The Union government’s contention in the >Supreme Court that the provisions in the Indian Penal Code on criminal defamation do not have a chilling effect on free speech will disappoint proponents of fundamental freedoms. The zeal to retain a law that the state can use to stifle criticism is at the heart of the government’s position. It also goes against democratic opinion in many jurisdictions that treats defamation essentially as a civil wrong, and not something to be remedied by the use of the state’s coercive police powers. The United Nations Special Rapporteur on freedom of expression, the Human Rights Committee of the International Covenant on Civil and Political Rights and other international bodies have called upon states to abolish criminal defamation, recognising that it intimidates citizens and dissuades them from exposing wrongdoing. The grounds cited by the Centre now to justify the continuance of Sections 499 and 500 of the IPC, which deal with defamation and prescribe a maximum jail term of two years, are specious: that in India, citizens are unlikely to have enough liquidity to pay damages for civil defamation; that online defamation in the Internet age can be effectively countered only by making it a criminal offence, and that the law is part of the state’s “compelling interest” to protect the dignity and reputation of citizens. What it fails to see is that the main feature of criminal defamation is its potential for harassment. It is a tool that can be easily invoked and that enables allegedly defamed persons to drag anyone to courts across the country.
>Criminal defamation has a pernicious effect on society : for instance, the state uses it as a means to coerce the media and political opponents into adopting self-censorship and unwarranted self-restraint; groups or sections claiming to have been hurt or insulted, abuse the process by initiating multiple proceedings in different places; and, more importantly, the protracted process itself is a punishment. Further, magistrates tend to mechanically summon defendants without first assessing whether the allegedly offending content comes within one of the many exceptions to defamation found in the statute. >Criminal defamation should not be allowed to be an instrument in the hands of the state, especially when the Code of Criminal Procedure gives public servants an unfair advantage by allowing the state’s prosecutors to stand in for them when they claim to have been defamed by the media or political opponents. Thanks to past verdicts of the Supreme Court, the government and its organs can no more file civil suits seeking damages for defamation, yet the pernicious law of criminal defamation is invoked to stifle free speech. Even as the court deliberates the matter, the government ought to reconsider its stand and come out against the criminal defamation law.