The Supreme Court has maintained the constitutional validity of Sections 499 and 500 of the Indian Penal Code, reading the right to reputation as a part of the right to life assured to citizens under Article 21 of the Constitution. While no doubt good in law, the ruling does not address public misgivings about these two sections, which spell out the law on criminal defamation. They criminalise communications or representations of a person made with the intention of damaging his or her reputation, and prescribe imprisonment. This is problematic on several counts. Most significantly, while the protection of reputations is a reasonable goal, in practice, the law is used as a SLAPP tool for harassment and intimidation.
By criminalising defamation, the law inflicts the extreme punishment of loss of liberty. At the very least, defamation should have been reduced to a civil offence, and the question of reputation to a dispute between the defamer and the impugned party. Reputation is not absolute. It is a social construct based on shared perceptions. Society agrees on a person’s reputation. It can likewise agree that it was mistaken, and reappraise reputation in the light of fresh facts. Can the law reasonably hope to interfere with this organic process, and criminalise such reappraisals? Legal protection of reputation may have been indispensable earlier, when sources of information and communication were limited and opinion could be manipulated by the powerful. But today, the sheer volume of public access has made the information economy self-correcting. Today, defamers invite social opprobrium, information monopolies are highly improbable and legal protection may not be essential.
The law on criminal defamation is also problematic because the crime is broadly defined. It can be applied to any communication, visible or audible. A book, a newspaper article, a cartoon or even a poem may be read as defamatory, and moved against multiple times. Last year, the Supreme Court had expressed its discomfort over the strategy of filing numerous suits in different courts across the country against persons for allegedly defamatory statements, with the obvious intention of running them ragged. The Law Commission had also spoken of the “chilling effect” which the threat of criminal defamation exercises on the media, and its power to condition the behaviour of publishers and journalists. The NDA government has strongly championed the persistence of defamation law, but the courts should also address public concerns about it.