What is the issue?
The response to the #MeToo movement in the form of defamation cases calls for a relook at the relevance and validity of the Indian defamation law.
What is the recent development?
- Accusations of sexual harassment have leveraged criminal defamation law as a way of striking back.
- E.g. M.J. Akbar made criminal defamation complaint against Priya Ramani, Alok Nath filed criminal and civil defamation complaints against Vinta Nanda
- The #MeToo movement thus seems to emphasise that defamation was the first refuge of the powerful.
- Dispute - No legal system can allow false and slanderous statements to be made publicly, with impunity.
- In this line, the defamation law is certainly the balancing tool.
- But there is a concern that in the guise of protecting reputation, the freedom of speech and expression are often silenced.
How is defamation dealt in India?
- Unlike many other countries, defamation in India is both civil and criminal offence.
- Under the civil law, the person defamed can move either the high court or trial court.
- The complainant can seek damages in the form of monetary compensation from the accused.
- On the other hand, the Indian Penal Code also gives an opportunity to the defamed individual to move a criminal court.
- It is a bailable, non-cognizable and compoundable offence i.e. no police can register a case and start investigation without the court’s permission.
- Under sections 499 and 500 of the IPC, a person found guilty can be sent to jail for two years.
- Since the law is compoundable, a criminal court can drop the charges if the victim and accused enter into a compromise (even without the permission of the court).
What are the concerns with defamation law?
- Relevance - India’s criminal defamation law largely falls in the category of silencing the freedom of speech and expression.
- Section 499 of the Indian Penal Code provides an ideal weapon for powerful individuals to silence critical or inconvenient speech.
- It is a colonial relic that was introduced by the British regime to suffocate political criticism.
- Conviction - Unlike many other countries, defamation in India is a criminal offence (and not just a civil wrong).
- So it is a conviction that entails both social stigma and potential jail time.
- Process - There is a very low threshold for a prima facie case of defamation to be established by a complainant.
- S/he must only show that an “imputation” has been made that could reasonably be interpreted as harming reputation.
- On the other hand, an accused has multiple defences open, but they are effectively available only after the trial commences.
- So an accused individual would have to undergo the long-drawn-out trial process, where the procedure in itself is punishment.
- Disproportionality - Even the defences open to an accused are insufficient to protect free speech.
- In a civil defamation case, a defendant need to only show that her statement was true in order to escape liability.
- But in a criminal defamation proceeding, an accused must show that her statement was true and in the public interest.
- This is paradoxical as the legal system is more advantageous towards those at the receiving end of civil defamation proceedings.
- On the other hand, it is harsher towards those who have to go through the criminal process.
- Court - In 2016, the constitutionality of criminal defamation was challenged in the Supreme Court.
- But it was largely ignored by the court and was held that Sec 499 was constitutional as it protected individual reputation.
- The disproportionality of criminalising what is essentially a civil wrong was not considered by the court.
What is the new challenge?
- Much has changed in the last two years and the most significant change has been brought by the #MeToo movement.
- The #MeToo movement has brought submerged experiences to the surface and given a fresh vocabulary to express what, for years, seemed simply inexpressible.
- But powerful men filing criminal defamation cases to silence this new mode of public expression remains a concern.
- It has the threat of preserving and perpetuating the old hierarchies that the #MeToo movement has now challenged.
How was it dealt in the U.S.?
- The U.S. Supreme Court, in 1960s, made substantial modifications to defamation law.
- It was to ensure that it could no longer be used as a tool of harassment and blackmail.
- Articulating a very high threshold of “actual malice”, the court ensured that journalists and others could go about their job without fear.
- But this is as long as they did not intentionally or recklessly make outright false statements.
What lies ahead in India?
- The courts must now address the above challenges and concerns.
- It is no longer about an abstract challenge to the constitutionality of criminal defamation.
- It is rather about a live issue on the relationship between legal system and a social movement that publicly redresses long-standing injustices.
- The courts can choose to revisit the constitutionality of criminal defamation, but even without that, there are enough ways to judicially interpret Sec 499.
- This is to ensure that it no longer remains the tool of the powerful to blackmail, harass, and silence inconvenient speech.
Source: The Hindu, Hindustan Times
