Date: 05/04/2023

Relevance: GS-2: Indian Constitution - Features, Amendments, Significant Provisions and Basic Structure; Defamation Law and Reforms.

Key Phrases: Common Cause and Lokniti-CSDS, Section 499 and 500 of Indian Penal Code, Article 19 of the Constitution of India, Right to Reputation, Right to Freedom of Expression.

Context:

• Recently, a Congress leader and MP, was held guilty and sentenced to two years in jail in a 2019 defamation case over his remarks about the PM of India by a court in Gujarat’s Surat.
  • Critics might summarily dismiss such a concern, reasoning that the case is coloured by political interests and ordinary Indians are not likely to be convicted for defamation.
  • But fear exists and Rahul Gandhi’s conviction has increased people’s worries.

Key Highlights:

• The law of criminal liability for defamation was introduced in colonial India by British rulers and has survived for decades without substantial change despite the fact that several developing and developed countries, including the United Kingdom, have since abolished it.
• A recent report by Common Cause and Lokniti-CSDS, based on a state-level survey, reveals, “nearly two out of three respondents are scared to post their political or social opinions for fear of legal action”.
  • Today, Indians seem to have an intuitive understanding of the risks of voicing their opinions – they fear the letter of the law, in all its severity, will be weaponized against them and used as a tool to restrict their fundamental rights.
• Currently, the law favours protecting the right to reputation over the right to free speech and a new law may actually be the best way to fix the situation.
• The Protection of Speech and Reputation Bill (“Speech Bill”) was introduced on March 10, 2017 in the Lok Sabha as a Private Bill.

Issues with Defamation Law:

• While the right to reputation may be protected by the Constitution, it should not be at the cost of freedom of speech.
  • Free speech is necessary because, among other things, it enables the media to hold governments and individuals accountable.
  • Freedom of speech should also protect the right to offend within reasonable limits, i.e. to legitimately criticize the rich and powerful.
• The Indian Penal Code (IPC), 1860 lists defamation as a criminal offense, making it punishable by fine or imprisonment or even both.
  • There are many reasons why this is problematic.
    • There is the stigma of being arrested and accused of a crime.
    • There is the fact that it was made an offense in a time when dueling to protect one’s reputation was common.
    • There is the fact that the IPC does not recognize irony or keep truth as an absolute defense.
• There is the fact that having both a civil and criminal remedy for the same injury forces an already overburdened judiciary to respond to the same matter twice.
• But on top of all of these is the fact that criminalizing defamation is an entirely unwarranted restriction on free speech when the global norm is that a civil suit for damages is sufficient for protecting reputation.
  • This overzealous restriction on free speech fails the constitutional test that such restrictions be “reasonable" and clearly needs to be struck down.
• It is a well-known fact that fighting a case in Indian courts is generally a tedious and expensive affair that only gets resolved after many years.
  • It is this knowledge that is exploited by individuals and corporations with deep pockets.
    • Knowing that they can afford to bear the costs of a trial, such kinds of people threaten their critics with a protracted defamation suit.

Need of Hour:

• Reforms to defamation would best be done through the enactment of a new statute.
  • Such a law should decriminalize defamation and reform civil defamation to make it fairer and clearer.
  • Limits should also be set around civil defamation - not only must the loss to reputation be serious, the proof must also be substantial.
• The complainant must demonstrate that material injury was caused to their reputation as a direct result of the alleged statement.
• Truth, opinion and reasonable inference should also be made viable defenses in defamation suits.
• Courts should be empowered to impose exemplary costs on frivolous suits that waste their time.
• To ease the burden of the judiciary, it is vital that courts are required to only hear serious defamation cases that haven’t been amicably settled.
• One such way to ensure this could be to make the legal notices that complainants send before filing a suit compulsory.
  • These notices should also establish exactly how the alleged statement was false in order to prevent groundless accusations.
  • The notice must specify where the suit will be filed and what damages will be asked for.
• If a complainant doesn’t file the defamation suit within a prescribed time, they should pay the person threatened in the notice a quarter of the damages requested in the notice.
• This will make sure that defamation claims and the damages requested are kept honest and reasonable.

Conclusion:

• Ultimately, some kind of reform is necessary because free speech is meaningless without the right to reasonably offend.
• If the ability to legitimately criticize is not protected, voices throwing light on important issues will continue to be silenced by the rich and powerful.
  • And without those voices, the Indian state could be dramatically altered or compromised while Indians are kept in the dark.
• One hopes there is a modicum of realization that using the law of defamation may advance personal interest in the short-term but it contributes to a society that is ruled by fear and is likely to extract a heavy cost in the years, if not decades, to follow.

Source : The Indian Express

Mains Question:

Q. What is Defamation? What do you understand about Civil defamation and Criminal defamation? Also suggest some progressive reforms needed in defamation law. (250 Words).