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DEFAMATION VIS-À-VIS FREEDOM OF SPEECH (By-Tarishi Agrawal)
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DEFAMATION VIS-À-VIS FREEDOM OF SPEECH
Authored By-Tarishi Agrawal[1]
Introduction
Free speech and expression are regarded
fundamental rights in democratic societies, but they are not absolute, and
defamation is one of those legitimate constraints. As per Black’s Law
Dictionary, defamation means the offence of injuring a person's character,
fame, or reputation by false and malicious statements. Libel and slander seem to be covered by the
word. Defamation has become a hot-button issue in the modern day because of the
media frenzy that has been generated over the freedom of speech and expression
guaranteed by Article 19 (1) (a) of the Indian Constitution. Individuals,
whether in their private or official capacities, have a presumption that every
comment they make might result in a public outcry or incarceration.
This paper aims to examine the concept of
defamation, its position in India and the ambit of defamation laws under the
umbrella of the fundamental right of freedom of speech and expression through
various cases and development. Defamation has been a burning topic in the
present times where almost saying anything to anyone makes it come under the
garb of harm to reputation and thus leading to slapping of defamation
proceedings. Therefore it becomes very pertinent to examine the position of the
defamation law and the various defences which are available and to what extent
a person is free to present his opinion to escape the bounds of defamation.
Definition And Ingredients: Defamation
By law, defamation means harming the
reputation of another person by false publication or communication to a third
party which leads to lowering of reputation in the eyes of such persons. If you
trace back the history of defamation laws mostly all of us believe that
defamation is a product of English law however we had similar concepts which
existed earlier for example in the Roman law Even the chance which were found
abusive or capable of being punished also in the German law as well as in the
English law, the punishment for such insults included the cutting of the
tongue. In the later part of the 18th century, in England, if a crime was
imputed or imputation of any social disease or allegations of professional
incompetence also constituted the charge of slander however they were not
codified later the slander of women act came in 1891 which made the imputation
of unchastity illegal. As per the French law on defamation, conspicuous
retraction of libellous material in newspapers and allowed a defence only when
the material is pleaded to be true of w.r.t. publications concerned public
figures. Similar position of law is seen when we talk about the German law in
present context. However, when the matter the criminally defamatory, then there
are very meek chances of getting the defence of truth, when we talk about
Italy.
When we talk about a particular person then we
consider a publication or communication to be defamatory when the same is done
without the consent of the concerned person and the matter holds to truth. The
material should be such which causes a loss of reputation and not just when
it’s hurtful to the feelings of that person. Also, one peculiar thing to notice
is that merely if the supposedly defamed person feels that his reputation has
been attacked, the Court will not just consider that person’s point of view in
his mind, rather it will give regard to the views of a reasonable prudent man
and his view point. There may be cases where aspersions are made not w.r.t. a
specified person explicitly, rather they have been made indirectly, even that
would be enough to constitute the charge of defamation. The important thing is
that sufficient evidence prevails for the person to be made out. But when we talk about a group of individuals
or a particular class, in that case, the defamatory material must relate to
every single person of that group or when certain members are defamed making
reference to that class or group.
Broadly, there are two sub categories of
defamation i.e. libel and slander. But there has been a difference of opinion
as to what constitutes libel and what constitutes slander as per the medium on
which defamatory matter was published or communicated. Defamation on television
and radio is considered as libel mostly, however in certain places, the same is
considered slander. On one hand, if a lawsuit is filed for Libel then the
remedy available is general damages or special damages as the case maybe the
general damages are recoverable in case of reputation loss whereas special
damages are remedy in case of specific economic loss on the other hand, we can
recover special damages in case of slander however this rule is subjective to
different jurisdictions when defamatory material affects the interest of the
public at large then a person is criminally liable for defamation
Apart from this there are several defences
which are available against a lawsuit for defamation which include truthfulness
of the fact or fair comment and criticism which would be discussed later in
this paper.
