CCG analyses on the Criminal Defamation ruling

Written by Nakul Nayak

Since the Supreme Court’s May 13th ruling on the constitutionality of criminal defamation laws in India, CCG has come out with two op-eds on the shortcomings of the judgment.

1. In today’s Indian Express, Chinmayi Arun (Executive Director of CCG) raises important questions surrounding the implications of the judgment. Specifically, Chinmayi points out the glaring dissonance in the Central Government arguing for a right to reputation in the domain of defamation and simultaneously arguing against the fundamental right to privacy in the Aadhar hearings. Chinmayi also goes on to criticise the Supreme Court’s inadequate recognition of the powerful parties that use criminal defamation laws and their disparate impact on ordinary citizens. Her op-ed can be found here.
2. A few days back, I wrote an opinion piece in Livemint arguing that criminal defamation laws can and have been used by state officials to obfuscate public inquiry. This affects the truth-seeking endeavour of free speech, apart from the fact that India necessitates a “public good” value to truthful statements to qualify as a defence. I also argue that section 199 of the CrPC, which enlists the procedure to be followed in any criminal defamation prosecution, envisages an additional avenue for silencing criticism of official conduct by allowing a public prosecutor to file a complaint even when the particular state servant may not have felt aggrieved. My op-ed can be found here.
3. Post Script [May 27, 2016]: Anna Liz Thomas, a student at NALSAR University and an intern with CCG, has written an interesting piece analysing the arguments of the petitioners that were never countered or even addressed by the Supreme Court. Anna proceeds with look at the effect of these arguments and this, apart from making for a compelling read, makes one wonder whether the rebuttal of these arguments would have made the judgment a more informed and nuanced one. Anna’s post can be found here.

Supreme Court finds Criminal Defamation Constitutional

Written by Nakul Nayak

Today, a two-judge bench of the Supreme Court found criminal defamation as constitutionally valid. Recall that the Supreme Court had reserved judgment in this matter in August last year after extensive hearings. Leaders from across the political divide, including Subramanian Swamy, Arvind Kejriwal, and Rahul Gandhi, filed these petitions challenging sections 499 and 500 of the IPC and section 199 of the CrPC – the provisions that constitute the criminal defamation regime in India.

Note that the judgment is not out yet and a deeper explication will be made after the text is made public, probably in a few hours. Preliminary updates from social media, however, suggest that the Court has justified criminal defamation as a reasonable restriction on free speech. Additionally, the Court has indulged in a balancing act between a “right to reputation” under Article 21 and free speech under Article 19(1)(a). Moreover, as per reports, the Court claims that defamation protects “societal interests” and “constitutional fraternity”. The latter is an especially vague term and deserves to be expounded in detail in the text of the judgment. An interesting aspect of the judgment should be about a reading of the safeguards inherent in section 499 of the IPC that merit a claim that the section is not open to abuse. We await the “thick” judgment.