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Defamation And Free Speech

The most important thing for a young man is to establish a credit ... a reputation, character. - -John D. Rockefeller

Reputation is among the most treasured and powerful assets that one possesses. Defamation, in law means attacking another's reputation by a false publication (communication to a third party) tending to bring the person into disrepute[1].

In the present time, defamation has become a controversial and infamous issue; courtesy of the increasing media frenzy that has emerged over freedom of speech and expression as given in Article 19(1) (a). Defamation law serves as a restriction to the fundamental right to freedom of expression provided in Article 19(1)(a) of the Indian Constitution. With time, this article has been widely interpreted courtesy judicial interpretation, to cover "freedom of the press."

However, this right is not absolute, as Article 19(2) requires the State to enact laws that impose "reasonable restrictions" on such freedoms. Restrictions can be given in various situations, including situations that are, inter alia, in the national interest; for the maintenance of public order; or in reference to contempt of court or defamation. In the minds of people, whether in their private or public capacity, there is apprehension of what comment of theirs could constitute an uproar or put them in trouble. In this context of the debate alluded to above, the purpose of the paper is to explore the conceptual meaning of defamation, its essentials and how it is categorized in India and the defamation debate and judicial intervention in this regard by going through the judgement of Subramanian Swamy v. Union of India[2].

Defamation: Definition And Essentials

Defamation in law is an assault on the credibility of another person through a false publication (communication to a third party) that seeks to deceive the person. The definition is enigmatic and is constrained in its variations only by human inventiveness. While defamation is the invention of English law, there were related doctrines a few thousand years ago. In Roman law, violent shouting was punishable by capital punishment.

In early English and German law, insults were punishable by vocabulary cuts. As long as the 18th century in England, only the imputation of criminality or social disorder and the application of aspersions to professional honesty constituted slander, and no crimes were committed until the Slander of Women Act of 1891, which made the imputation of unhappiness unconstitutional. Historically, French laws on defamation were more severe.

The act of 1881, which inaugurated modern French defamation law, mandated a visible retraction of libelous content in newspapers and permitted truth as a defense only when the publications involved public figures. Modern defamation of Germany is similar, but usually permits defense of truth. In Italy, defamation is criminally punishable and truth can be argued as a legitimate defense.

Put simply, defamation requires the publication to be fraudulent and without the permission of the supposedly defamed party. Words or photographs shall be interpreted in compliance with traditional use and in the sense of printing. Injury to emotions alone is not defamation; there must be a loss of reputation. The defamed party does not need to be identified, but must be recognizable. A class of individuals shall be deemed defamed only if the publication applies to all its members, in particular if the class is very small-or if the members are explicitly accused.

Defamation, in law, can be bifurcated into two: libel and slander. Libel is a defamation of written words, photographs, or some other visual symbol in a print or electronic format (online or online). The defamation of Slander is spoken. This classification was complicated by the emergence of early broadcasting (radio and tÚlÚvision) in the 20th century, much like social media did in early in the 21st century.

Defamation Law In India

According to Indian criminal there is no distinction between libel and slander. Both libel and slander are criminal offences, unlike English criminal law where only libel is a criminal offence and slander is not. Defamation is considered an offence under both civil and criminal law.

Criminal defamation:
The aim to defame is essential in a criminal suit. The allegation should be made with a malicious intent to defame another, or at least the knowledge that publishing is likely to defame another is essential. It must be proven beyond reasonable doubt that the act was being undertaken to diminish the reputation of another individual. Under criminal law defamation non-cognizable and bailable.

The IPC under chapter XXI sections 499-502 protects an individual's / person's reputation.

Section 499 of the IPC defines 'defamation' as being committed:
  1. Through: (i) words (spoken or intended to be read), (ii) signs, or (iii) visible representations;
  2. Which: are a published or spoken imputation concerning any person;
  3. If the imputation is spoken or published with: (i) the intention of causing harm to the reputation of the person to whom it pertains, or (ii) knowledge or reason to believe that the imputation will harm the reputation of the person to whom it pertains will be harmed.
For this definition there is four explanation and 10 exceptions.[3] If a person is found guilty having committed defamation under section 499 of the IPC, then punishment is giver under section 500 of the code with single imprisonment which may extend to two years, or fine, or both.

