Civil Defamation and Section 499, 500 of IPC
In India, defamation is both civil and criminal offence. The remedy for a civil defamation is covered under the Law of Torts. In a civil defamation case, a person who is defamed can move either high court or subordinate courts and seek damages in the form of monetary compensation from the accused. The Indian penal Code, 1860 provides an opportunity for the defamed person to file a criminal case against the accused. Under sections 499 and 500 of the IPC, a person guilty of criminal defamation can be sent to jail for two years.
Why sections 499 and 500 of IPC are challenged?
There are several petitions filed in Supreme Court of India challenging the constitutional validity of sections 499 and 500 of IPC. The petitions contend that the both sections went beyond the restrictions enshrined in Article 19(2) of the Indian Constitution and thus constricting the freedom of speech beyond the reasonable limits. The test is in determining whether these sections impairing the freedom of speech beyond reasonable restrictions.
What does Constitution say about freedom of speech?
Article 19(1)(a) of the Indian Constitution guarantees the right to freedom of speech and expression to all Indian citizens. But the freedom of speech and expression is not absolute. Under Article 19(2), the state is allowed to make laws to impose reasonable restrictions on the right of free speech in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. Out of those only defamation protects a private individual interest and all others are public interests.
But the reasonable restrictions must not be arbitrary and excessive. The restrictions must be narrow. If the restriction is too broad, then it will be unconstitutional.
Key arguments against Section 499-500 IPC
They key arguments against sections 499 and 500 IPC are that they are not reasonable restriction on speech. For example, if a person speaks truth, then truth will only be a defence if the statement was made for the public good. Otherwise, a person can be prosecuted for defamation even for speaking truth! This is the reason that people are deterred from criticising the government or its officials as it could lead to legal action. Under these sections, a person can be prosecuted on the ground that he/she has conspired with the person who made the defamation statements. It also allows for prosecution a person if he/she made a defamatory statement about a deceased person; and thus restricting the speech to protect the deceased is excessive.
Should these provisions abolished?
Yes because these provisions have been misused by the politicians and corporations to silence the media, activists and criticisms. Indian Penal code was framed in 1860 which is much before than the constitution came into force. The time and conditions have changed. The provisions in IPC law have to be revised to suit to the present society. Law Commission of India also acknowledged that criminal defamation laws violated international norms and the penalty of two year jail term is clearly disproportionate. In many countries defamation is treated as civil action. The criminalization of defamation acts as deterrent and the absence of it leads to anarchy may not hold validity when the restrictions are excessive and arbitrary. The time has come to abolish these colonial laws and protect the fundamental right of freedom of speech.