Denying that criminal defamation had a chilling effect on free speech, the Centre told the Supreme Court on Saturday that defamation should remain a penal offence in India as the defamer may be too poor to compensate the victim.
The government said that since there was no mechanism to censor the Internet from within, online defamation could only be adequately countered by retaining defamation as a criminal offence. A person would be charged with criminal defamation only if his speech had no social utility or added nothing to the value of public discourse and debate.
Besides, the Centre said, criminalisation of defamation was part of the state’s “compelling interest” to protect the right to dignity and good reputation of its citizens.
The submission was part of an affidavit filed by the Union Home Ministry in response to petitions filed by political leaders cutting across party lines urging the court to declare criminal defamation unconstitutional.
BJP leader Subramanian Swamy, Congress vice-president Rahul Gandhi and Delhi Chief Minister and AAP leader Arvind Kejriwal are among those who filed the petitions.
Dr. Swamy, who filed the lead petition, said criminalisation of defamation deterred free speech, was liable to abuse and choked the legitimate criticism of public officials.
If found guilty under Sections 499 and 500 (criminal defamation) of the Indian Penal Code, a person could be jailed up to two years.
‘In U.S., defamers have enough liquidity’
To counter the argument by the petitioners that defamation was a civil liability in most countries, the Home Ministry cited the U.S. to show how different conditions in India were.
In its affidavit in the Supreme Court, it argued that in the U.S., the mainstream media was owned and controlled by corporations whose managements “checked” the kind of material being published, reducing the likelihood of defamation. Again, defamation could be a civil liability in the U.S. as media corporations there had enough financial liquidity to pay victims compensation. But in India, “there is always a possibility of the defamer being judgment free, i.e., not having the adequate financial capability to compensate the victim.”
The Ministry denied that Sections 499 and 500, framed in 1860, were obsolete in a modern democratic polity. “It is important to note that 10 exceptions to Section 499 of the IPC clearly exclude from its ambit any speech that is truthful, made in good faith and/or is for public good,” it said.