S.Rajarathnam Prolific Writer and Renowned Tax Consultant
Should Freedom of Speech a valuable right in a democracy, have a limitation? Should slander, libel and defamation be accepted as something to be tolerated? Slander can kill as Shakespeare in Much Ado About Nothing about a character subjected to slander –
“Done to death by slanderous tongues,
Was the Hero that here lies.”
He called it a poison, short, calumny and squint eyed and foulest whelp of sin. Should it become a curb to choke the right to speech or freedom of speech enshrined under Article 19(1)(g) of our Constitution?
The law before the Constitution, which continues till date was Section 499 of the Indian Penal Code, 1860 against defamation no doubt, with ten exceptions and Section 500 providing for fine or imprisonment upto two years or both. Section 199 of the Criminal Procedure Code, 1973, provides for prosecution for defamation.
There were as many as twenty five criminal cases including one by Mr. Subramanian Swamy, which were consolidated and became the subject matter of Writ Petition (Criminal) No.184 of 2014 questioning the validity of the prosecution provisions seeking to have them declared ultra vires as violative of Article 19(1)(g) recognising the freedom of speech as a Fundamental Right. The cases were argued by eminent counsels for both sides with two more acting as amicus curae at the invitation of the Supreme Court, which in a judgment running to 267 pages dealt with all the arguments before its conclusion.
The judgement is replete with the history of the right to freedom recognised in all democracies particularly in written constitutions of not only India but also U.S. and other democracies, besides Universal Declaration of Human Rights. The right to free expression is understandable on merits. So is the case for prosecution against defamation, so as to protect the reputation, which is equally valuable. Can they be reconciled?
Freedom of speech – Its sanctity
Freedom of speech in a democracy is a highly treasured value. The Court has listed authorities from literature and precedents as to its precious nature and glorified sanctity at the top of structured pyramid. Freedom of speech is treated as the life of the free people, who has not mortgaged their ideas or succumbed to the folly of artificially cultivated social norms.
Bury in his work History of Freedom of Thought (1913) has observed that freedom of expression is “a supreme condition of mental and moral progress”. In the words of American Judges, it is “absolutely indispensible for the preservation of a free society in which government is based upon the consent of an informed citizenry and is dedicated to the protection of the rights of all, even the most despised minorities”.
Judge Brandeis in Whitney Vs. California 250 US 616; 63 L Ed 1173 (1919) pointed out as under:
“Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears.”
If there is no freedom, one cannot do away with such irrational aspects of our life. To say that there will be an imminent collapse, if such irrational beliefs are questioned under the law of defamation, there can be no progress. There can be no boundary in a growing democracy for freedom of speech, if democracy is expected to thrive.
In Romesh Thapar Vs State of Madras AIR 1950 SC 124, the majority opined that freedom of speech and of the press lay at the foundation of all democratic organisations, for without free political discussion no public education, so essential for the proper functioning of the processes of popular Government, is possible. A freedom of such amplitude might involve risks of abuse. But the Framers of the Constitution may well have reflected with Madison, who was ‘the leading spirit in the preparation of the First Amendment of the Federal Constitution’, that ‘it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits’ (Near Vs Minnesota 283 U.S. 607 at 717-8, L Ed p. 1368.).
The Courts extolled freedom of speech unreservedly while recognising its possible use. In Express Newspaper (Private) Ltd. Vs Union of India AIR 1958 SC 578, the Courts have also expressed a caution in that the freedom is not an absolute right reiterated in Sahara India Real Estate Corporation Ltd. Vs Securities and Exchange Board of India (2012) 10 SCC 603 in following words:
“Freedom of expression which includes freedom of the press has a capacious content and is not restricted to expression of thoughts and ideas which are accepted and acceptable but also to those which offend or shock any section of the population. It also includes the right to receive information and ideas of all kinds from different sources. In essence, the freedom of expression embodies the right to know. However, under our Constitution no right in Part III is absolute. Freedom of expression is not an absolute value under our Constitution. It must not be forgotten that no single value, no matter exalted, can bear the full burden of upholding a democratic system of government.”
The Supreme Court while reversing the ban of the High Court barring a public view of the Tamil film Ore Oru Gramathile, as it was against the aspirations of the Tamils for reservations of under-privileged, pointed out that the law allows dissent in following words:
“In democracy it is not necessary that everyone should sing the same song. Freedom of expression is the rule and it is generally taken for granted. Everyone has a fundamental right to form his own opinion on any issue of general concern. He can form and inform by any legitimate means.”
Proportionate restrictions – Balancing of rights
Reasonable restrictions, while understanding the need for freedom of speech, are recognised without diluting the essence of freedom. The underlying purpose of restriction is that the remedy sought by the restriction should not be disproportionate. It will be subject to prevailing conditions of the time. It should not be excessive or prohibitive. It should be circumscribed by the objective standards under social control not overlooking the general objective of our Constitution for an egalitarian society and a welfare State.
Social control which includes public interest has a role. The concept of social interest has to be borne in mind while considering reasonableness of the restriction imposed on a right. The social interest principle would include the felt needs of the society. Right to say what may displease or annoy others cannot, however, be throttled or garroted.
It is in this context, that any attempt on criminalisation of defamation was required to be considered, subject to rigid conditions not impinging Directive Principles and Preamble to the Constitution and not forgetting that individual rights form fundamental fulcrum of collective harmony illustrated by the rhetoric statement of Patrick Henry, when he saw in liberty a freedom devoid of slavery –
“Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take, but as for me, give me liberty, or give me death!”