Defamation is the publication of a statement
which reflects on a person’s reputation and tends
to lower him in the estimation of
right-thinking members of society generally or tends to
make them shun or avoid him.[2]
We can see two forms of defamation. First, label which is a representation in
permanent form for example by printing my pictures by writing etc. and
secondly, by slander, which is in a temporary form i.e., mainly by spoken words
or gestures.
Ingredients Constituting Defamation
1. Statement has to be made:
To constitute defamation there has to be a
statement which can either be in spoken form or written or by science or visual
representations the statement should be made with the intention to be read. For
example: if in a group of people A inquired from B regarding who stole his
necklace. B, though not saying something explicitly simply points towards C
making it look as if C stole the necklace this amounts to C’s defamation.
2. Statement should be such which causes
defamation:
The defamatory statement should not just hurt
the feelings of the person rather it must bring him certain ridicule or hatred
and harm to the reputation in the eyes of people. The deformity remark should
be such that the person is likely to lose his reputation which he holds in the
eyes of the people of the society. Abusive language may also amount to
defamation. Criticism might not lead to defamation but lowering the reputation
in the eyes of all the rightful thinking people of the society amounts to
defamation.
3. The statement should be regarding the
plaintiff:
The defamatory statement should be with
respect to the plaintiff. the statement may be Express or implied. There might
be cases where the defendant has not expressly mentioned the plaintiff’s name
in his defamatory statement but impliedly refers to him. in such cases the
court would see the outlook of the reasonable people of the society.
4. Defendant’s intention:
The defendant who is making the defamatory
remarks should do so with the intent of making the other people believe that
his statements are true and it will thereby cause injury or harm to the
reputation of the person who is being defamed.
5. Falseness of the statement:
The statement being made by the defendant
should be false and hold no truth because truth is available as a valid defence
against a defamatory statement. Even though a statement which is true might be
impolite but if it’s true then the charges of defamation do not hold well.
6. Privileged communication:
Privilege communications are the
communications where people are secure from any form of liability due to the
nature of their relationship. For example, the communication made by husband to
his wife about a third person will not amount to defamation. The main reason
for providing privileged communication as a defence is a matter of policy and
intimacy of relationship.
7. Publication of statement:
In order to constitute defamation it is an
essential that the statement so made has been published or been communicated to
a third person. A statement written by the defendant not with the intention of
publishing it would not amount to defamation however the same would become
defamatory if the defendant knew that there was a slight possibility of that’s
statement being seen by a third person. In the case of Mahendra Ram v.
Harnandan Prasad[3] it
was held that it would amount to defamation where a letter has been written and
sent to the plaintiff in Urdu language, knowing that the plaintiff does not
understand Urdu.
8. The third party should believe that
then defamatory statement is true:
Apart from being published, for a matter to be
defamatory, it requires that the statement must look true to the rightful
thinking people of the society.
9. Statement must lead to loss of
reputation:
The statement should be such that it leads to
a loss of reputation of the plaintiff in the eyes of the people of the society.
Defamation Laws In India
In India the defamation is both a criminal
offence as well as a civil wrong however there is no definite difference which
has been drawn between label and slander.
Under
criminal law:
In India defamation is covered as a crime
under the Indian penal code, 1860. Section 499 Section 502 covers the crime of
defamation against a person or an individual. Apart from that defamation
against the state is covered under Section 124A which talks about the crime of
sedition, Section 153 which talks about riots that is defamation of a class.
Also Section 295A is also one aspect of defamation against a class which talks
about hate speech which outrages the religious sentiments of people. Defamation
has been defined under Section 499 of the Indian penal code has –
• By
words spoken or written signs or visible representation
• Is
an imputation upon a person with the published or spoken verbally
• In
the criminal aspect of defamation intention plays an important role. That
implies that there must exist an intention of causing injury to the reputation
of a person along with the knowledge that such aspersions or imputations have a
tendency to harm the reputation of the person talked about.
