Indian Supreme Court rejects petition arguing criminal defamation law as unconstitutional; Defamation law in India
Last updated on 26th May 2016
Today's (14th May 2016) The Hindu newspaper covered in quite some detail, the judgement of the Indian Supreme Court on a petition that argued that current criminal defamation law in the Indian Penal Code (dating to British rule days) does not fit in with some articles of the Indian constitution (composed and adopted after Indian independence), and so should be scrapped, as the other existing civil defamation mechanism was enough and appropriate to handle defamation cases. The Supreme court rejected the petition and upheld that criminal defamation law does not go against the constitution. So criminal defamation continues to be law in India along with civil defamation.
I got very drawn to this topic as defamation is one of the big possibility-concerns that I had to, and continue to have to, deal with in my social media posts having whistle-blowing revelations and critical opinions of mine which have named certain people. While I was not aware of much details of defamation law and court processes related to that in India, my stand was that I will stick to the truth, and opinions that are based on facts. I had to name names in some cases and so I was prepared for defamation civil suit or defamation criminal case being filed against me. I was, and still am, confident that, if that happens, I will be able to prove in an Indian court of law that I have stuck to the truth and expressed opinions based on facts, which would result in any such defamation suits or criminal cases being rejected. So far, by the kind grace of God, I have not been challenged with any defamation suits/cases.
Of course, the nuisance, time wastage and (money) expenses involved in defending myself in any such suits/cases will be burdensome. After all, I live an Indian lower-middle class, simple & single spiritual aspirant kind-of life, in a small rural town in South India, and am NOT a crorepati (crorepati is one whose worth is more than Rs 10 million; Rs, 10 million i.e. Rs. 1 crore at current/recent rate of 66.67 Rs to 1 US Dollar, comes to around 150,000 US Dollars). But I felt that the truth had to be told, for the common good and also for protecting my name & reputation from malicious defamation (false and derogatory statements made about me) that I was subjected to by others. And I was willing to face any legal battles for that, no matter what the cost and nuisance. As I knew that defamation in India could be either criminal or civil or both, I knew that there was an outside possibility of also being jailed, if I could not prove well enough in court that I was saying the truth and expressing opinions based on fact. Honestly, I was, and still am, prepared to face that too, if it really came down to that.
Today's articles on the Supreme Court judgement and some intense browsing have given me a lot more information on defamation law in India. I have managed to browse-read only the initial part of 268 page judgement. Meanwhile I thought I should share some of the information that I have gathered by writing an initial version of this post.
First let me share a few excellent links on how defamation is handled by Indian law.
1) Simply put: The what, why of defamation, http://indianexpress.com/article/explained/simply-put-the-what-why-of-defamation/, by Utkarsh Anand, Dec. 28th 2015
2) Inside Law: How Defamation Works in India, http://blogs.wsj.com/indiarealtime/2012/11/15/inside-law-how-defamation-works-in-india/, by Anish Dayal, dated Nov. 15th 2012
3) A Simple Guide to Understanding Civil and Criminal Defamation,
http://blog.ipleaders.in/a-simple-guide-to-understanding-civil-and-criminal-defamation/, by Utkarsh Agarwal, dated May 24th 2014
My understanding of defamation in Indian law from these above links (and some other articles), in short, is as follows:
a) The civil law is for monetary damages/compensation. The criminal law is for punishment & fine (going to govt. coffers, I presume). Both civil and criminal cases can be filed for the same matter.
b) In a civil case, the complainant needs to show that his/her reputation was damaged. If that is accepted by the court then the defendant will have to show that his/her statements were truthful and/or were "fair comment". If the court is convinced with the defendant's arguments, the case would be dismissed otherwise the court would ask the defendant to pay damages it feels appropriate, to the complainant. [How the damages are arrived it is something I did not get into. In my browsing, I came across a mention of a successful civil defamation case where the defendant had to pay damages. But I don't recall reading much of such successful cases with court deciding on damages. Perhaps most of such cases get settled through a compromise.]
c) In a criminal case, the complainant has to prove beyond reasonable doubt that he/she was defamed and that it was done intentionally. The beyond reasonable doubt standard of proof (commonly used in criminal cases) is higher than what the civil case needs. If the court is convinced that the complainant has grounds for a criminal case, then the court issues a summons to the defendant. This issue of summons for a criminal case scares many people (naturally), and it is this aspect of scare-power of criminal defamation that seems to deter many from publishing what could be challenged as defamatory content. The summons is not an indication that the accused is guilty and such summons comes from a court. The police cannot file an FIR (First Information Report) for criminal defamation. The accused in court may be asked to furnish a personal or bail bond while the court proceedings are on [E.g. Arvind Kejriwal, famous combative Indian politician and current chief minister of Delhi state, was asked to furnish a personal bond of Rs. 10,000 or Rs. 20,000 in one criminal defamation case. He refused to furnish the bond initially and so was put in "judicial custody" in Tihar Jail for 14 days, if I recall correctly. He got released after that "judicial custody" in Tihar jail when he furnished the bond money of Rs 10,000 or Rs. 20,000.]
Then the defendant has to prove that he/she said the truth and/or made opinions in "good faith" and that the truth/opinions was for the public good. If the defendant fails to convince the court of his/her arguments then the penalty can be imprisonment of up to 2 years with/without a fine.
However, the criminal defamation offence is classified as a compoundable offence (less serious offence) by the Code of Criminal Procedure (CrPC 320). Therefore compromise between complainant and defendant is permitted and once a compromise is agreed on and accepted by the court, it is as if the accused has been acquitted of all charges. [I do not recall ever reading about anybody being convicted of criminal defamation by an Indian court of law. What I have read quite a few times is about the court suggesting to the accused to express regret to the complainant. Perhaps that's where it stops typically. If the accused refuses to express regret then perhaps the case may go through the whole course and if the accused is found guilty, he/she may be imprisoned. Note that the fine possibility seems to be a fine paid to the government and not damages awarded to the complainant (as in a civil defamation case).]
Further, criminal defamation is a non-cognizable offence i.e. a police officer can make an arrest only with a warrant (issued by a court, I guess).
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I should also mention that most of the defamation cases reported in the media involve politicians, businessmen and the media. I don't recall coming across any media report of a defamation case against a non-politician social media person (blogger/Facebook user/Twitter user) in India. Though there was a case made by an aggrieved business entity against Google India as a Google blog website (blogspot) had defamatory content against it published by a blogger. Google India lost the case in a lower court and appealed to a higher court (Supreme court perhaps). Don't know what happened to it. Perhaps the case got dismissed or is still being heard, as otherwise Indian bloggers, including me, may have been stopped from using blogspot by Google (I mean, Google cannot censor/check all content on its Indian user blogs; so they may rather just stop the blogspot service in India).
Now some info. about the Indian Supreme Court judgement that I started this blog post with. Here's the full 268 page judgement download link, http://supremecourtofindia.nic.in/FileServer/2016-05-13_1463126071.pdf.
