Forget Kejriwal

It's not about AAP but about a law that allows a man to be put in prison because he called a
politician corrupt. The debate about Indias criminal defamation laws is long overdue.
Should an open, democratic society jail people for what they speak or write? Ultimately, it is that
issue which we must confront in the wake of Arvind Kejriwals recent imprisonment. While the
immediate cause for his being dispatched to Tihar Jail under judicial custody was his refusal to pay a
bail bond, we must not lose sight of the fact that this case arose, ultimately, because a political
opponent took exception to being called corrupt, in public. And the case was made possible
because of Sections 499 and 500 of the Indian Penal Code. Section 499 defines defamation to
include statements written or published, that are made with the intention of harming the reputation
of an individual, or with the knowledge that they are likely to harm his reputation. Section 500
prescribes the punishment for defamation to be imprisonment for two years, or a fine, or both.
Defamation is one of the few offences that find a place both in civil law and in criminal law. If you
defame me, I can sue you and claim compensation for my injured reputation. If the Court finds that
you have indeed defamed me, it will order you to recompense me. This is defamation in its civil law
form. If, on the other hand, I file a criminal case against you, then Sections 499 and 500 of the IPC
get involved and the consequence as we have seen above can be imprisonment.
Yet why should the same act be subject to two different penalties under two separate legal regimes?
The answer is that when defamation was first established as an offence, many hundred years ago in
England, the two remedies served two distinct purposes. Defamation as a civil offence was meant to
compensate a person for the loss that he might have suffered due to his damaged reputation in his
community. Defamation as a crime, on the other hand, was closely linked to the propensity of
defamatory statements to cause a breach of the peace, or of public order. Notably, it was not
necessary to demonstrate that a particular statement had indeed caused a breach of the peace, or
led to violence. If, in the opinion of the Court, it had a general tendency towards threatening public
order, that was enough to impose criminal penalties.
We have come a long way since the days of 18
th
century England, and it is abundantly clear now that
criminal defamation laws are an anachronism. After a disastrous experiment with criminalizing
seditious libel in the 1790s, the United States has never gone back to that position. Defamation
exists, but as a civil wrong, and under strictly circumscribed conditions, which are designed to avoid
stifling free speech. The very country of its birth, Britain, expresslypassed a law to abolish it in 2009.
The United Nations Commission on Human Rights called criminalizing peaceful expression as one of
the most reprehensible practices employed to silence people and a serious violation of human
rights.
There are at least three good reasons why criminal defamation laws are arguably unconstitutional.
Article 19(1)(a) of our Constitution guarantees the freedom of speech and expression. Article 19(2)
permits reasonable restrictions upon this right, in relation to among other things defamation. A
reasonable restriction must, at the very least, achieve a degree of proportionality between the
degree to which speech is being restricted, and the goal that is sought to be achieved. It is difficult to
see how, when civil remedies are already available, imprisoning people for what they might speak or
write, is a proportional remedy. Unlike a civil suit, a criminal prosecution has the potential of directly
depriving a person of their liberty. Furthermore, unlike a civil suit, a criminal prosecution places
upon the accused a mark of public disapproval and social stigma that sticks for life. One only has to
look at the frequently expressed concern about the number of parliamentarians accused of crimes,
to see how true this is. Lastly, there is a broader concern with criminal defamation that goes beyond
the case of Kejriwal: it is a particularly potent weapon to silence independent and critical journalism.
A civil defamation suit will often be directed at newspapers, which have deeper pockets, and will
often be able to settle a case without financial ruin. A criminal case directly attacks the writer, and
threatens him with imprisonment or a heavy fine. Consequently, criminal defamation laws are far
more likely to cast a chilling effect on speech, leading to self-censorship, than civil laws. When we
place this in the context of the importance of free speech to any functioning democracy, as a tool of
dissent and critique, something our Supreme Court has held many times, it is difficult to see how
criminalizing defamation is a reasonable restriction upon our Article 19(1)(a) rights.
Secondly, one historic exception to criminal defamation laws, in pre-democratic England, was
parliamentary privilege. Parliamentarians were exempted because it was felt that the public interest
in having free and unfettered discussion, without threat of prosecution, among the lawmakers, was
vital to the functioning of the State. This view, however, rests upon a notion in which the supreme
authority within a polity rested in the body of the Parliament. Free speech was restricted to the
proceedings of the parliament in the belief that effective governance ought not to be impeded. That
theory, however, was superseded when we adopted a democratic Constitution after our
independence. Under a democracy, ultimate governing authority lies not in Parliament, but in
the people. Consequently, insofar as free speech is to be protected because of its governing
importance, that protection must no longer be restricted to Parliament, but extended to the people
as a whole. If, then, criminal defamation was inapplicable to Parliament, for the reasons described
above, there is good reason now to hold it inapplicable at large, in a democracy.
Lastly, as argued above, civil and criminal defamation laws existed separately because they were
understood to serve two distinct purposes. The purpose of criminal defamation laws was to preserve
public order and prevent breaches of the peace. Under our Constitutional jurisprudence, however,
the Supreme Court has adopted a stringent test for when speech can be regulated on public order
grounds: there must be a close and direct connection between the speech and the public order
disturbance, a relationship that the Court has colloquially described as a spark in a powder keg. A
classic example is inciting an enraged mob to immediate violence. The reason for this is obvious:
public order is the first blunt instrument that governments reach for when they want to stifle
speech. Consequently, there must be a clear showing that there is an immediate and tangible threat,
and the burden of showing that lies upon the State.
Sections 499 and 500, however, do not require any such test of public order: they are blanket laws
that justify imprisonment purely on the basis of harm to reputation. But that objective is already
served by the civil law. Consequently, insofar as the purpose of criminal defamation is to protect
reputation, it is both superfluous, and an unreasonable restriction under Article 19(1)(a). Insofar as
its purpose is to preserve public order, it fails the Supreme Courts test by some distance.