The Hindu

These kinds of cases are mostly coming from this State... Why? asked Justice Misra.
The Supreme Court has always had an ambivalent relationship with the freedom of speech and
expression, treating free speech more as anannoyance than a right. Its defamation law judgment
continues that long, unfortunate history.
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 individuals 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 courts 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 courts 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 Constitutions 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 Constitutions 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 courts 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 weeks
judgment creates a bizarre legal situation where criminal liability for defamation is attracted at a lower
threshold than civil liability! Equally disappointing is the courts 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.
Gautam Bhatia is a Delhi-based lawyer.