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.
Receive Daily Updates
Recent Posts
Steve Ovett, the famous British middle-distance athlete, won the 800-metres gold medal at the Moscow Olympics of 1980. Just a few days later, he was about to win a 5,000-metres race at London’s Crystal Palace. Known for his burst of acceleration on the home stretch, he had supreme confidence in his ability to out-sprint rivals. With the final 100 metres remaining,
[wptelegram-join-channel link=”https://t.me/s/upsctree” text=”Join @upsctree on Telegram”]Ovett waved to the crowd and raised a hand in triumph. But he had celebrated a bit too early. At the finishing line, Ireland’s John Treacy edged past Ovett. For those few moments, Ovett had lost his sense of reality and ignored the possibility of a negative event.
This analogy works well for the India story and our policy failures , including during the ongoing covid pandemic. While we have never been as well prepared or had significant successes in terms of growth stability as Ovett did in his illustrious running career, we tend to celebrate too early. Indeed, we have done so many times before.
It is as if we’re convinced that India is destined for greater heights, come what may, and so we never run through the finish line. Do we and our policymakers suffer from a collective optimism bias, which, as the Nobel Prize winner Daniel Kahneman once wrote, “may well be the most significant of the cognitive biases”? The optimism bias arises from mistaken beliefs which form expectations that are better than the reality. It makes us underestimate chances of a negative outcome and ignore warnings repeatedly.
The Indian economy had a dream run for five years from 2003-04 to 2007-08, with an average annual growth rate of around 9%. Many believed that India was on its way to clocking consistent double-digit growth and comparisons with China were rife. It was conveniently overlooked that this output expansion had come mainly came from a few sectors: automobiles, telecom and business services.
Indians were made to believe that we could sprint without high-quality education, healthcare, infrastructure or banking sectors, which form the backbone of any stable economy. The plan was to build them as we went along, but then in the euphoria of short-term success, it got lost.
India’s exports of goods grew from $20 billion in 1990-91 to over $310 billion in 2019-20. Looking at these absolute figures it would seem as if India has arrived on the world stage. However, India’s share of global trade has moved up only marginally. Even now, the country accounts for less than 2% of the world’s goods exports.
More importantly, hidden behind this performance was the role played by one sector that should have never made it to India’s list of exports—refined petroleum. The share of refined petroleum exports in India’s goods exports increased from 1.4% in 1996-97 to over 18% in 2011-12.
An import-intensive sector with low labour intensity, exports of refined petroleum zoomed because of the then policy regime of a retail price ceiling on petroleum products in the domestic market. While we have done well in the export of services, our share is still less than 4% of world exports.
India seemed to emerge from the 2008 global financial crisis relatively unscathed. But, a temporary demand push had played a role in the revival—the incomes of many households, both rural and urban, had shot up. Fiscal stimulus to the rural economy and implementation of the Sixth Pay Commission scales had led to the salaries of around 20% of organized-sector employees jumping up. We celebrated, but once again, neither did we resolve the crisis brewing elsewhere in India’s banking sector, nor did we improve our capacity for healthcare or quality education.
Employment saw little economy-wide growth in our boom years. Manufacturing jobs, if anything, shrank. But we continued to celebrate. Youth flocked to low-productivity service-sector jobs, such as those in hotels and restaurants, security and other services. The dependence on such jobs on one hand and high-skilled services on the other was bound to make Indian society more unequal.
And then, there is agriculture, an elephant in the room. If and when farm-sector reforms get implemented, celebrations would once again be premature. The vast majority of India’s farmers have small plots of land, and though these farms are at least as productive as larger ones, net absolute incomes from small plots can only be meagre.
A further rise in farm productivity and consequent increase in supply, if not matched by a demand rise, especially with access to export markets, would result in downward pressure on market prices for farm produce and a further decline in the net incomes of small farmers.
We should learn from what John Treacy did right. He didn’t give up, and pushed for the finish line like it was his only chance at winning. Treacy had years of long-distance practice. The same goes for our economy. A long grind is required to build up its base before we can win and celebrate. And Ovett did not blame anyone for his loss. We play the blame game. Everyone else, right from China and the US to ‘greedy corporates’, seems to be responsible for our failures.
We have lowered absolute poverty levels and had technology-based successes like Aadhaar and digital access to public services. But there are no short cuts to good quality and adequate healthcare and education services. We must remain optimistic but stay firmly away from the optimism bias.
In the end, it is not about how we start, but how we finish. The disastrous second wave of covid and our inability to manage it is a ghastly reminder of this fact.