Here's one extract from the judgement from http://indianexpress.com/article/india/india-news-india/supreme-court-upholds-penal-laws-of-defamation-2798300/:
"Once we have held that reputation of an individual is a basic element of Article 21 of the Constitution and balancing of fundamental rights is a constitutional necessity and further the legislature in its wisdom has kept the penal provision alive, it is extremely difficult to subscribe to the view that criminal defamation has a chilling effect on the freedom of speech and expression".
http://www.thehindu.com/news/national/supreme-court-verdict-on-criminal-defamation-law/article8593665.ece states that SC denied that defamation criminal law has a chilling effect on free speech. It quotes the court as saying, "Right to free speech is not absolute. It does not mean freedom to hurt another's reputation which is protected under Article 21 of the Constitution".
The article also states that the Attorney General of India (representing the govt. which is against removal of criminal defamation law) said that it takes decades in India to decide defamation cases (as against quick disposal of such cases in some other countries like Britain).
http://www.livemint.com/Politics/cFDpysfoouEMLlJbmm9BeJ/SC-to-rule-on-criminal-defamation-cases-today-politicians.html quotes the SC as saying, “One is bound to tolerate criticism, dissent and discordance but not expected to tolerate defamatory attack”. But the SC also asked judges to be “extremely careful while issuing summons” in criminal defamation cases, and that they should scrutinize all sides of a defamation complaint.
Media figures were disappointed with the verdict. N. Ram, publisher of The Hindu (and former chief editor of The Hindu) is quoted as saying that the judgement was "most disappointing". “We were expecting the Indian jurisprudence to move in line with international practices where many countries, including Sri Lanka and the United States, have done away with these practices... It’ll have a deeper chilling effect on the freedom of speech in this country,” he said.
Here's the editorial of The Hindu, A disappointing verdict, http://www.thehindu.com/opinion/editorial/a-disappointing-verdict/article8596820.ece, May 14th, 2016. A couple of sentences from it, "The court has unfortunately accepted the self-serving argument by the Centre that criminal defamation does not have a chilling, inhibiting effect on the freedom of expression. In fact, there is enough anecdotal evidence that its existence on the statute book leads to self-censorship, and that it is often used to stifle legitimate criticism".
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Relevant articles of the Indian constitution that are referenced by the Supreme Court judgement
All three Articles 14, 19 & 21 in The Constitution Of India given below are from: (download link)
lawmin.nic.in/olwing/coi/coi-english/Const.Pock%202Pg.Rom8Fsss(6).pdf
Article 14 in The Constitution Of India:
14. Equality before law.—The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
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Article 19 in The Constitution Of India:
19. Protection of certain rights regarding freedom of speech, etc.
(1) All citizens shall have the right—
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
* * * * *
(g) to practise any profession, or to carry on any occupation, trade or business.
(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.
(3) Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause.
(4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause.
(5) Nothing in sub-clauses (d) and (e) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.
(6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,—
(i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or
(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.
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Article 21 in The Constitution Of India:
21. Protection of life and personal liberty.—No person shall be deprived of his life or personal liberty except according to procedure established by law.
--- end Articles 14, 19 & 21 of Indian constitution--------
http://supremecourtofindia.nic.in/FileServer/2016-05-13_1463126071.pdf, by Hon'ble Supreme Court Justice Dipak Misra and Hon'ble Supreme Court Justice Prafulla C. Pant, dated May 13th 2016, at New Delhi (India):
[Ravi: From pages 3-4:]
The assertion by the Union of India and the complainants is that the reasonable restrictions are based on the paradigms and parameters of the Constitution that are structured and pedestaled on the doctrine of non-absoluteness of any fundamental right, cultural and social ethos, need and feel of the time, for every right engulfs and incorporates duty to respect other’s right and ensure mutual compatibility and conviviality of the individuals based on collective harmony and conceptual grace of eventual social order; and the asseveration on the part of the petitioners is that freedom of thought and expression cannot be scuttled or abridged on the threat of criminal prosecution and made paraplegic on the mercurial stance of individual reputation and of societal harmony, for the said aspects are to be treated as things of the past, a symbol of colonial era where the ruler ruled over the subjects and vanquished concepts of resistance; and, in any case, the individual grievances pertaining to reputation can be agitated in civil courts and thus, there is a remedy and viewed from a prismatic perspective, there is no justification to keep the provision of defamation in criminal law alive as it creates a concavity and unreasonable restriction in individual freedom and further progressively mars voice of criticism and dissent which are necessitous for the growth of genuine advancement and a matured democracy.
...
[Ravi: From pages 7-12: Note that sections 499 & 500 are from Indian Penal Code; these sections have not been modified after independence i.e. they are British Colonial era drafted sections. end-Ravi]:
6. Sections 499 of the IPC provides for defamation and Section 500 IPC for punishment in respect of the said offence.
The said provisions read as follows:-
“Section 499. Defamation.— Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the case hereinafter expected to defame that person.
Explanation 1.—It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives.
Explanation 2.—It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.
Explanation 3.—An imputation in the form of an alternative or expressed ironically, may amount to defamation.
Explanation 4.—No imputation is said to harm a person’s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.
First Exception.—Imputation of truth which public good requires to be made or published – It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact.
Second Exception.—Public conduct of public servants.—It is not defamation to express in good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further.
Third Exception.—Conduct of any person touching any public question.—It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further.
Fourth Exception.—Publication of reports of proceedings of Courts – It is not defamation to publish substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings.
Explanation.—A Justice of the Peace or other officer holding an inquiry in open Court preliminary to a trial in a Court of Justice, is a Court within the meaning of the above section.
Fifth Exception.—Merits of case decided in Court or conduct of witnesses and others concerned – It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a partly, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further.
Sixth Exception. —Merits of public performance – It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance, and no further.
Explanation.—A performance may be substituted to the judgment of the public expressly or by acts on the part of the author which imply such submission to the judgment of the public.
Seventh Exception.—Censure passed in good faith by person having lawful authority over another – It is not defamation in a person having over another any authority, either conferred by law or arising out of a lawful contract made with mat other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates.
Eighth Exception.—Accusation preferred in good faith to authorised person – It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation.
Ninth Exception.—Imputation made in good faith by person for protection of his or other's interests – It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good.
Tenth Exception.—Caution intended for good of person to whom conveyed or for public good – It is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good.
Section 500. Punishment for defamation.— Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.”
[Ravi: That ends section 499 and section 500 of IPC. Next comes section 199 of Criminal Procedure Code (CrPC) which, I believe, was significantly modified after independence. end-Ravi]
Section 199 CrPC provides for prosecution for defamation. It is apposite to reproduce the said provision in entirety. It is as follows:-
“199. Prosecution for defamation.—
(1) No Court shall take cognizance of an offence punishable under Chapter XXI of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence:
Provided that where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf.
(2) Notwithstanding anything contained in this Code, when any offence falling under Chapter XXI of the Indian Penal Code (45 of 1860) is alleged to have been committed against a person who, at the time of such commission, is the President of India, the Vice-President of India, the Government of a State, the Administrator of a Union territory or a Minister of the Union or of a State or of a Union territory, or any other public servant employed in connection with the affairs of the Union or of a State in respect of his conduct in the discharge of his public functions a Court of Session may take cognizance of such offence, without the case being committed to it, upon a complaint in writing made by the Public Prosecutor.
(3) Every complaint referred to in sub-section (2) shall set forth the facts which constitute the offence alleged, the nature of such offence and such other particulars as are reasonably sufficient to give
notice to the accused of the offence alleged to have been committed by him.
