In the case of Subramanian Swamy versus the Union of India, the Supreme Court held Section 499 of the IPC that contains the criminal remedy of defamation to be constitutional. Much of its reasoning is based on the existence of the right to reputation, which it balances with the right to free speech. In doing so, it tilts the proverbial scales of justice in favour of an archaic criminal remedy. Several pieces of commentary have criticised the ruling on doctrinal, technical and even social grounds. They cite a global trend to abolish criminal defamation that the Indian Supreme Court failed to notice and take into account.
The Supreme Court of Zimbabwe in February this year confirmed the law as unconstitutional. However, lessons for the future of criminal defamation in India may be drawn from another African country in which a constitutional challenge failed but legislative action shows signs of success. In 2008, the South African Supreme Court of Appeal, giving its decision in the state versus L K Hoho held criminal defamation to be constitutional. Only last year the ruling political party in that country, the African National Congress (ANC) passed a resolution stating that it plans to introduce legislation in Parliament that will repeal the common law of criminal defamation in the country. Such a measure would be well suited for India.
Legislative action seems a prudent measure for several reasons beyond merely repealing criminal defamation. A civil law for defamation already exists as common law, developed solely by judgements and is not contained in any parliamentary enactment. Victims of defamation rarely use it for several reasons. Principal among them is the sloth and pendency in Indian courts. Delay works towards skewing the incentives away from the civil to the criminal remedy. While in a civil trial the alleged victim of defamation does not gain anything till he/she get a final judgement, in a criminal case, the process is the punishment. Such cases drag on without any conclusion. Even though a person is considered innocent till he/she is convicted, making him/her undergo trial in a criminal case that never concludes is unfair. Hence, there is some amount of punishment even without conviction.
There is no clear, established standard for valuation of damages in civil cases, the procedure for its origin, appeals and disposals is the same, imperfect civil procedure as available for land disputes. Contrast this with a criminal remedy, where the attendance of the accused is the norm on each date of hearing, the ability to file the case in any remote jurisdiction where the article became available and also the prospect of a prison sentence. Any lawyer would recommend the criminal remedy to their client.
Other reasons why the civil law is not as often resorted to include a lack of proper definition on the legal ingredients of defamation. Most court judgements mix the legal ingredients of criminal defamation with that of civil defamation. This results in confusion and indeterminacy, to the detriment of all the parties to the case. The plaintiff does not know what exactly is defamatory; the defendant does not know what is not. This works against both the right to reputation as well as the right to free speech. Unclear law also results in appeals pending longer.
The policy considerations seem to present quite an obvious choice. Make the civil law of defamation clear, effective and balanced. Incorporate in such a law a repeal of the criminal remedy that only exists today to coerce rather than to convict. While the structural problems of delay and pendency in Indian courts may be a larger problem, it can be mitigated to an extent by adopting the procedural measures incorporated recently by the Commercial Courts Act, 2015. There is little to lose if such a course of action is adopted. It reinforces the role of legislative power to correct the errors of the court. Parliament can, by repairing an archaic law to the needs of modern India, cement its own edifice.
The author is a practising lawyer in Delhi. He acted for one of the petitioners in the criminal defamation case