In a judgment delivered today, a two judge bench of the Supreme Court rejected the constitutional challenge to criminal defamation, and upheld the validity of Sections 499 and 500 of the Indian Penal Code. The opinion was written by Justice Dipak Misra. In this post, I shall discuss the judgment which, unfortunately, commits several glaring errors. Before that, however, let us briefly recall the case against criminal defamation. Article 19(2) of the Constitution permits “reasonable restrictions” upon the freedom of speech, “in the interests of… defamation.” Article 19(2) is silent about whether “defamation” includes both civil and criminal defamation. The word “reasonable”, according to the judgments of the Supreme Courts, requires a relationship of proportionality between the degree to which free speech is infringed, and the corresponding interest at stake. In its public order cases, for instance, the Supreme Court has held that “reasonable” restrictions upon the freedom of speech in the interests of public order must only be limited to speech that “incites” others to public disorder.

The first attack against Section 499 was that by criminalising what is essentially a private wrong, the Section amounted to a disproportionate restriction upon free speech. Private wrongs – that is, wrongs to individuals at the hands of other individuals – are meant to be pursued through the civil courts, with damages and compensation as the remedy. It is only when there is a public element to the wrong (e.g., murder endangering the peace of the society as a whole) that the State steps in (interestingly, there was a public element involved at the time that defamation was first criminalised, in England – it was to stop people from resorting to duels in order to vindicate their honour).

Secondly, in R. Rajagopal’s Case, decided in 1994, the Supreme Court considered the relationship between free speech and civil defamation. The Court held that the common law of defamation, as it then stood, unreasonably restricted speech under Article 19(1)(a). This was because common law defamation imposed a regime of no-fault liability: in case of factual errors, the speaker could not escape liability by showing that she had taken reasonable care in checking the veracity of her statement. Following the established jurisprudence from the United States and Europe, which had modified civil defamation law in order to bring it in line with the guarantee of freedom of speech, the Supreme Court adopted the “Sullivan test“: in making statements about public officials, speakers were liable only if it could be shown that they had acted with “actual malice” – that is, having knowingly spoken falsely, or acted with reckless disregard for the truth.

The concept of “reasonableness” in the context of defamation and free speech, therefore, was considered and decided by the Court in Rajagopal. Now criminal defamation, under Section 499 of the IPC, contains a far lower threshold than this. It follows pre-Rajagopal law in criminalising false statements without regard for due care, and also adds an additional “public interest” requirement to the defence of truth (in civil law defamation, if it can be shown that the statement was true, there is no liability). The core of this argument, therefore, is that the regime of criminal liability set up by Sections 499 and 500 goes beyond the “reasonableness” requirement of Article 19(2).

It is vitally important to distinguish the first and the second argument. According to the first argument, criminalising defamation per se is unconstitutional. According to the second argument, the legal regime of defamation as set out in Sections 499 and 500, is unconstitutional. Unfortunately, it is a distinction that is entirely lost upon the Court. In its judgment, the Court spends reams and reams of pages dealing with the apparent importance of reputation, and how criminalising defamation is proportional. However, it pays no attention to the fact that the language of Section 499 sets up an even harsher regime than was found to be unconstitutional in Rajagopal, in the context of civil defamation. As a result, we now have a truly bizarre position in Indian law: civil defamation law is more speech protective than criminal defamation law. This turns jurisprudence entirely on its head.

The judgment itself is difficult to read and analyse. It is 268 pages long, and most of it is irrelevant, since it either describes various judgments, or incorporates quotations from various sources such as the Gita, and Patrick Henry. Very broadly, however, this seems to be the flow of the judgment. The first 69 pages are spent in rehearsing the submissions of counsel. Pages 69 to 73 are spent discussing the meaning of “defamation” (on which there was really no controversy). On Page 73, there is a heading titled “Concept of Reputation“, with sub-headings such as “Vision of the Ancients” and “Thoughts of Creative Writers and Thinkers.” Following this, judgments from various Courts are excerpted that talk about the importance of “reputation”, with the conclusion that the right to reputation is an “inseparable facet of Article 21.” (page 97) This goes on until page 97.

