By Pallavi Agarwal
Introduction
Indian law not only penalises the act of defamation but also allows for compensation claims against it as a civil remedy.[1] While criminal defamation is defined under §499 and punishable under §500 of the Indian Penal Code (hereinafter ‘the IPC’), civil defamation is rooted in common law and Indian courts have largely imported the reasoning of English courts on this into the Indian law. Every now and then, criminal sanctions are invoked against journalists,[2] and against anyone who asserts anything that is ‘uncomfortable’ to the public.[3] As a matter of fact, the provision regarding criminal defamation has been more abused than used by the Indian society, and people have generally succeeded at abusing it by making the alleged defamers vulnerable enough through the judicial process so as not to speak their minds again.[4]
In this essay, the author aims to present a jurisprudential take on the criminalisation of defamation, without delving into the aspects of the constitutionality of the defamation provision, i.e., §500 of the IPC. The present essay attempts to analyse the reasonability of criminal defamation from the lens of Ronald Dworkin’s ‘rights theory’ and conclude that inducing criminality into the wrong of defamation is unreasonable as it disproportionately impacts the rights of the accused. The author shall examine the right to speech and the right to dignity of the parties involved in a criminal defamation action using Dworkin’s concept of ‘competing rights’. Further, the author shall employ Dworkin’s view on ‘balancing rights and proportionality’ to elucidate how criminal defamation fails at balancing these competing rights.
The Right to Speech and the Right Against Defamation
In his conceptualisation of rights, Dworkin considers the right to speech to be a right in the strong sense, meaning that the right deserves to be free from restrictions and state interference.[5] The strength of the right to speech, seen in the context of dissent, flows from the idea that every person should be entitled to express one’s conscientious views despite others not being agreeable to that view or simply not liking it.[6] Arguably, the ‘right to speech and expression’[7] provided under Article 19(1)(a) of the Indian Constitution is also a strong right in the Dworkinian sense because it provides a general freedom of speech and expression, subject to only certain exceptions under Article 19(2). These exceptions are in line with Dworkin’s theory and do not weaken the strength of the right to speech because Dworkin posits that even a strong right may have to be restricted in three marginal situations: first, when the values protected by the original right are not the ones in issue or some attenuated form of them is in issue; second, when some other competing strong right is being infringed by exercise of the right; and third, when the costs imposed on the society by exercise of that strong right are unjustifiably huge.[8] Thus, only if the restrictions provided under Article 19(2) satisfy any of these three situations would the strong right be curtailed and that would still not render the right to speech a weak right, but only restrict it. Further, Dworkin would also agree that the ‘right to dignity’ as interpreted under the right to life and liberty, under Article 21 of the Indian Constitution, is also a strong right because Dworkin conceives dignity as an “intrinsic value” and as the right to “equal importance of every human life”.[9]
The question that arises here is whether the strength of the right to speech would extend to a right to defame others? It would not. While expressing one’s opinion, a person has to be mindful of others right to dignity. Reputation forms an important part of dignity,[10] and people have the right to protect their reputation. Thus, this situation falls in the second marginal case that Dworkin has postulated because right to dignity has emerged here as a competing right against the right to speech.[11] Having said that, the right to speech of accused is not the only right being competed here. The accused’s right to liberty is also compromised when he is taken under legal custody for simply expressing his thoughts which he, in plenty of cases, did not even imagine, let alone intend, could be labelled as defamatory.[12] As would be explored in the essay later, there is a lack of even a clear distinction between the understanding and scope of applicability of civil and criminal defamation. Consequently, matters which can be resolved through civil remedy are being dragged to criminal courts merely to achieve deterrence and hype the matter. This depicts a clear violation of the accused’s rights but interestingly, the Indian courts have considered such compromise of accused’s rights to be justifiable for the protection of others’ dignity.[13] However, by the application of Dworkin’s theory, it would appear that these competing rights, of speech and dignity, have not been perfectly balanced.