The Section provides for four explanations and
10 exceptions or the defences which are available which can be interpreted as
follows:
v
“Impugning
a deceased person so as to cause harm to his reputation is considered as
defamation
Illustration- A had a very lose character. He
had many extra-marital affairs.
v
Impugning
a company, an association or a group of individuals in such a way which harms their
reputation is also considered as defamation.
Illustration- Company A cannot be trusted for
any deal owing to their dishonesty.
v
If
the imputation assigned to the individual or individuals, does not, by other's
estimation, both directly and indirectly, lowers or intends to lower the
character of the person, then it is not considered as defamation.
Illustration- A is a very honest man and is
very well mannered. Although, this statement may not be true but it doesn't
lower down A's reputation and it is actually a boost to his reputation, it is
not defamation.
v
Any
statement made ironically or any imputation assigned ironically with an
intention to harm the reputation of the person is defamation
Illustration- A says that B is a very honest
man and can't steal C's book with an intention to impugn B of stealing C's
book, it is defamation.
A
broad interpretation of the exceptions:
v
If we
impute something regarding a person which is true and accurate and is published
in public good, it is not defamation.
v
If a person
expresses his opinion regarding a public servant with respect to his conduct in
discharging his duty without harming his/her character unless the character is
represented in his conduct duty, it is not considered as defamation.
v
It is
not defamation if a person expresses his/her opinion on a person touching a
public query without doing any harm to his reputation unless his reputation or
character is represented in his/her conduct.
v
To
publish true facts and reports of cases decided by the court is not defamation.
Illustration- If A makes a remark that B, a
public servant is incompetent in doing his duty is not defamation. It is his
opinion which is protected by the constitution. But, if A says that it is owing
to the corrupt character of B as a person that he is unable to perform his duty
is defamation.
If a person impugns a person without
publishing it, the person is not liable for punishment. This means that only
when a person publishes an imputation regarding a person, can he be punished”[4].
While Section 500 of the Indian penal code
provides for the punishment for defamation, the Code of Criminal Procedure,
puts forth the procedure in which the proceedings would be conducted.
Defamation is punishable with simple imprisonment of up to 2 years or a fine or
both. Also, defamation is a non-cognizable and bailable offence. Mostly, in
cases of defamation complaint proceedings are followed under which the
aggrieved party filed a complaint before the magistrate. As stated above, since
defamation is a non-cognizable offence, there can be no arrest without a
warrant. The proceedings for defamation in the criminal aspect are harsher than
the proceedings in the civil matter. For instance, truth can be taken as a
defence against defamation in almost all the cases however when it comes to
criminal proceedings the defence of truth is available in a limited sphere.
Under Civil Law:
Under civil law the branch of tort law deals
with defamation. Mostly in civil cases the suit is filed for libel i.e. where
representation is done in written form. In order to establish the tort of
defamation the following points need to be proved:
• False
remarks
• Has
to be in written form
• Should
be defamatory
• Must
have been published[5]
In civil laws for defamation the remedy of
damages is awarded. The amount of damages increases as the degree of harm
caused. While in civil cases, mere preponderance of probabilities is enough to
incur liability, in criminal cases, the fault has to be proved beyond
reasonable doubts. Unlike criminal law, a civil suit for the defamation of a
deceased person usually cannot we filed unless search defamatory statement
affect the life of the heirs of the deceased person. Also, in tort law if a
person apprehends that someone is about to defame him, then he can seek
injunction from the court to stop the person from making any such publication.
We can see that the burden of proof in criminal cases is greater than that in
civil cases. Such inventions, though
being an option is rarely exercised the court in the case of Bonnard v. Perryman[6]
stated that:
“The Court has jurisdiction to restrain by
injunction, and even by an interlocutory injunction, the publication of a
libel. But the exercise of the jurisdiction is discretionary, and an
interlocutory injunction ought not to be granted except in the clearest
cases—in cases in which, if a jury did not find the matter complained of to be
libellous, the Court would set aside the verdict as unreasonable. An
interlocutory injunction ought not to be granted when the Defendant swears that
he will be able to justify the libel, and the Court is not satisfied that he
may not be able to do so.”
