Supporting criminalisation of defamation, the government told the Supreme Court on Wednesday that criminal defamation offers “some deterrence” to people from maligning others whereas civil cases take over 20 years and “nobody cares”.
The submission was made by Attorney General Mukul Rohatgi in response to separate petitions filed by BJP leader Subramanian Swamy, Congress vice president Rahul Gandhi, Delhi Chief Minister Arvind Kejriwal, among others challenging criminal defamation as a weapon used to kill free speech. All three leaders are facing criminal defamation action in various courts.
Their petitions challenged the constitutionality of sections 499 and 500 of the IPC as an affront to article 19 (2) of the Constitution.
They asked whether criminal defamation, which makes a person liable to prosecution and penal punishment, is necessary when defamation is considered a civil offence by countries across the world.
“We are not like other countries. Here you can file a civil suit and it will drag on for another 20 years. Nobody cares. In criminal defamation, there is some deterrence,” Mr. Rohatgi submitted.
The AG submitted that in countries like the UK, civil action is faster than criminal prosecution. “There a person courts bankruptcy if he is found liable under civil defamation,” the AG said.
But senior advocate T.R. Andhyarujina, whom the two-judge bench led by Justice Dipak Misra had sought assistance from, countered the AG.
“But criminal defamation also deters people from speaking out... a number of people are facing criminal defamation, especially politicians because they tend to criticise their opponents,” Mr. Andhyarujina provided the counter-view.
Mr. Rohatgi argued that the petitions should be referred to a Constitution Bench as the matter pertained to whether sections 499 and 500 of the IPC were ultra vires of Article 19 (2) of the Constitution. But Justice Dipak Misra objected to the submission.
“It was two judges' benches and not constitution benches who decided cases of free speech like the section 66A of Information Technology Act and decriminalisation of homosexuality. Why do you say that every case requiring an interpretation of law has to go to a Constitution Bench,” Justice Misra said.
The court gave the government three days to file its response on question of law of criminalisation of defamation and scheduled the case for hearing on July 14.