Is State Curbing Free Speech through S. 499 IPC?

To keep the concept of “democracy” alive in any country, the most important ingredient to be protected is “free speech”. The basic goal of democracy is to have a tolerant and plural society ¹ and to achieve this goal, citizens need to share their opinions and ideas freely in the society even if they are critical to government actions. This sacrosanct right to freedom of speech and expression has found its place in the Indian Constitution u/a 19(1)(a) as a fundamental right which if restricted by the state on any ground otherwise than mentioned in Article 19(2) can be challenged directly in the constitutional courts as per Article 32. One of the grounds mentioned in the said article on which the right to free speech can be curtailed by the state is defamation. The right to reputation and right to freedom of speech and expression are the intrinsic parts of Articles 21 and 19(1)(a) respectively and balancing these rights of individuals is the necessity as well as the duty of the courts.

Criminal defamation in India is not new and has found its place in the statutes since the pre-independence era. As defined in S. 499 of the Indian Penal Code (IPC) any words spoken or written or published or gestures or visible representations, made to harm the reputation of another person will amount to defamation and can be punished u/s. 500 of IPC with simple imprisonment which may extend to 2 years or with a fine or both. S.499 has 4 explanations and 10 exceptions which provides for a comprehensive view on defamation. Out of these 10 exceptions to the offense of defamation, the most common is the truth of defense which the public good requires to be made or published. ²

At present times, it is often argued that this law of criminal defamation is used to control the information received by the public at large by the executive authorities. This is mainly about the individual's right to criticize the government's actions. Thus, it is argued that the criminal defamation law is used by the state to threaten individuals and limit their right to criticize or share opinions freely which is an integral part of art. 19(1)(a).

Arguments in favour of S.499

• To protect the reputation and integrity of individuals from false and defamatory statements.
• The criminal defamation law u/s 499 and 500 IPC is comprehensive and includes 4 explanations and 10 exceptions which is significant to filter out false complaints.
• Prevent the spread of misinformation and maintain social harmony and at the same time, provide legal recourse to individuals who have been victims of false accusations or malicious content.

Arguments against S.499

• These penal provisions do not constitute a reasonable restriction on the right to free speech as the exception of defense of truth may not be applied in a case where a person has made a critical comment against a party or any political worker may not be regarded as a public good by the Court.
• The scope of S.499 is really wide and even includes gestures or visible representation made by an individual which are hard to defend in the courts.
• It is more prone to be misused by the state for dragging or harassing an individual for saying anything allegedly against the ideologies of a particular ruling party. Thus, if defamation has to be made an offense, the civil remedies are sufficient.

Landmark Judgment: Subramanian Swamy v. Union of India

In this landmark judgment, ³ several petitions filed u/a 32 challenging the constitutionality of criminal defamation law u/s 499 IPC on the ground of restricting the right to free speech, were clubbed. The judgment delivered by J. Dipak Misra deeply analyzed the term ‘defamation’ and ‘reputation’ and held that ‘reputation’ is an intrinsic element of A. 21 as included in the term ‘dignity’. The court also pointed out that it is the fundamental duty of every citizen while exercising his rights, he should not encroach upon the rights of others. Thus, the restrictions on the right to freedom of speech and expression were held to be reasonable. Overall, the penal provisions were held to be reasonable from the standpoint of the interest of the general public.

This case was considered a huge setback for the right to free speech. The advocates of free speech pointed out that the Court did not pay attention to the political dissent causing a stir in modern India. These dissents are inevitable in a democratic society and the concerned penal provisions are over-criminalizing the dissents. ⁴

Criticism of Criminal Defamation Law

Freedom of the press has been an integral part of freedom of speech and expression. Media freedom is one of the essential elements of a democratic country but this freedom has been challenged by numerous defamation cases. The Wire (an online news platform), NDTV (a news channel), Citizen (an online newspaper), etc were charged with defamation cases when they made critical comments against the ruling government. Though, defamation is serious and may cause irreparable damage to one’s reputation; using it as a tool to curb free speech is equally a matter of serious concern. The fear of defamation cases may make the journalist or individual hesitant to share their opinions which may have a broader and lasting impact on the society. If the media cannot report the issues freely then the general public will be denied their right to information which may lead to a lack of accountability and transparency. This as a whole may shake the trust of the citizens in its government and country. Thus, to keep the democracy alive, the press freedom should be maintained.

Moreover, if defamation has to be made a ground for restricting free speech as keeping the check on people to not go beyond the line of constructive criticism and protecting the right to reputation then alternative civil remedies are available to address the grievances. Particularly, making it a criminal offense to deter society will only hinder people from asking legitimate questions to the government or concerned authorities, in turn, creating a completely unaccountable and non-transparent government.

Conclusion

The intolerance towards the dissent voices in India has raised concerns about democracy. ⁵ The point is not to argue for an unlimited domain of free speech; such a concept cannot be defended. Instead, how much value to be placed on speech concerning other important ideals such as privacy, security, democratic equality, and the prevention of harm should be decided. ⁶ The recent disqualification of Mr. Rahul Gandhi as a member of parliament has highlighted the toxic nature of this law and thus, it needs to be reviewed. Alongside, the law of sedition, UAPA, and other laws, internet shutdowns, and authorities were used to imprison various social leaders, and activists without evidence of participation. ⁷ To conclude, the issue of whether the state is curbing free speech through criminal defamation cases raises really important concerns about the balance between protecting individuals right to freedom of speech and safeguarding one’s reputation. While s. 499 aims to prevent defamation and protect individuals from any harm, it is equally crucial to examine its implementation and impact on free speech. To examine such impact, a nuanced approach is required which takes into account the principles of proportionality, reasonableness, and the need to foster public disclosure. The courts can strike a balance between the right to reputation and the right to free speech by ensuring that the provisions of s. 499 are not misused even by the state or employed to stifle legitimate criticism. The burden of striking the balance lies on the judiciary and it is duty-bound to ensure that s. 499 is not used as a tool to curb free speech. In a world where social media is ruling and people of any age can share their views by just clicking a few buttons, we are burdened to create a society where disagreements are respected. We are responsible for creating a tolerant society and that can happen only when we think before we speak. Moreover, respecting the criticisms and letting people freely share their opinions reflect the true diverse culture of a ‘democratic’ country.

Authored by Uniqua Singh, a Ph.D. Student from IIULER, Goa