What is required is balancing the contending rights with none of them being taken as absolute right.
Right to life is a right to live with human dignity and all that goes with it and it is not merely restricted to bare necessities of life like food, clothing and shelter. Right to dignity has been treated as an inherent facet of Article 21. In the name of freedom of speech and expression, should one be allowed to mar the reputation of others as is understood within the ambit of defamation as defined in criminal law.
When there are contending rights as between freedom of expression and the right to dignity of life and reputation, one must remember what the Supreme Court decided in Sakal Papers (P) Ltd. Vs Union of India (1962) 3 SCR 842; AIR 1962 SC 305 as under:
“A citizen is entitled to enjoy each and every one of the freedoms together and clause (1) does not prefer one freedom to another. That is the plain meaning of this clause. It follows from this that the State cannot make a law which directly restricts one freedom even for securing the better enjoyment of another freedom.”
Same sentiment was expressed in Sahara India Real Estate Corporation’s case (supra) in following words:
“Under our Constitution, probably, no values are absolute. All important values, therefore, must be qualified and balanced against other important, and often competing, values. This process of definition, qualification and balancing is as much required with respect to the value of freedom of expression as it is for other values”.
It is in this context, it was felt that reconciliation is possible between right to freedom of speech and the limitation placed on defamation.
The seminal point is permissibility of criminal defamation as a reasonable restriction as understood under Article 19(2) of the Constitution. To elucidate, the submission is that criminal defamation, a pre-Constitution law is totally alien to the concept of free speech. As stated earlier, the right to reputation is a constituent of Article 21 of the Constitution. It is an individual’s fundamental right and, therefore, balancing of fundamental right is imperative. The Court has spoken about synthesis and overlapping of fundamental rights, which sometimes raises conflict between two rights and competing values. In the name of freedom of speech and expression, the right of another cannot be jeopardized.
Reputation of one cannot be allowed to be crucified at the altar of others’ right of freedom of speech. The Supreme Court also tested the issue posed in the light of the touchstone of constitutional goals of fraternity in the preamble and fundamental duties under Article 51A of the Constitution. An individual has not only right under the Constitution, but also responsibility to live up to the concepts of brotherhood (fraternity) and strengthen societal interest. In this view, there is no conflict between the fundamental right to freedom of speech and the restraint placed by section 499 and 500 of the Indian Penal Code, 1860 and Section 199 of the Criminal Procedure Code, 1973.
Fundamental duties has been considered as placing a restraint on absolute unbundled freedom in more than one decision. In AIIMS Students’ Union Vs AIIMS (2002) 1 SCC 428, it was pointed out as under:
“… Fundamental duties, though not enforceable by a writ of the court, yet provide a valuable guide and aid to interpretation of constitutional and legal issues. In case of doubt or choice, peoples wish as manifested through Article 51A, can serve as a guide not only for resolving the issue but also for constructing or moulding the relief to be given by the courts. Constitutional enactment of fundamental duties, if it has to have any meaning, must be used by courts as a tool to tab, even a taboo, on State action drifting away from constitutional values.”
Same view was taken in P.A. Inamdar Vs State of Maharashtra (2008) 6 SCC 537 and Ramlila Maidan Incident, In re (2012) 5 SCC 1 in three parts, one of fundamental rights and the other fundamental principles of governance and the third fundamental duties of citizens. The individual interest of each seeks collective interest and correspondingly collective interest enhanced individual interest. It must be pointed out that for an offence under Section 499, mens rea is a condition precedent for the charge of the offence. There must be an indication of forming or knowing or having reason to believe that it will harm the reputation of another. Careful application of each of the ten exceptions in the Section 499 will offer a shelter against the abuse of this provision. The defamation law is clear and not vague as those for doing away with this law would believe.
It may be pointed out that truth is not always a defence. It respects privacy. It does not recognise public interest without any norm or guidance. It excepts statement made honestly in good faith for public good.
It is in the light of the above law, the twenty five cases before the Supreme Court in this case, had to be decided. The cases “did not deserve to be quashed” as there was no absolute privilege for freedom of speech, so that each accused must face the trial and enter his defence.
Defamation law is not vague and has many exceptions. Dr. Singhvi, a senior counsel, reproduced in the judgement gave illustrations of unacceptable defence against defamation reproduced in the judgement:
“An imputation that a person is impotent; a statement is made in pubic that a particular person suffers from AIDS; an imputation that a person is a victim of rape; and an imputation that the child of a married couple is not fathered by the husband but born out of an affair with another man.”
The judgement proceeds to observe :
“Needless to emphasise that when a law limits a constitutional right which many laws do, such limitation is constitutional if it is proportional. The law imposing restriction is proportional if it is meant to achieve a proper purpose, and if the measures taken to achieve such a purpose are rationally connected to the purpose, and such measures are necessary. Such limitations should not be arbitrary or of an excessive nature beyond what is required in the interest of the public.”
The notion of democracy includes human rights which is a corner stone in Indian democracy. There has to be a balance between constitutional rights and the public interest. Right to freedom of speech is subject to reasonable restrictions. The law seeks to achieve a balance and if so implemented, there could possibly be no grievance.
The existing social climate does require the law against defamation. A criminal complaint of defamation at the threshold should be either in writing made by public prosecutor and/ or to be considered as a matter involving a prima facie case in the court of sessions. A public prosecution cannot act like a post office or the magistrate as the functionary of the State Government. Criminal law is a serious matter and it cannot be set in motion as a matter of course. Defamation law will, therefore, have to stay.