Balancing by the Doctrine of Proportionality
Dworkin’s solution to this dilemma of competing rights is that a balance must be reached between the ‘right to speech’ and the ‘right against defamation’.[14] That is, the two rights have to be evaluated based on their degree and scope in the context of criminal defamation. Thus, one needs to identify the boundaries of the right against defamation to be able to scrutinise the restrictions placed on the right to speech. For instance, the right to speech cannot be curtailed merely on the ground that it might offend someone. The strong right against defamation does not carry within itself a ‘right to be offended’.[15] In fact, Dworkin recognises the existence of a ‘right to ridicule’ as a corollary of the right to speech, which he considers, forms “a condition of legitimate government”.[16]Additionally, the defamation being discussed here pertains to only insulting remarks on individuals/groups and does not include acts of hate speech, which can potentially incite violence, because they are covered by provisions other than §499, IPC.[17]
Though he has never distinctly defined proportionality with respect to balancing rights, Dworkin does argue that any restriction on strong rights is a serious curtailment of that right, and thus, such restriction has to be ‘reasonable’.[18] The restriction should not be more than what is necessary for the protection of others’ ‘right to not be defamed’, which means the restriction should be ‘proportional’.[19] The general test of proportionality entails four stages which we shall analyse with respect to criminal defamation: firstly, there must be a legitimate goal that is sought to be achieved by the legislation; secondly, the restriction must have a rational nexus with the said goal; thirdly, no alternative and less restrictive measures should be available besides that restriction; and finally, the burden imposed on the right-holder by the curtailment of the right should not be disproportionate.[20]
Is Criminalisation of Defamation Proportional?
An application of the above-mentioned proportionality test to the offence of criminal defamation shows that criminalisation of defamation is not a reasonable restriction imposed on the right to speech. The first ingredient of the test appears to be superficially satisfied as criminal defamation appears to be carrying a legitimate goal of protecting the dignity of others. However, it is argued that, in reality, the goal of criminal defamation is not to protect one’s dignity, but to silence critiques. This can be observed in recurring instances of youtubers, comedians, etc. being charged for criminal defamation for disseminating content which is merely a critique with humour.[21] Besides, Dworkin claims that a goal which assumes one ethical ideal to be superior to another shall be considered illegitimate.[22] The two ideals involved here are the ideals of ‘protection of dignity’ and of ‘protection of critical/condemnatory speech’. Given such rampant abuse of criminal defamation by its invocation to shut dissenting voices, it seems that the law considers the ideal of protection of dignity superior to the protection of critical speech. Hence, such a goal which prioritizes one ideal over another must not be called legitimate and consequently, the first ingredient of the test is not satisfied.
The second component of the proportionality test requires that criminal defamation should be suitable to and have a rational connection with the goal of protecting dignity. Criminal law exists to protect public well-being, and consequently, only those acts which pose harm to society at large are criminalised.[23] The act of defamation is a ‘private wrong’ and, as such, should not be criminally sanctioned. Dworkin postulates that the State cannot dispense with strong rights simply on the grounds of general ‘public good’ or ‘public convenience’.[24] The very strength of these rights lies in their exercise beyond any considerations of what is convenient for people to see or hear or feel. As the Supreme Court held in Shreya Singhal v. Union of India,[25] speech restricting statutes have to be drawn narrowly so as to be rationally justified.[26] However, the defence of ‘truth’ against defamation under §499 of the IPC lays down a requirement of ‘public good/public interest’ that has enlarged the scope of this restriction manifold, which once again derails from reasonability.[27] If the defence of truth of the defamatory matter would apply only when the matter was spoken for some public good, then we are restricting acceptability of critical speech to only those instances when it serves some benefit to the society, and not when the speaker merely wanted to express his views. This plainly indicates that criminal defamation does not exist to protect dignity, but to filter out such critical speech which can be justified from the societal point of view.
Moreover, given the severe punishment attached to crimes, one core feature installed in criminal law is the higher standard of proof required to be met to lead the accused to conviction.[28] This principle is so inherent in the entire process of the criminal justice system that non-compliance to it shall effectively label criminal law as ‘unreasonable’. Unfortunately, the judicial interpretation of civil defamation as done in the case of R. Rajagopal v. State of Tamil Nadu[29] (hereinafter ‘R. Rajagopal’) has had the effect of lowering the standard of proof for criminal defamation even more than that required for civil defamation. In R. Rajagopal, the Supreme Court adopted the “Sullivan test”[30] for testing liability under civil defamation, and the test requires the presence of an element of ‘actual malice’ in the alleged act of making defamatory statements.[31] Whereas, §499 of the IPC punishes the very publication of the defamatory statement, irrespective of the accused’s knowledge of its falsity. Thus, it essentially creates a no-fault liability which is certainly ‘unreasonable’.[32] Resultantly, this contravenes the third element of proportionality as defamation is being criminalised despite the presence of an alternative and less restrictive measure, that is, civil defamation.
