Free speech muzzled, apex court told

It is ironic that truth is not a complete defence in defamation: Swamy

July 16, 2015 03:03 am | Updated November 16, 2021 05:10 pm IST - NEW DELHI:

Pushing strongly for de-criminalisation of defamation, political leaders across the spectrum argued in the Supreme Court on Wednesday that continuing with defamation as a penal offence under a colonial law muzzles free speech in a modern welfare state where truth and public debate are considered the greatest ways to good governance.

A Bench headed by Justice Dipak Misra, hearing a batch of petitions filed by political leaders led by BJP leader Subramanian Swamy, saw leaders converge in their opinion that criminal defamation stifled freedom of speech and expression under Article 19 (1) of the Constitution, even if the speech made was truthful and meant to foster public debate of matters in the public domain.

Congress vice-president Rahul Gandhi and Delhi Chief Minister Arvind Kejriwal have also challenged the law.

‘Even truth is not a defence’

On the second day of arguments before a Bench headed by Justice Dipak Misra, BJP leader Subramanian Swamy contended that “for a nation with a motto of Satyameva Devata it is ironic that truth is not a complete defence in criminal defamation.”

The Bench is hearing a batch of petitions filed by political leaders seeking de-criminalisation of defamation.

“It was for colonial convenience to require [First Exception to Section 499] that it is defamation even if the imputation is the truth unless it is for the ‘public good’ to disclose the truth. This colonial convenience continues even today in a free India,” Dr. Swamy said.

Senior advocate P.P. Rao, appearing for Congress vice-president Rahul Gandhi, questioned the “reasonableness” of the restraint imposed on an expression based on truth or a reasonable belief by Sections 499 and 500 (criminal defamation) of the Indian Penal Code.

“The state has no compelling interest in restricting free speech under Article 19(1) between or among private persons. Free speech restrictions under Article 19(2) must necessarily originate from compelling state interest, not private interest,” Mr. Rao argued.

‘Misuse of penal sections’

Dr. Swamy, in his submissions on Tuesday, pointed to how the penal sections were misused by those in power to settle political scores. He referred to how the Tamil Nadu government had filed case after case in a bid to “harass” him.

“In a democracy such as ours, the freedom of speech of citizens, especially their political representatives is paramount,” Mr. Rao submitted.

He argued that a political speech, delivered in a political context, in the heat of electoral battle, ought not to be so excessively controlled that the right itself is eviscerated.

“Sections 123, 125 of the Representation of the People Act, 1951, ought to be considered exhaustive of the reasonable restrictions imposed on a political speech during elections,” Mr. Gandhi’s written arguments in court contended.

The Centre had refuted the petitioners by denying that criminal defamation had a chilling effect on free speech. It maintained that a person would be charged for criminal defamation only if his speech had neither social utility nor added to the value of public discourse and debate.

The government said that since there was no mechanism to censor Internet from within, online maligning could be countered only by continuing with defamation as a criminal offence.

Senior advocate Rajeev Dhawan, representing Delhi Chief Minister and AAP leader Arvind Kejriwal, argued that criminalising defamation was in violation of the fundamental rights of a citizen guaranteed under the Constitution.

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