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Decriminalising Defamation!

Published on Fri, May 08,2015 | 23:23, Updated at Mon, May 11 at 14:14Source : CNBC-TV18 |   Watch Video :

You can love him, you can hate him but you can’t ignore him. And you definitely can’t ignore the many battles he’s fought! Subramanian Swamy is a ?BJP? Leader, former Minister, Parliamentarian, Professor, prolific litigator…and now he’s on a mission to decriminalise defamation. Aayush Ailawadi talks to Mr. Swamy about his most recent petition and asks other lawyers if it’s a battle worth fighting...

Defamation in India is both a civil and criminal offence. Civil Defamation is governed by the Law of Torts or judge-made law and the law on criminal defamation is codified in the Indian Penal Code.

Section 499 of the IPC provides that, “any person whose reputation has been damaged or was intended to be damaged by the material in question can sue for defamation.”
Section 500 goes on to prescribe the punishment which can extend up to simple imprisonment for a term of two years, or fine, or both.

Last year, Subramanian Swamy filed a writ petition with the Supreme Court arguing that the criminal provisions relating to defamation should be struck down entirely. Although under the Constitution of India, defamation is listed as a reasonable restriction to the freedom of speech and expression, Dr. Swamy contends that Sections 499 & 500 of the IPC are ultra vires of the constitution.

Subramanian Swamy, BJP Leader

I found that the concept of criminalization of defamation which is contained in the IPC has been grossly misused by people in authority, In fact when you are a CM for example, there is a provision called 199, which enables the State to prosecute for defamation. So, the person defamed need not even go to court.
But, when it began to be used for even personal defamation, for example, I said, “Giving her an administration is like giving a garland of flowers to a monkey.” Now, it’s got nothing to do with her official acts but she used the public prosecutor to file the case. Now, in the process this criminal defamation case meant that people tended to lose their liberty. Losing your liberty for expression of your opinion which you found defamatory, in my opinion, is too much of a restriction on the fundamental rights of a person.

Ailawadi: The law on criminal defamation might be archaic but, still it lists 10 wide exceptions for the accused to defend himself. Why do you still say that this law is unreasonable and disproportional?

Swamy: When do those exceptions get invoked? Only after the trial starts! So, you have to go through the trial, you’ve to get arrested, get bail, all that you’ve to go through! And therefore, these exceptions are no safeguards at all. Because if safeguards were applied, before anybody can file a case, then it would be a different matter. But, they can’t, because even whether exceptions apply or not apply, even that is a matter for argument!

Ailawadi: But, if you rely only on judge made law…

Swamy:  One of the advantages of civil law is that you have something called discovery and interrogatories. For example, if I know that you have been traveling on an illegal passport, I can ask you to give me on affidavit the copy of the passport which you were using! In criminal defamation, you cannot, because the complainant who claims to be defamed, he cannot be subject to these things. The entire onus is on you. So, the civil law is a much more balanced law and therefore, I can access from you documents which will condemn you and go against you in a defamation case!

Ailawadi: In civil defamation cases, it can take years for one to get compensated and the legal process is incredibly slow. Isn’t the punishment prescribed under IPC the sole necessary deterrent?

Swamy: I found that the civil suits were disposed off much faster than the criminal cases cause there the Judge goes from adjournment and it’s not part of any special court. It’s part of a court which takes bail matters, committing crimes, you literally have to sit with these criminals on the accused bench and wait for your turn. So, I don’t agree with this.

Ailawadi: You have spoken about the ‘Chilling Effect’ brought on the Freedom of Speech and Expression by the criminalization of the defamation laws and you’ve given examples of countries where decriminalising it has worked. Do you think that the same logic can be applied to a country like India?

Swamy: So, today USA, Britain, Singapore, most of Africa – they have all given up criminal prosecution for defamation. We, in fact have always followed the jurisprudence of England. England had defamation and scrapped defamation in 2013! You have to read the report of the Law Commission which gave the recommendation which was just accepted that England has suffered in Freedom of expression because of this criminalization of defamation and therefore, if they have worked in these countries, even Singapore which a very strict country they don’t have criminal defamation except when it is collaterally connected with something else. So, therefore I don’t see why it can’t work in India where we have a very rich legal tradition.

