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The judgment on the plea to de-criminalise defamation is out and despite its verbosity and rich vocabulary is an embarrassment to our recent judicial milestone of constitutional challenges. In the case of Subramanian Swamy vs. Union of India, a two judge bench headed by Justice Dipak Misra, has upheld the constitutionality of Section 499 and Section 500 of Indian Penal Code, 1860 (IPC) and Section199 of Code of Criminal Procedure, 1973 (CrPC) that criminalise defamation.

The judgment has not satisfactorily answered several pertinent questions. Various significant issues relating to the existing regime of defamation have been touched upon in the judgment but the bench has skipped the part where it is required to analyse and give its own reasoning for upholding or reading down the law. This post points out what should have been looked at.

A. Whether defamation is a public or a private wrong?  What is the State’s interest in protecting the reputation of an individual against other private individuals? Is criminal penalty for defamatory statements an appropriate, adequate or disproportionate remedy for loss of reputation?

At the core of the debate to decriminalise defamation lies the question, whether defamation is a public or a private wrong. The question was raised in the Subramanian Swamy case and the court held that defamation is a public wrong. Our problem with the court’s decision lies in its failure to provide a sound and comprehensive analysis of the issue. In order to understand whether defamation is a public or a private wrong, it is necessary that we look at what reputation means, what happens when reputation is harmed and whose interests are affected by such harm.

Reputation is not defined in law, however the Supreme Court has held that reputation is a right to enjoy the good opinion of others and the good name, the credit, honour or character which is derived from such favourable public opinion. The definition reflects several elements that constitute reputation which when harmed have different bearing on the reputation of an individual. Academic Robert C Post in his paper, The Social Foundations on Defamation Law: Reputation and Constitution, says that reputation can be understood as a form of intangible property akin to goodwill or as dignity (the respect including self-respect that arises from observance of rules of the society). While reputation when seen as property can be estimated in money and thus adequately compensated through a civil action for damages, loss of dignity is not a materially quantifiable loss, and thus, monetary compensation appears irrelevant. The purpose of the defamation law could either be to ensure that reputation is not wrongfully deprived of its proper market value or the respect/acceptance of the society. Explanation 4 to Section 499 of the IPC accommodates both such situations and provides that reputation is harmed if it directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.

Post adds that an individual’s reputation is a product of his interaction with the society by following the norms of conduct (which he calls rules of civility) created by the society, thus the society has an interest in enforcing its rules of civility through defamation law by policing breaches of these rules. Criminal defamation acknowledges that loss of reputation is a wrong to the societal interests; however these interests have not been deliberated upon by the courts in India.

The Subramanian Swamy case was an occasion where, it was imperative that the court took up this exercise and explained what interest the society had in protecting the reputation of an individual for it to be classified as a public wrong. The court stated, “the law relating to defamation protects the reputation of each individual in the perception of the public at large. It matters to an individual in the eyes of the society. There is a link and connect between individual rights and the society; and this connection gives rise to community interest at large. Therefore, when harm is caused to an individual, the society as a whole is affected and the danger is perceived” With this reasoning it can be inferred that the society has an interest in all private wrongs. Where would that inference land us? This reasoning is ambiguous and inadequate.

On the other hand, criminal penalty for perfectly private wrongs such as copyright infringement and dishonour of cheques urges us to ask if there is a problem with the rigid distinction of public and private wrongs. Should we be asking the question differently?

The judgment has provided extremely inadequate answers to this question and has left matters ambiguous.

B. Can the right to reputation under Article 21 be enforced against another individual’s freedom of expression and are safeguards already built in law so as not to unreasonably restrict and stifle free expression in this regard?

Defamation finds a place in the list of constitutionally allowed restrictions on freedom of speech under Article 19 (2). Defamation protects the right to reputation of an individual thus free expression by this reason is subject to the right to reputation of an individual. The court had repeatedly observed that right to reputation is a part of the right to life under Article 21 of the Constitution. The question of enforceability of right to reputation under Article 21 against freedom of expression under Article 19 (1) (a) came into question in the instant case; it was contended that a fundamental right is enforceable against the State but cannot be invoked to serve a private interest of an individual. Thus, the right to reputation as manifested in defamation being a wrong committed against a private person by another person is unconnected and falls outside the scope of Article 19 (2). It is pertinent to note that Article 21 (which includes right to reputation) is enforceable not only against the state but also against private individuals. What is relevant here is an understanding of horizontal enforceability of fundamental rights (certain fundamental rights can be enforced against private individuals and non-state actors). This would help explain the dilemma in enforcing the right to reputation of an individual against free speech of another individual. It is vaguely mentioned in the judgment (see para 88) but has not been deliberated upon.

