Recently, the Supreme Court upheld the much-contended sections, Section 499 and 500 of the Indian Penal Code, as constitutional. These sections, which are a legacy of colonial rule , aim to “criminalize” the defamation and entail it with an imprisonment of upto 2 years.
The grounds on which Supreme court upheld these sections were:
a.) Right to Reputation is an organic part of the Right to Life (Article 21) of the Indian Constitution. It says that dignity of an individual must be saved from defamation.
b.) It protects the feeling of fraternity.
Let us now look at both the sides of the provision of criminal defamation.
Arguments against the provision
- It can have a “chilling effect” on the Right to Freedom of Speech and Expression mentioned under Article 19(1)(a) of the Indian Constitution.
- It may lead to a scenario of “self censorship“
- It can discourage criticism from the opponents thus, deteriorating “debates “ which are considerably essential for a democracy to thrive and advance well.
- It is a tool in the hands of the state to suppress the voice of their political opponents.
- It may lead to an atmosphere of “intolerance”.
Arguments for the provision:
- It saves the dignity of an individual and saves him to be de-glorified in the society.
- The government while defending the non-removal of criminal defamation put forward the argument that “civil suites” can’t be afforded by anyone.
- As the Supreme court upheld, it protects the feeling of fraternity among the people through mutual solidarity .
Analysis of the Supreme court judgment?:
- Supreme court over the time has been increasing the ambit of Article 21 or the Right to Life. This is yet another instance of it.
- Supreme court while defending the provision of defamation on grounds of fraternity, followed the “due process of law(using its own logic while interpreting a judgement)” while according to Indian convention it has to follow the “procedure established by law(judgment solely on the basis of the constitution and laws and no invoking of its own logic/rationale).
- Fraternity is not a part of the reasonable restrictions imposed on Article 19(1)(a)(freedom of speech and expression), mentioned in Article 19(2).
- It undermined the Right to Free speech which is the cornerstone of a democracy.
Should it be repealed?
When it comes to the question of repealing the provision, we need to maintain a balance between the pros and cons of the provision.
The way ahead could be the one with adequate safeguards like:
- Defining the framework where the criminal defamation could be used, breaching which would make the state accountable.
- Constituting a body for scrutinizing the charges of defamation against any person, only after which can he/she be penalised.
- Making the state to pay reparations in case of any monetary loss of the individual.
Thus, taking extremes, that is repealing or keeping as it is, regarding the provision of criminal defamation, would not serve the purpose. The need is to opt for a balanced approach with a strong safeguard mechanism in place.