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.”