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3. Obscene libel, as the offence of obscenity, is criminalised by section 294 of the IPC.
4. And defamatory libel, repealed in Britain, which is the offence of criminal defamation that the Subramanian
Swamy case upheld, continues to exist under section 499 of the IPC
India
Article 19(1)(a) of the Constitution of India guarantees all Indian citizens the right to freedom of speech and
expression.
Article 19(2) allows the state to make laws which impose reasonable restrictions on this right in the interests of the
sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency
or morality or in relation to contempt of court, defamation or incitement to an offence.
Of these, only defamation protects the private interest in protecting an individuals reputation. All the other
interests are essentially public interests. The test in determining the constitutionality of a law under Article
19(2) is whether the law is a reasonable restriction on free speech.
Supreme Court has laid that there should be reasonable restrictionthe limitation imposed on a person in
enjoyment of the right should not be arbitrary or of an excessive nature beyond what is required in the
interests of the public
Creation of an artificial balance between the fundamental right of free speech under Article 19(1) (a) and the
right to reputation as part of ones right to life under Article 21
Politics and censorship
1. Political interests have adopted defamation law to settle scores and engage in performative posturing for
their constituentsa new front for political manoeuvring
The three that received the most news coverage were those of Subramanian Swamy, Rahul Gandhi,
and Arvind Kejriwalrarely, if ever, suffer punishment
There are numerous cases which politicians have filed against private members of civil society to
silence them and when presented with these concerns, the Supreme Court simply failed to seriously
engage with them
2. Powerful entities such as large corporations have exploited weaknesses in defamation law to threaten,
harass, and intimidate journalists and criticsPowerful elites frighten journalists into submission and
vindictively hound those who refuse to back down. Such actions are called Strategic Lawsuits against Public
Participation (SLAPPs), thus creating a new system of censorship
The Supreme Courts refusal, in Subramanian Swamy vs. Union of India, to strike down the colonial offence of
criminal defamation is retrograde and out of tune with the present timescriminalising defamation serves no
legitimate public purpose; the vehicle of criminalisation sections 499 and 500 of the Indian Penal Code, 1860 (IPC)
is unconstitutional
Failure to recognise the harm that criminal defamation poses to a healthy civil society in a free democracy
Supreme Courts failure to distinguish between private injury and social harm
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Declares that reputation is protected by the right to life guaranteed by Article 21 of the Indian Constitution but
it offers no sound reasoning to support this claimReputation is not absolute- is a social construct based
on shared perceptions. Society agrees on a persons reputation and can likewise agree that it was mistaken.
Fails to explain why the private civil action of defamation is insufficient to protect reputation
Failure to understand the concept of Crime When an action is serious enough to harm society it is
criminalised.
Rape strikes at the root of public safety, human dignity, equality, and peace, so it is a crime.
A breach of contract only injures the party who was expecting the performance of contractual duties; it
does not harm society, so it is not a crime.
Similarly, a loss of reputation, which is by itself difficult to quantify, does no harm to society and so it
should not be a crime.
Mistakes
The judgment is delivered by one judge speaking for a bench of twoSuch critically significant
constitutional challenges cannot be left to the whims of two unelected and unaccountable men
Retreat of the SC from being the guarantor of individual freedoms will have far-reaching and
negative consequences for Indias citizenry
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If the law criminalises untruth, then it must sanctify truth In addition to proving the truth, the journalist must
prove that her writing serves the public good. So speaking truth is illegal if it does not serve the public good
(example)
Connecting the Dots:
Defamation cases are a weapon by which the rich and powerful silence their critics and censor a democracy.
Discuss
Note: Today not many important issues, so we have stuck to only to One Issue in todays Daily News
Analysis.
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