By upholding the constitutionality of the current criminal defamation law, the Supreme Court has done a disservice to the cause of free speech. Bharatiya Janata Party leader Subramanian Swamy, Congress vice-president Rahul Gandhi, and Delhi Chief Minister Arvind Kejriwal had challenged the validity of Sections 499 and 500 of the Indian Penal Code. While dismissing their petitions, the apex court has offered arguments that are dangerously close to the notions that militate against the spirit of the Indian Constitution.
To begin with, the verdict favorably views the illiberal doctrines like collectivism and the organic theory of the state, the doctrines that in their various manifestations wrought havoc in Nazi Germany, the erstwhile Soviet Union, Maoist China, and other countries. Justices Dipak Misra and Prafulla C. Pant wrote: “Individuals constitute the collective. Law is enacted to protect the societal interest.”
No, Your Lordships, India is a republic, not a collective. The Preamble of our Constitutions is about securing liberty, equality, and justice to all the citizens of the country, not to any collective.
The judges say, “The law relating to defamation protects the reputation of each individual in the perception of the public at large. It matters to an individual in the eyes of the society. Protection of individual right is imperative for social stability in a body polity and that is why the State makes laws relating to crimes.”
This is not very accurate, for the protection of individual rights is the sole and ultimate purpose of the Constitution; this protection is not and should not be contingent upon social stability, whatever it means. We have politicians and their toadies who regard their criticism as a threat to public order, social stability, even national security. This was the primary reason that Section 66A of the Information Technology Act was brought out in the first place. Besides, it is questionable as to whether social stability is always desirable. When the so-called lower castes were given equal rights and women were allowed to inherit property, social stability was disturbed, but such actions cannot be called wrong.
The verdict talks about the balancing of Fundamental Rights: “Reputation being an inherent component of Article 21 [the right to life and personal liberty], we do not think it should be allowed to be sullied solely because another individual can have its freedom… Therefore, the balance between the two rights [right to life and right to freedom of expression] needs to be struck. ‘Reputation’ of one cannot be allowed to be crucified at the altar of the other’s right of free speech.”
Now while reputation is an inherent component of Article 21, it is difficult to see why the state should fight for an individual, for this is what criminal defamation boils down to. In Britain, and other Western countries, defamation was criminalized because it often led to duels, to violence; so, it was a preventive legislative measure to check violence. But no such situation exists in our country today.
Further, if defamation is decriminalized, nobody’s reputation would be crucified at any altar. For the aggrieved party would still have a right to seek redress. At any rate, free speech has already been severely curtailed. The very first amendment to the Constitution that enunciated the principle of “reasonable restrictions” weakened it. Then there have been legislative (e.g., Section 66A), executive (banning of books, movies, etc.), and legal actions—like strategic lawsuit against public participation (SLAPP)—that have shrunk the sphere of liberty. By refusing to decriminalize defamation, the apex court has refused to expand that sphere.
And last, but not the least, a comment has to be made on Finance Minister Arun Jaitley. It is an open secret that all legal officers are his appointees and they do his bidding. Which means that he is a big enemy of liberty, his image as the liberal, suave politician notwithstanding. He wanted to perpetuate Section 66A, but failed; he wanted to persist with criminal defamation and has succeeded.
In short, Jaitley is not just an albatross around the neck of Narendra Modi but also a bane of India. The bane flourishes, while liberty stifles in India.