Soon after reaffirming its status as the guardian of civil liberties by deleting the draconian Section 66A from the IT Act, the Supreme Court is examining whether criminal defamation laws contravene the fundamental right to free speech and expression. It has noted that it would have to consider whether the relevant provisions in the Indian Penal Code — Sections 499 and 500 — that make defamation a crime could be seen as “reasonable restrictions”, as prescribed in Article 19(2) of the Constitution. Given how blunt an instrument these laws are in the hands of politicians and others with deep pockets, and how often they are used to suppress or chill information flows, India should hasten to do away with this legacy of the colonial legal system.
Even if criminal defamation laws are invoked sparingly, their mere existence on the statute books casts a long shadow. They constitute a restraint on free speech. The ominous threat of being arrested by the police, of being detained, or put through an exhausting criminal trial, can discourage, say, a journalistic expose of the powerful. This is not to suggest that there should be no costs to harming someone’s reputation by making unsubstantiated allegations. But the method by which defamation should be addressed must be designed in a way that does not hold back legitimate criticism. A civil suit, filed by the aggrieved party for perceived damages from the defendant, would provide adequate protection.
Most modern liberal societies have done away with criminal defamation. The UK has abolished it, as have other former colonies, like Australia and the US. The NDA government was on the wrong side of the civil liberties debate when it chose to uphold and defend Section 66A. It must not repeat that mistake.