First thoughts, unedited
The Supreme Court's judgment which says that criminal defamation law is constitutional is not difficult to criticise. It appears to represent a worldview which many liberals would likely be unwilling to claim as their own, its prose is so purple that it is almost incomprehensible at some points, it introduces what purport to be legal concepts thus far unknown to the Indian corpus juris, and contains vast amounts of questionably relevant content.
Defamation in India is, of course, both a civil wrong and a criminal offence. The so-called ingredients of the two are, however, not identical. In the case of civil law, for example, a dead person cannot be defamed and truth is generally considered to be a defence to allegations of defamation. As opposed to this, under Section 499 of the 1860 Penal Code, a dead person can be defamed, and truth is not automatically a defence to allegations of defamation: it is possible that there would also have to be a 'public interest' justification for the publication of content which could be considered to be defamatory.
The court appears to appreciate this distinction, and it states:
"The counter argument is that if a truthful statement is not made for any kind of public good but only to malign a person, it is a correct principle in law that the statement or writing can amount to defamation. Dr. Singhvi, learned senior counsel for some of the respondents has given certain examples. The 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 pubic 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. Needless to say, what is public good is a question of fact depending on the facts and circumstances of the case."It isn't at all clear why, as the court appears to believe, an imputation of a person having been raped is or should be considered defamatory, truthful or not (even though, here, the comments assume that the hypotheticals postulated are accurate). What is reasonably clear though is that the examples provided are quite firmly grounded in India's socio-cultural ethos which often has the unfortunate tendency to unfairly privilege the collective over the individual, conservative appearances over possibly liberal realities.
The examples in the one paragraph extracted also reveal quite a bit about the manner in which defamation is viewed within the judicial system, and explain why it is utterly unsurprising that it is arguably easier, in some ways, to defame a person under the substantive provisions of criminal law than it is under the historically-defined principles of tort law. If not anything else, tort law treats truth as a defence to allegations of defamation, criminal law does not necessarily treat truth as a complete defence. That said, when one takes into account the procedural laws, it becomes difficult to sustain any argument relating to which law is 'worse' than the other.
There are no easy comparisons: on one hand, when it comes to practice, there is very little doubt that a criminal case, regardless of what its ultimate outcome is, is far more onerous for a person accused of defamation to have to deal with than a civil case (which can often be almost entirely left in the hands of lawyers). On the other hand, the burdens of proof differ, and if the aim is actually to protect a reputation, the standard of proof required in civil court is lower than that which a criminal court would demand.
Criminal defamation, if anecdotal evidence is anything to go by, is, however, not used solely as a tool to protect reputations. It is extremely susceptible to being used as a 'matter of strategy' to contain speech by individuals: allegations of rape, for example, could be countered with the filing of a defamation FIR with the police. Oddly enough, the arguments against criminal defamation do not appear to contain reference to the spectre of misuse or, in fact, any data-based statements relating to the effects of criminal defamation. It appears that the possibility of misuse was instead brought up in arguments supporting the continued existence of Section 499:
"Moreover, given the presumption of constitutionality, it has also been held by this Court that in judging the reasonableness of restrictions, the Court is fully entitled to take into consideration matters of common report, history of the times and matters of common knowledge and the circumstances existing at the time of legislation. The concept reasonable restriction conveys that there should not be excessive or disproportionate restriction. Merely because law of criminal defamation is misused or abused would not make the provisions unconstitutional if they are otherwise reasonable."Going by the judgment, the arguments against criminal defamation focus on constitutional interpretation and jurisprudence, proportionality, and reasonableness. They appear to have reiterated that an alternative remedy for defamation exists at tort law (without having clearly explained why the existence of alternatives is unacceptable). They do not, however, appear to have convinced the court that the relevant criminal law provisions should be struck down.
The court's reasoning is not always easily penetrable: its differentiation between public and private wrongs is far from clear, it refers to scripture and works of literature without clear indication of why it does so, and it speaks of such things as (unenforceable) fundamental duty and 'constitutional fraternity' which is quite simply not an established constitutional concept:
"Fraternity as a concept is characteristically different from the other constitutional goals. It, as a constitutional concept, has a keen bond of sorority with other concepts. And hence, it must be understood in the breed of homogeneity in a positive sense and not to trample dissent and diversity. It is neither isolated nor lonely. The idea of fraternity is recognised as a constitutional norm and a precept. It is a constitutional virtue that is required to be sustained and nourished."Despite not being a model of clarity, and despite its conclusion arguably being a disappointment, the decision does not appear to significantly impact existing law. For better or worse, courtesy the Supreme Court's decision in the case of Subramanian Swamy v. Union of India, Ministry Of Law & Ors., defamation continues to be a crime in addition to being a civil wrong.
(This post is by Nandita Saikia. It was first published at Indian Copyright and is roughly based on tweets available at twitter.com/nsaikia.)