A similar view has been taken in the case of Khushwant Singh v. Maneka Gandhi[7]
by the Delhi High Court. However, mostly in such cases the pre-publication of
any statement which might be apprehended to be defamatory Is not stop by the
courts and listen and then there are some exceptional circumstances, that is,
where the court is of the view that paying of damages to the aggrieved party
would not serve justice to him. It is interesting to know that a Defamation
Bill was introduced in the year 1988 by the Rajiv Gandhi government dealing
with the provisions for defamation however it received a lot of criticism due
to which it was withdrawn.
ARTICLE 19(1) (A): FREEDOM OF SPEECH AND
EXPRESSION
Article 19(1) (a) of the Indian Constitution
states that, “all citizens shall have the right to freedom of speech and
expression”. The main aim is to provide every citizen a freedom of thought
expression however this right is also subject to reasonable restrictions
imposed by the Constitution itself and provided under Article 19 (2). It is
pertinent to note that the said right is available to the citizens only and not
to any other person. This right enables a person to have a freedom of thought
and be opinionated about any issue. This right also enables a person to speak
his voice by means of words representation writing etc.. However the right is
not absolute and reasonable restrictions have been provided in the
Constitution, which enables the government to frame laws imposing reasonable
restrictions in the interest of society and integrity of the state, or the
security of the state, or on ground of friendly relations with foreign states,
public order, decency and morality and contempt of court, defamation and
incitement of offence. Article 21 of the Constitution provides for right to
life and personal liberty. The ambit of Article 21 is very huge. Article 21 not
only protects the life but also gives the right to a decent living with
dignity. It covers under its broad umbrella the right to reputation also. The
freedom of speech and expression is not absolute and defamation is available as
a reasonable restriction to the same under Article 19(2). The policy behind
imposing reasonable restrictions to the right of freedom of speech and
expression is protecting the reputation of a person when a person lives in a
society he owes respect and
reputation and harming the reputation becomes
a hindrance to a dignified life. Hence defamation has not only been made a
criminal offence under Section 499 and Section 500 of the Indian Penal Code but
also a civil wrong. Providing absolute right of right to freedom of speech and
expression could cause widespread abuse of this right and disturb the peace and
harmony of the society.
Challenge To The Constitutionality Of
Defamation Provisions
S.499 of the Indian Penal Code states that:
“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.”
This provision has been challenged on the
ground of being unconstitutional considering it to be violative of freedom of
speech and expression under Article 19 of the Constitution.
Arguments In Favour Of Keeping Section 499 And
Section 500 Valid:
1. Balancing
between Article 19 and Article 21 of the Indian Constitution is very important.
Declaring the law invalid for unconstitutional would not serve the purpose.
Instead we need to balance one is right to reputation protected by Article 21
of the Constitution against others right of free speech and expression.
2. Main
complaint proceedings are initiated under Section 199(1) of the Code of
Criminal Procedure the complainant can pursue the complaint without involving
any state machinery, thus, the freedom of speech and expression. This ensures
that no false and frivolous complaints are instituted where the complainant is
not willing to incur any responsibility.
3. The
criminal provisions stated under Section 499 and 500 provide for various
exceptions and explanations. These explanations and exceptions add more
substance to the provision and no complaint can be filed lightly.
4. The
provision can’t be declared unconstitutional only on the ground that the
provision could be misused.
Arguments For Declaring Section 499 & 500
As Unconstitutional:
1. Even
though truth is available as a defence for defamation, the defence is not
available in Delhi as Section 499 exception one clearly states that the
statement should be made for public good. What constitutes public goods would
be a question of fact which would be determinable by the courts. Since the
Courts have to decide, people are usually hesitant to say anything about high
profile people and politicians, even though they are truth because they fear
that the court would not find the statement is made in public goods and then
they would have to face criminal charges.
