Supreme Court: Can criminal defamation law be diluted?

New Delhi: The Supreme Court on Tuesday asked the Centre whether Indian Penal Code, 1860 (IPC) provisions on criminal defamation, which empower the police to arrest a person for allegedly sullying the reputation of another, could be diluted to remove the perception that it violated the fundamental right to free speech.

The query from a bench of Justices Dipak Mishra and P C Pant came after BJP member Subramanian Swamy , who has faced many criminal defamation proceedings, said Sections 499 and 500 of IPC, 1860 by allowing initiation of criminal prosecution, had a chilling effect on a person’s right to free speech guaranteed under Article 19(1)(a) of the Constitution.

Swamy said the NDA government, by favouring retention of Sections 499 and 500, had indicated that it was running away from its obligation to decriminalize defamation provisions. He said India had ratified an international covenant on decriminalization of defamation procedure.

The “chilling effect“ argument was also advanced by senior advocate P P Rao, who appeared for Congress Vice President Rahul Gandhi.

The bench asked Additional Solicitor General P S Narasimha that can the provisions be read down though we can not conceive at present what the judgment will be? Justices Misra and Pant also clarified that prima facie, political debate or criticism might not come within the purview of criminal defamation.

Narasimha said the government had referred the matter to the Law Commission, which was collating opinion from various quar ters on whether Sections 499 and 500 needed to be decriminalized.

Swamy argued that political sarcasm was taken as criminal defamation and the state fought these cases by spending from the exchequer.“Why should the state prosecute a person for criminal defamation when the aggrieved party had the remedy of initiating a civil suit to seek damages from the one who has sullied his reputation?“ Swamy asked.

Again, this argument was elaborated by Rahul’s counsel. Rao said violation of fundamental rights could be redressed by initiating action against the state, but why would the state initiate criminal proceedings on behalf of a private citizen who was aggrieved by the utterances of another private person?