Defamation: Where the Supreme Court Got It Wrong

What do Arvind Kejriwal, Rahul Gandhi and Subramanium Swamy have in common? As much as this question seems like the hook to a bad joke, these three politicians (along with 21 others) came together to challenge the constitutionality of criminal defamation (Sections 499 and 500 of the Indian Penal Code) before the Supreme Court. In essence, their argument was that these colonial-era criminal defamation provisions were an unreasonable restriction on the constitutionally guaranteed right to freedom of speech and expression. Given that the Supreme Court was hearing the constitutional challenge to criminal defamation for the first time since its introduction in 1860, this was a keenly awaited decision. However, nearly a year after it concluded its hearings in SubramaniamSwamy vs Union of India, last week, the Supreme Court handed down what is, at best, a disappointing judgment, and, for some, a regressive ruling. On 13 May, the Supreme Court upheld criminal sanctions as a constitutional remedy for the protection of reputation.

A lot has already beenwritten on what the Supreme Court has said and its colourful language. However, the judgment is also significant for its glaring omission to record some of the petitioners’ submissions made before the Court and for its failure to analyse and decide various critical issues, three of which are particularly significant.

The first relates to the idea of the Constitution as a “transtemporal” document—to borrow a term from the Harvard constitutional law professor Laurence Tribe. Under such a view of the Constitution, provisions that were constitutional at one point of time can later be rendered unconstitutional based on our evolving understanding of the law. This argument is perfectly summed up by the former justice of the US Supreme Court Oliver Wendell Holmes in his seminal 1897 article, the ‘Path of the Law.’ Holmes writes that “it is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from the blind imitation of the past.” The mere fact of a provision continuing to remain on the statute book is irrelevant to its constitutionality. This is especially apposite for defamation.

The offence of defamation was included by Lord Macaulay in the IPC at the time of its first draft in 1838, and subsequent codification in 1860. It was along the lines of the prevailing English law, albeit with some changes. Notably, as Lord Macaulay’s notes on the IPC reveal, the rationale for criminalising the act of defamation was inextricably linked to the protection of the interests of the British Raj, the security of the state, and public order. Thus, Section 499, was enacted in the context of a speech-restricting feudal society that did not promote frank discussion and criticism, and was only concerned with the rights of the aristocracy. It has remained unaltered for the last 155 years. In our present day constitutional democracy, as the petitioners argued, this provision is an anachronism, and is a disproportionate burden on discourse at a time where the contemporary understanding of free speech has transformed.

Although the Supreme Court records part of this submission in paragraph 125 of its 268-page decision (that in the “changing climate of growing democracy, it is not permissible to keep alive such a restriction”), it does not go any further. There is no analysis or discussion of the petitioners’ argument, except to repeatedly note that the legislature in its “wisdom” has “not thought it appropriate to abolish criminality of defamation in the obtaining social climate.”

Aside from the fact that the Court leaves us to wonder what its frequent references to the “existing social climate” imply, it seems to indicate that political inaction by parliament, somehow by itself, lends credence to the constitutionality of a legislative provision. Such an approach is sadly reminiscent of the court’s abdication of its proper role in Koushal vs Naz Foundation, where the Supreme Court was “guided” by the Parliament’s failure to repeal Section 377 from the statute book to uphold its constitutionality. In the recent US Supreme Court ruling on gay marriage, the justice Kennedy dismisses such an argument by noting that regardless of the democratic process envisaged by the US Constitution and evident legislative disagreement, “the dynamic of our [American]constitutional system is that individuals need not await legislative action before asserting a fundamental right” and can approach the courts to assert their rights. Sadly, such understanding was completely missing in the Indian court’s decision.

The second aspect relates to the unreasonableness of the criminal defamation provisions and the idea of “process as punishment.” Under Explanation 2 to Section 499, making an imputation “concerning a company, or an association” or a “collection of persons” may amount to defamation. Under Explanation 4, even indirectly lowering the “intellectual” character of a person, or lowering her “credit” or causing it to be believed that her body is in “a state generally considered disgraceful” in the eyes of others may amount to defamation. Procedurally, as well, defamation complaints are to be filed by “some person aggrieved” of the offence (and not the “person defamed”). The text of Section 199, Code of Criminal Procedure (CrPC) and Section 499, IPC, makes it relatively easy for a person to file a criminal defamation complaint and get the accused summoned to Court.