2. People
do not understand the difference between criticism and defamation and approach
the court regarding statements that criticise them or statements which they do
not find in their favour. Though Court is a guardian of the rights of the
citizens, but that too happens when a person is being dragged to court which
causes unnecessary burden and hassle.
3. Even
though a person might not have made a defamatory statement, the court can still
prosecute that person on the charges of conspiring to make such defamatory
statement with the person who has actually made such defamatory statements.
4. Defamation
is already punishable as a civil wrong also having sufficient remedies. Hence,
there is no need to include it as a criminal offence also since the remedies
against a civil wrong are also sufficient.
5. A
person can be punished for the defamation of a deceased person also. In such
cases there can be abuse of the law by the deceased heir who wants to mint
money out of such proceedings.
Why
criminal defamation becomes a better option?
Civil defamation provides for the remedy of
Damages and in India, either people find multiple ways to escape it, even when
the Court acts as a watchdog, or, are willing to give the money and not accept
the wrong they’ve done. Hence, making a person criminally liable for defamation
remains a feasible option. Moreover, state is considered as a guardian of the
rights of an individual. So it is the duty of the state to protect the rights
of its citizens and making it a criminal offence allows the state to fulfil its
“Compelling interest”.
THE
FAMOUS CASE OF SUBRAMANIAN SWAMY V. UNION OF INDIA[8]:
EXPLANATION OF SUPREME COURT’S VIEW ON THE CONSTITUTIONALITY OF DEFAMATION LAWS
Several politicians like Subramanian Swamy,
Rahul Gandhi and Arvind Kejriwal, were charged with the case of criminal
defamation. So, several petitions were filed by them challenging the
constitutionality of the offence of criminal defamation. Their stance was that
the offence of criminal defamation obstructs the right to freedom of
expression. During the pendency of the constitutional proceedings, the criminal
proceedings were stayed.
Petitions were filed under Article 32 of the
Indian constitution and the constitutional validity of Section 499 and Section
500 of the Indian Penal Code as well as Section 199(1) to 199(4) of the Code of
Criminal Procedure was challenged.
The judgement was delivered by Justice Dipak
Misra and Justice Prafulla C.Pant agreed. The judgement widely discusses the
constitutional validity starting by analysing what defamation and reputation
means. The court held that reputation is protected by the right to life and
personal liberty guaranteed under Article 21. However, Article 21 is a
protection against the actions of the state. In the Supreme Court, however,
notwithstanding the slight hurdle in textual context, held that a balance has
to be stretched between Article 21 which protects right to reputation and
Article 19(1)(a). Though the court did not discuss as to how the balancing was
to be done, but it asserted that free speech could not become a hindrance to a
person’s right to reputation.
Thus, the court made it clear that right to
reputation is a fundamental right protected under Article 21 of the
Constitution, and, it also emphasised that the same prevails over freedom of
speech and expression. We all know that, in the last 30 years, the Court has
widely interpreted Article 21 to include various aspects like right to
pollution free environment or right to sleep, etc. Most importantly, “Instead of using Article
21 as a shield to protect the individual against the state persecution or indifference,
it used it as a sward to cut down the fundamental right to freedom of speech
and expression”[9].
Secondly, the court invoked the concept of
“Constitutional fraternity”. The court held that it is the feeling of
fraternity and solidarity that exist between the members of a society which
protects the criminal defamation law. Article 19(2) of the Constitution, does
not include constitutional fraternity, i.e., constitutional fraternity is not a
part of the eight categories provided under Article 19(2). The question that
arises is that, when Article 19(2) nowhere talks about constitutional
fraternity, then where does this concept originate from. The answer to this
lies in the preamble. The three words, “liberty”, “equality” and “fraternity”
emerged after the French revolution. It is from here that the balance of free
speech against constitutional fraternity is talked about.
