civil rights of its citizens.
A deeper problem exists with using Fraternity as the means to validate the status quo. The existence of Fraternity along with concepts such as Equality and Liberty in the Preamble was born from the understanding that in a society that is deeply cut across lines of caste, class and gender, guaranteeing everyone their civil rights and equality before the law wouldn’t be enough. Fraternity signified that common humanity where humans would not subjugate other humans and along with the existence of civil rights and a fair justice system would take India beyond parochy, patriarchy and politics. Therefore, fundamentally, Fraternity as a concept was meant to complement civil rights and not overshadow them.
If we were to contextualize this entire conundrum with regards to Criminalization of Defamation and how that is essentially a way to uphold the Fundamental Right to Reputation, there are two key issues that continue to persist with the status quo that the Court has endorsed through its judgment.
1. When it comes to defamation in India, anybody can file a case against anyone. You need not necessarily be the one directly offended. Anyone who feels offended or takes offense at your offensive insinuations can criminally prosecute you in a court of law.
Case in point: The Government under the leadership and command of Jayalalitha in Tamil Nadu has filed over 200 cases of Defamation against its Political Opponents. Not only have they used it to eliminate competition internally, but it also serves as an effective tool to legitimately extort your opponents into submission and make them wilt to your demands.
2. Insinuating things against the Government established by law or making assertions on another individual can land you in jail for upto 2 years. In essence, if were to place things in perspective, the punishment for assault under Section 352 is for three months whereas the punishment for defamation u/s 499 is 2 years in prison. One cannot help but imagine the irony behind people throwing ink at politicians rather than using the same ink to opinionate on them.
The very idea of people being put to jail for having offended another individual’s sensibilities is antithetical to the existence of a Democracy as it curbs all scope for discourse and dialogue. Instead of understanding or comprehending the root cause of the problem, they take their problems to Court, further burdening an already overburdened judiciary. The colonial rulers who introduced this idea to our country in the first place have themselves outlawed the idea now. In 2009, the UK abolished the concept of criminally holding individuals accountable for defamation from their legal system. The Apex Courts of USA, Canada and South Africa have removed Criminal Defamation from their Statute Books, further strengthening their laws protecting the freedom of speech and expression vested in their citizens. Even the Constitutional Court of Zimbabwe recently struck down Criminalization of Defamation as an Unconstitutional Restriction on the Freedom of Speech. It paints an extremely tragic picture for a thriving Democracy such as ours when a country like Zimbabwe which is plagued with poverty, corruption and an unwritten dictatorship has more liberal and progressive free speech laws than our own Constitution does. To quote Salman Rushdie, “Nobody has the right to not be offended. That right doesn’t exist in any declaration I have ever read. If you are offended it is your problem, and frankly lots of things offend lots of people. I can walk into a bookshop and point out a number of books that I find very unattractive in what they say. But it doesn’t occur to me to burn the bookshop down. If you don’t like a book, read another book. If you start reading a book and you decide you don’t like it, nobody is telling you to finish it. To read a 600-page novel and then say that it has deeply offended you: well, you have done a lot of work to be offended.”
 Encapsulated u/s 499 and 500 of the IPC
 Indira Jaisingh’s Expert Opinion on the Judgment: http://www.livemint.com/Opinion/beekHMzutk7PQJG0fiOTuI/Supreme-Courts-curious-approach-on-defamation.html
 The Arguments made by the petitioners were covered on a day to day basis at https://storify.com/sarvjeetmoond/what-s-the-hue-cry-about-criminal-defamation
 Laurence H. Tribe, Forward: Toward a Model of Roles in theDue Process of Life and Law, 87 HARv. L. REv. 1, 4 (1973))
 Oliver Wendell Holmes Jr, the Path of the Law, 10 Harvard Law Review 457 (1897)
 46, Barry Wright, Codification, Macaulay and The India Penal Code
 499. Defamation. — Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person. Explanation 1. — it may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives. Explanation 2. — it may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. Explanation 3. — an imputation in the form of an alternative or expressed ironically, may amount to defamation. Explanation 4. — No imputation is said to harm a person’s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.
 Subramanium Swamy v. Union of India, Ministry of Law and Ors, ¶125, Page 174
 Subramanium Swamy v. Union of India, Ministry of Law and Ors, ¶ 140, Page 193
 Suresh Kumar Koushal and Anr v. Naz Foundation and Anr, 2010 CriLJ 94
 Obergefell et al v Hodges, Director, Ohio Department of Health, et al, №14–556
 199. Prosecution for defamation.
(1) No Court shall take cognizance of an offence punishable under Chapter XXI of the Indian Penal Code (45 of 1860 ) except upon a complaint made by some person aggrieved by the offence: Provided that where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court make a complaint on his or her behalf.
(2) Notwithstanding anything contained in this Code, when any offence falling under Chapter XXI of the Indian Penal Code (45 of 1860 ) is alleged to have been committed against a person who at the time of such commission, is the President of India, the Vice- President of India, the Governor of a State, the Administrator of a Union territory or a Minister of the Union or of a State or of a Union territory, or any other public servant employed in connection with the affairs of the Union or of a State in respect of his conduct in the discharge of his public functions a Court of Session may take cognizance of such offence, without the case being committed to it, upon a complaint in writing made by the Public Prosecutor.
(3) Every complaint referred to in sub- section (2) shall set forth the facts which constitute the offence alleged, the nature of such offence and such other particulars as are reasonably sufficient to give notice to the caused of the offence alleged to have been committed by him.
(4) No complaint Under sub- section (2) shall be made by the Public Prosecutor except with the previous sanction-
(a) of the State Government, in the case of a person who is or has been the Governor of that State or a Minister of that Government;
(b) of the State Government, in the case of any other public servant employed in connection with the affairs of the State;
© Of the Central Government, in any other case.
(5) No Court of Session shall take cognizance of an offence under sub- section (2) unless the complaint is made within six months from the date on which the offence is alleged to have been committed.
(6) Nothing in this section shall affect the right of the person against whom the offence is alleged to have been committed, to make a complaint in respect of that offence before a Magistrate having jurisdiction or the power of such Magistrate to take cognizance of the offence upon such complaint.
 Kanti Bhadra Shah and Anr v. State of West Bengal, 2000 (1) SCR 27
 Balaraj Khanna and Ors v. Moti Ram, 1971 AIR 1389
 SLAPPs are lawsuits intended to censor or intimidate critics by burdening them with the cost of a legal defense https://thefsiindia.wordpress.com/2013/05/24/on-the-unfortunate-rise-of-the-indian-slapp-suit/
 S. Khushboo v. Kanniammal and Anr, 28 October, 2010
 R. Rajagopal v. State of Tamil Nadu, 1995 AIR 264,
 Exception 1 to Section 499 of the IPC
 Re-Ramlila Maidan Incident Dt v. Home Secretary And Ors on 23 February, 2012
 Shanti Star Builders v. Narayan Totame, 1990(1) SCC 520