[mks_dropcap style=”letter” size=”52″ bg_color=”#ffffff” txt_color=”#81d742″]T[/mks_dropcap]he society is filled with “he said, she said” talks. Out if these, some are true and some are just farfetched truth or exaggerated versions of the truth which might result in deterioration of an individual’s reputation leading to his boycott or some other kind of hurtful acts by the society. This is called defamation.  A more technical definition can be found under Section 499 of Indian Penal Code, 1860 which clearly means that defaming someone is an offence under the penal law and thus the person found guilty of it will be either imprisoned or had to pay fine or both, according to Section 500 of the same code. But penal law is not the only remedy for the victim. The victim may file a suit under civil law, can ask for damages and return to his former self with a clean name. So which one to choose? I would go for civil suit. Why would I do so? Of course I’ll be frustrated with the person responsible for ruining my reputation and causing me so many problems, so why? Because I think that many times a person doesn’t intend to defame others, the defamatory statement might be his own opinion and Article 19 of Indian Constitution gives us the freedom of speech and expression.

I can understand that many times the act of defamation may lead to some grave damage which might be irretrievable but on the stake of a fundamental right, giving legality to such provisions is wrong and against constitutional morality. This is not a mere assertion.  Criminal defamation in each and every way is against Article 19 and we need to do away with it. Its effect may not be direct however, is still present. For example-

Let’s talk about the recent AIB Roast controversy. Of course it’s not related to defamation but it’s indeed related to freedom of speech and expression. When AIB crew and the Bollywood stars did this act they were criticized by many as per their morality and AIB said that they just practiced their right under Article 19 which is correct. Then Amir Khan expressed his intolerance towards this act and he was heavily criticized by people for not being open-minded.  Although I am not sure but I think that this reaction by people against Amir Khan affected other stars and thus Kareena Kapoor and Shahrukh Khan in a very diplomatic way stayed away from taking any stand regarding this matter. Did you see what happened? When Amir Khan took his stand, he exercised his freedom of speech and expression and was greatly criticized. This criticism in a way prevented others from expressing their own views and thus the freedom of speech and expression was not exercised.

On the same lines what if-

There is a news channel A, which aired something about a minister B and he though it to be defamatory. B filed a case of criminal defamation against the chairman of A and won the case. Thus, the chairman was sent to jail. Now other news channel will avoid saying anything wrong about B because they are afraid of defamation law, which might lead to their imprisonment.

In the AIB Roast example Amir Khan just faced criticism and the other stars started avoiding the topic. In the news channel example a person would be imprisoned and imprisonment is not a small issue. A person when sent to prison has a tag of a criminal with him and this will hounds him throughout his life.

When you read it in a hypothetical situation you might not feel much concerned about it but imagine it in the macroscopic level where the opinion expressed concerns the country. Recently when AIADMK supremo Jayalalithaa filed five case of criminal defamation against BJP leader Subramanian Swamy, he challenged the legality of Section 499 and Section 500 of Indian Penal Code, 1860.  He argued that expression of an individual’s opinion for the country or for social interest should outweigh the right to reputation, a personal right and that the law of defamation has just become a tool of harassment. The court while summarizing these contentions opined that-

“In a democratic body polity, public opinion, public perception and public criticism, are the three fundamental pillars to guide and control the executive action and, if they are scuttled or fettered or bound by launching criminal prosecution, it would affect the growth of a healthy and matured democracy.”

It’s high time that India realizes it and walk on the path paved by United Kingdom. The Parliament of UK has abolished sedition and criminal defamation in 2009. Also the Parliament came up with The Defamation Act, 2013 which strives to regulate the balance between the protection of reputation and freedom of speech and expression. Though in India tort laws doesn’t prevail much but decriminalizing defamation is progressive step and India should take it.