(4) No complaint under sub-section (2) shall be made by the Public Prosecutor except with the previous sanction—
(a) of the State Government, in the case of a person who is or has been the Governor of that State or a Minister of that Government;
(b) of the State Government, in the case of any other public servant employed in connection with the affairs of the State;
(c) of the Central Government, in any other case.
(5) No Court of Session shall take cognizance of an offence under sub-section (2) unless the complaint is made within six months from the date on which the offence is alleged to have been committed.
(6) Nothing in this section shall affect the right of the person against whom the offence is alleged to have been committed, to make a complaint in respect of that offence before a Magistrate having jurisdiction or the power of such Magistrate to take cognizance of the offence upon such complaint.”
[Ravi: That ends section 199 from CrPC. end-Ravi]
It may be stated that the aforesaid provision came into existence in the present incarnation after introduction of Section 199(2) to (5) by the Code of Criminal Procedure (Amendment) Act, 1955 on 10th August, 1955.
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[Ravi: From https://en.wikipedia.org/wiki/Rajeev_Dhavan, "Rajeev Dhavan (born ca. 1946) is an Indian Senior Lawyer, Supreme Court of India, a human rights activist and a Commissioner of the International Commission of Jurists. He is the author or co-author of numerous books on legal and human rights topics, and is a regular columnist in the leading newspapers in India."
From pages 17-20: end-Ravi]
9. Contentions advanced by Dr. Rajeev Dhawan
i. Free Speech which is guaranteed by Article 19(1)(a) and made subject to certain limitations in Article 19(2) is essential to a democracy, for democracy is fundamentally based on free debate and open discussion, and a citizen has the right to exercise his right to free speech in a democracy by discerning the information and eventually making a choice and, if it is curtailed by taking recourse to colonial laws of defamation, the cherished value under the Constitution would be in peril and, therefore, the provisions pertaining to criminal action which create a dent in free speech are unconstitutional.
...
[Ravi: From pages 30-33: end-Ravi]
13. Arguments of Mr. Sanjay R. Hegde
i. The architecture of the Section as envisioned by its draftsmen criminalises speech that harms reputation and then provides Exceptions to such speech in certain specific circumstances. The concept of defamation as a crime remained unchallenged even during the drafting of the constitutional guarantees of free speech. In fact, the Parliament further re-affirmed its intent, when the First Constitutional Amendment Act was passed, primarily to overcome judgments of this Court that provided expansive definitions of the fundamental rights of free speech and property. With the passage of time, the manner of transmission of speech has changed with the coming of modern means of communication and the same is not under the speaker’s control. The provisions when judged on the touchstone of Articles 14 and 19(2) do not meet the test inasmuch as they are absolutely vague and unreasonable. Section 499 IPC, as it stands, one may consider an opinion, and, another may call it defamation and, therefore, the word “defamation” is extremely wide which makes it unreasonable.
...
iii. In terms of the press, criminal defamation has a chilling effect which leads to suppress a permissible campaign. The threat of prosecution alone is enough to suppress the truth being published, and also the investigating journalism which is necessary in a democracy.
...
[Ravi: oppugnation seems to mean opposition, i.e. opposition to the petition asking for defamation to be made only a civil issue (and not a criminal offence). The Attorney General (AG) of India is the main legal person of the union/federal government, and so essentially his agrument opposing the petition is the union govt's argument, I believe. Here is the Mr. Mukul Rohatgi, AG of India's wiki page, https://en.wikipedia.org/wiki/Mukul_Rohatgi,
From pages 33- , end-Ravi]
PROPONEMENTS IN OPPUGNATION
14. Submissions of Mr. Mukul Rohatgi, learned Attorney General for India
[Ravi: One of the key sentences in the above point is the AG/govt's view that the legislature (members of Indian parliament who are the lawmakers) determines the restrictions to impose on free speech and that the judiciary should not "carve out" those restrictions determined by parliament. There have been some media reports about top union govt. ministers both in this NDA/BJP govt. and in the previous UPA/Congress govt., complaining about judicial overreach into matters that are the domain of the legislature (lawmakers). end-Ravi]
ii. The submission that defamation being only protective of individual cases between two individuals or a group of individuals and no State action is involved, cannot be elevated to the status of a fundamental right, is without much substance inasmuch as Article 19(2) represents varied social community interest. That apart, contextual meaning of the term “defamation”; and if the grounds of exception under Article 19(2) are analysed, each of them represent a public interest and so does defamation, for its principal object is to preserve reputation as a shared value of the collective.
iii. The stand that criminal defamation under Section 499 IPC smothers the freedom of speech and expression or is a threat to every dissent and puts private wrong at the level of public wrong, is totally incorrect. The legal theorists and thinkers have made a subtle distinction between private and public wrong and it has been clearly stated that public wrong affects not only the victim but injures the public and ultimately concerns the polity as a whole and tested on that count, criminalization of defamation or damage to reputation is meant to subserve basic harmony in polity.
iv. Right to reputation is an insegregable part of Article 21 of the Constitution. A person’s reputation is an inseparable element of an individual’s personality and it cannot be allowed to be tarnished in the name of right to freedom of speech and expression because right to free speech does not mean right to offend. Reputation of a person is neither metaphysical nor a property in terms of mundane assets but an integral part of his sublime frame and a dent in it is a rupture of a person’s dignity, negates and infringes fundamental values of citizenry right. Thus viewed, the right enshrined under Article 19(1)(a) cannot allowed to brush away the right engrafted under Article 21, but there has to be balancing of rights.
v. In many a country, criminal defamation does not infringe the freedom of speech. The submission that protection of reputation can be sufficiently achieved by taking recourse to civil law cannot be a ground to declare Section 499/500 IPC as unconstitutional. It is to be borne in mind that the criminal law and the civil law operate in different spheres and aspects and in societal connotations have different perceptions. Monetary damage in civil law cannot be said to be the only panacea; and permitting an individual to initiate criminal action as provided under the law against the person making a defamatory remark does not affect the constitutional right to freedom of speech and in no case ushers in anarchy. That apart, mitigation of a grievance by an individual can be provided under a valid law and the remedy under the civil law and criminal law being different, both are constitutionally permissible and hence, the provisions pertaining to defamation under the IPC do not cause any kind of discomfort to any of the provisions of the Constitution. In addition to this, it can be said that civil remedy for defamation is not always adequate. The value of freedom of speech cannot be allowed to have the comatosing effect on individual dignity, which is also an integral part under Article 21 of the Constitution.
[Ravi: Paragraph v) above is the strong argument from Attorney General of India that civil defamation law is enough and so criminal defamation law is unconstitutional. "The submission that protection of reputation can be sufficiently achieved by taking recourse to civil law cannot be a ground to declare Section 499/500 IPC as unconstitutional." My layman-reading of the later portions of this judgement is that the two Supreme Court justices who wrote this judgement essentially agree with the Attorney General's statement quoted above. Further, the Supreme Court seems to leave removal of criminal defamation law in the hands of the legislature (law makers & law modifiers). That seems quite appropriate to me.
