Chaitanya Kalbag - HOW TO THROTTLE FREE SPEECH FOR 156 YEARS
The English ruled
India for 190 years from the Battle of Plassey in June 1757, but 70 years
into political independence we are still tied to the apron-strings of the
British Empire. It's not just the 'steel frame' of our administrative
service, or the sinews of the Indian Railways, or our parliamentary system
(where the Speaker still intones "The ayes have it" after a voice
vote) - it is also most noticeably in India's laws.
Indeed, several
Commonwealth countries continue to enforce laws drafted by the East India
Company and its factotums like Macaulay, Bentinck and Curzon. My column in the
Economic Times today was brief today because of the space pressures of
yesterday's state assembly exit polls, but a full version is at http://goo.gl/XN2ciO and
in text below. It looks chiefly at the retrogression of last Friday's
Supreme Court ruling that upheld the constitutional legitimacy of penal
provisions against criminal defamation, 156 years after the Indian Penal Code
was enacted. I hope you will add your voice to the need for 21st-century
laws in 21st-century India - Chaitanya Kalbag
How the cold hand
of the law falls across two centuries on our freedoms
Twice in the past two
and a half years, the Supreme Court has ruled with a 19th-century
mindset on vital 21st-century issues affecting personal freedom
using criminal and penal codification that was enacted by India’s British
rulers. The Indian Penal Code of 1860 was first drafted by Thomas Babington
Macaulay in 1837, and its enactment was delayed by the Sepoy Mutiny of 1857.
On December 11, 2013 a
two-judge bench of the Supreme Court upheld Section 377 of the IPC which
criminalises homosexuality and ‘unnatural’ sex. Then, on Friday the
13th of May, a two-judge bench headed by Justice Dipak Misra
upheld the constitutionality of Sections 499 and 500 of the IPC which relate to
the criminality of defamation. Most of the world categorises
defamation as a civil offence on the grounds that it is a personal
matter. Most defamation lawsuits are brought by the rich and
powerful and are nearly always designed to smother any hint of criticism or
exposure. Sec.499 casts the onus of proving innocence on the person
accused of defamation, whose only defence can be that he published the truth
for public good. Criminal defamation suits are often filed in lower courts and
drag on for years. The accused have to appear in person before the
trial magistrate. The trial process itself constitutes severe harassment and
has a deterrent effect on free speech.
“In upholding, in all
its Victorian savagery, Section 377 of the IPC, the Supreme Court had at least
the fig-leaf excuse of protecting public morals. But there can
be no moral justification whatever for the State continuing to impose criminal
sanctions for protecting the reputation of individuals – many
of whom are persons prominent in public life. For them, the law of torts
(civil wrongs) affords the only remedy: to sue the wrongdoer for damages in
seven figures, and also to apply for injunction from repeating the offending
words spoken or written,” eminent jurist and consstitutional expert Fali
Nariman said.
“One can be, and
frequently is, dragged to remote areas of India to personally attend to a
magistrate’s summons – not once, not twice, but repeatedly over long periods of
time. Ultimate acquittal in the end is not half as jolly as it sounds!” Nariman
said in emailed comments.
“In my view there is
little justification for criminalising what essentially was (and still is), a
civil wrong, namely injury to reputation which does not lead to a breach of
peace or to public disorder – which, in the 19th Century was
the principal cause for making defamation a criminal offence! The
Second and Final Report of the Law Commissions (May 1848) which prompted
insertion of Section 499/500 in the Penal Code expressly said that ‘the
tendency of calamitous imputations to provoke breaches of the peace is
undoubtedly one of the reasons for making defamation an offence’. In the
21st century I know of no instance where defamatory words (not
hate-speech but defamation) has provoked a riot or public disorder,” Nariman
added.
“To give a public law
remedy for what is essentially a matter pertaining to private law (and
actionable in Court under common law) is an anachronism in this day and age –
especially when in a civil suit for the (civil wrong) of defamation truth is
a complete defence; whereas in a criminal prosecution under Section 499 IPC it
is not enough to establish that the words spoken or written are true – it has
to be for the public good that the truth is disclosed (Exception 1 to Section
499); this explains why there are so many more criminal complaints than civil
suits for defamation,” Nariman said.