Having said that, it might be argued by some that a major goal of criminal law is to create deterrence against the commission of certain acts,[33] and it is for this deterrent effect that even private wrongs such as defamation, among others, have been criminalised. However, the ultimate aim sought to be achieved through deterrence is nothing but ‘public good’. The law contemplates the possibility of further defamation being caused to others’ dignity, and thus criminalises defamation, because it wants to achieve the overall well-being of society in the long term. However, this again stands in stark contradiction to Dworkin’s idea of curtailment of rights for public good. Dworkin does concede that even a strong right may have to be restricted in certain marginal cases. However, he cautions that these restrictions cannot be just generally placed.[34]
By criminalising defamation to achieve deterrence, the law is according a higher value to the societal good than to the right to speech of the accused. This is not to say that the entire scheme of ‘deterrence effect’ is faulty. The claim being made here is that the imposition of deterrence appears to be faulty and unreasonable in the context of defamation as it imposes a highly disproportionate burden on the accused by curtailing his right to speech to a degree greater than necessary. This also coincides with the fourth component of the proportionality test. Criminalisation of defamation unnecessarily devoids the accused of his right to liberty, when in fact no palpable social costs are being imposed on the society as there are in a case of murder or theft, for instance, which ergo, requires deterrence. Hence, seen from a Dworkinian approach to rights, criminal defamation fails to achieve any fruitful ends over and above what civil defamation is already capable of achieving. Rather, it inflicts unwarranted restrictions on the accused’s right to speech as well as liberty, which cannot be justified under Dworkin’s theory and leads to overcriminalization in law.
Conclusion
The author concludes that criminalisation of defamation is not reasonable from the perspective of Dworkin’s rights theory as it disproportionately harms the right to speech of the accused in a spree to protect others’ reputation. Hence, the argument initiated from the violation of ‘right against defamation’ of the public turns its focus to the violation of ‘right to speech’ of the accused. It can be observed that criminal defamation infracts two strong rights of the accused at the same time, which is the right to speech and the right to liberty, even when the right to dignity of the complainant could have been equally protected through a civil remedy for defamation. This manifests that the two competing rights have not been proportionally balanced against each other. Furthermore, criminal defamation chills speech altogether due to the seriousness of punishment and procedure involved in a criminal suit, aside from the stigma that the criminal trial brings.
Thus, the provision of criminal defamation dilutes Dworkin’s famous claim that rights exist as “trumps” over the public well-being[35] because in this case, they have clearly lost.
The author, Pallavi Agarwal, is an undergraduate law student at the National Law School of India University (NLSIU), Bangalore.
[1]Ratanlal & Dhirajlal, The Indian Penal Code (PB), 1734 (36th ed., 2019).
[2]Tauseef Mustafa, India: Authorities open defamation cases against three journalists, International Federation of Journalists (09/07/2021) available at https://www.ifj.org/media-centre/news/detail/category/press-releases/article/india-authorities-open-defamation-cases-against-three-journalists.html last accessed on 18/08/2021.
[3]TNN, Tamil Nadu govt drops 90 defamation cases against media houses, The Times of India(31/07/2021) available athttps://timesofindia.indiatimes.com/city/chennai/tamil-nadu-govt-drops-90-defamation-cases-against-media-houses/articleshow/84878152.cmslast accessed on 18/08/2021.
[4]Defamation case: Supreme Court grants relief to journalist Arnab Goswami, The Hindu(24/03/2020) available at https://www.thehindu.com/news/national/defamation-case-supreme-court-grants-relief-to-journalist-arnab-goswami/article31421899.ece
[5]Jeremy Waldron, Dignity and Defamation: The Visibility of Hate 123(7) Harvard Law Review 1596, 1636-38 (2010).
[6]Ronald Dworkin, Rights as Trumps, 153 in Theories of Rights (Jeremy Waldron, 1st ed., 1984).
[7]For the purposes of this paper, the phrase ‘right to speech’ shall mean the same as ‘right to speech and expression’ under Article 19(1)(a) of the Indian Constitution.
[8]Ronald Dworkin, Taking Rights Seriously, 78(1st ed., 1977).