However, the Attorney General of India does make some arguments as to why criminal defamation law should still be law in India, which would reflect the view of the NDA/BJP government in power at the centre today (they are the key people who have the ability to modify the law via the legislature/Parliament though they will need support from some of the opposition political parties too). The AG states, "Monetary damage in civil law cannot be said to be the only panacea;" ... "In addition to this, it can be said that civil remedy for defamation is not always adequate. The value of freedom of speech cannot be allowed to have the comatosing effect on individual dignity, which is also an integral part under Article 21 of the Constitution." end-Ravi]
...
[From] 15. Submissions by Mr. P.S. Narsimha, learned Additional Solicitor General
[Extract from page 42:]
v. The object of guaranteeing constitutional protection to freedom of speech and expression is to advance public debate and discourse. However, speech laden with harmful intent or knowledge of causing harm or made with reckless disregard is not entitled to the protection of Article 19(1)(a) since it does not serve any of the purposes mentioned above. Such speech has no social value except in cases where it is a truthful statement meant for the public good or where it is made in good faith, in which case it is protected by the Exceptions in Section 499 IPC and is not criminalized.
[Ravi: "good faith" seems to be defined (negatively) in IPC as "Nothing is said to be done or believed in "good faith" which is done or believed without due care and attention.", http://www.indianlawcases.com/Act-Indian.Penal.Code,1860-1477.
I find the above words to be very interesting in the context of whistle-blowers who are critical of some persons or institutions which the whistle-blower names. The Additional Solicitor General of India states that freedom of speech has been guaranteed by the constitution to advance public debate and discourse. He adds that truthful statement even if it harms (reputation) but is meant for public good OR where it is made in good faith is protected by Exceptions of section 499 and so is not criminalised!
So not only is public good an exception for truth that harms reputation of others, but good faith too is an exception! Converting the above mentioned negative definition of good faith, what that means is that truth that harms reputation of others but is done or believed with due care and attention, is NOT criminalised!
I looked up the Exceptions (given in earlier part of this post) and found this exception (to section 499) to be very interesting:
Ninth Exception.—Imputation made in good faith by person for protection of his or other's interests – It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good.
-- end ninth exception text --
Ravi: Let us examine a case where a person P (like me) states that so-and-so(s) has made false statements about him, and therefore so-and-so is dishonest & unethical (a crook/crooked), and that so-and-so(s) is an xyz-drohi (people who cause harm to class of people known by term xyz). Now these imputations are truthful and made in good faith (done with due care and attention; not recklessly said). Further these imputations protect the interests of the person P who is making it (as the person himself has been targeted with false statements and so needs to call out the so-and-so(s) responsible for the false statements, as dishonest & unethical). If the so-and-so(s) are not publicly called out/exposed for their dishonest & unethical behaviour, the so-and-so(s) might freely continue to hurt other people in the same xyz class as the person P. Therefore person P naming the so-and-so(s) as xyz-drohis (people who cause harm to persons in xyz class) is an act that protects the interests of others (people in xyz class).
So I think a person P (like me) of xyz class of people, saying TRUTHFULLY that so-and-so(s) have made false statements about him, and so are dishonest & unethical (crooks) and xyz-class-drohis, falls into the Ninth Exception of the criminal defamation section 499 of the Indian Penal Code, and hence cannot be judged as criminal defamation. end-Ravi]
...
[From page 44]
The principal objective of the law of defamation, civil or criminal, is to protect the reputation and dignity of the individual against scurrilous and vicious attacks.
[Ravi: The principal objective makes sense. Possibility of false statements being made which are aimed at harming the reputation of some person should be protected/deterred by a defamation law. However, it being a criminal offence has a chilling effect on freedom of speech, especially for whistle-blowers, in my opinion. end-Ravi]
...
[From page 47]
First Exception to Section 499 which does not make truth an absolute defense has a very relevant purpose. In fact, this Exception is meant to ensure that the defense is available only in cases where the expression of truth results in ‘public good’. Thus, the right to privacy is respected, and will give way only in case the truthful disclosure, albeit private, is meant for public good.
[Ravi: Hmm. So the Additional Solicitor General of India is arguing that public good requirement in addition to truth helps in protecting privacy. Interesting! end-Ravi]
...
[From] 17. Submissions of Mr. M.N. Krishnamani, Mr. Siddharth Luthra and Mr. Satish Chandra Mishra, in person
[From pages 58-59]
viii. Journalists are in no better position than any other person. They have no greater freedom than others to make any imputations or allegations sufficient to ruin the reputation of a citizen. Even truth of an allegation does not permit a justification under the First Explanation unless it is proved to be in the public good. A news item has the potentiality of bringing dooms day for an individual. Editors have to take the responsibility of everything they publish and to maintain the integrity of published records. It can cause far reaching consequences in an individual and country’s life. Section 7 of the Press and Registration Books Act, 1867 makes the declarations to be prima facie evidence for fastening the liability in any civil or criminal proceedings on the Editor. The press has great power in impressing minds of people and it is essential that persons responsible for publishing anything in newspapers should take good care before publishing anything which tends to harm the reputation of a person. Reckless defamatory comments are unacceptable.
[Ravi: I think it is undeniable that there are sections of Indian media which have caused great damage by publishing/broadcasting content which has not been verified to be truthful, and which has grievously harmed the reputation of persons and organizations. The situation in the Indian media is not as bad as some sections of Western media (e.g. tabloids) when it comes to publishing reputation-damaging content which has not been verified to be true, as these sections of Western media seem to get away with almost any falsehood that they broadcast/publish. I think some fear among Indian media about publishing reputation-damaging content which is not verified as truth, is a good thing. Though the question is why civil defamation law alone is not enough to ensure this fear in Indian media. end-Ravi]
...
[From:] 18. Submissions of learned Amicus Curiae Mr. K. Parasaran, Sr. Advocate
[From page 62]
v. The test of reasonableness cannot be a principle in abstraction. ... Being a part of the original Constitution, the penal provision as to defamation having been approved by the constituent power when Article 19(2) was enacted, it cannot now be held to be unreasonable. If defamation as an offence is a reasonable law for the purposes of Article 19(2), it has to be equally a reasonable law for the purposes of Article 14. The principle of a law being worn out by passage of time and the principle of ‘Cessante Ratione Legis Cessat Ipsa Lex’ cannot be applied to a constitutional provision like Article 19(2) or to procedural laws. Section 500 IPC does not impose any mandatory minimum punishment and when a penal law does not mandate a minimum sentence but provides only for simple imprisonment with discretion vested in the Court, the provision will not be struck down as arbitrary or unreasonable.
[Ravi: So there is NO mandatory minimum (jail) sentence for criminal defamation law. In contrast, I believe the mandatory minimum jail sentence for criminal offence of rape is seven years. i.e. as per my understanding, once a judgement has been pronounced that a person is guilty of rape, the judge(s) in the sentencing part of their work have to give at least seven years jail sentence, even if they feel that there are some mitigating circumstances. I don't understand the proper implications of the term "simple imprisonment with discretion vested in the Court" but I guess it means that even if a person is judged guilty of criminal defamation, it is upto the judge(s) to decide whether the person should really be sent to jail. Perhaps in the case of whistle-blowers who have said the truth and where no falsehood has been proven in court against them, but the public good and/or good faith part of their whistle-blowing expose has not been proven in court, the judge(s) would deem the whistle-blower(s) guilty of criminal defamation but may give only a suspended sentence or similar.
