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Introduction

The Constitution of India has guaranteed various Fundamental Rights enshrined under Part III. Freedom of Speech and Expression is one of the most crucial rights guaranteed under Article 19(1)(a) of the Constitution. The right not only empowers the citizens to freely express their opinion, but also gives them the right to dissent. In a democratic institution, especially in the world’s largest democracy, dissenting views should be equally welcomed and appreciated without resistance. But, unfortunately, the right is not absolute in nature, and lies at the helm of Article 19(2).

During the debates of the constituent assembly, there were various vociferous voices on the freedom of speech and expression. Under the Draft Constitution, the term “sedition” as a restriction jeopardised the entire notion of the freedom. Pandit Thakur Dass Bhargava with a broader outlook moved the House with a far-reaching and visionary proposal of substituting “reasonable”, and omitting “sedition”. After several deliberations upon it, the framers of the Constitution overwhelmingly added “reasonable” with the purpose that the Court could judiciously decide on whether the restrictions imposed by the legislators are proper, reasonable and necessary to maintain public order.

Criminal Defamation as a Step Back

The Hon’ble Supreme Court of India has been endowed with the responsibility to safeguard the sanctity of the Constitution, also known as the ‘Custodian of the Indian Constitution’. India in the 21stCentury cannot only be called as the largest democracy, but the vibrant and progressive democracy. We are pacing real fast to reach these goals, but there are several setbacks which pull us back to the medieval times. In a democracy, the citizens must be ensured of absolute civil and political rights. India vows to these very tenets by also being a signatory to various conventions, but does not fully guarantee it to the citizens. Yet, due to the prevalence of several discriminatory and draconian laws used as a weapon to maintain an authoritarian regime jeopardises the ultimate goal. Many archival laws such as sedition, criminal defamation, etc. stand constitutionally valid. The legislature has shown zero intent to abrogate it, and used it as an excuse to maintain public order by imposing ‘reasonable’ restriction.

The Hon’ble Supreme Court has also failed to hold these laws unconstitutional. In KedarNath’s case, although the Court showed its concern, but failed to declare the provision of Section 124-A of the Indian Penal Code unconstitutional. Today, in the present scenario, we have witnessed several instances where it has been used as a weapon to suppress the dissenting voices against the current dispensation. The Hon’ble Supreme Court of India in Subramaniam Swamy’s petition challenging the constitutional validity of Section 499 & 500 of the Indian Penal Code upheld the validity of the said provisions. The judgment led to both positive and negative reactions. Many in the political spectrum welcomed the judgment calling “free speech is still free”. The court observed that defamation tarnishes the reputation of an individual, and every individual has a Right to Reputation which has been brought under Right to Life and Liberty guaranteed under Article 21 of the Constitution. The propagators of criminal defamation also supported the judgment, by mooting on the point that Article 19(1)(a) guaranteeing Freedom of Speech and Expression, and Article 21 guaranteeing the Right to Life and Liberty have learnt to coexist. But, the same judgment has received equal criticism from several civil society organisations, intellectuals, and general public. The world is fast moving towards an era of progress where freedom to criticise is equally appreciated, and defamation laws, if upheld are mooted to be civil in nature, which is imposing compensation rather than imprisonment.  Even in the Constituent Assembly, in the words of Pandit Thakur Dass Bhargava “in so far civil defamation is concerned truth is the absolute defence, but so far as criminal defamation is concerned the greater the truth the greater the defamation”.

Misuse of the Law

The provision of Criminal Defamation had been enacted to safeguard the personal reputation of an individual, as also observed by the Hon’ble Apex Court. But, after the much criticized verdict, the law has given wider powers to the legislators, especially ministers to settle political score and suppress any form of criticism under the ambit of criminal defamation. Taking the jibe at the State of Tamil Nadu, the Hon’ble Court has taken a cautionary note at the growing number of cases of criminal defamation reprimanding the government to throttle democracy. But, the Hon’ble Court is no less to be blamed here. The court, though rightly observed the Right to Reputation under the ambit of Article 21, but failed to foresee the future consequences of it by upholding the constitutional validity of criminal defamation.

Tamil Nadu is the most striking example of the misuse of defamation law. In the last five years, more than three defamation cases are filed every month. The Chief Minister herself is involved in 85 of the cases out of 200. Now, a clear inference can be made that the political class has received a political weapon, and how they seek shelter in the lee of the law. The criminal defamation case, and the issuance of non-bailable warrants against the DMDK chief Vijaykanth and his wife for objecting to the misuse of criminal defamation laws, clearly indicate the suppression of any criticism and dissenting opinion. The tug of war between the political classes is fought with the rope of criminal defamation, as seen under various instances. Now, the question arises, that if the ultimate aim was to safeguard the individual reputation, then why is it being used to settle political scores? Although, the Supreme Court’s boldness for not tolerating the misuse of law, has been widely appreciated, but the Court must also keep a broader outlook by issuing comprehensive guidelines for invoking the provisions of criminal defamation. As the trauma of litigations, and the expenses cause much inconvenience to the litigant. And, it is equally important for the court to safeguard the citizens from any such unfair malpractices.

Need to bring a Reform

Unlike the ruling for criminal defamation, the Hon’ble Supreme Court of India had taken a progressive step in the case of the Shreya Singhal v Union of India. Another draconian provision, Section 66A of the Information and Technology Act was held to be unconstitutional. The provision led to the criminal charges against cartoonist, bloggers, etc for freely expressing their opinion. Section 66A of the IT Act clearly destroyed the notion of free speech. And, the Court by scrapping it upheld the sanctity of the constitution. India is a nation that practices liberal democracy. The path to wholly establish the tenets of a free society is yet to be achieved. There are reformatory decisions like the one in Shreya Singhal that enhances the citizen towards the progressive direction. But, it is a long journey. The restrictions later became as ‘reasonable restriction’ under Article 19(2) to check whether any imposition is proper and just. Freedom to express one’s opinion is the beautiful tenet of any democratic country, and any means to withhold it must not be prevalent in the age of growth, development and FREEDOM. It is equally understandable that in a diverse and multi-cultural country like India, certain restrictions are unavoidable. But, these restrictions must be carefully scrutinized, and regular deliberations must be held in the public domain to check its consistency with the law. Any law, having ill-effect and used in a rather discriminatory manner must be debated upon.

As said by Pandit Thakur Dass Bharagava in the Constituent Assembly “when you arm the legislature with such plenary powers to make any law and that law is not subject to scrutiny by the courts, it means that the legislature is given a free hand and the freedom of speech will be reduced to a mere farce”.

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Shreyan Acharya is an enthusiastic individual who has a passion to write on several critical issues. He is an avid reader who has a keen interest in reading about national issues, public policies and laws. He has gained significant experience in professional life by interning under lawyers and law firms. He strongly believes in giving time in voluntary work which can be either by writing or direct participation.