Pressing for retention of criminal defamation in the statute book, the government has told the Supreme Court that the pertinent penal provisions are constitutionally valid and aim at regulating only such speech that do not add value to public discourse and debate.
In its affidavit filed Saturday, the Ministry of Home Affairs (MHA) has defended the validity of Sections 499 and 500 in the Indian Penal Code, which prescribe defamation as an offence punishable with a maximum two-year jail term.
“Sections 499 and 500 of the IPC criminalise only those kinds of speech that harm the reputation of another individual while having no inherent social utility,” stated the affidavit, filed in response to a clutch of petitions challenging the validity of criminal defamation. The petitioners include politicians like Rahul Gandhi, Arvind Kejriwal and Subramanian Swamy.
The affidavit said the penal provisions have been “narrowly tailored with the intention of meeting the State’s compelling interest to protect the right to live with dignity and the right to reputation of an individual, guaranteed under Article 21 of the Constitution.”
It said there were safeguards in Section 499 that exclude from its ambit speech that is truthful, made in good faith and is for public good. “These sections do not take within their ambit speech that has a legitimate social utility,” it said.
Asserting the necessity of retaining the penal provisions, the MHA said that having defamation only as a civil law remedy, where damages can be ordered, is not enough.
“Any narrow interpretation of the word ‘defamation’ occurring in Article 19(2) contravenes the intention of the framers of the Constitution who specifically had criminal defamation in mind while drafting Article 19(2) of the Constitution,” it said. Article 19(2) lays down reasonable restrictions on the freedom of speech and expression guaranteed under Article 19(1).
The MHA contended that civil remedy for defamation is not an efficacious remedy since they take longer than criminal cases. “Furthermore, with the advent of new forms of technology, acts like online defamation cannot be adequately countered by means of civil remedies,” it said.
The government also differentiated between criminal defamation and much abused Section 66A of the Information Technology Act, which was struck down by the top court in March on the ground of being “open-ended and unconstitutionally vague”. Section 66A authorised police to arrest people for social media posts construed offensive “or “menacing”.
The government said Sections 499 and 500 were not vague and provisions make their contours amply clear, besides providing an adequate warning of the conduct which may entail an offence. “It is trite law that such a mere possibility of abuse cannot be a ground to strike down legislation and that there is a presumption of constitutionality of statutes,” said the MHA.
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