Ten months ago, as the Supreme Court began to hear the constitutional challenge to criminal defamation, I wrote that it was the most significant free speech case in decades. Not only was it the first time in history that the offence of defamation was facing a frontal constitutional challenge, but also, at the time, the freedom of speech under the Constitution was at a crossroads.
The celebrated holding in Shreya Singhal vs Union of India, striking down Section 66A of the IT Act related to ostensibly offensive messages being sent over computer systems, had raised hopes that the Supreme Court was entering a new era of speech-protective jurisprudence, and closely reasoned, well-analysed constitutional judgments. Those hopes had been put on the backburner with Devidas Tuljapurkar, a shoddy, nearly unintelligible judgment, which had created a new standard of obscenity for “historically respectable figures”, out of thin air.
The decision in Subramanian Swamy vs Union of India was important not only for all the newspapers, journalists and other speakers facing the threat of criminal defamation from politicians and corporations (at one time, The Hindu had more than a hundred criminal defamation cases against it in Tamil Nadu), but also for the future direction of free speech in India.
A bleak history
On Friday, the Supreme Court settled the question. In another shoddy and almost completely unintelligible judgment, written by the same bench that had decided Tuljapurkar (Justices Misra and Pant), the Court upheld criminal defamation. It is now becoming increasingly clear that Shreya Singhal was a rare exception, a momentary reprieve in the bleak history of free speech at the bar of the Indian Supreme Court.
The Court that decided Subramanian Swamy is the same court that upheld blasphemy law and the law of sedition by raising the bogies of religious riots and civil war respectively. It is the same court that 50 years ago, upheld the ban on Lady Chatterley’s Lover by upbraiding DH Lawrence for being a shallow writer. The same court that, a few years later, punished Communist leader EMS Namboodiripad for daring to suggest that the judiciary was driven by class interests. The same court that, in 1970, upheld pre-censorship of films on the ground that the “surrealism” of cinema would have too great an impact on an Indian audience congenitally unable to control itself in the face of provocation. And the same court that upheld the ban on Kannada writer Baragur Ramachandrappa’s book on Saint Basaveshwara, by stating that nobody had the right to hurt another’s feelings.
This is the court that is intensely hostile to the freedom of speech, whose fear at the anarchic, disordered nature of uncontrolled, free speech is almost palpable. It is the court that regularly channels the famous Justice Krishna Iyer, who once wrote:
“...essentially, good government necessitates peace and security and whoever violates by bombs or books societal tranquillity will become target of legal interdict by the State.”
The case against criminal defamation was – and continues to be – very simple. Article 19(2) of the Constitution permits only “reasonable” restrictions upon the freedom of speech. For a law to be reasonable, it must demonstrate a degree of proportionality between the restriction, and the goal that is sought to be achieved. Criminal defamation fails the proportionality test, in general terms, as well as in the specific legal regime set up by Section 499 of the Indian Penal Code.
Private wrongs
In general, criminal defamation is disproportionate because it uses the criminal law to prosecute a wrong that is purely private in nature. A private wrong is one that is purely between the offender and her victim, and has no implications for the society at large. For example, if I fail to control my dog, and it bites you, then you may sue me for compensation in a civil court. Society, the state, and the criminal law have nothing to do with it. However, if I murder a person, then it is not just about one individual taking the life of another, but has ramifications for public peace, order and security. This is why murder is a criminal offence, involves a term in jail, and is prosecuted by the state.
When defamation was first criminalised in medieval England, it had a public purpose. People vindicated insults to their honour by fighting it out in a duel. It was to suppress this kind of self-help regime, and assure people that they did not need to ventilate their grievances with swords and pistols, that defamation was criminalised. This is not medieval England, however, and we no longer settle our differences by challenging each other to duels. At this point, the sole purpose of criminal defamation is to protect private reputations. This makes criminalisation (with a jail term to boot) a public law remedy for a private wrong, and therefore, disproportionate.
The Supreme Court deals with this problem by tritely observing that since society is an aggregate of individuals, a wrong against one is a wrong against the society. This, of course, makes no sense, since by such logic, I should be criminally prosecuted for having negligently let my dog bite you. The Supreme Court, unfortunately, makes no effort to explain why, with the existence of a regime of civil defamation law, the added severity of criminal punishment is also proportionate and reasonable.
Honest mistakes
Specifically, Section 499 does not allow for a defence of honest mistake. To escape criminal liability, I must either show that my statement is true and for the public good (this additional requirement is not present in civil defamation), or that it was an opinion, voiced in good faith, about a public issue (there are other defences that are not relevant for our purpose). However, if I make a factually incorrect statement, I have no defence, even if I can show that I took all reasonable steps to verify its accuracy.
Ever since the famous judgment of the American Supreme Court more than fifty years ago, in New York Times vs Sullivan, constitutional courts all over the world have held that such a standard is simply inconsistent with a strong free speech right, and invariably chills speech. Even the Indian Supreme Court accepted this 22 years ago, in a case called R. Rajagopal vs State of Tamil Nadu.
Both New York Times v Sullivan and R. Rajagopal vs State of Tamil Nadu were decided in the context of civil defamation, which is much less harsh or onerous than criminal defamation. If a civil defamation regime that does not allow for honest mistakes is unconstitutional, then surely a criminal defamation regime that follows suit is unconstitutional as well!
Unfortunately, the court has somehow managed to miss this crucial point altogether. The judgment seems to be entirely unaware of the bizarre legal situation that results where the same statement can pass the tests of civil defamation, but fail the test of criminal defamation. We get no analysis of how this contradictory position can be resolved.
A depressing moment
Instead, what we do get is 268 pages of endless quotations, extracts from judgments, and groundless assertions. The court spends reams of pages talking about the importance of “reputation”, how it is a “facet” of Article 21 of the Constitution, and how freedom of speech must be “balanced” against the right to reputation. However, the two key issues outlined in this article – criminalisation of private wrongs and liability for honest mistakes – receive cursory to no treatment.
Subramanian Swamy vs Union of India is a depressing moment for free speech lawyers and activists. It is also (yet another) depressing moment for civil rights lawyers and activists, since it marks a continuing trend – that arguably began with Koushal vs Naz regarding the criminalisation of homosexuality – where two-judge benches decide important civil rights cases (notwithstanding the constitutional injunction that important constitutional cases should be decided by a bench of at least five judges). These cases invariably side with the state against individual rights, constrict the scope of rights, and take the form of opaque, almost unreadable judgments. It is the very antithesis of what a thriving constitutional culture ought to be. May it end soon.
And the next time we train our guns at the government for violating our fundamental rights, perhaps we should also make it clear that most of those violations have received the sanction and imprimatur of the Supreme Court.