On 13 May, the Supreme Court upheld criminal sanctions as a constitutional remedy for the protection of reputations. The needlessly long judgement has been criticized in many quarters as a severe blow to free speech rights in the country—and rightly so. Criminal defamation serves no purpose in a democracy that functions on the rule of law. In fact, its existence in the statute books offers an unhealthy recourse to people in power to stifle dissent and ward off criticism. In this way, criminal defamation in its worst form allows the hegemonic consolidation of undemocratic power, not despite, but precisely because of the rule of law.

This is the reason why even courts in countries with unenviable human rights records, like Zimbabwe, have ruled that criminal defamation is unconstitutional. A manifestation of this effect in India can be witnessed from the misuse of the criminal defamation law by the Tamil Nadu government to silence journalists from calling out mal-governance in the state in the wake of the Chennai floods.

The genesis of the legal dispute is in equal parts fascinating and revealing: political heavyweights from across ideological divides separately challenged the constitutionality of criminal defamation laws because they were charged with defaming one another. Consequently, Subramanian Swamy, Arvind Kejriwal and Rahul Gandhi found themselves on the same side. Their unison in challenging the law demonstrates that criminal defamation is not the refuge of particular individuals or parties. Its function, originally intended to shield from wanton attacks on individual character and muzzle dissent against the colonial regime, has transformed into a convenient tool to obfuscate public inquiry. Consider how an astute Arun Jaitley deflected media (and consequently public) attention from corruption accusations during his time as president of the Delhi and District Cricket Association to a politico-legal criminal defamation battle against Kejriwal.

Such obfuscations prohibit the freedom of speech from performing one of its most essential functions: the pursuit of truth. This truth-seeking endeavour marks an important philosophical justification for any state to recognize free speech as an inalienable right of its citizenry. However, in India, criminal defamation liability arises even if the statements in question constitute the truth. It is only when the truth is spoken for “public good" that exception may be made. To be sure, there are other laws that do not recognize truth as an absolute defence—notably hate speech laws such as sections 153A and 295A of the Indian Penal Code. However, those laws have a higher threshold for culpability, requiring that the statements be inextricably linked to apprehended physical violence. Criminal defamation, on the other hand, mandates no such requirement and is therefore an easily accessible criminal remedy even though a civil counterpart in tort exists.

Interestingly, the central government defended the added necessity of proving the “public good" of truthful statements on the ground that the “right to privacy" must be protected at all other times. As per the court, an example where “public good" is not served is when imputations are made that a person “suffers from AIDS". The argument is ironic in light of the attorney general’s own assertions in the simultaneous Aadhaar hearings that the right to privacy is not a fundamental right at all. However, the argument also underscores the need for a privacy statute in the first place. As noted free speech scholar Gautam Bhatia argues, while there may be claims for a privacy violation for stating that a person “suffers from AIDS", those claims should not extend to criminal sanctions. A privacy statute could easily encompass those situations where the truth is used to tarnish reputations, with the remedy being horizontal monetary damages, thereby excluding the state from litigation. With truth being an absolute defence in civil defamation, rendering it inapplicable in such circumstances, a privacy statute might arguably be the only alternative.

An important albeit procedural aspect of the judgement that has received little attention is the validation of differential treatment accorded to public officials. As per Section 199 of the Code of Criminal Procedure, a person making defamatory statements about a public official may be criminally liable either through a complaint from the official himself or from a public prosecutor. Therefore, it is possible that an overzealous public prosecutor might initiate a criminal defamation charge against an individual making critical remarks about a public official, even when the official himself may not have found the statements defamatory. This creates an additional avenue for the use of criminal defamation to silence official conduct.

Ironically, in the famous Auto Shankar case, the Supreme Court adopted the extremely speech-protective American standard of “actual malice" with respect to official conduct in civil defamation cases. To constitute defamation under that standard, statements need to have been made with the knowledge that they were false or with reckless disregard for the truth. More than 20 years later, the enduring existence of Section 199, validated now by the Supreme Court, continues to hoodwink the seminal standards set in the Auto Shankar case.

The criminal defamation judgement is disappointing and reiterates the Supreme Court’s lukewarm commitment to free speech in recent times. Starting with the court’s championing of online free speech in the Shreya Singhal case in March last year, freedom has only gone downhill; first with the court curiously carving out a new restriction for “historically respected personalities" in the Devidas Ramachandra Tuljapurkar case, effectively shielding public figures of the past from scrutiny. And now this—almost a year to the day from Tuljapurkar, the very same bench delivering another discouraging judgement.

As the fight for individual rights continues, this judgement no doubt sets the discourse back by several years and, with the passage of time, will fall on the wrong side of history.

Nakul Nayak is a fellow at the Centre for Communication Governance, National Law University, New Delhi.

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