In a judgment that holds far-reaching implications for political dissent and a free press, the Supreme Court on Friday upheld a colonial and pre-Constitutional law criminalising defamation.

The 268-page verdict dismissed apprehensions, raised by personalities across the political spectrum and media organisations championing the fundamental right under Article 19 (1) (a) of the Constitution, that criminal defamation may have a chilling effect on the freedom to circulate one’s independent view and “not to join in a chorus or sing the same song.”

The judgment came on a batch of petitions filed by BJP leader Subramanian Swamy, Congress vice-president Rahul Gandhi, Delhi Chief Minister Arvind Kejriwal, and media associations, among others.

The court refused exhortations that penalisation of defamation is past its time, and the nation now risks the danger of being reduced to a “frozen democracy.”

A Bench of Justices Dipak Misra and P.C. Pant said the reputation of an individual was an equally important right and stood on the same pedestal as free speech. The court said it would be a stretch to say that upholding criminal defamation in modern times would amount to imposition of silence.

Place for dissent

“Mutual respect is the fulcrum of fraternity that assures dignity. It does not mean that there cannot be dissent. It does not convey that all should join the chorus or sing the same song. Indubitably not. One has a right to freedom of speech and expression. One is also required to maintain the idea of fraternity that assures the dignity of the individual,” said Justice Misra, who authored the verdict.

The court held that criminalisation of defamation to protect individual dignity of life and reputation is a “reasonable restriction” on the fundamental right of free speech and expression. “The right to reputation is a constituent of Article 21 of the Constitution. It is an individual’s fundamental right,” Justice Misra observed.

'Defamation, a crime against society'

The Supreme Court which upheld the criminal defamation law on Friday held that deliberate injury to the reputation of an individual is not a mere private wrong, worth only a civil case for damages.

Instead, it is a “crime” committed against society at large and the State has a duty to redress the hurt caused to its citizen’s dignity. “Nobody has a right to denigrate others’ right to person or reputation,” the Bench of Justices Dipak Misra and P.C. Pant said.

Thus, Sections 499 and 500 of Lord Macaulay’s Indian Penal Code of 1860, which prescribes two years’ imprisonment for a person found guilty of defamation won the court’s approbation. It said though free speech is a “highly valued and cherished right”, imprisonment is a proportionate punishment for defamatory remarks.

“Interest of the people involved in the acts of expression should be looked at not only from the perspective of the speaker but also the place at which he speaks, the scenario, the audience, the reaction of the publication, the purpose of the speech and the forum in which the citizen exercises his freedom of speech and expression,” Justice Misra reasoned.

The petitioners facing criminal defamation trial have been given eight weeks to approach the High Courts concerned under Article 226 and Section 482 of the Cr.PC to quash the proceedings against them. For this purpose, the apex court has stayed the criminal proceedings against them for eight weeks.

Also read: A disappointing verdict

(This news report was first published in The Hindu)