Defamation laws are meant to strike a balance between the freedom of expression and the right to reputation. Does the Indian criminal defamation law balance those two? Analyse (200 words)
Refer – The Hindu
Enrich the answer from other sources, if the question demands
IAS Parliament 6 years
KEY POINTS
· There must exist a balance between one’s freedom of expression and other’s right to reputation.
· Defamation law is the tool that is used to strike the balance.
· But, the Indian criminal defamation law (sec.499 of IPC), in the guise of protecting reputation, often silenced the freedom of speech and expression.
Concerns with the Indian defamation law
· 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.
Road to future
· It is now imperative to address the above concerns especially, at the time where defamation law is effectively used against the #me too campaign.
· The courts can thus 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.