What follows from the discussion of enforceability of right to reputation, is the discussion on how reasonably it restricts speech. The Supreme Court has previously held that while determining reasonableness, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. We briefly analyse the critical aspects of the regime of criminal defamation on these parameters.

Underlying purpose

At the heart of the defamation law is the need to find the most suitable remedy for loss of reputation of an individual. How does one restore reputation of an individual in the society and whether criminal penalty an appropriate remedy?

Extent of restriction

The extent to which defamation law restricts free speech could be analysed by looking at various aspects such as what kind of speech is considered defamatory, what procedure is followed to bring action against the alleged wrong doer and scope of abuse of the law. Explanation 1 to Section 499 of IPC provides that a statement or imputation is defamatory if it is not made in public good. It is not sufficient to prove that such statement or imputation is in fact true. The idea of public good is at best vague without any means to evaluate it. Further, under Section 199 of CrPC allows multiple complaints to be filed in different jurisdictions for a single offensive publication. Besides, usage of terms like “some person aggrieved” leaves room for parties other than the person in respect of whom defamatory material is published to bring action and the provision also allows the privilege of two sets of procedures for prosecution (in official capacity and in private capacity) to public servants without satisfactory reasoning provided for such discrimination. These provisions have the potential to be used to file frivolous complaints and could be a handy tool for harassment of journalists or activists among others.

Proportionality

Does the publication or imputation of defamatory material warrant payment of fine and imprisonment? Earlier in the post, we brought up the question of relevance of such measures to the act of defamation. Assuming that it is relevant, do we think it is harsh or commensurate to the wrongful act. It is necessary to look at the process of prosecution before we determine the proportionality of the restriction. Criminal law assumes that the accused is innocent until he is proven guilty. Therefore until the judiciary determines that the act of defamation was committed, how does the process help the accused in maintaining status quo.  It is also pertinent to look at the threshold for civil defamation. Under the civil wrong of defamation, truth works as a complete defence while under criminal defamation, a statement despite being true could invite penalty if it is not published in public good. Thus a lower threshold for criminal liability would upset the balance of proportionality. These aspects are critical to determine the reasonableness of criminal defamation and it is unfortunate that the judgment that runs into hundreds of pages has not evaluated them.

Conclusion

The convoluted debate on criminal defamation remains intact post the pronouncement of this judgment. Questions of competing interests of society and individuals or individuals per se, and ambiguous rationale behind imposition of liability, arbitrariness of procedure for prosecution have not been examined. Further, the hardship in compartmentalising free speech, the right to reputation and the right to privacy remains unanswered.

The article was published by Quint on March 31, 2016.

The passage of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (will hereby be referred to as “the Act”) has led to flak for the government from privacy advocates, academia and civil society, to name a few.

To my mind, the opposition deserves its fair share of criticism (lacking so far), for its absolute failure to engage with and act as a check on the government in the passage of the Act, and the events leading up to it.

The government’s introduction of the Act as a ‘money bill’ under Article 110 of the Constitution of India (“this/the Article”) is a mockery of the constitutional process. It renders redundant, the role of the Rajya Sabha as a check on the functioning of the Lower House.

Article 110 limits a ‘money bill’ only to six specific instances: covering tax, the government’s financial obligations and, receipts and payments to and from the Consolidated Fund of India, and, connected matters.

The Act lies well outside the confines of the Article; the government’s action may attract the attention of the courts.

Political One-Upmanship

Finance Minister Arun Jaitley (left) listens to Reserve Bank of India (RBI) Governor Raghuram Rajan. (Photo: Reuters)

In the past, the Supreme Court (“the Court”) has stepped into the domain of the Parliament or the Executive when there was a complete and utter disregard for India’s constitutional scheme. In recent constitutional history, this is perhaps most noticeable in the anti-defection cases, (beginning with Kihoto Hollohan in 1992); and, in the SR Bommai case in 1994, on the imposition of the President’s rule in states.

