Article 10 – Freedom of speech

Issue – In the age of #MeToo why criminal defamation must go.

Abstract :

Criminal Defamation – set out under Section 499 of the Indian Penal Code- is an

anachronistic, colonial – era legal provision, that has been historically used by powerful

individuals, corporations and government, to silence and suppress inconvenient speech.

Last year, Tathagat Satpathy introduce into Parliament the ‘Speech of Bill’, which aimed to

replace criminal defamation with a detailed, statutorily codified regime of civil defamation.

Last month, in Navtej Johar v Union of India when the Supreme Court decriminalised same

sex- relations, it was not only a vindication of civil rights and the Constitution, but something

more : the court acknowledged that its own judgement five years ago, in Suresh Kumar

Koushal v Naz foundation, upholding the validity of Section 377 of the Indian Penal Code,

had been grievously mistaken. And the court made amends.

Main Body :

In the wake of #MeToo movement, the court now has a chance to correct another recent –

error, in the last few weeks, women who have come forward to testify about sexual

harassment committed by powerful individuals, have had criminal defamation cases filed

against them. Criminal defamation – set out under Section 499 of the Indian Penal Code – is

an anachronistic, colonial – era legal provision, that has been historically used by powerful

individuals, corporations and governments, to silence and suppress inconvenient speech.

The constitutionality of criminal defamation was challenged by a coalition of politicians,

organizations and individuals, two years go. A two – judge bench of the Supreme Court,

upheld the constitutional validity of Section 499 and refused to read in any safeguards to

prevent abuse. The court held that criminal defamation struck an appropriate balance between

the right tofree speech and the right to reputation.

The Indian Supreme Court was swimming against the global tide. Countries around the world

had been steadily decriminalising defamation, on the basis that the criminal law was a

disproportionately severe infringement of free speech especially for what was essentially a

“private wrong”, and could be addressed by a regime of civil defamation. Even the United

Kingdom, which gave us our penal code, had decriminalised defamation. The High Court of

Kenya, also a former British colony, struck down criminal defamation as unconstitutional,

holding that the “ traumatising gamut of arrest, detention, remand and trial” in a criminal case

had the effect of chilling speech, and promoting self-censorship among people who would not

have easy recourse to a lawyer. The constitutional court of Lesotho also followed a suit

holding that criminalisation was a disproportionately severe burden on speech and that

reputational interests could be protected by a less onerous regime of civil defamation.

Both the courts have followed the jurisprudence of the African Human Rights Courts that has

emphatically ruled that criminal defamation was inconsistent with basic international human

rights standards.

Personal Opinion :

Our Constitution guarantees a right to freedom of speech and expression, which can only be

restricted by a “reasonsable” law. Our Supreme Court has held that facet of reasonableness is

that a law must not infringe rights to a degree greater than is strictly necessary to achieve its

goal. Criminal defamation is targeted at punishing what is privately wrong and is an

appropriate example of a law that disproportionately affects the freedom of speech.

Conclusion :

The bill introduced by Tathagat Satpathy aims to replace criminal defamation

with a detailed codified regime of civil defamation. The recent spate of cases in

the wake of #MeToo gives the court colonial era rights- Section 377 and

Section 497 (adultery) to complete a hat-trick and in the process once again

cement its reputation as an institution that shed its own past and evolves

towards greater protection of rights.

credit: APEKSHA SUKHADIA

clg name: vivekanda eductional society of law college