Friday, October 9, 2015

Background !
Subramanian Swamy had filed a Writ Petition before the Supreme Court asking the court to decriminalize defamation in India sometime early this year !

The main contention of Swamy is:
“(a) The provisions contained in Sections 499 and 500 IPC, travel beyond the restriction clause enshrined under Article 19(2) of the Constitution of India, for that really constricts the freedom of speech beyond reasonable limit.

 (b)The very purpose of Article 19(2), as would be  evident from the debate  in the provisional Parliament, was not meant to put such restrictions          and,   therefore, such an enormous restriction cannot be thought of under Article 19(2) to support the constitutionality of the said provisions and further it will violate the concept of rule of law.”

Letz understand the issue !!

The freedom of speech and expression is not absolute and is subject to ‘reasonable’ restrictions. Defamatory speech is one such restriction prescribed under the constitution. Therefore, in order to curb speech that is defamatory, the restriction imposed should be ‘reasonable’. 

In the case of  Chintaman Rao v. The State of M.P. the Supreme laid down the meaning of the term ‘reasonable restrictions’ – 
The phrase “reasonable restriction” connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word “reasonable” implies intelligent care and deliberation, that is, the choice of a course which reason dictates.” 

What Section 499/500 says ?
  • The IPC under Section 499/500 criminalizes defamatory speech. 
  • This means that a person can be imprisoned for a maximum period of 2 years, if found guilty. 
  • Therefore, Section 500 in order to be lawful must withstand the test of a ‘reasonable restriction’. 
Currently, civil defamation is dealt with under the law of torts whereas criminal defamation is an offence under Section 499 of the IPC. 


It is, therefore, necessary to check whether Section 500 of the IPC is excessive i.e. beyond what is required in the interest of public or whether it is a ‘reasonable’ course of action. 

Various Arguments !!

  • Acts of murder, rape, theft etc. are punishable with imprisonment i.e. the personal liberty of the accused is taken away. These are ‘crimes’ / ‘in rem’ and the society at large has a reason to be afraid of these ‘criminals.’ However, a matter of defamation can be distinguished in gravity from these crimes. Defamation is usually personal i.e. between two individuals. Moreover, unlike a victim of rape, murder or theft, a person who has been defamed has an opportunity to respond to the allegations made against him and set the record right. Given these crucial differences, curtailing the liberty of an individual and treating him at par with a murder, rapist, thief, appear to be disproportional and hence arbitrary.
  • The IPC and section 500 was drafted in 1860 – 155 years back! Surely, times have changed and so have mindsets. Imprisoning a person for speech that hurt another person’s reputation, today, seems prima facie ridiculous. Unless the defamatory speech disturbs public order, the person making such speech should not be imprisoned. 155 years back, punishments were generally harsh but society has grown and matured so must the law. 
  • Criminalizing defamation can be very counter- productive. Big companies can use it as a tool to harass, threaten and bully individuals to a greater extent than if defamation was merely a civil action. Being tagged as an ‘accused’ for litigation that may never end along with the fear and consequence of imprisonment is enough to shut a vulnerable individual up for good. This will lead to self-censor which will in turn freeze speech and debate to a large extent. 

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