From page 98, the Court considers the freedom of speech and expression. It spends about twenty-five pages dealing with a submission that seems to be something of a straw man: that the word “defamation” under Article 19(2) ought to be read in conjunction with “incitement to an offence“, which follows it, and therefore be given a restricted meaning. After citing extensively from the Constituent Assembly Debates, the Court rejects this submission. Without going into the merits of the Court’s examination of the Constituent Assembly Debates, this argument proves nothing. The core of the case against criminal defamation is not that the word “defamation” under Article 19(2) must be read to exclude criminal defamation, but that criminalising defamation in the manner that the Indian Penal Code does is an unreasonable restriction upon free speech.

From page 123, the Court considers the argument that criminalising defamation is disproportionate, since defamation is a private wrong. The Court observes:

“Individuals constitute the collective. Law is enacted to protect the societal interest. The law relating to defamation protects the reputation of each individual in the perception of the public at large. It matters to an individual in the eyes of the society. Protection of individual right is imperative for social stability in a body polity and that is why the State makes laws relating to crimes. A crime affects the society. It causes harm and creates a dent in social harmony. When we talk of society, it is not an abstract idea or a thought in abstraction. There is a link and connect between individual rights and the society; and this connection gives rise to community interest at large.” (page 123)

This, however, is no reasoning at all, since it effectively dissolves the distinction between private and public wrongs altogether. If individuals make up society, and if therefore a wrong to an individual is ipso facto a wrong to society, then there’s no such thing as an individual wrong in the first place.

The Court attempts to buttress its argument by citing numerous English authorities that have questioned the distinction between public and private wrongs. At the end of its citations, however, it accepts the distinction as lying between the violation of individual civil rights, and breaches of “public” rights or duties. (page 127) The Court then spends a few pages extracting quotations from various judgments that talk about what constitutes a crime. At the end of it, it observes that “it cannot be stated that the legislature cannot have a law to constitute an act or omission done by a person against the other as a crime. It depends on the legislative wisdom.”

No further analysis is offered on this point. The main contention – that criminalising a private wrong is a disproportionate – and therefore, unreasonable – restriction upon free speech, is not considered by the Court.

From page 138, the Court embarks upon a topic titled “Sanctity and significance of freedom of speech and expression in a democracy.” The next 30 pages may be skipped, as the Court extracts quotations from various judgments dealing with value of freedom of speech in a democracy. From page 166, it begins a discussion on “reasonable restrictions”. Various judgments are extracted. The Court sums up its discussion by observing that “The principles as regards reasonable restriction as has been stated by this Court from time to time are that the restriction should not be excessive and in public interest.” (page 175) This, it bears repeating for the umpteenth time, is entirely incorrect. Article 19(2) does not have a public interest restriction. Numerous judgments, from Shreya Singhal to Sakal Papers, have pointed this out. Other sub-clauses under Article 19 do. The Court cannot justify restrictions upon the freedom of speech by invoking public interest. It is extremely unfortunate that this basic textual error continues to be made, sixty-five years after the Constitution.

From reasonable restrictions, the Court then leaps straight to Article 21. No analysis is given about the link between the two. Under a heading called “Balancing of Fundamental Rights”, commencing from page 182, the Court deals with “balancing” the right to reputation under Article 21, and the freedom of speech and expression under Article 19(1)(a). After spending a few pages dealing with various cases on balancing rights, the Court then cites the In Re Noise Pollution Case (whose incorrect reasoning I had commented on a few days ago) to hold:

“Reputation being an inherent component of Article 21, we do not think it should be allowed to be sullied solely because another individual can have its freedom. It is not a restriction that has an inevitable consequence which impairs circulation of thought and ideas. In fact, it is control regard being had to another person’s right to go to Court and state that he has been wronged and abused. He can take recourse to a procedure recognized and accepted in law to retrieve and redeem his reputation. Therefore, the balance between the two rights needs to be struck. “Reputation” of one cannot be allowed to be crucified at the altar of the other’s right of free speech.”

Except that, this is a complete non-sequitur. It is nobody’s case that reputation be “crucified” at the altar of free speech. The Court needs to explain why taking away a criminal remedy amounts to “crucifying” reputation. It does not even attempt to do so.

Matters grow worse in the next paragraph, however, because the Court then says:

“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.” (page 199)

If the previous passage contained a non sequitur, then this one is simply incorrect. Whether or not criminal defamation has a chilling effect is entirely independent of whether reputation is a basic element of Article 21, and legislative “wisdom” in keeping it alive. The chilling effect refers to the manner in which over-broad and severe laws “chill” speech. It takes the existence of a law as a given, and it is that law which must be examined for its chilling effect. Instead, the Court seems to be saying that the existence of a law means that there can never be a chilling effect!

