There will be anarchy in the society and everyone will think he has a right to hurl abuses if the criminal defamation is repealed as a penal offence, the Union government told the Supreme Court on Thursday.
Arguing for retention of criminal defamation in the Indian Penal Code (IPC), Attorney General Mukul Rohatgi said that punitive provisions are more relevant in modern times in view of the wide sweep of Internet and social media where every statement can reach millions of people.
“Can it ever be argued that I have a right to say anything against anyone at anytime and that is the scope of my fundamental right to speech? If the prayer to strike down Section 499 and 500 (defamation provisions in the IPC) is allowed, you will have nothing but anarchy,” Rohatgi told a bench of Justices Dipak Misra and P C Pant.
The government is arguing against a clutch of petitions filed separately by Congress vice-president Rahul Gandhi, BJP leader Subramanian Swamy, Delhi Chief Minister Arvind Kejriwal and others, seeking to de-criminalise defamation.
Rohatgi, however, said that with the advent of the Internet where obnoxious content is in the cyber world forever, reputation has become more important today than it was when the Constitution was framed.
“This court has said that a man is half-dead without his reputation. Sections 499 and 500 protect this reputation whereas the petitioners, who want it to be struck down, are asking for a right to say anything defamatory,” he argued.
About keeping defamation only as a civil law remedy where damages can be sought from the offender, Rohatgi contended that orders of injunction are no good when content can become viral on the Internet. “You can stop a newspaper but how can you stop Facebook and Twitter? In a purported exercise of free speech, irreparable damage is being done. It is not fair to ask a person to spend years in courts for monetary damages,” he said.
Rohatgi added that Sections 499 and 500, which entail a maximum two years in jail for defamation, are constitutionally saved and they are to be read as reasonable restrictions on an individual’s right to free speech. “Article 19 (2) uses the word ‘defamation’ in the context of reasonable restriction. Therefore, it is amply clear that the Constitution-makers have sanctified usage of Sections 499 and 500. Since the original Constitution cannot be challenged before any court, what they prescribed as a reasonable restriction can also not be challenged,” he maintained.
Rohatgi also gave examples such as live-in relationship of a public figure to assert that nobody had a business to make adverse comments if it was not in the public good.
“Being in live-in relationship is not a crime and with changing time it has become a norm accepted by society,” said the bench and Rohatgi nodded in agreement with this observation but asked how public is concerned about somebody’s private life. He also referred to a judge who had a habit of going to a club to play cards. Rohatgi said that whatever a person does in the exclusive confines of his house and in his private life cannot and should not be a matter of public debate.
The arguments will resume Tuesday.