SC stance on criminalisation of defamation erroneous

Source: dailypioneer.com

Based on observation mentioned earlier, the Supreme Court of India refused to appreciate any judicial pronouncement of the U.S. Supreme Court relating to criminalisation of defamation and its effect on freedom of speech. 

The Court gave no reasoning as to why relevant U.S. Supreme Court judgements, related to the matter being adjudicated, could not be applied to the Indian constitutional jurisprudence.

Moreover, the Apex Court also failed to acknowledge that not only the developed western countries but also a number of previously colonised African and Asian countries with similar socio-economic characteristics as India have decriminalised defamation.

This unintelligible aversion of the Court to foreign jurisprudence, in its entirety, disregards the growing universal nature of human rights jurisprudence.

Post its unconvincing observation on the non-applicability of US Supreme Court judgements, the Supreme Court of India stated that the right to freedom of speech and expression is not absolute and is subject to the imposition of reasonable restrictions.  The Court cited a plethora of case laws stating the same.

 In its previous decisions, the Supreme Court has laid down a number of tests for the purpose of ascertaining the reasonability of a restriction on the right to freedom of speech and expression.

However, in this case, the Supreme Court made no attempt to use those tests in order to determine whether or not the criminal defamation falls within the ambit of “reasonable restriction” under Article 19(2) of the Constitution. Instead, the Court abruptly shifted its focus to“the right to dignity” which is an integral part of Article 21 of the Constitution (i.e. the right to life and personal liberty).

 The Supreme Court stated that though the criminalisation of defamation may have some detrimental effects on the freedom of speech, it plays an important role in protection an individual’s right to dignity. Accepting that two constitutional pillars (i.e. Article 19(1)(a) and Article 21 of the Constitution) clash by criminalising defamation, the Court concluded that there is a need to “balance” these Fundamental Rights.

 In its endeavour to do the same, the Supreme Court produced a number of case laws where it had balanced two competing rights and concluded that criminal defamation under the Indian Penal Code strikes a proper balance between Article 19(1)(a) and Article 21 of the Constitution.

The Supreme Court’s reasoning behind this conclusion was that one’s right to reputation should not be soiled just because someone else has a right to the freedom of speech and expression.

 This reasoning of the Court is unintelligible. In the name of “balancing” the above mentioned rights, it only focused on the detrimental effect of free speech on the right to reputation and completely ignored the plight of Article 19(1)(a) of the Constitution resulting from the criminalisation of defamation. The Supreme Court did not appreciate the argument that decriminalising defamation would strike a better balance of the competing rights as the reputation of individuals could still be protected under civil action for defamation and free speech would flow freely without being deterred by the threat of imprisonment.

Perhaps the weakest part of the entire judgement is the Supreme Court’s analysis on whether or not criminal defamation under the Indian Penal Code causes a chilling effect on the freedom of speech and expression. The Court held that criminalising defamation does not cause a chilling effect on the freedom of speech because:

a) the right to reputation is an integral part of Article 21 of the Constitution,

b) balancing of fundamental rights is a constitutional necessity, and

c) the legislature has decided to keep the penal provisions relating to defamation alive.

None of the above-listed factorscontribute to determine the chilling effect caused by penalising defamation. The Supreme Court here not only put forward a frail analysis but it also failed to acknowledge all the recent instances where the law of criminal defamation has been used in the country to silence free speech, criticism, and dissent.

In several instances, the Supreme Court emphasised that the Parliament deciding to keep the penal provisions relating to defamation alive gives credibility to their constitutionality.  This stance of the Court implies that legislative inaction, somehow by itself, lends support to the constitutional validity of a provision. This viewpoint is reminiscent of the Supreme Court’s approach in the Naz Foundation case[8], where it was guided by the legislative inaction to repeal Section 377 of the Indian Penal Code in upholding its constitutional validity.

The Supreme Court also failed to acknowledge that it is India’s international obligation as a State Party to the ICCPR (International Covenant on Civil and Political Rights) to decriminalise defamation.[9]

In the end, the Supreme Court put forward an incoherent argument emphasising that criminal defamation facilitates the ideals of “harmony” and “fraternity” enshrined in the Directive Principles and the Preamble respectively and upheld its constitutionality.

Democracies of the world are headed towards the consensus that criminalising defamation has a chilling effect on free speech.

It is a tool in the hands of the rich and powerful to choke free speech, criticism and the voice of dissent with the fear of imprisonment. 

Therefore, it is imperative to review the judgement of the Supreme Court in Subramanian Swamy v. Union of India in order to have a more just and reasonable stand on the constitutionality Sections 499-502 of the Indian Penal Code, 1860.