A blow against free speech

At the dawn of the 17th century, Englishmen were in the habit of challenging each other to violent duels in order to avenge personal insults. Public disorder was frequent and the authorities decided to step in. To obviate the need for duels, they began to prosecute defamation as a criminal offence. So was born the notorious “criminal libel”. Truth was no defence since a true defamatory statement was as likely to lead to a breach of peace as a false one. There was even a saying, “the greater the truth, the greater the libel.” Two hundred and fifty years later, in 1860, the British imported their idea of criminal libel into the newly-minted Indian Penal Code (IPC). Section 499 of the IPC criminalised intentionally defamatory statements. True statements were not exempted, unless they also happened to be made for the “public good”.

World has moved on

So much for history. In the 400 years after the origin of criminal defamation in England, and in the 150 years after the drafting of the IPC, the world has moved on. There are no more duels. In 2009, the United Kingdom abolished criminal defamation altogether. More recently, the Constitutional Court of Zimbabwe struck it down as an unconstitutional restriction upon the freedom of speech. The apex courts of the United States, Canada and South Africa have transformed criminal defamation out of all recognition, adding defences that make it far more protective of the freedom of speech and expression. There has been a growing recognition all over the world that criminal defamation is a powerful tool in the hands of politicians and corporations to stifle and suffocate inconvenient speech.

On Friday, however, none of this seemed to matter to the Indian Supreme Court. Dismissing a petition filed by Subramaniam Swamy challenging the constitutionality of Section 499 of the IPC (Dr. Swamy was later joined by a whole host of figures across the political spectrum, including Rahul Gandhi and Arvind Kejriwal), the court kept the 1860 provision, with its 17th century roots, entirely intact. In order to keep such an onerous offence on the statute books, the court had to construct novel arguments which will have serious and unfortunate implications for the freedom of speech and expression in the coming years.

Using reputation as right

First, it held that the right to “reputation” was protected under Article 21 of the Constitution which guarantees “life and personal liberty”. Now, Article 21 only protects the individual’s life and liberty against interference by the state. Notwithstanding this minor textual hurdle, the Supreme Court declared that the right to free speech under Article 19(1)(a) had to be “balanced” against the right to “reputation” under Article 21. The court never explained how this balancing exercise was to be carried out, but simply asserted that since reputation could not be “crucified” at the altar of free speech, criminal defamation was constitutional.

The two moves that the court made — the first, to elevate “reputation” to the level of a fundamental right, and second, to have it prevail over free speech — have no basis in either the text or the structure of the Constitution. They are also dangerous moves. Over the last 30 years, along with its PIL jurisdiction, the court has radically expanded the scope of the right to “life and personal liberty” under Article 21. Article 21 has been held to include the right to sleep, and the right to a pollution-free environment, among other things. For the most part, the court has used this expanded definition to force the state to undertake various “social justice” and welfare measures for the benefit of citizens. But on Friday, the court did something else. Instead of using Article 21 as a shield to protect the individual against State persecution or indifference, it used it as a sword to cut down the fundamental right to freedom of speech and expression. There have been hints of this before in the court’s jurisprudence, but on Friday, this new doctrine of “death by Article 21” emerged as a serious threat to the future of constitutional rights. Article 21 has now become so vast, that if its use as a sword becomes a regular feature, then it will likely soon swallow up the rest of the fundamental rights chapter.

Invoking ‘constitutional fraternity’

The court’s second argument was to invoke something that it called “constitutional fraternity”. It held that criminal defamation law protected the feeling of fraternity — or solidarity — between members of a society. While this may sound fair enough, there is a slight problem. “Constitutional fraternity” is not a part of Article 19(2) of the Constitution, which specifically limits the circumstances under which the state can restrict speech to eight enumerated categories. It is also nowhere in the fundamental rights chapter of the Constitution, so the question of “balancing” free speech against constitutional fraternity does not arise. The word “fraternity” is mentioned in the Constitution’s preamble, as an aspirational goal for the newly independent Indian Republic, alongside “liberty” and “equality” — the three great slogans that originated with the French Revolution. And it was always meant to be that — an abstract concept and a rallying cry, signifying a dream and a utopia. It was never meant to become a tool to broaden the scope of restrictions upon fundamental rights.

Apart from its broad, almost undefinable nature, there is something particularly unfortunate about using “fraternity” to cut down civil rights. The existence of “fraternity” alongside liberty and equality is due to the realisation that in a deeply unequal society, guaranteeing civil rights (“liberty”) and equality before law are not enough. “Fraternity” signifies a common humanity, an end to the exploitation of human beings by other human beings. As B.R. Ambedkar observed, in his last speech to the Constituent Assembly: “…Liberty cannot be divorced from equality, equality cannot be divorced from liberty. Nor can liberty and equality be divorced from fraternity. Without equality, liberty would produce the supremacy of the few over the many. Equality without liberty would kill individual initiative. Without fraternity, liberty would produce the supremacy of the few over the many. Without fraternity, liberty and equality could not become a natural course of things. It would require a constable to enforce them.”

Fraternity, then, was meant to complement civil rights, not to destroy them. The Constitution’s framers did not use this symbolic term for a court to come along 66 years later, and appropriate it for the purposes of subordinating individual rights to some mythic notion of community harmony, entirely submerging the individual within the society.

Silences and omissions

There are, therefore, serious problems with the court’s stated justifications for upholding the constitutionality of criminal defamation. Equally problematic are the silences, the arguments that the court failed to engage with. For instance, it made no mention of the fact that Section 499 does not allow for “honest mistake” as a defence. This omission is especially glaring because this very Supreme Court, 22 years ago, had found that the civil law of defamation, as it then stood, was unconstitutional and a disproportionate restriction upon free speech, since it did not allow for “honest mistake”. Last week’s judgment creates a bizarre legal situation where criminal liability for defamation is attracted at a lower threshold than civil liability! Equally disappointing is the court’s cursory, one-paragraph dismissal of the claim that criminal defamation creates a chilling effect upon speech. Such proclamations are easy to make from the high, secure, and insulated bench of the Supreme Court. It is journalists and newspapers, fighting hundreds of frivolous cases in court, who have to deal with the very real consequences.

The Indian Supreme Court has always had an ambivalent relationship with the freedom of speech and expression. From upholding the constitutionality of sedition, blasphemy and obscenity on the one hand, to Justice V.R. Krishna Iyer writing about how “books or bombs” might disturb public tranquillity, the court has treated free speech more as an annoyance to be swatted aside whenever “public interest” demands it, rather than the fundamental right at the foundation of our republican democracy. Its defamation law judgment continues that long, unfortunate history.