Decriminalizing Defamation – Are Sections 499/500 of the IPC constitutional?

Sending a person to JAIL or even tagging him as an ‘ACCUSED’ for comments which may or may not be defamatory, in this day and age, appears to be ridiculous! 

We are all aware that 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.” 

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Also, whether the law that imposes the restriction is reasonable should be judged in accordance with current social, economic and political circumstances of the nation. One of the rules of statutory interpretation is to interpret the words of a statute in light of the current facts and situations and not based on the facts/situations of the past. In the Senior Electric Inspector v Lakshmi the court expounded - “In a modern progressive society it would be unreasonable to confine the intention of a Legislature- to the meaning attributable to the word used at the time the law was made, and unless a contrary intention appeared, an interpretation should be given to the words used to take in new facts and situations, if the words are capable of comprehending them.” 

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’. 

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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. Fundamental rights and reasonable restrictions interact closely on the basis of the principle of proportionality. If a restriction is disproportional or excessive it defeats the purpose of the fundamental right and hence is ultra vires the constitution. One of the tests of checking proportionality of a restriction is that the punishment/restriction should impair ‘as little as possible’ the freedom in question. This test was laid down in R v Oakes and followed by the Supreme Court in Santosh Kumar Bariyar v. State of Maharashtra and other cases. 

Defamatory speech can be effectively curtailed in a number of ways other than imprisonment. 

First and the most reasonable remedy, is to write a reply to the allegations made or to publish a separate advertisement countering the allegations. This not only gives the aggrieved party a chance to respond but also furthers free speech and debate. However, some may argue that this recourse may not be adequate for blatantly defamatory speech. In such situations, the aggrieved can complain to the Press Council of India or even file a civil suit claiming reasonable damages. The benefits of going to the Press Council is that this forum will provide a speedier remedy than a court and being a watchdog of the press, this body can restrict/change unfavourable journalistic practices. 

These alternatives appear more ‘reasonable’ and impair ‘as little as possible’ the fundamental right to free speech. Given these alternatives, a criminal proceeding, with a threat of imprisonment, would certainly be considered excessive, disproportional and unreasonable. 

Moreover, proportionality of a restriction is also to be tested on the ground of whether the punishment imposed by the statute is disproportionate to the gravity of the offense, as held in Bhagat Ram v. State of H.P. If it is, then it would be considered arbitrary and hence unconstitutional. 

Acts of murder, rape, theft etc. are punishable with imprisonment i.e. the personal liberty of the accused is

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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.

Moreover, the IPC and section 500 was drafted in 1860 – 153 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. 153 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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Therefore, there is a need to get rid of this diseased law!