Days after it struck down the much-abused Section 66A of the Information Technology Act, the Supreme Court Tuesday sought the government’s stand on de-criminalising defamation on the ground that the penal provisions unreasonably constrict the freedom of speech.
“Defamation is an offence under the Indian Penal Code, but we need to delve on whether it finds any space under Article 19(2) of the Constitution as a reasonable restriction on freedom of speech and expression, guaranteed under the preceding constitutional provision,” said a bench led by Justice Dipak Misra.
The court noted that Sections 499 and 500 which prescribe defamation as a punishable offence, had a direct bearing on the fundamental right to free speech and hence it ought to be examined if the penal provisions trampled upon this right.
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It would also need to be adjudicated whether defamation should remain only a civil wrong and whether its position in the IPC was unwarranted, the court noted. “The very purpose of Article 19(2), as would be evident from the debate in the provisional Parliament, was not meant to put such restrictions and, therefore, such an enormous restriction cannot be thought of under Article 19(2) to support the constitutionality of the said provisions and further it will violate the concept of rule of law,” stated a question framed into the matter by the bench.
The bench is hearing a batch of petitions led by BJP leader Subramanian Swamy, who had approached the court after a barrage of defamation cases were slapped against him by former Tamil Nadu chief minister J Jayalilithaa. He also challenged the constitutional validity of the penal provisions traveled beyond the restrictions as stipulated under Article 19(2).
Staying further proceedings in those cases, the court called upon the government to respond on the point of law. Additional Solicitor General P S Narasimha defended the provision, saying Sections 499 and 500 have to be read under Article 19(2) as necessary safeguards for protecting one’s reputation.
The ASG also said that the top court while quashing Section 66A on the ground of it being “open-ended and unconstitutionally vague” had observed that on the contrary, the penal provisions relating to defamation were specific in nature. While a conviction under Section 66A could fetch a maximum of three years in jail, criminal defamation can entail a maximum two years’ imprisonment.
The bench however asked the government to file its detailed affidavit in four weeks. It also appointed senior advocates K Parasaran and T R Andhyarujina to assist the court as amicus curiae in the case.