DECRIMINALIZATION OF DEFAMATION: A NEED OF THE HOUR
Updated: Dec 15, 2020
- Prapti Sangoi & Siddhi Mehta
Every punishment which does not arise from absolute necessity says, Montesquieu, is overbearing.
Truth be told, criminal law ought to be utilized as “a last resort” (ultima ratio) and just for the most indefensible wrongs. Excessive use of criminal law for purposes is ill-suited to tackle the cruel truth of the modern state.
Even though it is difficult to consider a society without criminal law, however, the presence of forceful norms/law supported by punishment is in fact challenging. In this way, due to the approach of overcriminalization, the rationality of criminal law has been significantly undermined. Overcriminalization is a grave problem that has led to flawed prosecutions and harms open intrigue.
“Globally, the trend is moving towards decriminalizing defamation but we need to see how best the offense can be dealt with from the Indian perspective.” International custodians such as the United Nations Special Rapporteur on Freedom of Opinion and Expression have advised states to abolish criminal defamation laws and replace them with adequate civil laws. United Kingdom (who gave us IPC in its original form) repealed criminality in its defamation law and passed a rational law in 2013. On the contrary, the Indian legal system clutches onto both civil and criminal remedies for defamation- however without any result, in respect to justice apportioned to the defamed. India must march in tandem with the world and attempt to keep up with the changing times. The Moot Court Society of Pravin Gandhi College of law has a raison d'etre of inculcating values of effective oral advocacy and legal drafting skills to sharpen the students acumen for the legal profession. Thus, help in moulding the budding lawyers of today to understand the nuances of justice in its truest sense so that justice brightens up the darkest moment of injustice ever served.
CRIMINAL DEFAMATION IN INDIA
In context to criminal defamation in India, Section 499 of the Indian Penal Code (hereafter referred to IPC) defines criminal defamation as an offense. Section 500 of IPC prescribes the punishment of up to 2-year imprisonment with or without fine. The citizens of our country have time and again challenged the constitutional validity of Section 499, 500 of IPC.
The foremost argument is that it violates the fundamental right to speech and expression which has been guaranteed by the constitution. This article will look into the legitimacy of the said sections and also that decriminalization of defamation is a must.
One of the harm principles i.e. de Minimis principle or minimalism implies that criminal remedy should be utilized as a final retreat. This principle bolsters the fact that as long as an alternative remedy is accessible, which adequately curbs the act, the criminal defamation should not be pursued. The party charged with a defamation suit who is seeking a remedy under tort law which efficiently safeguards the interests of both the parties. The defamed person can claim monetary compensation or public apology that can reinstate his/her stained reputation which is a more appropriate option than making the offense criminal. On the contrary, the accused will not endure the societal humiliation of being named as a criminal even after finishing the sentence.
Additionally, the civil remedy also prevents the pressure on journalists as the action is taken against media houses who are well-equipped for safeguarding and bearing the burden of litigation as opposed to criminal sanctions that target individual journalists' restricted capacity to safeguard themselves against the state.
It is essential to check whether Section 500 of the IPC is extreme i.e. beyond what is required in the interest of the public or whether it is a ‘reasonable’ modus operandi. Proportionality of a restriction is likewise to be tested on the ground of whether the punishment enforced by the statute is uneven to the magnitude of the offense, as stated in Bhagat Ram v State of Himachal Pradesh. If it is, then it would be viewed discretionary and thus unconstitutional. Acts of rape, murder, etc. are punishable with imprisonment. It means that the personal liberty of the criminal is taken away. Society has a reason to be terrified of these criminals. However, the case of defamation can be different in magnitude from these crimes.
Additionally, unlike a victim of rape and murder, an individual who has been defamed has a chance to respond to the allegations made against him and set the record right. Curtailing the liberty of a citizen and regarding him as a murderer or rapist, appears to be out of proportionate.
Section 499-500 of IPC doesn’t establish a “reasonable restriction” on speech because even truth is not a defense. Even though it is one of the exceptions referenced under Section 499 yet again it accompanies a clause – “the truth will only be a defense if the statement was made for the public good”, which is an issue of fact to be examined by the court. Furthermore, instead of making the plaintiff prove that the accused made a false statement, section 499 lays the burden of proving on the accused that the statement was not only correct but also for the public good.
A person can be dragged into the defamation case and prosecuted under Section 499 even if he/she hasn’t made any statement at all and just conspired with the person who has made the defamatory statement.
It is also to be noted that a person can be prosecuted even if he/she makes a defamatory statement about the dead. The foremost intention of the defamation law is to guard the reputation of a private person so that his capability to earn a livelihood in the society does not get affected. It is irrational to give this kind of protection to the dead because there won’t be any harm to their capability to earn a livelihood or reputation in society. In the light of the arguments presented above, to preserve the sanity and legitimacy of criminal law, defamation must be decriminalized.
Examining the case of , the Supreme Court held that Section 499 of IPC remains constitutional. The reasoning presented by them was based on the grounds of the right to reputation, which balances with the right to free speech. By doing so, the Supreme Court seems to have entitled the proverbial scales of justice in favour of an outdated criminal remedy.
Parliament Member Tathagata Satpathy took note of this crisis and drafted the Speech Bill. This Bill aims to decriminalize defamation and protects the freedom of speech and expression. The supporters of the Bill firmly contend that the right to free speech and right to reputation cannot come at the cost of the other.
IPC sections 499 and 500 were drafted in 1860 – 153 years back. Without a doubt, circumstances are different now. Detaining an individual for discourse that hurt someone else's reputation today appears prima facia ridiculous. 160 years back, punishments were cruel. However, society has developed and evolved so should the law.
One must, however, note that criticizing over-criminalization does not mean being soft on crime. It’s the contrary. One needs to make smart distinctions between conduct that threatens the public and conduct that is better handled by fines or civil law for being tough on crime. Those who can't make those distinctions, far from being tough on crime, actually weaken the force of the criminal law.
Prapti Sangoi and Siddhi Mehta are second year students at Pravin Gandhi College of Law, Mumbai.
 http://www.legaleraonline.com/articles/defamation-in-the-indian-context.  http://jcil.lsyndicate.com/wp-content/uploads/2017/02/DECRIMINALIZATION-OF-DEFAMATION-Astha-Saxena.pdf.  AIR 1983 SC 454, 1983.  2014 SCCONLINE SC152.  http://speechbill.in.