[Anmol Jain is a third-year law student at National Law University, Jodhpur.]
This work concerns the case of Subramanian Swamy v. Union of India,[1] wherein the Supreme Court of India upheld the constitutionality of criminal defamation.[2] The crux of the dispute, in this case, was whether imposing criminal liability on a private individual for defaming another private individual is an unreasonable restriction upon free speech.[3] However, the court failed to identify this issue and decided upon whether the word ‘defamation’ under Article 19(2) must be read to exclude criminal defamation, which is an entirely different arena.
To uphold criminal defamation, the court wrote extensively on undisputed matters like the importance of reputation being a part of Article 21 and even went on to discuss the doctrine of constitutional fraternity. However, the Court failed to consider certain important facets of law and such flaws of the judgment are discussed under this work. The views are backed by a judgment of the High Court of Kenya that struck down the provisions criminalizing criminal defamation of an individual[4] and it was passed as a part of growing worldwide trend to decriminalize defamation.[5]
The High Court of Kenya held as follow:
A declaration be and is hereby issued that Section 194 of the Penal Code, cap 63, Laws of Kenya is unconstitutional and invalid to the extent that it covers offences other than those contemplated under Articles 33(2) (a) – (d)[6] of the Constitution of Kenya 2010.[7]
Putting simply, the High Court of Kenya declared criminal defamation of one individual by another as unconstitutional, provided it does not disrupt the public interest.
Moving to the source of validity for criminal defamation as a crime in India, Article 19(2) of the Constitution provides for reasonable restriction on freedom of speech and one of ground for such restriction is defamation. The meaning of the word ‘defamation’ mentioned therein has to be understood by applying the principle of noscitur a sociis, which means that the words of an Act of the Parliament should be construed with reference to the words found in immediate connection with them.[8] When one looks at the words mentioned in immediate connection with ‘defamation’ in Article 19(2)[9], the scope of such words and thereby the scope of the entire Article as a whole is largely to protect the public interest and not the interests of a private individual. Therefore, Article 19(2) cannot act as the source for Section 499 of Indian Penal Code (“IPC”) to the extent it establishes criminal liability against an individual for defaming another individual. However, if an individual defames another which is against the public interest, then such defamation cases are warranted to be tried under Section 499 by the scheme of Article 19(2).
Additionally, we can even do away with the requirement of applying the principle of noscitur a sociis as this principle is applied only in those matters where the meaning of a term is unclear.[10] The reason being that defamation of an individual by another individual is an already defined civil wrong and for which the common law remedy is an action for damages and therefore, such defamation cannot be regarded as a crime under the constitutional framework.
Further, to determine whether a restriction limiting the freedom is constitutional, one needs to determine whether such restriction is reasonable or proportionate. The four sub-components of proportionality are:[11]
- It is designated for a proper purpose;
- The measures undertaken to effectuate such limitation are reasonably connected to the fulfillment of that purpose;
- The measures taken are necessary as there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation
- There needs to be a proper relation between the purpose sought and limitation effectuated.
A tort of defamation provides sufficient alternative by way of damages and in this regard, criminal defamation does not meet the third test.
The Court even provided a flawed argument to uphold its stand where it stated that individuals constitute the society and the law relating to defamation protects the reputation of each individual in the perception of people at large and such protection of individual rights is imperative for social stability and that is why the State makes laws relating to crimes. By providing such reasoning, the Court has completely dissolved the distinction between private and public wrongs and if a wrong to an individual ipso facto is a wrong to a society, then there would be no existence of civil wrong at all.
Furthermore, in R. Rajagopal vs. State of Tamil Nadu,[12] the Indian Supreme Court replaced the concept of no-fault liability by citing New York Time Co. vs. Sullivan[13] and held that no-fault liability under defamation causes a chilling effect upon free speech and such chilling effect is caused by the legal standard[14] and not by the nature of the liability.[15] Therefore, to hold someone liable for civil defamation, one has to prove that the defendant committed defamation with reckless disregard for the truth. After such a judgment, the judgment of Subramanian Swamy should be deemed as per incurium on two grounds: first, it holds that criminal defamation’s no-fault liability does not chill the freedom to speech, which is not at all the reality;[16] and, second, the legal standard of imposing criminal liability after this judgment is lower than civil liability, especially in cases of public officials and such a legal system completely overturns the basic tenants of criminal jurisprudence.
Therefore, the author opines that the judgment of Subramanian Swamy v. Union of India requires a review.
[1] Subramanian Swamy v. Union of India, (2016) 7 SCC 221.
[2] Indian Penal Code of 1860, §499-500.
[3] India Const. art. 19(1) and 19(2).
[4] Jacqueline Okuta and Jackson Njeru vs. Hon. Attorney General and Ors., Petition No. 397 of 2016 (In the High Court of Kenya at Nairobi, Milimani Law Courts, Constitutional and Human Rights Division).
[5] The evidence to such contention is the use of authorities from judgments of various countries as well as certain treaties which are considered as a source of the International Law.
[6] Kenya Const. art. 33(2): The right to freedom of expression does not extend to – (a) propaganda of war; (b) incitement of war; (c) hate speech; or (d) advocacy of hatred.
[7] Jacqueline Okuta and Jackson Njeru vs. Hon. Attorney General and Ors., Petition No. 397 of 2016 (In the High Court of Kenya at Nairobi, Milimani Law Courts, Constitutional and Human Rights Division).
[8] Ahmadabad Pvt. Primary Teachers Association vs. Administrative Officers and Ors., (2004) 1 SCC 755.
[9] Article 19(2), The Constitution of India: Nothing in subclause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause 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.
[10] Bank of India vs. Vijay Transport, AIR 1988 SC 151.
[11] G. Huscroft, B. Miller and G. Webber, “Proportionality and the Rule of Law: Rights, Justification, Reasoning,” (Cambridge University Press, 2014); Kai Moller, “Proportionality: Challenging the Critics,” (2012) 10 International Journal of Constitutional Law 709; R vs. Oakes [1986] 1 SCR 103 [Supreme Court of Canada]; Nyambirai vs. National Social Security Authority and Another, 1994 (1) ZLR 49(S) [Zimbabwe]; Lange vs. Australian Broadcasting Corporation, (1997) 189 CLR 520 [High Court of Australia].
[12] R. Rajgopal vs. State of Tamil Nadu, (1994) 6 SCC 632.
[13] New York Times Co. vs. Sullivan, 376 U.S. 254 (1964).
[14] Here legal standard is used to indicate ‘no-fault liability’ as the standard for convicting someone for the crime of defamation.
[15] Nature of liability here denotes whether the liability is civil or criminal.
[16] See Jacqueline Okuta and Jackson Njeru vs. Hon. Attorney General and Ors., Petition No. 397 of 2016.
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