[9]Ronald Dworkin, Is Democracy Possible Here? Principles for a new Political Debate37(1st ed., 2006).
[10]Benedict John Anstey, Criminal defamation and reputation as ‘honour’: a cross-jurisdictional perspective, Journal of Media Law 1, 13 (2017).
[11]Supra note 8, at 77.
[12] Kaushik Moitra, Comedy of Errors: Legal Case Against Tanmay Bhat Won’t Hold Up, Bloomberg Quint, (02/06/2016) available athttps://www.bloombergquint.com/opinion/comedy-of-errors-legal-case-against-tanmay-bhat-wont-hold-ground-sachin-vs-lata-civil-war-mns-shiv-sena-snapchat last accessed on 18/08/2021.
[13]Subramaniam Swamy v. Union of India AIR2016 SC 2728 [140].
[14]Supra note 8, at 77-78.
[15]Michiel Bot, The Right to Offend? Contested Speech Acts and Critical Democratic Practice 24(2) Law and Literature 232, 241 (2012); see State of Maharashtra v. SangharajDamodarRupawate(2010) 7 SCC 398.
[16]Ronald Dworkin, The Right to Ridicule,The New York Review(23/3/2006)available at http://www.nybooks.com/articles/2006/03/23/the-right-to-ridicule/last accessed on 27/12/2020.
[17]See the following sections of the IPC: § 124A – sedition; § 153A – ‘promotion of enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony’; § 153B – ‘imputations, assertions prejudicial to national-integration’; § 295A – ‘deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs’; § 298 – ‘uttering, words, etc., with deliberate intent to wound the religious feelings of any person’; § 505(1) and (2) – publication or circulation of any statement, rumour or report causing public mischief and enmity, hatred or ill-will between classes.
[18]Supra note 8, at 78.
[19]Mattias Kumm,The Idea of Socratic Contestation and the Right to Justification: The Point of Rights-Based Proportionality Review 4 Law & Ethics of Human Rights 141 (2010).
[20]Kai Moller, Dworkin’s Theory of Rights in the Age of Proportionality 12(2) Law & Ethics of Human Rights 281, 288-89 (2018).
[21]See, Ahmed Ali, YouTuber booked for defaming Maharashtra netas, gets pre-arrest bail, The Times of India (20/11/2020), available at https://timesofindia.indiatimes.com/city/mumbai/youtuber-booked-for-defaming-maharashtra-netas-gets-pre-arrest-bail/articleshow/79314582.cms, last accessed on 27/12/2020; PTI, HC stays criminal defamation proceedings against Tharoor for ‘scorpion on shivling’ remarks, The Times of India (16/10/2020), available at https://timesofindia.indiatimes.com/india/hc-stays-criminal-defamation-proceedings-against-tharoor-for-scorpion-on-shivling-remarks/articleshow/78704313.cms, last accessed on 27/12/2020.
[22]Supra note 19, at 290.
[23]Matthew Lippman, Contemporary Criminal Law: Concepts, Cases, and Controversies, 42 (5th ed., 2018).
[24]Supra note 8, at 75.
[25]Shreya Singhal v. Union of India(2013) 12 SCC 73.
[26]Ibid, [17].
[27]Debayan Roy, How MJ Akbar’s Defamation Suit Against Priya Ramani May Play Out in Court Today, News18, available athttps://www.news18.com/news/india/how-mj-akbars-defamation-suit-against-priya-ramani-will-pan-out-in-court-1912345.html, last accessed on 21/12/2020.
[28]Supra note 22, at 40.
[29]R Rajagopal v. State of Tamil Nadu1995 AIR 264.
[30]The Sullivan Test was carved out in New York Times Co. v. Sullivan 376 U.S. 254 (1964) which replaced the earlier used no-fault liability standard for civil defamation.
[31]“Actual malice”, that is, having knowingly spoken falsely, or acted with reckless disregard for the truth.
[32]Gautam Bhatia, The Supreme Court’s Criminal Defamation Judgment: Glaringly Flawed, Indian Constitutional Law and Philosophy,available at https://indconlawphil.wordpress.com/tag/criminal-defamation/ last accessed on 21/12/2020.
[33]Michael J. Mazarr, Understanding deterrence, RAND Corporation, 2 (2018).
[34]Supra note 8, at 79.
[35]Supra note 6.
The Journal of Indian Law and Society Blog 