Civil defamation
In civil law, defamation is punishable under law of torts. In this the punishment for the defendant is to pay the monetary compensation for the legal damage suffered by the plaintiff. There are certain essentials for a successful suit. They are:
  1. The statement must be defamatory in nature:
    This means that the statement was made likely to injure the reputation of the plaintiff. It could be made in various ways. For instance, it may be oral, in writing, printed or by some conduct. The judgement for whether a statement is defamatory or not depends upon how a right-thinking member of the society will take it.

    In Ram Jethmalani V. Subramanian Swamy[4], While the complainant (Ram Jethmalani) represented Tamil Nadu's then head of ministry J. Jayalalitha, who was alleged to have a relationship with the Liberation of Tiger Ellam LTTE, by Subramanian swamy, who was responsible for Gandhi's death. The defendant made the "written final argument" in which Ram Jethmalani was claimed to have also obtained money from LTTE. The plaintiff brought a complaint against the defendant over such an accusation. It was held that in the first place, the accused's statement was defamatory and that the RS 5 lakhs was paid as compensation to the complainant.

    In Ramdhara V. Phulwatibai, It has been held that the defendant's indictment that the appellant, a 45-year-old widow, is the guardian of the mother's uncle of the plaintiff's daughter-in-law is not a mere vulgar assault, but a definite indictment of her chastity and therefore constitutes defamation.

    In South Indian Railway Co. V. Ramakrishna[5], it was held a rail ticket checker calling for proof of identification and other documentation as part of his job is not a defamation, as he has not published a defamatory statement.
     
  2. The statement must refer to the plaintiff:
    In cases related to defamation the onus is on the plaintiff to prove that the alleged defamatory statement is referred to him. The intention of the defendant is irrelevant. When the alleged defamatory statement refers to a group of individuals or a class of persons, no member of that group or class can bring a suit unless he can prove that the statement referred to him in particular. Thus If a man wrote that all lawyers were thieves, no particular lawyer could sue him unless there was something to point to particular individual.[6]

    In Dhirendra Nath Sen V. Raj [7], it was held that when an editorial of a newspaper is defamatory of a spiritual head of a community, this doesn't give right of action to any individual of that community.

    In Ritnand Balved Education Foundation V. Alok Kumar,[8] the defendant was in- house Legal Attorney of the plaintiff (RBEF). The defendant after leaving the job, joined a London based firm. He was alleged to have provided confidential information and other such documents which were obtained by fraudulent means to the opposite solicitors. Due to illegal acts of the defendant, the plaintiff suffered damage and also harmed the reputation of the founder president, founder trustee and its institution.

    As the case wasn't filled with joining the founder President, The Delhi High Court held it is not maintainable. The Court relied on the Apex Court's observations made in John Thomas V. Dr. K. Jagadeesan[9],that:
    When the target of the defamatory statements are the individuals in the institution, then it is the individuals alone who can file a suit. In such a situation the institution would have no case of action to file a suit.
     
  3. The statement must be published:
    This simply means that the alleged defamatory matter should be known to some person other than the plaintiff himself. This is because reputation is something which others hold not a man's opinion about himself. Therefore, dictating a letter to his own typist is enough to fulfill the criteria of publication[10].

In Arumuga Mudaliar V. Annamalai Mudaliar[11], It was observed:
If a third person wrongfully reads a letter which wasn't meant for him but to that of plaintiff. The defendant is not liable for defamation as there was no publication by the defendant.

In Theaker V. Richardson[12], It was observed:
If a third person reads a letter which was likely to be read by a third person even though it was meant for the plaintiff, there is a publication.

In Mahendra Ram V. Harnandan Prasad[13], the defendant sent a defamatory letter written in Urdu to the plaintiff. The defendant was aware of the fact that the plaintiff had no knowledge of Urdu language. It was held:
the defendant was liable as he knew at the time of writing the letter that the plaintiff has no knowledge of Urdu language and he would need a third person to read and translate for him.

In Prameela Ravindran V. P. Lakshmikutty Amma[14], it was held if a statement regarding the validity of the marriage of a person is uncalled for and it is likely to jeopardize the reputation of a person than the person making such statements can be restrained from doing so.

Defamation Debate And Judicial Intervention

Article 19(1) of the Constitution guarantees freedom of speech and expression to all people. Article 19(2) requires the State to place appropriate limitations on that right in the interests of eight different categories, such as public order, decency or morality, etc. One of these categories is defamation.

According to the Constitution, the State should not necessarily restrict speech in the interests of one of the eight classes referred to in Article 19(2), but must do so in a "reasonable manner". Over the decades, the Supreme Court has developed a rich jurisprudence on the question of what constitutes a fair restriction. According to the Court, one of the key components of reasonableness is that the restriction must be "narrowly drawn."

