The Supreme Court’s judgment in Subramanian Swamy vs Union of India, upholding the constitutionality of criminal defamation will be remembered more for its obscurely colourful language than for its progressive values. The court has again bent the arc of jurisprudence towards fear and paternalism, rather than liberty and rights. The arguments striking down Sections 499 and 500 of the Indian Penal Code are now familiar: These restrictions have a chilling effect on freedom of speech; they create an anomaly whereby the threshold for criminal prosecution for defamation is now possibly lower than the threshold for civil damages; they provide public remedies for essentially private wrongs; they go against the global trend of decriminalising defamation, and so forth. These arguments provide good grounds to think that this judgment is an atrocious blow against freedom of expression. But there is reason to think that this judgment is not just an idiosyncratic pathology of one bench. If we are interested in a defence of liberalism, we need to go beyond doctrine, and excavate the deep roots of these pathological judgments.
There is one preliminary technical matter. Many lawyers have argued that damage to reputation is a private wrong. This use of the public-private distinction is not actually as self-evident as liberals make it out to be. What is a public or a private wrong is always a function of law; it is not given antecedent to it. The issue at stake is where the line should be drawn. Saying that damage to reputation is by definition a private wrong; or that damage to reputation is not as serious a matter as minor physical assault, is actually begging the question. That defamation is a private crime is not a fact as liberals assume; it is a conclusion that needs to be argued. They would be better off arguing that even if it is not a purely private crime, the costs of dealing with it with criminal remedies far outweigh the benefits. The fact that allegations can be refuted in an open society; the fact that there are civil remedies should be enough to address concerns.
The moral charge of the judgment actually comes from taking damage to reputation as a serious public issue. Liberals do themselves disservice by not taking this concern seriously. And here we are, as always, more in the realm of moral psychology, than law. Law often depends on an underlying picture of what a society should fear more. The judges look at Indian society and regard those who are worried about freedom of expression, as someone crying fire in Noah’s flood. They implicitly weighed the risk to society from an unfettered culture of allegation-mongering more heavily than the risk of misusing criminal law to harass journalists. The judges are probably wrong about this: The dozens of defamation cases filed in Tamil Nadu to silence journalists, the fact that powerful politicians are using this as a weapon against each other, should have been a sign to the judges that criminal defamation can fetter democratic accountability. In fact, the democratic accountability argument is a stronger argument for decriminalising defamation than a pure free speech argument.
But the really troubling issue is this. In the evolution of law, the trend is usually towards decriminalisation of more crimes and the institution of civil remedies. India seems to be moving in an opposite direction. More and more crimes, from trademark violations to drinking and eating, are becoming criminal violations. We prefer penal over civil remedies. Why is this? Underlying these punitive responses is the large fact of institutional decay and incapacity. As Shyam Balganesh has pointed out in a brilliant article, India is extraordinary in the degree to which it has an underdeveloped tort system. So everything becomes a matter of public rather than private law. The justice system disincentivises tort claims; it is far easier to get the state involved. Second, in the actual functioning of courts, civil remedies take an inordinately long time; civil defamation cases can last decades. So judges implicitly don’t see it as a remedy. Our punitive impulses are an expression of deep institutional failure.
Take a seemingly unrelated debate over prohibition, a new example of our penchant for criminalisation. It is a measure that cannot be justified on virtually any liberal grounds. Nevertheless, large sections of society see alcoholism as a problem in its economic consequences and the violence it is perceived to unleash. They also understand the risk of bootlegging. But many think it transfers risks of violence from within the household to elsewhere. Now, it would be foolish to deny that there is a deep social problem. The argument that the solution to it cannot be an intrusive state is also well taken. But people feel that that argument leaves all those victims of alcohol-related violence or economic hardship stranded, without recognition or remedy. If you had intermediate institutions of counselling, education or different social norms, these concerns could be addressed. But in their absence, the punitive solution becomes attractive, since it is the only one at hand.
Indian law is being crafted under dysfunctional institutions. These make penal solutions more attractive. Some of this dysfunction is an issue of capacity. Some of it is an issue of ideology. One of the paradoxes of the current court regime is that it seems reluctant to intervene in cases that impinge upon fundamental rights, but it rushes headlong into policy matters that should be none of its business. But again, if we are honest about this we will have to acknowledge that for decades our legal culture has cultivated a crude instrumentalism about law. In the name of progressivism, lawyers applauded the Supreme Court’s semantic stretching of the right to life to cover anything and everything. Is it any surprise that judges now read “reputation” as a fundamental right deriving from Article 21? In the name of progressivism, we eroded all distinctions between civil and economic rights. Is it any surprise that judges treat civil rights on a consequential calculus of policy, and economic matters as fundamental rights. This judgment is atrociously argued. But liberals would be committing a mistake if they think all that the defence of liberal values requires is lampooning the English of judges; or placing too much faith in lawyers and judges to deliver India from all its ills. It will require very complex institution-building, a politics that engages with moral psychology. And that is where liberals, as a political force, are weak. Like our leaders, we are perhaps getting the judges we deserve.
(This article first appeared in the print edition under the headline ‘The punishing society’)