The Supreme Court on Wednesday pointed out that the Indian Penal Code (IPC), which defined criminal defamation as an offence, was framed much before the Constitution came into force and it was high time to judge whether this provision can now stand the test of validity. While the IPC was framed in 1860, the Constitution came into force in 1950.
A bench of Justices Dipak Misra and P C Pant said the court will also consider whether Sections 499 and 500 of the IPC, which prescribe defamation as a punishable offence with a maximum two-year jail term, can be read down to make them compliant with the right to free speech.
“Let us not forget the IPC is older than the Constitution. So, we have to now interpret the validity of such provisions… We can also read down these provisions if a need arises. The question regarding validity of these provisions has to be rationally understood and constitutionally answered,” said the bench.
The court is hearing a clutch of petitions filed separately by political leaders like Rahul Gandhi, Subramanian Swamy and Arvind Kejriwal, who have questioned the validity of penal provisions on defamation, while claiming they unreasonably constrict the freedom of speech. The petitions have also said the penal provisions travelled beyond the ambit of reasonable restrictions as stipulated under Article 19(2).
The bench also took note of a submission made in the petitions that in several countries, criminal defamation has been abolished. The bench asked Attorney General Mukul Rohatgi to submit the government’s detailed response on decriminalising defamation by Saturday and posted the matter for hearing Tuesday.
In his opening remarks, Rohatgi defended the penal provisions, saying it has acted as “some deterrence”. He said that the civil cases relating to defamation take years to settle in India and there were several cases where Re 1 was sought as damages. “In countries like the UK, civil action is faster than criminal prosecution. A person faces bankruptcy if he is found liable under civil defamation. We are not like other countries. Here you can file a civil suit and it will drag on for another 20 years. Nobody cares. In criminal defamation, there is at least some deterrence,” Rohatgi said.
He also urged the bench to refer the matter to a Constitution Bench, comprising at least five judges, on the ground that the issue was related to the constitutional validity of a law.
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