The recent Shreya Singhal judgment of the Supreme Court that struck down Section 66A of the Information Technology Act, 2000 as unconstitutional, has opened up pathways for wider and more nuanced debates on free speech in India. Now under judicial scrutiny are Section 499 and 500 of the Indian Penal Code, 1860, pertaining to criminal defamation. During the hearing on a batch of petitions challenging the constitutionality of these provisions, the Supreme Court has issued notice to the government. The petitions contend that Sections 499 and 500 of the IPC travel beyond the restrictions enshrined in Article 19(2), thus constricting free speech beyond reasonable limits. The Hindu had in 2003 filed a writ petition in the Supreme Court challenging the vires of Section 499, inter alia on grounds that it violated the freedom of press guaranteed under Article 19(1)(a). As the law stands, defamation is both a civil wrong and a criminal offence. In a civil action, a person may be sued for monetary compensation while a criminal wrong can invite imprisonment up to two years. With the former being an effective enough remedy, the latter needs to be repealed. Under Article 19(2), free speech can be curtailed only by way of reasonable restrictions. Such a restriction must not be arbitrary or excessive, and the impairment of freedom must be ‘as little as possible’. But criminal prosecution in India can be incredibly harassing and intimidating, and have a chilling effect, thus being an ‘unreasonable’ restriction.
The government has sought a report from the Law Commission of India on the issue. A joint consultation paper published by the LCI in September 2014 notes that the respondents “overwhelmingly expressed dissatisfaction with the present state of defamation law”. Considering the need to repeal Section 499, it acknowledged that criminal defamation laws violated international norms, and that the penalty of incarceration up to two years was clearly disproportionate. The recent history of defamation laws is riddled with misuse by politicians and corporations to silence the media, activists and criticisms. The spate of defamation cases filed during the 2014 Lok Sabha election is evidence of this. Defamatory acts that may harm public order are covered by Sections 124, 153 and 153A, and so criminal defamation does not serve any overarching public interest. Even though Section 499 provides safeguards by means of exceptions, the threat of criminal prosecution is in itself unreasonable and excessive. This is not to say that defamation must not be discouraged. But decriminalising it will bring the IPC in accord with Article 19(2), ensuring that the means used to discourage defamation do not end up damping legitimate criticism.