From https://en.wikipedia.org/wiki/Suspended_sentence: "A suspended sentence is a legal term for a judge's delaying of a defendant's serving of a sentence after they have been found guilty, in order to allow the defendant to perform a period of probation. If the defendant does not break the law during that period, and fulfills the particular conditions of the probation, the judge usually dismisses the sentence." From https://en.wikipedia.org/wiki/Probation: "Probation in criminal law is a period of supervision over an offender, ordered by a court instead of serving time in prison."..."An offender on probation is ordered to follow certain conditions set forth by the court, often under the supervision of a probation officer. During this testing period, an offender faces the threat of being sent back to prison, if found breaking the rules." end-Ravi]
[From] Mr. T.R. Andhyarujina, Sr. Advocate
[From page 65]
The protection given to criticism of public officials even if not true, as in the case of New York Times v. Sullivan, is not protected by Article 19(1)(a) as this Court has noted that there is a difference between Article 19(1)(a) and the First Amendment to the US Constitution
[Ravi Here's an extract from https://en.wikipedia.org/wiki/New_York_Times_Co._v._Sullivan:
New York Times Co. v. Sullivan, 376 U.S. 254 (1964), was a landmark United States Supreme Court case that established the actual malice standard, which has to be met before press reports about public officials can be considered to be defamation and libel; and hence allowed free reporting of the civil rights campaigns in the southern United States. It is one of the key decisions supporting the freedom of the press. The actual malice standard requires that the plaintiff in a defamation or libel case, if he is a "public figure", prove that the publisher of the statement in question knew that the statement was false or acted in reckless disregard of its truth or falsity. Because of the extremely high burden of proof on the plaintiff, and the difficulty of proving the defendant's knowledge and intentions, such cases—but only when they involve public figures—rarely prevail.
Before this decision, there were nearly US $300 million in libel actions outstanding against news organizations from the Southern states, and it had caused many publications to exercise great caution when reporting on civil rights, for fear that they might be held accountable for libel.[citation needed] After The New York Times prevailed in this case, news organizations were free to report the widespread disorder and civil rights infringements. The Times maintained that the case against it was brought to intimidate news organizations and prevent them from reporting illegal actions of public employees in the South as they attempted to continue to support segregation.
--- end wiki extract ---
Here's the text of the First Amendment to the US Constitution (adopted in 1791), (from https://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution:)
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
--- end text of first amendment to USA constitution ---
Ravi: Fascinating history and very interesting that this case has been cited previously (and now) in the Indian supreme court! Well, Indian media does not have the same level of liberty in this regard (reporting related to public officials) that USA media has. end-Ravi]
[From the sections written by the judges of this judgement (not advocates or others making their arguments, which has been given above); page 73]
23. CONCEPT OF REPUTATION
Having dealt about “defamation”, we would like to refer to the intrinsic facets of “reputation” and what constitutes reputation. The allusions would clearly exposit the innate universal value of “reputation” and how it is a cherished constituent of life and not limited or restricted by time. The description may be different, but the crucial base is the same.
Vision of the Ancients
i. In Bhagawad Gita, it has been said :-
अहहहिंसस सत्यमकक्रोधस्त्यसगग शसननन्तिरपपैशशुनमम्।
दयस à¤à¤ून्तितेष्वलक्रोलशुप्त्वहिं मसदरवहिं हह्रीरचसपलमम् ॥१६- २॥
The English translation of the aforequoted shloka is:
“Non-violence in thought, word and deed, truthfulness and geniality of speech, absence of anger even on provocation, disclaiming doership in respect of actions, quietude or composure of mind. Abstaining from malicious gossip, compassion towards all creatures, absence of attachment to the objects of senses even during their contact with the senses, mildness, a sense of shame in transgressing against the scriptures or usage, and abstaining from frivolous pursuits.”ii. In Subhashitratbhandagaram, it has been described:-
“Sa jeevti yasho yashya kirtiyashya sa jeevti,Translated into English it is as follows:
Ayashokirtisanyukto jeevannipe mritoopamma”
“One who possesses fame alone does live. One who has good praise does alone live. Who has no fame and negative praise is equal to one who is dead while alive.”iii. The English translation of Surah 49 Aayaat 11 of the Holy Quran reads as follows:-
“Let not some men among you laugh at others: it may be that the (latter) are better than the (former): nor defame nor be sarcastic to each other, nor call each other by (offensive) nicknames, ill-seeming is a name connoting wickedness, (to be used of one) after he has believed: and those who do not desist are (indeed) doing wrong.”iv. Proverb 15 of the Holy Bible reads as under:-
“A soft answer turns away wrath, but a harsh word stirs up anger.Though the aforesaid sayings have different contexts, yet they lay stress on the reputation, individual honour and also the need of gentleness of behavior on the part of each one.
The tongue of the wise dispenses knowledge,
but the mouths of fools pour out folly.
The eyes of the LORD are in every place,
keeping watch on the evil and the good.
A gentle tongue is a tree of life,
but perverseness in it breaks the spirit.”
24. William Shakespeare in Othello expressed his creative thoughts on character by the following expression:-
“Good name in man and woman, my dear lord,25. The said author in Richard II, while enhancing the worth of individual reputation, achieved his creative heights, and the result in the ultimate is the following passage:-
is the immediate jewel of their souls
Who steals my purse steals trash; ‘tis something,
nothing;
‘T was mine, ‘tis his, and has been slave to thousands;
But he that filches from me my good name
Robs me of that which not enriches him,
And makes me poor indeed,”
“The purest Treasure mortal times afford26. The famous Greek philosopher and thinker Socrates taught:-
Is spotless reputation; that away,
Men are but gilded loam or painted clay.
A jewel in a ten-times-barr’d-up chest
Is a bold spirit in a loyal breast.
Mine honour is my life, both grow in one;
Take honour from me and my life is done.”
“Regard your good name as the richest jewel you can possibly be possessed of – for credit is like fire; when once you have kindled it you may easily preserve it, but if you once extinguish it, you will find it an arduous task to rekindle it again. The way to gain a good reputation is to endeavour to be what you desire to appear.”27. The philosopher in Aristotle inspired him to speak:-
“Be studious to preserve your reputation; if that be once lost, you are like a cancelled writing, of no value, and at best you do but survive your own funeral”.28. While speaking about reputation, William Hazlitt had to say:-
“A man’s reputation is not in his own keeping, but lies at the mercy of the profligacy of others. Calumny requires no proof. The throwing out of malicious imputations against any character leaves a stain, which no after-refutation can wipe out. To create an unfavourable impression, it is not necessary that certain things should be true, but that they have been said. The imagination is of so delicate a texture that even words wound it.”The International Covenants
29. Various International Covenants have stressed on the significance of reputation and honour in a person’s life. The Universal Declaration on Human Rights, 1948 has explicit provisions for both, the right to free speech and right to reputation. Article 12 of the said Declaration provides that:-
“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”...
[From page 186]
134. In Ram Jethmalani and others v. Union of India and others 132 it has been held that the rights of citizens, to effectively seek the protection of fundamental rights have to be balanced against the rights of citizens and persons under Article 21. The latter cannot be sacrificed on the anvil of fervid desire to find instantaneous solutions to systemic problems through defamation speech, for it would lead to dangerous circumstances and anarchy may become the order of the day.
