Defamation is an act in which a person brings down the reputation of the other in front of the others. Such act is wrongful. In India, Section 499 of the Indian Penal Code, 1860 defines defamation as “whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.” A person convicted for this offense is punished with simple imprisonment for a term which may extend to two years, or with fine, or with both under section 500.
In March 2015, Section 66A of Information Technology Act was declared as vague and unconstitutional by the Supreme Court as it was observed to be violating the liberty and freedom of expression which have been regarded as ‘two cardinal pillars of democracy.’ While defamation is an offense, some have argued that this law is clearly contradictory to fundamental right of freedom of speech and expression which is guaranteed under Article 19(1) (a) in the Indian Constitution. However, defamation is one of the reasonable restrictions under Article 19(2) to which this right is subjected to.
Very recently, on 7th April 2015, in a petition by BJP leader Subramanian Swamy who was seeking Section 499 and 500 of IPC and Section 199(2) of CrPC to be declared unconstitutional, a division bench comprising Justice Dipak Misra and Justice Prafulla C. Pant decided to discuss the constitutionality of defamation law and the reasonability of defamation as a restriction. The BJP leader was accused of making defamatory remarks against Tamil Nadu Chief Minister J. Jayalalitha and this matter was suspended by the Apex Court on October 30, 2014. While Advocate T.R. Andhyarujina emphasized on the interpretation of conceptual meaning of defamation, Advocate K. Prasaran, on the other hand insisted upon the constitutional validity of Section 499 and 500 of IPC.
A month later, Mr. Rahul Gandhi, Vice-president of Congress, moved to the Supreme Court where he challenged the constitutionality of defamation laws. Rajesh Kunte, one of the members of Rashtriya Seva Sangh (RSS) had accused Rahul Gandhi of making certain defamatory comments against RSS in relation by alleging its involvement in assassination of the Father of the Nation- Mahatma Gandhi. This allegation made Rahul Gandhi approach the Apex Court where he pleaded to decriminalize defamation as an offense.
Also, Mr. Arvind Kejriwal, the Chief Minister of Delhi, too sought to decriminalize defamation and restricting it only to a civil wrong. On 1st May 2015, the trial proceedings of defamation against Arvind Kejriwal were suspended by the Supreme Court. His political party went on to the extent of issuing a circular dated 6th May 2015 wherein it was stated, “If by words either spoken or intended to be read, or by signs or by visible representations, any person makes or publishes any defamatory imputation against the Chief Minister/Ministers of the government of NCT of Delhi or any public servant, employed in connection with the affairs of government of NCT of Delhi, in respect of his conduct in the discharge of his public functions and if the person aggrieved believes that such imputation has harmed his/her reputation, he/she will report the matter in writing to the Principal Secretary (Home) , Government of NCT Delhi.”
It is 2015 already! The Indian Penal Code which was enacted more than 150 years ago may actually need some reconsideration with regards to certain laws, defamation being one, in the light of complexities of the contemporary society. The bench consisting of Justice Dipak Misra and Justice P.C. Pant is all set to decide the constitutionality of defamation as an offense by bringing together the above stated three cases in upcoming July. This amalgamation may become the most awaited judgement of the year.
-By Roopali Mohan, Vivekananda Institute of Professional Studies, New Delhi