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Speak no evil

Supreme Court has upheld criminal defamation, leaving important public misgivings unaddressed.

By: Express News Service | Published: May 14, 2016 12:02 am
Supreme court, defamation, criminal defamation, criminal defamation law, defamation law, supreme court, rahul gandhi, arvind kejriwal, subramanian swamy, criminal defamation case, india news The Supreme Court on Wednesday upheld the criminal defamation law.

The Supreme Court has maintained the constitutional validity of Sections 499 and 500 of the Indian Penal Code, reading the right to reputation as a part of the right to life assured to citizens under Article 21 of the Constitution. While no doubt good in law, the ruling does not address public misgivings about these two sections, which spell out the law on criminal defamation. They criminalise communications or representations of a person made with the intention of damaging his or her reputation, and prescribe imprisonment. This is problematic on several counts. Most significantly, while the protection of reputations is a reasonable goal, in practice, the law is used as a SLAPP tool for harassment and intimidation.

By criminalising defamation, the law inflicts the extreme punishment of loss of liberty. At the very least, defamation should have been reduced to a civil offence, and the question of reputation to a dispute between the defamer and the impugned party. Reputation is not absolute. It is a social construct based on shared perceptions. Society agrees on a person’s reputation. It can likewise agree that it was mistaken, and reappraise reputation in the light of fresh facts. Can the law reasonably hope to interfere with this organic process, and criminalise such reappraisals? Legal protection of reputation may have been indispensable earlier, when sources of information and communication were limited and opinion could be manipulated by the powerful. But today, the sheer volume of public access has made the information economy self-correcting. Today, defamers invite social opprobrium, information monopolies are highly improbable and legal protection may not be essential.

The law on criminal defamation is also problematic because the crime is broadly defined. It can be applied to any communication, visible or audible. A book, a newspaper article, a cartoon or even a poem may be read as defamatory, and moved against multiple times. Last year, the Supreme Court had expressed its discomfort over the strategy of filing numerous suits in different courts across the country against persons for allegedly defamatory statements, with the obvious intention of running them ragged. The Law Commission had also spoken of the “chilling effect” which the threat of criminal defamation exercises on the media, and its power to condition the behaviour of publishers and journalists. The NDA government has strongly championed the persistence of defamation law, but the courts should also address public concerns about it.

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  1. Anil Tandale
    May 15, 2016 at 3:03 am
    The judgment is wake up call against all those who "spit and scoot". Every one has been freely blaming RSS for the death of hi in 1948, even though its chief was acquitted in the trial, and the said acquittal was not chosen to be challenged by the prophet of "secularism" namely Jawaharlal Nehru. It is those who disrespect the judicial findings, who have to fear, including the politicians of Congress, Left and Green ideology; but also not excluding the anchors who indulge in peddling falsehoods and fiction against RSS, BJP and persons of similar ideology or thought process. Heat must be generated to keep intellectual leeches within bounds of decency.
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      fdgn
      May 13, 2016 at 7:36 pm
      Kejriwal and ALL his party members will continue with their campaign against cheats and fraudsters, irrespective of any defamation law. Its the people of the country who decide he is their leader. He will go to jail a thousand times as long as the cheats and leaches of the taxpayers are exposed and punished. Even if someone fakes degrees to win elections. Courts will automatically fall in line. Kejriwal is afraid of NOBODY. AAP came into the political scene ONLY by exposing cheats. They are here to change the conventional politics of the country. Irrespective of what opponents think. As of now AAP is contesting in Punjab, after this Modi's academic records expose. You will see in front of your eyes how the people of Punjab unanimously elect AAP to power irrespective of what you may think otherwise. Lastly, please understand - we are in the beginning of the end of the Modi era, largely by the wounds caused by BJP to themselves.
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