[Ravi: The danger of unchecked defamation speech seems to me to be well captured in the above statement, "The latter (Ravi: Article 21; right to dignity and reputation is implied by Article 21, I think) cannot be sacrificed on the anvil of fervid desire to find instantaneous solutions to systemic problems through defamation speech, for it would lead to dangerous circumstances and anarchy may become the order of the day." I think that false, irresponsible, reckless and malicious speech aimed at destroying the reputation of enemies has become rather common in USA and some other Western countries. In India, it has not got that bad as yet, perhaps due to fear of criminal defamation charges being filed by those targeted with false & malicious defamation. end-Ravi]
...
[From page 199]
Once we have held that reputation of an individual is a basic element of Article 21 of the Constitution and balancing of fundamental rights is a constitutional necessity and further the legislature in its wisdom has kept the penal provision alive, it is extremely difficult to subscribe to the view that criminal defamation has a chilling effect on the freedom of speech and expression.
...
[From page 228]
The First Exception [Ravi: to section 499 of IPC end-Ravi] stipulates that it is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. “Public good” has to be treated to be a fact. In Chaman Lal v. State of Punjab 162, the Court has held that in order to come within the First Exception to Section 499 of the Indian Penal Code it has to be established that what has been imputed concerning the respondent is true and the publication of the imputation is for the public good. The onus of proving these two ingredients, namely, truth of the imputation and the publication of the imputation for the public good, is on the accused.
...
[From page 232]Third Exception states about conduct of any person touching any public question and stipulates that it is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question and respecting his character, so far as his character appears in that conduct. The said Exception uses the words “good faith” and particularizes conduct of any person relating to any public question and the Exception, as is perceptible, gives stress on good faith. Third Exception comes into play when some defamatory remark is made in good faith as held in Sahib Singh Mehra (supra). The Court has clarified that if defamatory remarks are made after due care and attention, it will be regarded as made in good faith. In the said case, the Court also adverted to Ninth Exception which gives protection to imputation made in good faith for the protection of the interest of the person making it or of any other person or for the public good. A three-Judge Bench in Harbhajan Singh v. State of Punjab and another 165 has opined that where the accused invokes Ninth Exception to Section 499 IPC, good faith and public good are both to be satisfied and the failure of the appellant to prove good faith would exclude the application of Ninth Exception in favour of the accused even if requirement of public good is satisfied. The Court has referred to Section 52 IPC which defines “good faith” that requires the element of honesty. It is necessary to note here that the three-Judge Bench has drawn a distinction between the First Exception and the Ninth Exception to opine that the proof of truth which is one of the ingredients of the First Exception is not an ingredient of the Ninth Exception and what the Ninth Exception requires an accused person to prove is that he made the statement in good faith. Proceeding further, the Court has stated that in dealing with the claim of the accused under the Ninth Exception, it is not necessary and, in a way, immaterial, to consider whether he has strictly proved the truth of the allegations made by him.
[Ravi: Good faith is clarified here, "The Court has clarified that if defamatory remarks are made after due care and attention, it will be regarded as made in good faith".
I have reproduced the Third Exception of section 499 below:
Third Exception.—Conduct of any person touching any public question.—It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further.
--- end third exception ---
Ravi: Hmm. So what this implies is that any critical opinion expressed with due care and attention with respect to conduct of persons associated with public questions is not defamation. Public questions, I think, would include a publice/private university's policies and actions implemented by its top officers, on its staff including teachers and visiting faculty, as well as students; it would also include policies and actions of any Non-governmental organization (NGO) implemented by its top officers, in serving the public.
The Ninth exception related comments, specifically that it is not necessary for an accused (who claims the Ninth exception) to strictly prove the truth of the allegations made by him, is very interesting. I have reproduced below the Ninth exception of section 499:
Ninth Exception.—Imputation made in good faith by person for protection of his or other's interests – It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good.
--- end Ninth exception ---
Ravi: Let us take the case of a person A, a teacher, who is defending himself on social media against malicious defamation made by persons XYZ who have either aided & abetted in falsely & maliciously showing person A in a lowly designation OR have aided & abetted in covering up or turning a blind eye to the false & malicious act. In this context, if person A calls persons XYZ on social media as abc-class-drohis (those who harm people of abc class e.g. factory workers, maidservants, students, teachers ...) and crooks (dishonest and unethical persons i.e. Asathya and Adharma persons), in good faith (after having taken due care and attention in arriving at those labels for XYZ persons), then under the Ninth Exception, person A does not need to strictly prove that persons XYZ are abc-class-drohis and crooks (dishonest and unethical persons). end-Ravi]
178. In Sukra Mahto v. Basdeo Kumar Mahto and another 166 the Court has opined that the ingredients of Ninth Exception are first that the imputation must be made in good faith; secondly, the imputation must be protection of the interest of the person making it or of any other person or for the public good. The Court further opined that good faith and public good are questions of fact and emphasis has been laid on making enquiry in good faith and due care and attention for making the imputation.
...
[From page 238]
In Sewakram Sobhani v. R.K. Karanjia 172, it has been observed that the ingredients of the Ninth Exception are that (1) the imputation must be made in good faith, and (2) the imputation must be for the protection of the interests of the person making it or of any other person or for the public good, and the imputation made must be in good faith for the public good. In M.A. Rumugam v. Kittu 173, it has been held that for the purpose of bringing the case within the purview of the Eighth and the Ninth Exception appended to Section 499 of the Penal Code, it would be necessary for the accused to prove good faith for the protection of the interests of the person making it or of any other person or for the public good. This Court, in Jeffrey J. Diermeier (supra), has observed thus:-
“37. It is trite that where to the charge of defamation under Section 500 IPC the accused invokes the aid of Tenth Exception to Section 499 IPC, “good faith” and “public good” have both to be established by him. The mere plea that the accused believed that what he had stated was in “good faith” is not sufficient to accept his defence and he must justify the same by adducing evidence. However, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt.
38. It is well settled that the degree and the character of proof which an accused is expected to furnish in support of his plea cannot be equated with the degree of proof expected from the prosecution in a criminal trial. The moment the accused succeeds in proving a preponderance of probability, onus which lies on him in this behalf stands discharged. Therefore, it is neither feasible nor possible to lay down a rigid test for deciding whether an accused person acted in “good faith” and for “public good” under the said Exception.”[Ravi: Very interesting that the Supreme Court (I guess "This court" means Supreme Court), in the context of Tenth Exception of section 499, states that an accused for criminal defamation need not prove "good faith" and "public good" beyond reasonable doubt; a preponderance of probability is enough. Now, it seems that in Indian law, the lower standard of proof of a preponderance of probability, is common for civil law cases, whereas the higher standard of proof of beyond reasonable doubt is common for criminal cases. In this context, I take it to mean that an accused in a criminal defamation trial, when needing to prove "good faith" and/or "public good" needs to show evidence that leads to a beyond 50% probability of him/her having acted in "good faith" and/or "public good", in the eyes of judge(s) I guess (as India does not follow jury system). Further, I think the same preponderance of probability standard (instead of the higher beyond a reasonable doubt standard) to show "good faith" and/or "public good" would be applied in the case of exceptions other than the tenth exception. end-Ravi]
183. The detailed discussion made hereinabove do clearly reveal that neither the main provision nor the Explanation nor the Exceptions remotely indicate any vagueness. It is submitted that the Exceptions make the offence more rigorous and thereby making the concept of criminal defamation extremely unreasonable. The criticism advanced pertain to truth being not a defence, and unnecessary stress on ‘public good’. The counter argument is that if a truthful statement is not made for any kind of public good but only to malign a person, it is a correct principle in law that the statement or writing can amount to defamation. Dr. Singhvi, learned senior counsel for some of the respondents has given certain examples. The examples pertain to an imputation that a person is an alcoholic; an imputation that two family members are involved in consensual incest; an imputation that a person is impotent; a statement is made in pubic that a particular person suffers from AIDS; an imputation that a person is a victim of rape; and an imputation that the child of a married couple is not fathered by the husband but born out of an affair with another man. We have set out the examples cited by the learned senior counsel only to show that there can be occasions or situations where truth may not be sole defence. And that is why the provision has given emphasis on public good. Needless to say, what is public good is a question of fact depending on the facts and circumstances of the case.
