By Kushagr Bakshi
In 2014, Subramanian Swamy, joined by Arvind Kejriwal Rahul Gandhi amongst others, moved the Court under Article 32 challenging the constitutional validity of Section 499 and 500 of the Indian Penal Code, 1860 coupled with Section 199(1) to (4) of the Criminal Procedure Code, 1973, the laws that lay down the offence of criminal defamation. Led by then Chief Justice Deepak Mishra, the Supreme Court upheld the constitutional validity of the impugned sections. Recently, under Section 499, M.J Akbar, Alok Nath and others have filed defamation cases against women who, in the wake of the #MeToo movement came out with their stories of harassment by the aforementioned men.
In this blog post, I shall first trace out the history of criminal defamation including the law in India and laws in other countries regarding it. Then I shall attempt to establish the unconstitutionality of criminal defamation based on two arguments, one regarding public and private wrongs and the second regarding standards of proof and proportionality for which I shall refer to civil defamation laws. Following this I shall introduce the concept of SLAPP’s and how these suits could impact the #MeToo movement in India. Finally, I shall end by comparing this situation with one faced by the American Courts during the Civil Rights movement.
Originally created by the British, Criminal Defamation laws were meant to stem the loss of life and public disorder caused by Englishmen getting into gun or sword duels in order to avenge personal insults and injury to reputation in the 1600’s. In 2009 however, it was the British themselves who abolished it. Similarly, the apex courts of Zimbabwe, United States, Canada and South Africa have all abolished Criminal Defamation laws, but, by and large it still remains the norm around the world.
There exists wide jurisprudential analysis of what constitutes a public wrong and private wrong and therefore the extent of state powers to criminalize any particular activity. Private wrongs which is acts by individuals against others are merely civil wrongs to be taken up in civil courts with maximum penalties ranging from compensation to damages. But the act of criminalizing defamation imputes a character of larger societal or public harm upon the activity. In Restoration Era England, given that the act carried public harm which was death and widespread disturbance, the act of criminalizing did carry the value of preventing public harm. But in the current era, this amounts to overstepping the bounds of state power and therefore effectively erasing the public private distinction created by law.
When analyzed particularly with respect to Section 499 and 500, criminal defamation would amount to an unreasonable restriction on the right to free speech guaranteed under Article 19(1)(a) of the Constitution of India, 1950. In R Rajagopal v. State of Tamil Nadu, the court had considered the question of the civil defamation regime vis a vis the right to free speech. The Court had held that the common law of defamation as it stood then was an unreasonable restriction of free speech because of the no fault liability regime. As it stood then, if the statements of the speaker turned out to be false, the speaker would be liable even if it was shown that the speaker had in fact exercised reasonable care and undertaken the requisite diligence. Adopting the test laid down in New York Times Co. v. Sullivan, the court formulated the standard of malice for liability in case of untrue statements. Consider this in case of criminal defamation, where truth isn’t a defense for defamation and the standard is only if the statement is uttered for public good can it be excused. This is an unreasonably high burden is placed on the defendant. Per this then it is clear to see that the regime of criminal defamation in India goes beyond the concept of reasonability per Article 19(2) and is therefore unconstitutional.
Coined by Penelope Canan and George Pring, SLAPP stands for Strategic Lawsuits Against Public Participation. Initially the term was used in a limited sense, describing actions against non-governmental or civil society organizations by governmental agencies or related parties regarding communications on state policies or actions. The aim of a SLAPP is to bury the defendant under loads of injunctions, paperwork and legal fees so as to discourage them from actively participating in public discourse. Over the years, the term has involved to include actions by individuals against other individuals with the qualifying factor remaining the aim and outcome of the suit.
In Subramanian Swamy v. Union of India, the Court dealt with balancing the right to reputation as under Article 21 and the freedom of speech under Article 19. Drawing from In Re Noise Pollution, the court reads the right to a reputation within the ambit of the right to life within Article 21. Thus, in its attempt to balance the two rights, the court stated that the reputation of an individual cannot be crucified at the altar of free speech and further substantiated this by refusing to recognize the chilling effect that criminal defamation has on free speech. Based on this enumeration of the jurisprudence of Criminal Defamation as it has evolved, we can conclude that cases under Section 499 fall within the ambit of SLAPP’s.
The debate around SLAPP is most exemplified by the defamation cases filed by Anil Amabani’s Reliance against various media groups and individuals regarding the reporting on the Rafale deal. With total damages sought amounting to around 20,000 crore rupees, these suits aside from the consequences of loss also cause great financial damage to news networks such as NDTV (the defendant). This creates two issues, one their hesitancy to report on such matters, second finances being diverted away from journalism into legal fees, thus essentially becoming a detriment to free speech and the fourth estate. Now while the jurisprudence in the US regarding SLAPP suits is evolved so as to protect the litigants, no such jurisprudence has developed in India. But the intent of these individuals or companies when they file such suits is clear, be it Alok Nath demanding a Rupee 1 compensation of M.J. Akbar’s lawyers filing a 97 name vakalatnama, it is not to honestly search for the truth in court, rather to fluster the opponents.