Loopholes In The Judgement-
The judgement, though declared Section 199 and
500 of the Indian Penal Code and Section 199(1) to 199(4) of the Code of
Criminal Procedure, as constitutionally valid, yet had traces of certain
silences and emissions. For example, the court did not discuss as to why an
honest mistake is not allowed as a defence under Section 499. This omission
specifically comes into limelight because The Supreme Court, long back was
itself of the opinion that the civil law on defamation is unconstitutional as
it does not allow honest mistake as a defence. Also, it was quite surprising
that the claim that “criminal defamation creates a chilling effect upon speech”
was not discussed widely and dismissed in one paragraph.
“Furthermore, the Court addressed the question
whether the criminal defamation provisions violate the concept of
‘reasonableness’, either substantively or procedurally, examining whether it is
vague, or arbitrary or disproportionate.
Examining the four explanations included in
the Penal Code provision on defamation, the Court concludes that these were
neither vague nor ambiguous. The Court takes note that an imputation can only
be treated as defamatory if it directly or indirectly, in the estimation of
others, lowers a person’s character or his credit. The Court took note that
truth is a defence only when a statement also serves the public good, but
opines that if a truthful statement is not made for any kind of public good but
only to malign a person, this should not be constitutionally protected.
Finally, the Court holds that the penal code
provision is not disproportionate. The reasonableness and proportionality of a
restriction is examined from the stand point of the interest of the general
public, and not from the point of view of the person upon whom the restrictions
are imposed. Applying this standard, the Court judged the criminal defamation
laws to be proportionate. The Court rejected the contention that defamation is
fundamentally a notion of the majority meant to cripple the freedom of speech
and expression as too broad a proposition to be treated as a guiding principle
to adjudge the reasonableness of a restriction”[10].
Analysis Of The Famous Case Of Shreya Singhal
V. Union Of India[11]:
Two women were arrested under Section 66A of
the Information Technology Act, 2000 by the police officers for posting
allegedly offensive and objectionable comments on Facebook about the propriety
of shutting down the city of Mumbai after the date of a political leader. The
Section provides that-
“66A.
Punishment for sending offensive messages through communication service, etc.--Any
person who sends, by means of a computer resource or a communication device,
(a) any information that is grossly offensive
or has menacing character; or
(b) any information which he knows to be
false, but for the purpose of causing annoyance, inconvenience, danger,
obstruction, insult, injury, criminal intimidation, enmity, hatred or ill
will, persistently by making use of such
computer resource or a communication device;
(c) any electronic mail or electronic mail
message for the purpose of causing annoyance or inconvenience or to deceive or
to mislead the addressee or recipient about the origin of such messages,
shall be punishable with imprisonment for a
term which may extend to three years and with fine.
Explanation.--For the purposes of this
Section, terms "electronic mail" and "electronic mail
message" means a message or information created or transmitted or received
on a computer, computer system, computer resource or communication device
including attachments in text, image, audio, video and any other electronic
record, which may be transmitted with the message.”
Though the two women were eventually released
but it sparked media attention and criticism. These women also filed a
petition, challenging the constitutional validity of these provisions on the
ground that the right to freedom of speech and expression is been violated by
the provision of Section 66A of the Information Technology Act, 2000.
The Supreme Court looked into the matter and
while the constitutional validity of the provision was being evaluated and
interim measure was taken that prohibited the arrest of any person pursuant to
Section 66A unless the senior police officers approve such arrest.
The judgement was delivered by Justice
Chelameswar and Justice Nariman. Section 66 a was analysed to have a chilling
effect on right to freedom of speech and was struck down by the apex court. It
was declared unconstitutional and was widely criticised for its weakness and
over breadth. However, the court in the
Subramanian Swamy case held that the Shreya Singhal case sat on a different
footing than that of the present case. Shreya Singhal case had a narrow interpretation
while in the Subramanian Swamy’s case which involved the right to reputation as
an internal part of Article 21, had a very wide interpretation. The term
chilling effect means a situation where the interest of an individual or a
group is at stake and the freedom of speech and expression is under a dilemma
of being suppressed by fear of penalisation.