A law or even a threat of a lawsuit, or any legal action that has a stifling effect on one’s expression is said to having a ‘chilling effect’ on the freedom of speech. The legal concept of ‘chilling effect’ was coined in First Amendment cases in the US in the 1950s, and has since spread to several other jurisdictions around the world. One of the reasons that countries like the UK and Sri Lanka decriminalised defamation was that these provisions were being used to silence any criticism of the government. India is no exception, as defamation laws have often been used as a tool to suppress the media.

But, the criminal lawyers I spoke to aren’t quite in favour of de-criminalising defamation! And even though the US and UK have decriminalised defamation – many American states and other European countries have not yet done so.

Satish Maneshinde
Senior Advocate
“India is totally different. The circumstances it has been brought into US or UK, is not necessarily good for our society because we have no self discipline, no discipline in publishing, electronic media and in controlling ourselves so as to damage the reputation of another person. That kind of circumstance may not be necessarily true in India.”

Amit Desai
Senior Advocate
“If you do not have a process which adequately protects reputation then there’s a failure of the system. Defamation is necessary in any such system. Now you go into the question as to whether you need criminal defamation? Historically, in India, criminal cases used to move faster than the civil cases and as a result criminal defamation acted as a deterrent to defamatory statements and it was important for protecting reputation. So, when we look at it in that context, I still believe that we are in a stage where probably if we can improve the judicial system, criminal defamation should remain as a part of the law books.”

UK decriminalised defamation in 2010 but alongside it enacted the The Defamation Act, 2013 to strengthen civil remedies. The Act has clear provisions laid out for journalists, individuals, businesses and website operators as well.

India has no anti-defamation law. If criminal provisions, or imprisonment, are deleted then victims of defamation can only sue for damages. But, neither is there substantial case law, at least not recent orders, nor well laid out principles on damages or awards. Most Indian civil defamation cases are still pending in various courts and in some recent ones, the compensation demand is 100 crore rupees. Justice Sawant’s case against Times Now and Dhoni’s case against Zee in the Madras High Court, both claim 100 crores in damages. Gurudas Kamat, reportedly filed a case against a Mumbai daily asking for 50 crores in compensation.

Satish Maneshinde
Senior Advocate
“There are a large number of suits pending all across the country. It’s a one off cases that retired judges of SC, filed a civil suit in the Pune court and got a decree for 100 crores against Times Now channel. That’s a rare case! Apart from that, I don’t see anybody getting scared of defamatory statements in the press, electronic media and on the TV which prevents them from making any such statements.”

Amit Desai
Senior Advocate
“I think the system has to improve. We need to provide for exemplary damages, we need to see how the justice system and the tort law in this country effectively works. The civil process tends to take 15-20 years by which time the issue of reputation becomes irrelevant!”

That’s the other big concern - that defamation suits can take over a decade to come to trial and that defeats the purpose of the suit, which is to protect the reputation of a person!

Satish Maneshinde
Senior Advocate
“Like I told you my practical experience, the civil remedies as and when they come off a trial it would take about 15-20 years for a trial of defamation being completed in the Bombay HC. Anybody who claims more than 50 lakhs would land up in the HC. So most of the people who go to the court are those who are going to claim damage of more than a crore of rupees and in the HC I have seen myself it is taking 15-20 years for a defamation case being brought to trial and thereafter you have appeal proceedings and by the time the defamed gets justice, I don’t think he will see the light of the day.”

Amit Desai
Senior Advocate
“When you decriminalize it, I think you need to have extremely strong civil remedies with a fast track court that’s provided to actually protect the reputation of people, which is the underlying object of defamation law. Until and unless, we get to that stage, we should allow criminal defamation to remain on the statute book.”

When it comes to free speech, Sections 499 and 500 of the IPC and the erstwhile 66(A) of the Information Technology Act have one thing in common. Be it online or offline, these provisions have been used to muzzle free speech. If 66 (A) has been struck down as unconstitutional by the apex court, then does that mean that the provisions relating to criminal defamation will share the same fate? And if yes, then what takes their place – especially in a world dominated by tweets, likes and re-tweets? Until then, it’s best that all of us think long and hard before we speak and let Subramanian Swamy have the last word!

Subramanian Swamy, BJP Leader
“Most of the defamation cases I have seen are filed by people in public life and they just want to silence the other person. So, that when you file it, you may not even prosecute, you might go on taking adjournments but you will not be able to speak again on this cause the matter is pending in court.”

In Mumbai, Aayush Ailawadi


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