[Ravi: I find the above examples given by Dr. Singhvi to be excellent examples to show why truth alone should NOT be a defense (truth should NOT be an absolute defense) for defamation. end-Ravi]
...
[From page 263]
196. Another aspect requires to be addressed pertains to issue of summons. Section 199 CrPC envisages filing of a complaint in court. In case of criminal defamation neither any FIR can be filed nor can any direction be issued under Section 156(3) CrPC. The offence has its own gravity and hence, the responsibility of the Magistrate is more. In a way, it is immense at the time of issue of process. Issue of process, as has been held in Rajindra Nath Mahato v. T. Ganguly, Dy. Superintendent and another 190, is a matter of judicial determination and before issuing a process, the Magistrate has to examine the complainant. In Punjab National Bank and others v. Surendra Prasad Sinha 191 it has been held that judicial process should not be an instrument of oppression or needless harassment. The Court, though in a different context, has observed that there lies responsibility and duty on the Magistracy to find whether the concerned accused should be legally responsible for the offence charged for. Only on satisfying that the law casts liability or creates offence against the juristic person or the persons impleaded then only process would be issued. At that stage the court would be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of the private complaint as vendetta to harass the persons needlessly. Vindication of majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would not be the means to wreak personal vengeance. In Pepsi Foods Ltd. and another v. Special Judicial Magistrate and others 192 a two-Judge Bench has held that summoning of an accused in a criminal case is a serious matter and criminal law cannot be set into motion as a matter of course.
197. We have referred to these authorities to highlight that in matters of criminal defamation the heavy burden is on the Magistracy to scrutinise the complaint from all aspects. The Magistrate has also to keep in view the language employed in Section 202 CrPC which stipulates about the resident of the accused at a place beyond the area in which the Magistrate exercises his jurisdiction. He must be satisfied that ingredients of Section 499 CrPC are satisfied. Application of mind in the case of complaint is imperative.
[Ravi: Very interesting that the judgement points out that issue of summons must be done in a responsible way by the magistrate who is tasked with deciding on the issue of summons. It mentions a judgement (related to criminal defamation, I presume) where it has been "held that judicial process should not be an instrument of oppression or needless harassment". It quotes another judgement where it has been stated that "summoning of an accused in a criminal case is a serious matter and criminal law cannot be set into motion as a matter of course". The Supreme Court then puts heavy responsibility on the Magistrate, "We have referred to these authorities to highlight that in matters of criminal defamation the heavy burden is on the Magistracy to scrutinise the complaint from all aspects.".. "He must be satisfied that ingredients of Section 499 CrPC are satisfied. Application of mind in the case of complaint is imperative." This seems to imply that the Supreme Court expects magistrates to be very sure that there is ground for criminal defamation before issuing a summons to an accused. Also, it seems that even the decision of a magistrate to issue a summons to an accused in a criminal defamation case, can be appealed in a higher court (a plea to quash the summons). end-Ravi]
198. We will be failing in our duty if we do not take note of submission of Mr. Bhambhani, learned senior counsel. It is submitted by the learned senior counsel that Exception to Section 499 are required to be considered at the time of summoning of the accused but as the same is not conceived in the provision, it is unconstitutional. It is settled position of law that those who plead Exception must prove it. It has been laid down in M.A. Rumugam (supra) that for the purpose of bringing any case within the purview of the Eighth and the Ninth Exceptions appended to Section 499 IPC, it would be necessary for the person who pleads the Exception to prove it. He has to prove good faith for the purpose of protection of the interests of the person making it or any other person or for the public good. The said proposition would definitely apply to any Exception who wants to have the benefit of the same. Therefore, the argument that if the said Exception should be taken into consideration at the time of the issuing summons it would be contrary to established criminal jurisprudence and, therefore, the stand that it cannot be taken into consideration makes the provision unreasonable, is absolutely an unsustainable one and in a way, a mercurial one. And we unhesitatingly repel the same.
[Ravi: Hmm. I do not have a clear understanding of the above section/paragraph 198. Is it that the magistrate can ignore the exceptions of section 499 when deciding on issue of summons? If so, does that mean that any words (or even signs/images) that harm the reputation (i.e. lowers the moral and intellectual character) of a person or group of persons or institution/organization, is enough for a magistrate to issue a summons to an accused in criminal defamation case??? But I think sections/paragraphs 196 & 197 which urge a magistrate to "to find whether the concerned accused should be legally responsible for the offence charged for" before issuing process (summons, I guess), clearly indicate that magistrate should not go only by whether words were used which harmed reputation, as that would include all kinds of fair criticism done in "good faith" and/or for "public good".
Another point that comes out clearly is that it is a settled position of law that those who plead exception must prove it. So once a person is summoned as an accused in a criminal defamation case, the person may plead exception(s) under section 499 and has to prove that the exception(s) apply to him/her in court (under lower standard of proof of preponderance of probability and not higher standard of proof of beyond a reasonable doubt). end-Ravi]
199. In view of the aforesaid analysis, we uphold the constitutional validity of Sections 499 and 500 of the Indian Penal Code and Section 199 of the Code of Criminal Procedure. During the pendency of the Writ Petitions, this Court had directed stay of further proceedings before the trial court. As we declare the provisions to be constitutional, we observe that it will be open to the petitioners to challenge the issue of summons before the High Court either under Article 226 of the Constitution of India or Section 482 CrPC, as advised and seek appropriate relief and for the said purpose, we grant eight weeks time to the petitioners. The interim protection granted by this Court shall remain in force for a period of eight weeks. However, it is made clear that, if any of the petitioners has already approached the High Court and also become unsuccessful before this Court, he shall face trial and put forth his defence in accordance with law.
[Ravi: The above paragraph/section is the penultimate paragraph/section of the judgement. It clearly upholds constitutional validity of criminal defamation.
Extracts from previous comments of mine in this post that are appropriate to be repeated here (slightly modified):
Paragraph v) of Attorney General of India's argument is a strong argument against the view that civil defamation law is enough and so criminal defamation law is unconstitutional. "The submission that protection of reputation can be sufficiently achieved by taking recourse to civil law cannot be a ground to declare Section 499/500 IPC as unconstitutional." My layman-reading of this judgement is that the two Supreme Court justices who wrote this judgement essentially agree with the Attorney General's statement quoted above. Further, the Supreme Court seems to leave removal of criminal defamation law, if so desired, in the hands of the legislature (law makers & law modifiers). That seems quite appropriate to me.
