Criminal Defamation and the Valley of Woes it Resides in

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In the Indian Penal Code, 1860, a veritable tome that makes for the most literal symbol of justice served, the provisions relating to criminal defamation sit cosily between sections pertaining to cruelty meted out to a wife by her husband, and criminal intimidation. Section 499 of the Indian Penal Code criminalises speech that is purported to vilify or malign the reputation of any person. Section 500 outlines the punishment for criminal defamation, which holds a person liable for imprisonment up to two years (with or without a fine).

Defamation in essence is a private wrong — done to the antagonization of a particular individual. Indian law recognizes its private nature as a civil wrong, or a tortious act, as is commonly bracketed in. The institution of criminal defamation however, is a by-product of colonial rule in India which provides for jail time for an offence which is not at its crux, criminal. There has been considerable clamour surrounding its omission as a criminal offence.

What (Doesn’t) Make Defamation Criminal

The law of defamation rests on precarious footing. It originates from the early religious authority of the Church in Europe which considered defamation a sin as grave as that of sexual immorality. As the power of the Church dwindled, secular courts continued to treat criminal defamation with the same trepidation as that of their predecessors. Several note that the criminal defamation law as it stands today is a product of patriarchy, fostered by aggressive, toxic masculinity. This is relevant when we consider the catalyst of the modern day movement against criminal defamation.

Interestingly though, on a purely technical scale defamation is not criminal at its core. The question pushing any movement against criminal defamation ask this: how can a wrong which is not inherently criminal, have entirely criminal consequences as severe as criminal defamation does? Consider for a split second, the primary defence to a criminal defamation action: truth. However the defence of truth is no good, in and of itself. A defamatory act has to be both truthful and in public interest and necessarily for public welfare. The defence is a vague fusion of truth and public interest. What this ambiguity does, is give corporations, authorities, government bodies and what-have-you, enough leeway to legally prosecute any of their detractors– and in most cases, get away with it.

Of course, civil action for defamation is not without its constraints. But even without turning to the minefield of questioning if defamation even needs to be some kind of legal wrong, its criminalization is definitely problematic. Across the world, criminal defamation law is proving to be problematic. A criminal defamation suit does more to harass than it does to protect. In the USA, Louisiana’s criminal-libel law has been declared unconstitutional, in part because it restricted the use of truth as a defense and did not require proof that forbidden statements were uttered with malice. In December 2018, the ACLU (American Civil Liberties Union) undertook such a criminal defamation lawsuit, which they hope to use as a test-case to abolish all criminal defamation laws across the country.  A substantial portion of the ACLU’s argument in the context of American law is also pretty relevant to India. For instance, they find the statute determining what is defamatory to be impermissibly vague — something which is also characteristic of the Indian approach. By extension, it argues that the line between protected speech and defamation is too obscure in civil law claims themselves, that a criminal action is entirely inappropriate keeping in my mind how arbitrary and selective enforcement can be.

Catalyst to Criminal Defamation

While criminal defamation has been around for a long time, it’s recently come to the forefront in light of the #MeToo wave that’s caught the country by storm. Instances of outed perpetrators using the criminal defamation law to slam down on the women who have accused them of sexual harassment and sexual impropriety are rampant. Union Minister M. J. Akbar launched a criminal defamation suit against, Priya Ramani, who accused him of sexual assault. Veteran actor Alok Nath’s wife has initiated a criminal defamation lawsuit against writer-director, Vinita Nanda who had accused Alok Nath of rape.

One article aptly points out the incredulity of the Indian criminal justice system in this respect: the very functioning of the criminal justice system that discouraged women from using it to deal with instances of sexual harassment is now being used to further silence them. That criminal defamation cannot be used to silence and stifle is one argument, but its usage to maliciously impede legal recourse after individuals have suffered the sort of fundamental, personal harm that sexual harassment brings, is a different matter entirely.

The Lack of a Constitutional Case for Criminal Defamation

Admittedly, this aspect of the piece is a little more technical than needs to be for the purposes of defending any stance against criminal defamation. However it is important to consider that criminal defamation actions often do not fulfil the most basic and fundamental of constitutional tests to be considered legitimate and lawful actions.

The Supreme Court of India has stood by the constitutional validity of Section 499 and has not found the need to ensure any further checks and balances to prevent abuse. And yet, the Constitution of India permits the right to freedom of speech and expression to be curtailed only by a reasonable restriction. Reasonableness has to be proportionate and essential- in that it must be absolutely necessary to restrict a right to the extent that is done, and that there must be no alternative mechanisms which can also achieve the same result without stepping on such freedom. Criminal defamation fulfills neither category. Here, there is a disproportionate repercussion of the exercise of free speech, without any sort of essentiality being shown to the ‘crime’.

The Indian laws per se are convoluted, especially when it comes to criminal defamation. However a push for change in both the legislations and in the judicial precedent is necessary. Freedom of speech must exist without the fear of prosecution, without the threat of disproportionate criminal action and without unnecessary legal riders. We might look at criminal defamation through the lens of #MeToo, or from a purely academic context. The underlying stance however, invariably points to its omission. And as such, criminal defamation and the valley of woes it resides in, must go.

Priyanshi Vakharia is the Program Officer, Feminist Justice at One Future Collective.

Featured image: Riki Tsuji, Naptime Comics

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