Wednesday, December 2, 2015

[Editorial # 2] Time to abolish criminal defamation

Time to abolish criminal defamation

The observation by the Supreme Court that political leaders should not take criticism as a personal insult highlights a particular kind of intolerance that is rarely referred to in the ongoing debate on the subject: the inability of public figures to tolerate criticism and their repeated resort to criminal defamation proceedings to stifle adverse comment. Nothing exemplifies this as much as the 100-odd prosecutions launched by the government of Tamil Nadu against politicians and the media. The court’s remark came in the context of several of cases of defamation reaching its portals in recent years. Under Chief Minister Jayalalithaa, the law of criminal defamation is routinely set in motion within days of the publication of reports that are even remotely critical of her governance. It is always initiated by the public prosecutors on behalf of the Chief Minister and members of her Cabinet. It is needless to emphasise that criminal defamation has a chilling effect on free speech and undermines public interest by coercing the media to observe self-censorship and self-restraint. Sections 499 and 500 of the Indian Penal Code, which criminalise defamation in India, have been challenged in the Supreme Court, but so far there is little hope that the State will give up the use of this weapon against adverse coverage. It also showed questionable zeal in going up to the highest court just to obtain the police custody of Kovan, a folk singer arrested on ‘sedition’ charge, indicating a dangerously illiberal attitude. The Union government has contended, much to the disappointment of proponents of the freedom of expression, that these sections do not have any chilling effect on free speech.

Democratic opinion in many countries is veering around to the view that defamation should be treated as a civil wrong and should not be pursued as a criminal case, and that the state has no compelling interest to protect the reputation of its individual servants by prosecuting alleged offenders. In 2011, the Human Rights Committee of the International Covenant on Civil and Political Rights called upon states to abolish criminal defamation, noting that it intimidates citizens and makes them shy away from exposing wrongdoing. Its misuse as an instrument of harassment is pervasive in India. Often, the prosecutor’s complaint is taken at face value by courts, which send out routine notices for the appearance of defendants without any preliminary examination whether the offending comments or reports come under one of the exceptions spelt out in Section 499. Thus, the process itself becomes the punishment. It is internationally recognised that there ought to be some proportionality between the status and influence of public officials and how far they could be defamed. The higher the officials are the greater will be their resources to set right any impairment of their image, using their wide reach and influence over the public. It is time India’s lawmakers scrapped criminal defamation from the statute book.

1. What is meant by Criminal Defamation?
2. What are Sections 499 and 500 of Indian Penal Code?
3. Mention a few cases in news pertaining to IPC Sec 499 and 500.
4. Do you think that Criminal Defamation goes against the principle of free speech and expression in a democracy?
5. What in your opinion should be done by the government to curb the misuse of Criminal Defamation for settling political scores by various political leaders?


  1. Criminal Defamation is defined under section 499 of the Indian Penal code, 1860. It lays down that any person who harms the reputation of any other individual (including legal persons such as company) or intends to harm by deploying spoken or written ( signs, visible representations) means and publishes the same will be said to have committed the offence of Criminal Defamation. Further it is also laid down that in case such act is related to a person who has died then in that case, if such act harms the reputation of the deceased relative then also it will amount to criminal defamation.
    It should be noted that it is an offence for which the completion of the act is not necessary, mere having the intention or the knowledge that such an act can amount to criminal defamation is enough, to defame can attract the liability under this section.
    Further explanation 4 of the section lays down certain circumstances that will amount to criminal defamation. which includes degrading someone intellectual capacity in front of others or degrades the moral character of an individual or makes other believes that the other persons body is in disgraceful condition.
    It is implied from the above section that criminal defamation cannot take place in solitude. There must be other individuals in the presence of which the accused has committed those act.
    One of the general defense for criminal defamation is truth. If any individual is speaking the truth then that person cannot be booked under this section.

  2. Section 499 defines what is Defamation and Section 500 lays down the punishment for the same.It provides that any person who has committed the offence of criminal defamation will be punished with simple imprisonment for maximum period of 2 years and may also be asked to pay fine.

  3. J Jayalalithaa Chief minister Tamil Nadu alleged that M Karunanidhi the chief of DMK and editor of Ananda Vikatan had published Defamatory articles against her.
    The former Chief minister of Himachal Pradesh Prem Kumar filed a defamation case against former Union minister Anand Sharma and senior Congress leader Moti Lal Vohra. both of them got bail after producing surety bonds of twenty thousands each in November 2015.
    In the first case the article published evaluated jaylalithaa work as chief minister in past four years and there were several criticism against her, for which she has filed defamation case against the editor an the chief of DMK.
    In the second case the former chief minister had alleged that the former union minister during the poll cmapaign had made certain derogatory remarks against him and for the same a criminal defamation has filed against him.

  4. Great information Nikhil...Keep writing...

  5. Article 19(1)(a) of the Constitution of India falls under Part III(Fundamental rights) , which guarantees right to freedom of speech and expression to the citizens of India. Further the same Article in Clause 2 lays down that these rights are not absolute and are subjected to reasonable restrictions which can be imposed by the state on the fulfillment of certain conditions. The grounds which are provided under Clause 2 of Article 19 wherein right to freedom of speech and expression can be reasonably restricted are as follow:
    1) In the interests of the Sovereignty and integrity of India;
    2) Security of the state;
    3)Friendly relations with foreign states;
    4) Public order, decency or morality;
    5) In relation to contempt of court, defamation or incitement to an offence.
    It has been held in various cases that such reasonable restriction cannot be arbitrary in nature and will only be attracted when there is no other ground to justify why the exercise of these rights should be restricted.
    If I could quote Evelyn Beatrice Hall (English writer) who in her book 'The Friends of Voltaire', wrote "I disapprove of what you say, but I will defend to the death your right to say it". The above phrase stands for the protection of right to freedom of speech and expression. India seems to be way far from achieving that stage wherein it can apply this phrase to protect its right of citizens.
    Criminal Defamation goes against the principle of free speech and democracy.Criminal defamation is an evil tool in the hands of politicians to silence the criticism around them. This tool is most often used by politicians against speakers and writers who tend to criticize their governance. There have been avalanche of criminal defamation cases which are filed during the election campaigns to choke the opposition.
    Criminal defamation has its own flaws. Firstly protecting the reputation of deceased over the reputation of the living person is an irony in itself. Secondly in various states defamation is considered as an civil wrong and not as a criminal offence. There is no need to consider defamation as a criminal act. We need to understand that, if defamation was a civil wrong then fine would be enough as a punishment but once you make it a criminal offence it attracts imprisonment as punishment. Leading us to the conclusion that criticism of governance or policy of any political party especially the ruling party can lead you behind bars.Thirdly its not only natural persons who can be booked for criminal defamation but it also includes legal persons(company, associations etc) which can be alleged to have committed the offence of criminal defamation. Fourthly mere intention to defame is enough to attract the provisions of criminal defamation and actual commission of the offence is not required. Further the criminal defamation doesn't exclude political speech and other such instances to be out of the purview of criminal defamation. Thus any speech which is not in align with policy of the state or governance can be used against the speaker or the writer to unnecessarily torture that person who merely expresses his/her views in a democracy.

  6. @Nikhil
    Nice articulation.
    You could have also thrown some light on the genesis of these laws. Under what circumstances the British government imposed such a law and how the rationale behind the same is no longer the same.

  7. @Nikhil
    Nice articulation.
    You could have also thrown some light on the genesis of these laws. Under what circumstances the British government imposed such a law and how the rationale behind the same is no longer the same.