While the right to reputation may be protected by the Constitution, through Article 21 and reasonable restrictions on the freedom of speech, it cannot come at the cost of the latter. Free speech is necessary because it enables the media to hold governments and individuals accountable. If the ability to legitimately criticize is not protected, voices throwing light on important issues will continue to be silenced by the rich and powerful.
The problem is, this debate has centred around whether defamation should be treated as a civil wrong or criminal offence or both. While some may see criminal defamation as an unwarranted restriction on free speech, in the case of Subramanian Swamy vs. The Union of India [AIR 2016 SC 2728] in 2016, the Supreme Court of India upheld criminal defamation and its constitutional validity.
In 2015, Subramanium Swamy, along with several other petitioners that included well-known politicians like Rahul Gandhi, Arvind Kejriwal, Jayalalithaa and others, came together to challenge the constitutionality of criminal defamation under Sections 499 and 500 of the IPC. Their argument was that these colonial-era criminal defamation provisions were an unreasonable restriction on the constitutionally guaranteed right to freedom of speech and expression and have a chilling effect on the right to freedom of speech and expression.
But following the judgment, one must first analyse the meaning of the terms ‘defamation’ and ‘reputation’, and the interaction of these terms with right of the freedom of speech and expression. The Supreme Court held that the reputation of an individual was included in the protection of ‘dignity’, which was part of the constitutionally protected right to life, and though we have the Right to Freedom of speech and expression in a democracy, it is subject to reasonable restrictions. Moreover, the judgement recognized that the restrictions should serve the public interest and should not be excessive; Once we have held that the reputation of an individual is a basic element of Article 21 of the Constitution and balancing fundamental rights is a constitutional necessity and that the legislature in its wisdom has kept the penal provision alive, it is extremely difficult to subscribe to the view that criminal defamation has a chilling effect on the freedom of speech.
The Supreme Court thus stated that the definition of defamation in the IPC is neither vague nor ambiguous. It also stated that an imputation can only be treated as defamatory if it has been made with the intention of causing harm or having reason to believe that such imputation will harm the reputation of the person about whom it is made. Thus, an imputation can only be treated as defamatory if it directly or indirectly, in the estimation of others, lowers a person’s character or his credit. The Supreme Court additionally held that exposing truth is a defence only when a statement also serves the public good, and stated that if a truthful statement is not made for any kind of public good but only to malign a person, this should not be constitutionally protected.
Finally, the Supreme Court held that the penal code provision is not disproportionate. The reasonableness and proportionality of a restriction is examined from the standpoint of the interest of the general public, and not from the point of view of the person upon whom the restrictions are imposed. On applying this standard, the Court judged the criminal defamation laws to be proportionate. The Supreme Court dismissed the challenges to the constitutionality of the criminal offense of defamation, holding that it was a reasonable restriction on the right to freedom of expression.
Thus, we conclude that there has always been a delicate balance between one person’s right to freedom of speech and another’s right to protect their reputation and dignity, and they must be harmoniously construed to allow both to co-exist without deeming one to be unconstitutional.
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