On page 205, the Court begins an examination headed by the ominous phrases “constitutional fraternity” and “fundamental duty“. After excerpting some passages on the meaning of fraternity, it then says that “The individual should have all the rights under the Constitution but simultaneously he has the responsibility to live upto the constitutional values like essential brotherhood – the fraternity – that strengthens the societal interest. Fraternity means brotherhood and common interest.” (page 208)

This is all very well as a moral point, but as a legal standard, it’s rather vague and entirely irrelevant. It was not enough that the right to freedom of expression could be restricted on the eight grounds stipulated in Article 19(2). It was not enough that the Court would then bring in a boundless Article 21, and use it as a sword to cut down free speech further. Over and above all of that, the Court introduces a further ground for restricting speech: the “duty” of “constitutional fraternity”. At this stage, it is difficult to see what remains of Article 19(1)(a). The Court follows this up with an even more disturbing discussion about “constitutional duties” under Part IVA of the Constitution (which are expressly unenforceable), holding that “respect for the dignity of another is a constitutional norm. It would not amount to an overstatement if it is said that constitutional fraternity and the intrinsic value inhered in fundamental duty proclaim the constitutional assurance of mutual respect and concern for each other’s dignity.” (page 214 – 215) “Fraternity” and “fundamental duties”, neither of which are found anywhere in Article 19(2) or Part III, have become tools to restrict the freedom of speech and expression.

The Court spends the next thirty pages of its judgment examining the scope of Section 499 itself. After citing many judgments, it comes to the conclusion that the provisions of Section 499 are not vague. As I pointed out at the beginning of this post, however, it fails entirely to deal with the issue of no-fault liability as disproportionate under Article 19(2). In fact, it goes further, and justifies the additional public interest requirement under the First Exception, in the following way:

“… 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 public 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.”

This, however, seems to be an unnecessary requirement. If I correctly state that you suffer from AIDS, or have been born out of an adulterous affair, then I may be liable to you in an action for privacy. Why would this lead to an action for criminal defamation? And why, when there exists a remedy in a claim for privacy, is there a need to have an additional remedy for criminal defamation?

The Court concludes (more or less) with the following observation:

“One cannot be unmindful that right to freedom of speech and expression is a highly valued and cherished right but the Constitution conceives of reasonable restriction. In that context criminal defamation which is in existence in the form of Sections 499 and 500 IPC is not a restriction on free speech that can be characterized as disproportionate. Right to free speech cannot mean that a citizen can defame the other. Protection of reputation is a fundamental right. It is also a human right. Cumulatively it serves the social interest.”

The last twenty pages of the judgment deal with the procedure for defamation under Section 199 CrPC, which I will not examine here.

At the end of all this, however, the following points should be clear. The Court spends 268 pages excerpting quotations, extracting cases, and making blanket assertions without justification. It fails to do the following:

(a) Explain how defamation is a public wrong (stating that society is an aggregation of individuals does not count)

(b) Explain why, if defamation is a private wrong with elements of a public wrong, criminalisation is a proportionate response

(c) Explain why no-fault liability and an added test of public good in the defence of truth is proportionate and reasonable, especially in the light of Rajagopal’s Case, and consistent jurisprudence from across the common law world

(d) Explain why the chilling effect is not a valid concern

(e) Explain why the “balancing” between the enumerated right to freedom of speech and the unenumerated right to “reputation” under Article 21 yields criminalising defamation as the solution

(f) Explain how fraternity and fundamental duties have become independent grounds to restrict free speech

In addition, the judgment continues the profoundly disturbing trend of using Article 21 as a sword to limit other fundamental rights, an issue I had written about a few days ago.

Lastly, the judgment is difficult to analyse not only because of conceptual slippages and screaming silences where there should be argument, but also because of its language. What, for instance does it mean to exposit “cavil in its quintessential conceptuality and percipient discord“? What is an “asservation“? What is an “oppugnation“? What does it mean to say that “reputation is fundamentally a glorious amalgam and unification of virtues which makes a man feel proud of his ancestry and satisfies him to bequeath it as a part of inheritance on posterity“? Do Judges not have a duty to write clearly, stick to the point, and give reasons for their conclusions? Unfortunately, the indiscipline with which the Court examines the law and the Constitution here, is equally matched by its indiscipline with language.

The result is not pleasant.