The Supreme Court judgment upholding the validity of criminal defamation squanders away a brilliant opportunity to strike down this Macaulay drafted law of 1837. The judgment, by a bench headed by justice Dipak Misra, is verbose and clearly loses the wood for the trees.
Before the judgment was heard, justice Misra had freely granted stay orders against defamation prosecutions. The case was heard for two odd weeks and the judgment was delivered some nine months later. In cogitative hibernation for long, the gestation did not prove worth waiting for. Like a goods train, it gathers material at every stop, rocking to the sound of its track.
Drafted in 1837, India’s criminal defamation law was borrowed from English common law for imperial purposes to defend the state and state officials and put down comments by the press and the freedom movement.
Macaulay differed from criminal law in four areas: India’s criminal defamation was not linked to breach of peace, did not allow truth as a complete defence, included slander (spoken words) to criminality and limited various defences.
Who uses criminal defamation? Politicians against each other ( Gadkari, Kejriwal, Jaitley, Subramanian Swamy, Jayalalithaa… the list is endless). This law is a playground for politicians and public persons to pulverise each other, and others. The media is an inevitable victim. Why should this playground be kept alive?
American jurists say that such laws have a “chilling effect”. Defamation cases are to criminally intimidate. For most victims, the process is the punishment. There is an option: Civil defamation, which is also a rich man’s game except it does threaten people with jail.
The judgment goes against the grain of the SC’s powerful free speech jurisprudence, which protected India’s free speech from price and page legislation, newsprint control, sedition, censorship of cinema and TV and contempt.
Two specific aspects may be noted. In Auto Shankar’s case (1995), justice Jeevan Reddy invoked the famous Sullivan doctrine that public persons must be open to stringent comments and accusations as long as made with bonafide diligence, even if untrue. India’s criminal defamation law is wanting in this respect. Second, as a matter of constitutional balance, the judgment overlooks Justice Shetty’s wise doctrine that when looking at free speech and the restrictions on it: “... we cannot balance the two interests as if they are of equal weight.”
Free speech has g reater weight in this balance that finds itself in various cases: Rajgopal, Khushboo, Shreya (IT Act) and various Delhi high court decisions. Free speech and expression is crucial to the sustenance of democracy. Justice Misra simply alters – indeed – reverses the constitutional balance which the SC has so sedulously crafted for Indian democracy.
Not surprisingly, the United Nation Human Rights Committee says treaty obligations require defamation to be decriminalised. It has been decriminalised so in England, some other parts of Europe, Sri Lanka and many civil law nations.
Clearly, Indian law and justice Misra’s judgment are regressive, supporting the chilling effect of political and rich man’s adventurism to play criminal defamation litigation games at the expense of democracy. What a disappointment!
Hindustan Times New Delhi,14th May 2016
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