In other words, the State must lay down its laws in such a way that they restrict speech only to the extent necessary to achieve a valid purpose. If the legislation goes beyond that, it is deemed to be over-broad and must be invalidated. This will ensure that the state is held strictly accountable if it wants to restrict individual freedoms and also protects against the "chilling effect" of broad and loosely worded legislation that allow individuals to engage in self-censorship in order to stay on the right side of the fence.

The judgment of the supreme court in Swamy's[15] case, delivered on 13 May, rested on the speculation that defamation was being decriminalized when the constitutional validity of the colonial and pre-Constitutional law criminalizing defamation was upheld.

The 268-page verdict rejected apprehensions, posed by political figures and media organizations endorsing the fundamental right under Article 19(1)(a) of the Constitution, that criminal defamation could have a chilling impact on the freedom to circulate one's independent view and not to join in a chorus or sing the same song.. In order to understand the defamation and free speech debate it is imperative to revisit the case and analyze the verdict.
Swamy's petition: issues raised

The petitions filed under Article 32 of the Indian Constitution by various eminent political figures such as Subramanian Swamy, Rahul Gandhi and Arvind Kejriwal unanimously demanded decriminalizing defamation.

Two basic issues raised in the writ petition were:
  1. Whether Sections 499 and 500 of Indian Penal Code is constitutional or not.
  2. Whether Sections 199(1) to 199(4) of the Indian Code of Criminal Procedure,1973 is constitutional or not

Judgement
The apex court in an unanimous judgement uphold the constitutional validity of Sections 499,500 of the IPC, 1860 and 199 of CrPC, 1973 The court held that criminalization of defamation to protect individual dignity of life and reputation is a reasonable restriction on the fundamental right of free speech and expression. The right to reputation is a constituent of Article 21 of the Constitution. It is an individual's fundamental right, Justice Misra observed.

The Court emphasized:
The law on criminal defamation is clear and thus distinguished other cases in which it had struck down legislation as infringing freedom of speech, such as Shreya Singhal v. Union of India[16].

The bench further observed the reasonableness and proportionality of the restriction shall be tested from the point of view of the public interest and not from the point of view of the individual on whom the restrictions are placed. Applying this standard, the Court found the criminal defamation laws to be fair and reasonable.

The Court dismissed the claim that defamation is simply a notion that the majority meant to restrict freedom of speech and expression as being too vague a proposition to be viewed as a guiding principle to determine the reasonableness of the restriction.

Critical Analysis
The case of Subramanian swamy V. Union of India is very crucial as the judges, while hearing the case had to decide some of the important issues such as whether defamation should be decriminalized and whether criminal defamation is a reasonable restriction to freedom of speech and expression. The decision of the Supreme court not decriminalizing defamation is very fair and should be commended.

The argument that defamation is used as a tool to restrict freedom of speech and expression and they are too vague to be categorized as a reasonable restriction was held to be flawed and on the contrary it was rightly observed that:
reasonableness of the restriction should be tested from the point of view of public interest rather than the point of view of the individual.

Even though the issues raised in this case was quite knotty and perplexing, the learned bench after hearing the arguments from both the side gave a very apt and laudable judgement.

Conclusion
Defamation is a perplexing topic and remains a polarizing subject, used and exploited by some and profoundly impacting the life of others. While the judicial precedent has attempted to simplify this farrago and work out some of the problems, still there are some underlying constitutional issues concerning the criminal offense and the civil offense of defamation have not yet been resolved. A balance should be found between law of defamation and right to free speech. Former should not come at a cost of latter and vice versa.

End-Notes:
  1. Defamation, available at: https://www.britannica.com/topic/defamation
  2. AIR 2016 SC 2728.
  3. Indian Penal Code, 1860, s. 499.
  4. A.I.R 2006 Delhi 300
  5. (1890) ILR 13 MAD 34
  6. Eastwood V. Homes, (1858) 1 F.&F. 347.
  7. A.I.R. 1970 Cal. 216.
  8. A.I.R. 2007 Delhi 9.
  9. A.I.R. 2001 S.C. 2651.
  10. Pullman V. Hill, (1891) 1 Q.B. 524.
  11. (1966) 2 M.L.J. 223.
  12. (1962) 1 All E.R. 299.
  13. A.I.R. 1958 Pat. 445.
  14. A.I.R. 2001 Mad. 225.
  15. Supra note 2
  16. A.I.R 2015 S.C. 1523.

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