Former Solicitor
General Gopal Subramanium echoed him. “Why would anybody go through all this
pain of going to courts, appearing, and getting lawyers merely because he held
a strong view and wrote an article.” The petitioners who
lost on Friday included several politicians across the spectrum – except from
the ruling Bharatiya Janata Party. Government lawyers argued strongly for
retention of Section 499.
Subramanium told me a
civil deterrent is sufficient for defamation. “But once it becomes a criminal
remedy then it tends to curb people in expressing their views and can be used
to silence dissent.” Both lawyers were very
critical of the legal arguments put forth by Justice Misra in the 268-page
verdict. “As for the legal justification of the recent decision there is little
to commend, except the safeguard incorporated at the end of the judgment,
namely that before a magistrate issues a summons in a complaint under Section
499 ‘Application of mind…is imperative,’” Nariman told me.
“What may be truth may
appear defamatory to the other,” Subramanium said in a conversation. What is at
stake? If it is the right to reputation of certain individuals and it cannot be
compensated in any other manner, then one can understand a criminal
remedy. “(But) it hangs like a sword. There is no quick trial of
such a complaint.”
By today’s standards –
Attorney General Mukul Rohatgi told the Supreme Court that civil litigation
often drags on for ten or 20 years -- Chandrakant Naidu, a former Patna
resident editor of the Hindustan Times, had to wait for only four years when he
was charged with criminal defamation. Naidu, who was sentenced to three months’
imprisonment in 2002 because of one word in a letter to the editor published by
the newspaper. Naidu was immediately granted bail, but the trips to
the courtroom haunt him.
When several senior
editors met former Information & Broadcasting Minister Ambika Soni in 2011
to urge the de-criminalisation of defamation she made the proper noises but did
nothing. The Editors Guild told Soni about international
precedent. Britain abolished seditious libel and criminal defamation
in 2009; a new Defamation Act was brought in 2013 that gives better protection
to people expressing dissent. Complainants now have to prove they
have suffered serious harm before suing. The new law also ended “libel
tourism” – citizens of other countries suing for libel in the U.K. to take
advantage of its heavy penalties on those found guilty of defamation.
The
United States had already moved to protect its citizens’ right to free speech
with a 2010 law that prevents U.S. courts from enforcing British defamation
verdicts. And, as recently as January this year, the European Court of Human
Rights ruled that defamation judgments against a French television channel and
a reporter interfered with their right to freedom of expression.
Macaulay’s IPC lives
on in several former British colonies. The infamous Section 499 (and
its onerous exceptions) for instance exists verbatim in Singapore and
Malaysia. In Singapore, founding prime minister Lee Kuan Yew used
the penal code on defamation to devastating effect on his political rivals, a
tradition his son Lee Hsien Loong is continuing. Opposition leaders
like the late Joshua Jeyaretnam and Chee Soon Juan have been repeatedly slapped
with heavy fines, disqualified from standing for election, and even served
prison sentences.
In an age where every
citizen can turn publisher in minutes and write freely – and scurrilously – on
social media, it is time for India to re-examine the old-fashioned laws that
govern libel and defamation. The Narendra Modi government has shown
remarkable persistence in throwing out hundreds of old laws. Last
month Parliament passed two acts repealing a total of 1,053 old laws; a total
of 1,159 have been repealed so far since Modi took office. A
commission set up by the government recommended in November 2014 that a total
of 1,741 obsolete laws be struck off the statute books. They include
legislation like the Excise (Spirits) Act of 1863, the Elephants Preservation
Act, 1879, and the Lepers Act of 1878.
All may not be lost on
the defamation front. One of the petitions against Section 499,
filed by Greenpeace activist Priya Pillai, was transferred to another two-judge
Supreme Court bench after Justic Misra recused himself. The defamation suit
against Pillai was filed by the Essar Group. That petition is pending, and
could hopefully form the pivot for a Constitution-bench appeal against the May
13 ruling.
