One hopes that, before long, a Constitution Bench of the Supreme Court will overrule the judgment delivered on May 13 by Justice Dipak Misra of the Supreme Court on behalf of himself and Justice Prafulla K. Pant. They held that Sections 499 and 500 of the Penal Code 1896, which make defamation a criminal offence, are constitutionally valid as also Section 199(2) of the Criminal Procedure Code which was inserted in 1955, to empower the state to prosecute for defamation before a sessions court, without recourse to a magistrate, if any “public servant” feels defamed, be he minister, civil servant or clerk.
The judgment reeks of bad law, bad logic and an illiberal approach. The bench knew of an earlier judgment by Justice B.P. Jeevan Reddy, for another bench of this court in 1994 in the Nakkeeran case, which held two foreign rulings to be good law in India as well. One was by the US Supreme Court in the famous case of New York Times vs Sullivan (1964). It ruled “the constitutional guarantees (of free speech) require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with knowledge that it was false or with reckless disregard of whether it was false or not.”
The other was by the House of Lords in 1993 in Derbyshire County Council vs. Times Newspapers Ltd. & Ors. It held that an organ of the state could not sue for libel: “Such bodies would be able to wield the very sharp sword of libel proceedings to deter or suppress public criticism and information about what they do as the people’s representatives and public servants. They could do so using public funds and knowing that an ordinary individual citizen could not afford access to justice; not only is there no pubic interest favouring the right of organs of government, whether central or local, to sue for libel, but that it is contrary to the public interest that they should have it.”
Justice Jeevan Reddy did not opine on “the impact of Article 19(1)(a) read with clause (2) thereof — the fundamental right to freedom of speech and expression — on Sections 499 and 500 of the Indian Penal Code”. Since imprisonment can have a more deterring effect on speech than damages payable in money, the ruling in 1994 should apply to criminal prosecution with greater force than to a civil suit for damages for defamation. Indeed, in 1980, Lord Diplock said that the law on criminal libel violated the European Convention on Human Rights, which is analogous to our constitution on this point. In 2016, the Supreme Court also knew that the UK had abolished the offences of seditious libel and criminal libel. No democracy governed by the rule of law makes defamation a criminal offence.
The sole issue before the bench was whether making defamation a criminal offence is a “reasonable restriction” on the fundamental right to freedom of speech. The consensus clearly is that it is not. That is why in April 1982, in the New York State Supreme Court, Justice Shirley Fingerhood refused to execute against India Abroad Publications Inc in the New York state a decree of the English High Court awarding $ 40,000 as damages for libel to Ajitabh Bachchan. She noted that “English law does not distinguish between private persons and those who are public figures or are involved in matters of public concern. None are required to prove falsity of the libel or fault on the part of the defendant.” The defendant must not only prove truth but also that “the matter published is of public concern and that its publication is for the public benefit”. The judge said, “Placing the burden of proving truth upon media defendants who publish speech of public concern has been held unconstitutional (in the US) because fear of liability may deter such speech.” That ceased to be true in the UK.
In both the US and the UK, factual error is disregarded, unless malice is proved. As Justice Brennan said in the US Supreme Court: “A rule compelling the critic of official conduct to guarantee the truth of all his factual assertion — and to do so on pain of libel judgments virtually unlimited in amount — leads to ‘self-censorship’. Allowance of the defence of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred… Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which ‘steer far wider of the unlawful zone’… The rules thus dampens the vigour and limits the variety of public debate.”
In the House of Lords, Lord Keith endorsed this rule because quite often the facts which would justify a defamatory publication are known to be true, but admissible evidence capable of proving those facts is not available. This may prevent the publication of matters which it is very desirable to make public.
All this weighed not with Justice Misra. He took a different route. Reputation is part of “personal liberty” guaranteed by Article 21. So, the “reputation of one cannot be allowed to be crucified at the altar of the other’s right of free speech”. This is fallacious to a degree. It is free speech which should not be “crucified” because it harms another’s reputation, provided it respects the limits to free speech every democracy respects.
The real issue is whether a speaker who harms another’s reputation commits a crime. A great authority defines crime as “an unlawful act or default which is an offence against the public” — as distinct from a personal wrong. The Penal Code has specific provisions of that kind — criminal intimidation (Section 503); intentional insult with intent to provoke breach of the peace; and statements conducing to public mischief (505). They affect society. Defamation does not. It is a private affair for which the aggrieved can sue in a civil court. In 1993, Prime Minister John Major sued the New Statesman for libel in a civil court for repeating the rumour that he had had an affair with Clare Latimer, a 10 Downing Street caterer.
Moreover in England, leave from a high court judge had to be obtained before prosecuting the press. The British omitted this in 1860 in their Penal Code for India, and qualified the defence of truth with the requirement of “public good” but imposed the requirements of prior state sanction for suing or prosecuting an official or minister.
Independent India’s ministers value these safeguards. The Supreme Court should wipe them out lest another chief minister follows J. Jayalalithaa in emulating Lee Kuan Yew’s frenzy in prosecuting people for libel. On August 24, the court told her counsel, “You are utilising state machinery.” A law which enables that is unconstitutional. Criminal defamation is inherently tilted in favour of the state, big business and powerful persons and against the citizen; especially the media.