On Tuesday, the Supreme Court began hearing its third important free speech case of 2015. Earlier this year, the Court had struck down the notorious Section 66A of the Information Technology Act, in a judgment that was hailed both for its progressive outcome, as well as the quality of its reasoning. In June, however, the Court seemed to take two steps back, when it invented a new standard of obscenity law applicable to “historically respectable personalities”. The case that completes the trio – Subramanian Swamy vs Union of India – is arguably the most significant, since it involves a constitutional challenge to one of India’s oldest and most stringent speech-restricting laws: criminal defamation.

Criminal defamation

Criminal defamation is contained in Section 499 of the Indian Penal Code. This provision criminalises speech that is intended to harm the reputation of any person. The provision is worded extraordinarily broadly, and instances of its abuse – particularly aimed at silencing critical reporting – are legion. They range from the 125 defamation cases filed against The Hindu by the Tamil Nadu government to its use by encounter cops against investigative journalists. Having now existed upon the statute books for 155 years since the Indian Penal Code was drafted in 1860, perhaps the only surprise is that a constitutional challenge took this long to materialise.

Article 19(1)(a) of the Constitution guarantees to all citizens the freedom of speech and expression. Article 19(2) permits the State to impose reasonable restrictions upon this freedom, in the interests of eight separate categories such as “public order”, “decency or morality”, etc. One of these categories is “defamation”. At first blush, this might appear to settle the issue. If the framers of the Constitution categorically wrote defamation into Article 19(2), then surely criminal defamation is a constitutionally permissible restriction upon speech.

Not necessarily. According to the Constitution, the State may not simply restrict speech in the interests of one of the eight Article 19(2) categories, but must do so reasonably. Over the decades, the Supreme Court has developed a rich jurisprudence around the question of what constitutes a reasonable restriction. One of the key components of reasonableness, according to the Court, is that the restriction must be “narrowly drawn”. In other words, the State must frame its laws in such a way that they restrict speech only to the extent necessary to achieve a legitimate goal. If the law goes beyond this, it is termed “over-broad”, and must be invalidated. This not only ensures that the State is held to strict account when it seeks to curtail individual liberties, but also guards against the “chilling effect” of broad and vaguely-worded laws, that prompt people to engage in self-censorship in order to stay on the right side of the line.

From this perspective, there is a strong case to be made that criminal defamation is not a reasonable restriction upon the freedom of speech, and ought to be struck down.

The burdens of criminal law

One striking feature of defamation law is that it exists in two forms. It is a civil offence, which seeks to redress damage to reputation by ordering the offender to compensate his victim. But it is also a criminal offence, which is deemed to be a wrong against the State, and punished by imprisonment. What explains this duality?

The answer lies in medieval England, a place where the most acceptable way of responding to an insult was to challenge your tormentor to a duel. Frequent duels were a headache for the authorities. Consequently, in a bid to maintain public order by providing incensed hotheads with legal recourse, the remedy of criminal defamation was introduced into law. Public order is what linked the defamation with the requirement that a crime must, in some way, be a wrong against the State and community at large, and not simply an offence against a private individual.

When the British Indian Law Commissioners met to discuss the draft of a proposed Indian Penal Code in 1838, they acknowledged this history, but decided to introduce criminal defamation into the Code without requiring any connection with public order. Consequently, criminal defamation appeared in the Code as an anomaly: a public remedy against a private wrong. But without the underlying goal of public order that justified criminalisation, the raison d’être of criminal defamation is entirely lost. If the object is simply to redress a person for the damage inflicted to his reputation, there exists a civil defamation regime that expressly contemplates compensation and damages. Criminal law is a superfluity.

But it is not merely a superfluity. It is much worse. Criminal penalties restrict speech to a far greater extent than civil remedies, by placing onerous burdens upon the accused. The threat of arrest at any moment, and the possibility of eventual imprisonment exercise a deep and pervasive chilling effect upon would-be speakers; the requirement that the accused must be present at the place of hearing, coupled with the fact that there is no limit to the number of cases that can be filed, is an open invitation to harassment. And even if the accused has a good defence, he is only allowed to bring up his defence after the trial commences. Consequently, in even the most frivolous of cases, the accused must face the legal process throughout the long pre-trial stage, which itself has the potential to drag on for months, if not years.

For all these reasons, having a criminal penalty for a wrong that can be dealt with satisfactorily by civil law is a disproportionate restriction upon free speech, and fails the reasonableness requirement of Article 19(2).

Of Truth and the Chilling Effect

The strongest argument against the constitutionality of criminal defamation, however, lies in the Supreme Court’s own past history. In a 1994 judgment called R. Rajagopal vs State of Tamil Nadu, the Supreme Court recognised that the regime of civil defamation, as it then stood, was an unreasonable restriction upon the freedom of speech. Under that regime, the maker of a defamatory statement bore the burden of proving its “truth”. There was no let-off for honest mistakes, or mistakes made even after all due care had been taken. Following the famous American Supreme Court decision in New York Times vs Sullivan, which had held that free speech needs “breathing space” to survive (which, translated, means the freedom to make mistakes), the Supreme Court held that insofar as speech about public officials was concerned, it would not be enough to show merely that it was defamatory, and false. It would also have to be shown that the speaker either knew it to be false, or acted with reckless disregard as to its truth or falsity.

The judgment in Rajagopal set up a strangely anomalous regime. Civil defamation was now subject to rigorous, speech-protective standards, along the lines of the law in the United States (and other liberal jurisdictions as well). Criminal defamation, however, continued to follow the old, discarded standards. In fact, a quick look at Section 499 reveals that criminal defamation is even more draconian than the civil defamation regime which was held inconsistent with free speech in Rajagopal. Under Section 499, the accused must not simply prove that his statement is true – he must also prove that it was made in the “public interest”. Public interest, of course, is such a compendious term, that it makes it almost impossible for a speaker to know with any certainty beforehand, which side of the line his speech might fall. This will inevitably lead to self-censorship, and chill even legitimate speech, which was the precise concern that led the Court in Rajagopal to modify the civil law of defamation.

This anomaly has not gone unnoticed in other jurisdictions, which have either struck down criminal defamation as unconstitutional, or introduced sufficient safeguards, on the lines of New York Times vs Sullivan, to neutralise the chilling effect. Section 499, however, is crystal clear, and admits no creative judicial “modification”. For that reason, it is an unreasonable restriction upon the constitutional right to freedom of speech and expression, and ought to be struck down.

Whither Forward?

Historically, the Supreme Court’s track record on free speech has been chequered. The Court has upheld colonial era blasphemy laws, obscenity laws, and sedition laws. It has upheld pre-censorship of films and wide police powers to curtail free association. But it has also limited the scope of anti-terror laws by insisting upon incitement to violence as a pre-requisite for punishing membership of banned organizations, and has struck down the draconian Section 66A. With the constitutionality of criminal defamation finally under challenge, it now has a chance to build upon the gains that were made in March 2015, and further cement a legacy of progressive, free speech rulings. As the Court resumes hearings on the 14th of July, all eyes will be upon it once again.

Disclosure: The writer is assisting one of the petitioners challenging the constitutionality of criminal defamation before the Supreme Court