The Supreme Court’s recent judgment upholding Sections 499 and 500 of the IPC as constitutionally valid received wide attention, including visible, vibrant, sometimes even vicious criticism. This is itself a sign that free speech in India is not under any threat. Sections 499 and 500 of the IPC which provide a remedy of criminal defamation have been part of statutory law for over 70 years and have neither diluted our vibrant democracy nor abridged free speech. The argumentative Indian is alive and kicking. Free speech is part of our democratic DNA and not yet subjected to any debilitating mutation.
The law of defamation is a delicate marriage of an odd couple. Free speech, a fundamental right under 19(1)(a), and the right to reputation, a facet of the right to life and liberty under 21, have learnt to coexist. Marital disputes are inevitable but reciprocal restraint and respect have meant that divorce is rarely, if ever, imminent. The marital balance was struck by the framers themselves when Article 19(2) provided that nothing in 19(1) (a) shall “affect the operation of any existing law’’ to impose reasonable restrictions, including for defamation. Sections 499/500 were part of pre-independent India and were thus “existing law”. Ergo, these were already “constitutionally accepted” when India became a republic.
The argument that the passage of time and changed circumstances render them unconstitutional is mysterious. Six decades of jurisprudence have further constitutionalised reputational rights under the benevolent umbrella of Article 21. Continuing both civil and criminal remedies for their infraction is only natural. Arguably, the need for this law is even stronger than it was in the 19th century.
Defamation does not partake only of individual interest. It protects reputation which is the person’s ‘’estimation in the eyes of the general public’’. It is necessary for social stability. It is what one lives for, swears by, works his skin off for, fights for and dies for. States make laws times without number to regulate private transactions and inter se individual rights (for instance, Domestic Violence Act, Child Labour Act, Sexual Harassment Act) and their power to do so is not limited to public issues alone.
“Reputation of one cannot be allowed to be crucified at the altar of the other’s right of free speech” is what the court rightly emphasised. Truly, one man’s diatribe can be another man’s nemesis. Your swing must necessarily stop where my nose begins. And why should not intentional, wanton, mala fide swings, knowing the clear path of the nose and the inexorable consequences when it comes in the way, be not subjected to criminal punishment to satiate the complainant’s righteous indignation. Otherwise, a large collectivity of such unsatiated complainants would create an unstable and imploding society.
The architecture of Section 499 balances these contrapuntal rights quite soberly. Unlike other inflexible provisions of the IPC, Sections 499/500 have four explanations and 10 exceptions which do both: they add content and context to the offence as also chisel away at it substantially. They constitute significant counter factuals to exclude frivolous complaints.
The debate on the first exception, which requires proof of “public good” in addition to truth as a defence, is highly exaggerated. Truth may not be necessarily harmless. Used maliciously or selectively, truth can blow a person’s reputation to smithereens. Truth ought not to be an absolute defence because it can be misutilised to project a negative image to specifically intend harm to the reputation of a person without any benefit to the public at large. Arguing for some of the successful parties, I had provided some illustrations to the court of otherwise truthful yet harmful imputations, for instance, an imputation that a person is an alcoholic; that two family members are involved in consensual incest; that a person is impotent; that a person suffers from AIDS; that a person is a victim of rape; that the child of a married couple is not fathered by the husband. With such elaborate statutory detailing and safeguards, the provisions can hardly be said to suffer from the vice of vagueness, arbitrariness, excessiveness, unreasonableness or disproportionality, which alone could be grounds of unconstitutionality.
Protection for “legitimate criticism” or “fair comment” on a question of public interest is not only available in the civil law of defamation but is also covered under exceptions 2, 3, 5, 6 and 9 of Section 499 IPC. Section 199(1) the CrPC safeguards the freedom of speech by placing the burden on the complainant to pursue the criminal complaint without involving state machinery. This itself filters out many frivolous complainants who are not willing to bear the significant burdens — logistical, physical and monetary — of pursuing the complaint.
Mere misuse or abuse of law, actual or potential, can never be a reason to render a provision unconstitutional. To impale statutory provisions on that stake would cause jurisprudential anarchy. Penalising the statutory provision, rather than rectifying the systemic problems in our courts, is to throw the baby out with the bathwater.
We must sensitise our lower judiciary to prevent misuse of such provisions rather than amputate the statute and excise sections 499/500.
Looked through a reputational prism, monetary compensation in civil defamation is not really a panacea for excessive harm done by the defamatory imputation. Placing a commercial element on what really cannot be weighed in gold is itself unfair. A libelous and slanderous imputation, if proved, is really an assault on persons, their personality, their freedom to exist without being discarded by society. Defamation is thus a crime against the person.
Judges decide to the best of their ability after assimilating myriad arguments and digesting humongous and diverse material. They seek to advance the law incrementally, anchored in continuity and not by jumps, leaps or starts. To even remotely insinuate that this judgement is the contorted view of a particular set of judges is grossly unfair. Worse, it would be malicious, reflecting lack of grace from vocal losers and may itself justify criminal defamation, but for the safeguards found in these very sections.