However, the Attorney General of India does make some arguments as to why criminal defamation law should still be law in India, which perhaps reflect the view of the NDA/BJP government in power at the centre today (they are the key people who have the ability to modify the law via the legislature/Parliament though they will need support from some of the opposition political parties too). The AG states, "Monetary damage in civil law cannot be said to be the only panacea;" ... "In addition to this, it can be said that civil remedy for defamation is not always adequate. The value of freedom of speech cannot be allowed to have the comatosing effect on individual dignity, which is also an integral part under Article 21 of the Constitution."
...
Ravi: The danger of unchecked defamation speech seems to me to be well captured in the statement (of this judgement), "The latter (Ravi: Article 21; right to dignity and reputation is implied by Article 21, I think) cannot be sacrificed on the anvil of fervid desire to find instantaneous solutions to systemic problems through defamation speech, for it would lead to dangerous circumstances and anarchy may become the order of the day."
Ravi: I think that false, irresponsible, reckless and malicious speech, and its publication/broadcast, aimed at destroying the reputation of opponents/enemies, especially political opponents/enemies, has become rather common among some leaders, and in some sections of the media, of USA and some other Western countries. In India and Indian media, it seems to me that it has not got that bad as yet, perhaps due to fear of criminal defamation charges being filed by those targeted with false & malicious speech.
--- end extracts of previous comments of mine (slightly modified) ---
Ravi: So criminal defamation law stays in the Indian statute books and may be removed only by Parliament. Parliament, as of now, does not seem to be wanting to do that. An observation I have is that I don't recall coming across media reports, in the past years (or perhaps even past one or two decades) that I have been quite a regular reader/viewer of mainstream Indian media, of any gross miscarriage of justice using the criminal defamation law. I mean, I don't know of any case in this period where somebody has been sent to jail for having made truthful whistle-blowing statements, on the basis of this criminal defamation law (whistle-blowers being sent to jail on other laws is a different matter which I am not commenting upon in this blog post at least).
I think that public opinion in India will get actively involved in significant numbers (and so, force Parliament to take notice) in removal of criminal defamation law only if there is gross miscarriage of justice using criminal defamation law. So long as Indian courts of law interpret criminal defamation law in such a way so as to avoid gross miscarriage of justice (as has been the case, it seems to me, over the past few decades), public opinion in India (in significant numbers) may be OK with it staying on the statute books. end-Ravi]
[Ravi: Links to some of the judgements, most but not all of them being related to criminal defamation, referenced in above extracts of Supreme court judgement, are given below:
Reference 132) Ram Jethmalani and others v. Union of India and others. This shows up two Supreme Court judgements:
a) Supreme Court of India, Ram Jethmalani & Ors vs Union Of India & Ors on 4 July, 2011, https://indiankanoon.org/doc/1232445/ [SC website link: http://judis.nic.in/supremecourt/imgst.aspx?filename=38154]
b) Supreme Court of India, Ram Jethmalani & Ors vs Union Of India & Ors on 23 September, 2011, https://indiankanoon.org/doc/549841/ [SC website link: http://judis.nic.in/supremecourt/imgst.aspx?filename=38685]
Reference Supra (159)) Supreme Court of India, Sahib Singh Mehra vs State Of Uttar Pradesh on 22 January, 1965, Equivalent citations: 1965 AIR 1451, 1965 SCR (2) 823, https://indiankanoon.org/doc/1098840/ [SC website link: http://judis.nic.in/supremecourt/imgst.aspx?filename=3060]
Reference 162) Supreme Court of India, Chaman Lal vs The State Of Punjab on 6 March, 1970, Equivalent citations: 1970 AIR 1372, 1970 SCR (3) 913, https://indiankanoon.org/doc/1226845/ [link in SC website: http://judis.nic.in/supremecourt/imgst.aspx?filename=1467]
Reference 165) Supreme Court of India, Harbhajan Singh vs State Of Punjab on 2 March, 1965, Equivalent citations: 1966 AIR 97, 1965 SCR (3) 235, https://indiankanoon.org/doc/859435/ [link in SC website: http://judis.nic.in/supremecourt/imgst.aspx?filename=3019]
Reference 166) Supreme Court of India, Sukra Mahto vs Basdeo Kumar Mahto &. Anr on 2 April, 1971, Equivalent citations: 1971 AIR 1567, 1971 SCR 329, https://indiankanoon.org/doc/1066170/, [SC website link: http://judis.nic.in/supremecourt/imgst.aspx?filename=7186]
Reference 172) Supreme Court of India, Sewakram Sobhani vs R.K. Karanjia, Chief Editor, ... on 1 May, 1981, Equivalent citations: 1981 AIR 1514, 1981 SCR (3) 627, https://indiankanoon.org/doc/1506133/ [SC website link: http://judis.nic.in/supremecourt/imgst.aspx?filename=10056]
Reference 173) Supreme Court of India, M.A.Rumugam vs Kittu @ Krishnamoorthy on 7 November, 2008, https://indiankanoon.org/doc/1332595/ [SC website link: http://judis.nic.in/supremecourt/imgst.aspx?filename=32929]
Reference Supra (152)) Supreme Court of India, Jeffrey J.Diermeier & Anr vs State Of West Bengal & Anr on 14 May, 2010, https://indiankanoon.org/doc/393035/ [SC website link: http://judis.nic.in/supremecourt/imgst.aspx?filename=36390]
Reference 190) Supreme Court of India, Rajindra Nath Mahato vs T. Ganguly, Dy. Superintendent & ... on 2 December, 1971, Equivalent citations: 1972 AIR 470, 1972 SCR (2) 671, https://indiankanoon.org/doc/926207/ [SC website link: http://judis.nic.in/supremecourt/imgst.aspx?filename=6959]
Reference 191) Supreme Court of India, Punjab National Bank And Ors vs Surendra Prasad Sinha on 20 April, 1992, Equivalent citations: 1992 AIR 1815, 1992 SCR (2) 528, https://indiankanoon.org/doc/49712/ [SC website link: http://judis.nic.in/supremecourt/imgst.aspx?filename=12428]
end-Ravi]
--- end few extracts from Supreme Court judgement ---
Readers may also want to view the following blog posts of mine:
1) Was anybody judged guilty of criminal defamation in last two or three decades in India?, https://ravisiyermisc.blogspot.com/2016/05/was-anybody-judged-guilty-of-criminal.html, dated 18th May 2016
2) Civil Defamation Law in India, https://ravisiyermisc.blogspot.com/2016/05/civil-defamation-law-in-india.html, dated 25th May 2016
3) Concise whistleblower view of criminal and civil defamation law in India, https://ravisiyermisc.blogspot.com/2016/05/concise-whistleblower-view-of-criminal.html, dated 26th May 2016
[I thank supremecourtofindia.nic.in, indianexpress.com (very short extract), thehindu.com (very short extract), livemint.com (very short extract), lawmin.nic.in and wikipedia, and have presumed that they will not have any objections to me sharing the above extracts from their website on this post which is freely viewable by all, and does not have any financial profit motive whatsoever.]
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