In hindsight, although India has benefited from the Court’s action in the Bommai and Hollohan cases, it is unlikely that the passage of the Aadhaar Act as a ‘money bill’, reprehensible as it is, meets the threshold required for the Court’s intervention in Parliamentary procedure.

Besides, the manner of its passage, the Act warrants

• Censure for its process
• Its (in)compatibility with fundamental rights
• The failure to incorporate the suggestions of the Yashwant Sinha-led Standing Committee to UPA’s NIDAI Bill
• The possibility of surveillance that it presents
• The lack of measures to protect personal information
• Its inadequate privacy safeguards
• The questions around the realisation of its stated purpose.

Instead, a part of the Aadhaar debate has involved political one-upmanship between the Congress and the BJP, pitting the former’s NIDAI Bill against the latter’s Aadhaar Act.

While an academic comparison between the two is welcome, its use as a tool for political supremacy would be laughable, were it not deeply problematic, given the many serious concerns highlighted above.

Better Than UPA Bill?

The Act may have more privacy safeguards than the earlier UPA Bill. (Photo: iStockphoto)

And while the Act may have more privacy safeguards than the earlier UPA Bill, critics have argued that they not up to the international standard, and instead, that they are plagued by opacity.

Additionally, despite claims that the Act is a significant improvement over the UPA Bill, it fails to address concerns, including around the centralised storage of information, that were raised by civil society members and others.

Perhaps most problematically, however, the Act takes away an individual’s control of her own information. Subsidies, government benefits and services are linked to the mandatory possession of an Aadhar number (Section 7 of the Act), effectively negating the ‘freedom’ of voluntary enrollment (Section 3 of the Act). This directly contradicts the recommendations of the Justice AP Shah Committee, before whom the Unique Identification Authority of India had earlier stated that enrollment in Aadhaar was voluntary.

To make matters worse, the individual does not have the authority to correct, modify or alter her information; this lies, instead, with the UIDAI alone (Section 31 of the Act). And the sharing of such personal information does not require a court order in all cases.

Kanhaiya Kumar speaking in JNU on 3 March 2016. (Photo: PTI)

These recent events around Aadhaar have only underscored the dire urgency for comprehensive privacy legislation in India and, the need to overhaul our data protection laws to meet our constitutional commitments along with international standards.

The Centre for Internet and Society

Statement on Sexual Harassment at ICANN55

The Centre for Internet and Society (“CIS”) strongly condemns the acts of sexual harassment that took place against one of our representatives, Ms. Padmini Baruah, during ICANN 55 in Marrakech. It is completely unacceptable that an event the scale of an ICANN meeting does not have in place a formal redressal system, a neutral point of contact or even a policy for complainants who have been put through the ordeal of sexual harassment. ICANN cannot claim to be inclusive or diverse if it does not formally recognise a specific procedure or recourse under such instances.

Ms. Baruah is by no means the first young woman to be subject to such treatment at an ICANN event, but she is the first to raise a formal complaint. Following the incident, she was given no immediate remedy or formal recourse, and that has left her with no option but to make the incident publicly known in the interim. The ombudsman’s office has been in touch with her, but this administrative process is simply inadequate for rights-violations.

Ms. Baruah has received support from various community, staff, and board members. While we are thankful for their support, we believe that this situation can be better dealt with through some positive measures. We ask that ICANN carry out the following steps in order to make its meetings a truly safe and inclusive space:

1. Institute a formal redressal system and policy with regard to sexual harassment within ICANN. The policy must be displayed on the ICANN website, at the venue of meetings and made available in delegate kits.

2. Institute an Anti Sexual Harassment Committee that is neutral and approachable. Merely having an ombudsman who is a white male, however well intentioned, is inadequate and completely unhelpful to the complainant. The present situation is one where the ombudsman has no effective power and only advises the board.

3. Conduct periodic gender and anti sexual harassment training of the ICANN board to help them better understand, recognise and address instances of sexual harassment.

4. Conduct periodic gender and anti sexual harassment training for the ombudsman even if he/she will not be the exclusive point of contact for complainants as the ombudsman forms an important part of community and participant engagement

5. Conduct periodic gender sensitisation for the ICANN community.