A threat is posed to the natural as well as
the legal right of an individual by a legal provision. With respect to being
over breath, the Supreme Court held that the overall Area covered by Section
66A was very wide it covered any opinion on any subject matter virtually.
Justice Nariman opined that the right to freedom of speech and expression is
not merely an aspiration rather, it is “a cardinal value that is of paramount
significance under our constitutional scheme.”
Article 19(1)(a) provides for the freedom of
speech and expression and Article 19(2) provides for the various reasonable
restrictions which can be imposed to limit the right to this freedom. The
petitioners were of the opinion that the grounds stated in 19(2) more not
legitimate defences and that they could not support the validity of Section 66A
of the Information Technology Act, 2000.
They also argued that the provision of Section
66A does not fulfil the criteria of being a perfect criminal revision as it is
not clear in its words and does not explicitly provide as to what would be
punishable. Furthermore, the petitioners
also argued that Section 66A was an obstruction to the right to freedom of
speech and expression and the right to form an opinion or dissent. None of the
grounds stated by the counsel on behalf of the State was able to justify as to
why The penal provision should not be struck down as none of the defences like
defamation, public order, decency or morality or the incitement of offence
etc., contained in Article 19(2) was sufficiently able to justify the keeping
of Section 66A in the statute books. Nariman J stated “Any law seeking to
impose a restriction on the freedom of speech can only pass muster,” he further
said, “if it is proximately related to any of the eight subject matters set out
in Article 19(2).” The court pointed out that there was no nexus whatsoever
between the criminalisation of “grossly offensive” or “annoying” speech and the
restrictions permitted under the Constitution were self-evident.
Conclusion
The main crux of the discussion is the
reconciliation between the law of defamation and the right to freedom of speech
and expression - both are guaranteed under the Constitution. While the right to
reputation is covered under Article 21 of the Indian Constitution, Article
19(1)(a) provides for freedom of speech and expression. There is a dire need of
balancing the
two considering the increase in the number of
cases filed under defamation law, basing its challenge on the right to freedom
of speech and expression for example the case of Defamation filed against Tarun
Gogoi, the arrest of comedian Kiku Sharda, etc.
though the decision of the Subramanian Swamy case settles the law
regarding defamation to be valid, yet certain questions remain unanswered. For
example, what is the need of having criminal provisions for defamation when
India believes in the concept of reformative justice and not retributive
justice?
Also, seeing the stand of the Supreme Court in
the Subramanian Swamy’s case, it is amply clear that the court is not of the
opinion of striking down the criminal defamation provisions. Hence, the
following measures can be taken into consideration for better implementation of
laws:
1. Before
convicting anyone under the criminal defamatory provisions, it should be made
thoroughly clear that all the ingredients of the said offence are fulfilled.
2. Also
no charges of criminal defamation should be finalised until and unless it is
definitely proved that the statements made were either false or reckless and
were made with the intent to harm the party claiming to be defamed.
3. The
police authorities should not take part in the initiation or public prosecutors
should not take part in the prosecution and criminal defamation cases,
irrespective of the case being a high-profile one or not.
4. Also
long time in presentment pleased to the suspension of the right to freedom of
speech and expression again. Suspension to use any form of media or to continue
in a certain profession like journalism or excessive fines should not be a
resort in case of defamation charges.
Criticism is good only up to the time it is
healthy. Healthy criticism enables creativity and growth. Judiciary, at its
level, gives its best efforts to make harmonious construction in cases of
matters relating to defamation. But, we as citizens also have certain duties to
abide by in return of the rights guaranteed to us by the state.
Article Information
DEFAMATION VIS-À-VIS FREEDOM OF SPEECH (By-Tarishi Agrawal)
Authors: Tarishi Agrawal
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/09/30
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
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