New Delhi: The Law Commission of India has favoured the retention of the criminal defamation law. In its latest report, submitted Friday to the Union Law Ministry, the panel said the “right to reputation is needed to be protected as it’s a facet of right to life and personal liberty guaranteed under Article 21 of the Constitution”.
Headed by former Chief Justice of Karnataka High Court, Justice Ritu Raj Awasthi, the panel opined: “It is important to keep in mind that right to reputation flows from Article 21 of the Constitution of India, and being a facet of right to life and personal liberty, needs to be adequately protected against defamatory speech and imputations.”
Section 499 of the Indian Penal Code (IPC) defines criminal defamation and Section 500 prescribes a “simple imprisonment for a term which may extend to two years, or with fine, or with both”.
The penal provision has been in the news owing to the pending criminal defamation case against Congress leader Rahul Gandhi. He faced defamation charges for linking Prime Minister Narendra Modi’s surname to that of fugitives Lalit and Nirav Modi during a 2019 rally.
Convicted both by the trial court and Gujarat High Court, Gandhi lost his Lok Sabha membership in March 2023. The Supreme Court in August 2023 stayed Gandhi’s conviction, which paved the way for restoration of his membership.
The Law Commission undertook deliberations on the contentious penal provision, on the Centre’s recommendation made in August 2017. Its opinion was sought a year after the Supreme Court had upheld the constitutional validity of the law.
The SC verdict was delivered on a batch of petitions filed by various political leaders. They were Subramanian Swamy, Rahul Gandhi and Arvind Kejriwal. In SC’s opinion, the law did not have a chilling effect and protected people’s right to live with dignity. In this case, the Centre had argued against the petitioners.
Tracing the history of the criminal defamation law, the panel’s report takes into account how other countries are dealing with defamation incidents.
It quoted a report by the Organization for Security and Co-operation in Europe (OSCE), to note that 42 of the 57 OSCE member countries have criminal defamation provisions in one form or other.
It also found out that nearly all OSCE member countries having criminal defamation provisions, provide for imprisonment as a possible punishment, with a majority of them prescribing a two-year jail terms as punishment.
“Most of the member-countries of the OSCE are economically developed nations, and it is seen that the presence of criminal defamation provisions in such countries has not hindered the economic and political development,” the report observed.
It said: “Criminal defamation serves to protect the reputation and dignity of individuals. Under Article l9(2) of the Constitution of India, reasonable restrictions can be imposed in relation to defamation for safeguarding the reputation of individuals. Criminal defamation acts as a deterrent against false and malicious statements, preventing damage to one’s reputation that civil remedies might not adequately address.
Being an integral part of Article 21, reputation, the panel said, cannot be allowed to be jeopardised just because an individual has to enjoy his freedom of speech at the expense of hurting the sentiment of another, said the Law Commission, which advises the government on legal issues and makes non-binding recommendations.
Hence, it took a view, the law ensures a balance between freedom of expression and right to reputation, which the panel observed, is essential to maintain social harmony as well as to protect individuals from unwarranted harm caused by defamatory statements.
“It is to be understood that the restriction is not completely on one’s thoughts and ideas. It is a protection that one can avail in a situation where his reputation is hurt. There is no absoluteness in any of the rights and both have to be harmoniously construed in its spirit to make the society peaceful and liveable,” the over 180-page report said.
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‘Speech ought to be illegal when meant to do substantial harm’
The panel also sought to emphasise the need to exercise caution against abuse of the law. It said: “Any form of speech should not be illegal in general unless there are very specific and unusual circumstances. Indeed, utmost caution needs to be exercised while doing so. Speech ought to be illegal only where it is meant to do substantial harm and when such harm materialises.”
Maintaining that publications that harm a person’s reputation are an inherent part of the political process in a democracy, the Commission said, “stifling the same would be endangering the political process.”
“Consequently, it is absurd to argue for states to have the unchecked authority to prosecute publishers of any such material because their publications constitute defamation” the report added.
Protection of reputation isn’t the only impetus behind having criminal defamation law in the statute. It is also crucial to avoid public disturbances, which is an equally important motivation, the report contended.
“India is a country which skillfully and blissfully sustains different languages, ideas and thoughts. The social fabric is such that the people want to enjoy their freedom and also want to protect what is dear to them. Reputation is something which can’t be seen and can only be earned. It’s an asset which is built in a lifetime and destroyed in seconds. The whole jurisprudence around the law on criminal defamation has the essence of protecting one’s reputation and its facets,” the Commission said.
It further added: “Remarkably, the main goal of all these arguments is deterrence, and they are all consequentialist in nature. It is not appropriate to limit behaviour that could seriously harm someone else to civil law consequences. While it is perfectly acceptable for the act to result in tort consequences, it should also be appropriately considered in the context of criminal law, since this is the legal framework in which such behaviour can be appropriately condemned and punished.”
(Edited by Gitanjali Das)
Also Read: Why Rahul Gandhi faces jail for defamation: A history of laws that govern the offence