The Supreme Court rejected the petitioners’ arguments that the wording of the sections was vague and unreasonable, noting that the law focused on a definite identity of “person aggrieved” and a “collection of persons,” which were eventually only questions of fact. However, such a view is divorced from the working of the law, since in India, a magistrate is not required to give a reasoned order while issuing summons to the accused and the defence of the accused cannot be heard till the time of trial. Thus, a mere prima facie allegation makes it easy for the aggrieved person to initiate the criminal process, which then requires the accused to attend court, get bail, and face the threat of possible conviction. For politicians, it can also entail immediate disqualification, thereby rendering criminal defamation a potent political tool—consider for instance the petitioners before the Court.

The problem is exacerbated by the extension of the territoriality principle (under which a state can prosecute criminal offences that are committed within its borders), especially due to the internet, which makes it easy for various persons to claim to be aggrieved by the same article, press conference or tweet. This can lead to the institutio n of multiple cases in different jurisdictions as SLAPP (Strategic Lawsuit Against Public Participation) suits. These are lawsuits intended to censor or intimidate critics by burdening them with the cost of a legal defense. The accused is then forced to travel across the country defending themselves. For instance, in 2010, the well-known actress Khushboo faced 23 criminal complaints in Tamil Nadu and Madhya Pradesh for her remarks on pre-marital sex, and had to go up till the Supreme Court to get these complaints quashed. This threat of criminal prosecution produces a “chilling effect” on the exercise of the right to free speech, stifling debate that is necessary for a healthy democracy. Simply put, the arduous process of a criminal trial, including the time and money spent, curbs speech and leads to self-censorship, which is especially unwelcome when it concerns the media, politicians, and dissidents.

Although the court records the petitioners’ submissions on this effect in detail, it summarily dismisses them by stating, “Once we have held that reputation of an individual is a basic element of Article 21 of the Constitution”—right to life and personal liberty—“and balancing of fundamental rights is a constitutional necessity and further the legislature in its wisdom has kept the penal provision alive, it is extremely difficult to subscribe to the view that criminal defamation has a chilling effect on the freedom of speech and expression.” This one-line dismissal is completely bereft of reasons explaining why it is “difficult to subscribe” to the petitioner’s arguments, apart from once again, giving misplaced priority to “legislative wisdom.” Worse still, it ignores the Court’s ownjurisprudence, recognising the chilling effect of criminal sanctions.

The third and related point deals with the court’s failure to apply the test of proportionality: to see whether criminal defamation provisions, in their current form, are “necessary.” While the court notes the Amicus Curiae’s (someone appointed by the court to assist them in a particular case) submission that civil action for defamation would be an unsatisfactory remedy due to the failure to effectively obtain compensation, and despite the lengthy oral arguments addressed, it fails to advert to this issue in its final analysis. Instead, it frames the issue as a direct conflict between Article 19(1)(a), the right to free speech, and Article 21, (“whether right to freedom and speech and expression can be allowed so much room that even reputation of an individual which is a constituent of Article 21 would have no entry into that area”) without considering the role of civil suits to protect individual reputation. This omission is particularly glaring considering the recent spate of defamation suits filed by corporates against authors and media houses seeking exemplary damages to purportedly protect their reputation. The court’s analysis completely conflates the distinction between private and public wrongs (affecting an individual versus the community) and the basis for criminalising certain acts.

The Supreme Court’s decision in Subramaniam Swamy demonstrates the problem with allowing two judges to hear matters of grave constitutional importance (as in Naz and even Shreya Singhal), given that the Constitution indicates that substantial questions of constitutional interpretation should be heard by a minimum of five judges. More worrying, however, are its implications for the Supreme Court as an institution. Providing reasons for accepting or rejecting every ground laid in challenge is fundamental to the idea of judicial consistency and rule of law. A reasoned order is necessary to bring about transparency, to instil faith in the judicial system, and to allow parties to exercise their right to review. In the case of the Supreme Court, this assumes even more importance considering the wide powers the court assumes for itself in dispensing justice, and the limited recourse left to the petitioners after. Unfortunately, despite its extraordinary length, the court’s judgment in the present case was sorely lacking in reasons to justify its conclusions.

Going back to the justice Holmes’s comments, it is revolting that we continue with a colonial era law, when the UK itself decided to decriminalise criminal defamation. The Supreme Court seems to have shut its doors for now. Whether we can rely on legislative wisdom remains to be seen.