The #MeToo movement in India has had some powerful ramifications whether it be Raya Sarkar’s list or recent individuals named by various women in news media. In a nation where patriarchal structures have been so deeply entrenched that most women fail to even recognize the injustices being perpetrated against them, let alone speak out against them, this movement represents an unprecedented but welcome change. No longer are men safe in their gentleman’s clubs but are being forced to face the consequences of their actions and behavior. So far, the whole movement has been a reflection of the inadequacy of judicial and institutional structures to safeguard the rights of women in different environments and perhaps a sense of solidarity and vindication found only amongst the various groups of media of all kind. These suits now put the Supreme Court in a different setting from the judgement in 2016, for the individuals affected are not politicians but members of the general public who have faced grave injustices at the hands of powerful people. The question faced by the courts is that in this environment will an old antiquated law be used to restore powerful men back to their positions from which they can silence all these women and carry on their activities unchallenged. Institutions which most feminist groups consider to have failed the women now hold the power to decide the direction this movement takes, if it does take any at all.
In the 1960’s, Courts in America were faced with a choice perhaps along the same lines. The American Civil Rights Movement had faced a violent reaction from a majority of Southern states, but enraged that violence had not proved sufficient, the individuals from states had also filed defamation cases against newspapers in a bid to stop them from covering the massive protests and the movement in general. The petitioners noticed small errors in the reporting and filed defamation cases claiming large sums as compensation. In Montgomery Alabama, The New York Times was found guilty of defamation and fined a crippling $50,000.
However, the Supreme Court, holding the fate of speech as tool of the Civil Rights Movement, very famously modified defamation law so as to ensure that it couldn’t be used by the powerful as a tool of harassment or blackmail. The Court added the threshold of ‘Actual Malice’ in cases of civil defamation stating that as long as journalists were not proven to have published statements with full knowledge that statements were false or recklessly, they would not be covered within the ambit of defamation law. Per the Court, anything less than that would have amounted to a violation of the right to free speech guaranteed under the first amendment and the free press.
Comparing the two situations would perhaps serve some benefit. A public movement of vital importance in bringing equality between two sections of society stand threatened with antiquated laws of defamation aimed at suppressing the voices of those who have not been heard till now. And like the American Courts, ours too have an opportunity, to move from being seen as institutions of structural oppression to institutions which offer support to a just cause when needed. Perhaps the Courts could revisit the constitutionality of Section 499, or perhaps enumerate a new standard within Section 499 ensuring that it does not remain a tool of harassment and silencing of voices. The possibilities remain endless should the Courts heed the call of the hour.
(The author is a fifth year undergraduate student at the West Bengal National University of Juridical Sciences and an Editor for the journal
 Subramanian Swamy v. Union of India, W.P. (Crl) No. 184 of 2014.
 Rajshree Chandra, MJ Akbar’s Defamation Case: From Newsroom to Courtroom, the Game is Power, The Wire, available at: https://thewire.in/law/m-j-akbars-defamation-case-from-news-room-to-court-room-the-game-is-the-same, last accessed on: 20/11/18.
 Betwa Sharma, Criminal Defamation Laws are Prevalent across the World with a Few Exceptions, Huffington Post India, available at: https://www.huffingtonpost.in/2016/05/13/criminal-defamation-laws_n_9948456.html, last accessed on: 20/11/18.
 1994 SCC (6) 632.
 376 U.S. 254(1964)
 Mahip Singh v. Dawan Singh, (1888) ILR 10 All 425.
 The purpose of citing a civil defamation case here is to show how the burden on the prosecution and defendants vary such that there is a higher burden on the prosecution in a civil defamation case while it should really be the opposite. The point I’m trying to make here if that the defenses available for the same act vary per different laws and that is unfair given that the purpose behind the criminal defamation laws is moot in today’s time.
 George Pring, Penelope Canan, SLAPPs: Getting Sued for Speaking Out, Temple University Press (US, 1996).
 Supra Note 1.
 AIR 2005 SC 3136
 Pheroze Vincent, The Defamation Sledgehammer from Anil’s Reliance, The Telegraph, available at: https://www.telegraphindia.com/india/the-defamation-sledgehammer/cid/1672234, last accessed on 20/12/2018.
 A Brief History of SLAPP Suits, ACLU Ohio, available at: https://www.acluohio.org/slapped/brief-history-of-slapp, last accessed on: 20/11/19.
 Gene Roberts, Hans Klibanoff, The Race Beat: The Press, The Civil Rights Struggle and the Awakening of a Nation, Knopf (US, 2006).
 Supra Note 6, It is important to note that the US does not have a criminal defamation law and hence the standards being discussed are those of US civil law which would apply in criminal defamation laws in India.