DC debates whether the law of criminal defamation needs to be amended
Defamation needs penal punishment:
The renowned jurist William Blackstone has said, “Every man is entitled to have his reputation preserved inviolate”. These words convey that the reputation of a man is much more valuable than most materialistic marvels. It is the state of being held in reverence and high honour. Causing any sort of damage to such reputation without a lawful justification would amount to defamation.
Defamation, unlike most other offences, is both, a civil and a criminal wrong. It is codified under the criminal law and is contained in the Indian Penal Code. Further, in my opinion, the law of defamation would not invade the Right to Freedom of Speech and Expression as it is rendered as a ground to lay down a constitutional limitation as inscribed under Article 19 (2) of the Constitution of India.
Criminal proceedings can be set in motion in the cases where the aggrieved person seeks punishment of the offender whereas civil proceedings only provide for an award of damages after the trial. In order to initiate civil proceedings for defamation, the aggrieved party is mandated to pay a “court fee” at the time of filing. There is no such prerequisite in respect of criminal proceedings. In fact, criminal proceedings for the said offence can only be initiated after the filing of a private complaint before the court and the police, as such, does not have a right to register a FIR.
Moreover, after the recent judgement of the apex court in the Priyanka Srivastava and another vs state of UP and others; which held that at the time of filing, every complaint has to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the magistrate. This norm, coupled with the provision that prevents the police from directly registering a FIR, ensures that the filing of false criminal cases is minimised by a large margin if not eradicated. Moreover, there are about 10 exceptions under Section 499 of the Indian Penal Code that clearly establish what does not fall within the purview of defamation.
In my view, that in several cases, monetary compensation in itself would not substantiate the agony of a defamed person. Unlike many Western countries, Indian courts do not have a practise of awarding superfluous amounts as damages/compensation and are nominal in comparison. Therefore, if the threat of punishment under the penal provisions is annulled, the rich and the powerful would not have any impelling reason preventing them from initiating a negative propaganda or making scandalous allegations without any lawful consideration when it works to their advantage.
To conclude, I would state that the continuation of having a penal provision for defamation is indispensible in the present scenario in order to protect and safeguard the interests of aggrieved persons. T. Pradyumna Kumar, Hyderabad High Court advocate.
Why criminalise a civil wrong?:
The law of defamation protects the reputation of an individual or body, that is the estimation in which he (or it) is held by others. There is no doubt that there is a positive obligation on the state to adopt measures designed to secure the privacy and dignity of individuals. The criminalisation of defamation should be understood with a flavour of history. Lord Macaulay’s gift to the British in the wake of the First War of Independence (sepoy mutiny) was his criminal law proposal which resulted in the Indian Penal Code, 1860, and the Code of Criminal Procedure, 1872. Section 499 of the IPC, which deals with criminal defamation, has to be understood in this context. The said provision was used to nip any criticism of the then government. So the said provision, as it stands today, lacks strong jurisprudential foundation and is endowed with a colonial elevation.
Perhaps, on realising this, the CrPc, 1973, (Section 199) restricts any court from taking cognisance of an offence under Section 499 unless the affected person himself makes a complaint. Once such complaint is made, the magistrate has the power to examine the same as per the provisions of Chapter 15 of the Code. Under the said Chapter, the magistrate can even dismiss the complaint if he is of the opinion that no sufficient ground is made out for proceeding further.
However, the question that arises now is whether such meagre restrictions justify the criminalisation of defamation along with its historical background. This question garners further interest if looked at in the light of Article 19 of the Constitution of India. The Constitution recognises a fundamental Right of Freedom of Speech and Expression, which is subject to reasonable restrictions.
A reasonable restriction should not curtail the right in its entirety. Hence, it goes unsaid that any criticism of an individual or the state cannot be restricted. The Parliamentary Assembly of the Organisation for Security and Cooperation in Europe has recommended the abolition of any law that provides for criminal penalties for the defamation of public figures and State organs. On very similar lines, the United Nations has resolved that criminal defamation is not a justifiable restriction of freedom of expression.
However, the complete abolition of criminal defamation might not be a good idea and it might even lead to a public order problem. An act which affects the social personality of a private individual cannot be treated as crime and it cannot find place in the criminal code as a punishable offence. Criminalisation of a private civil wrong is in consistent with the Indian criminal jurisprudence. By punishing a person for allegedly committing an act of defamation, no public good is going to be achieved and in that the state plays no role. If this is the case, then there is no role for Section 499 in the statute book. S.S. Prasad, Senior advocate, Hyderabad HC.
( Source : deccan chronicle )
Next Story
