For Criminal Defamation

Because civil remedies can be inadequate

4 min readJun 8, 2016 12:37 AM IST First published on: Jun 8, 2016 at 12:37 AM IST

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Unless Tendulkar or Mangeshkar feel compelled to complain, which they do not seem to, nobody can take up cudgels for them.

Tanmay Bhatt left very few amused by his video on Lata Mangeshkar and Sachin Tendulkar. Attempted humour gone very bad perhaps, but fodder nonetheless for self-proclaimed guardians of public sentiment to assert their presence by seeking punishment for the cornered comedian. It is doubtful though, if aggrieved admirers have legal standing to bring an action for defamation of their icons.

The incident brings back focus on the recent judgment of the Supreme Court in Dr Subramanian Swamy v Union of India, upholding the constitutional validity of criminal defamation. The judgment generated disappointment in some quarters for its “chilling effect” on free speech. The judgment ought not be seen in that narrow light as the law on defamation has a more pressing relevance today than it possibly ever did.

Defamation is one of the recognised exceptions to the fundamental right to free speech and expression under Article 19(1)(a) of the Constitution. When the Constitution came into force in 1950, defamation had been a criminal offence for nearly a century. Each one of the carefully crafted grounds under Article 19(2) of the Constitution, under which the freedom of speech can be reasonably restricted, relates to matters of public or societal concern — as for example, free speech can be restricted on grounds of public order, the sovereignty and integrity of India, incitement to an offence, contempt of court or in the interest of “morality and decency”. Each one of these grounds reflects not just an individual interest but a social one. The argument in Swamy’ that criminal defamation must be excluded from these exceptions because it pertains to an individual wrong and not a societal wrong was rejected by the court. The necessity to protect individual esteem must be seen as a shared or collective value. Human interactions and relationships are premised on the esteem people hold one another in. The difference between a criminal offence and a civil wrong is that a criminal offence seeks to punish a wrong that has a bearing on the public collectively whereas the civil law seeks to remedy injury caused to an individual. The two may overlap but while criminal law responds to public wrongs through punishment, civil law responds in terms of compensation. Serious injury to reputation through false imputations violates shared values that define society. Protection of reputation is, therefore, an important societal interest, and not merely an individual one. The right to reputation is, therefore, recognised as an integral facet of the right to life under Article 21 of the Constitution. The civil remedy for defamation can be a very inadequate one as a loss of reputation cannot always be valued or compensated in money terms. That apart, the reality is that in India, defamation suits take up to 20 years to be decreed by which time no amount of damages can recompense the consequences of a loss of face for all those years. If civil suits are to be a viable remedy, they must afford quick relief.

Technology, with its speed, reach and efficiency has exacerbated matters. Communication on the internet is not only instantaneous but acquires a publicity and a permanence unimaginable before. This makes the consequences of injury to reputation almost irreversible. It is no surprise then, that the European Court of Justice fashioned a new right on the internet — the right to be forgotten. A petitioner in India is now agitating for the same right before the Delhi high court.

The difficulty with criminal defamation is the law is often abused and the process itself becomes a punishment. That process is in desperate need of reform. One, criminal complaints should not be entertained unless the damage to reputation is prima facie, a serious one. Frivolous complaints should be dismissed at the threshold. That apart, complaints cannot be entertained except on behalf of the “person aggrieved”. The courts have held that merely admirers or busybodies do not have locus to complain. That is to say that unless Tendulkar or Mangeshkar feel compelled to complain, which they do not seem to, nobody can take up cudgels for them. There is no remedy for others who take umbrage except through free speech — criticise or condemn.