An outdated provision
Criminal defamation is an unwieldy remnant of the colonial era. It warrants a relook
Congress leader Rahul Gandhi’s travails with a criminal defamation case, which finally ended last week when the Supreme Court stayed his conviction, has a larger takeaway that affects the public, but has little to do with his imminent return to Parliament after 134 days. It is about the outdated provisions of the criminal defamation statute, which was first instituted by the British in 1860, with the express aim of protecting the interests of the colonial government, and thwarting any push towards free public debate using the miasma of public order and State security. Defined by sections 499 and 500 of the Indian Penal Code that spell out a punishment of a maximum of two years in prison and a fine, criminal defamation is often seen as an anachronistic and disproportionate remedy against what is essentially a speech offence, and for which a civil recourse already exists. Despite many modern democracies having done away with the statute – including, for most cases, in the United Kingdom – criminal defamation has resisted legal challenges in India. In 2016, the top court dismissed a batch of petitions from politicians and activists who argued that the colonial provision undermined free speech, and held that a person’s right to personal reputation was part of the fundamental right to life. 
There are two main points to note. One, the offence is broadly drafted — a feature that helped the British government throw Indian freedom fighters in jail on vague charges — and hence proceedings can be easily instituted. Despite the apex court asking magistrates to be more discerning while adjudicating such cases and ensuring that generic statements are not prosecuted against, in practice, the process becomes the punishment. Moreover, as long as the provision stays on the books, it has a chilling effect on free speech.
The second aspect deals with the peculiar nature of the offence that is essentially a private remedy (which means that only another individual or group can bring the charge of criminal defamation against someone, not the State). Yet, the question of who can file a criminal defamation complaint is often left open – allowing a large and indeterminate class of people to initiate proceedings. Even if such cases are later dismissed, the damage is done. If one of the most high-profile politicians in the country and a leader of the country’s largest Opposition party had to come to the highest court of the land for relief, imagine what a common person has to go through. Civil defamation might be a valuable check to safeguard reputations, but the criminal provision is an unwieldy sledgehammer. It warrants a relook.
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