Why criminal defamation must go
among people who would not have easy recourse to a lawyer. This would result in “the citizenry remaining uninformed about matters of public significance and the unquestioned and unchecked continuation of unconscionable malpractices.” Then, in May 2018, the Constitutional Court of Lesotho followed suit, also holding that criminalisation was a disproportionately severe burden on speech, and that reputational interests could be protected by a less onerous regime of civil defamation. Both courts followed the jurisprudence of the African Human Rights Court that had emphatically ruled that criminal defamation was incon- sistent with basic, international human rights standards.
It is, therefore, clear that, across the world, more and more countries are acknowledging that modern, democratic nations do not jail people for things they might say about others. India is no different: our Constitution guarantees a right to freedom of speech and expression, which can only be restricted by a “reasonable” law.
Our Supreme Court – most recently in its judgment on Aadhaar – has held that an essential facet of reasonableness is that a law must not infringe rights to a degree greater than is strictly necessary to achieve its goal. In other words, if there exists an alternative mechanism that can also achieve the goal without compromising on individual liberty to such a degree, the impugned law must be struck down. Criminal defamation – which is targeted at punishing what is essentially a private wrong (a wrong that one person commits upon another, rather than upon society) – is a stark example of a law that disproportionately impacts the freedom of speech.
Legislators have recognised this as well: last year, Tathagat Satpathy introduced into Parliament the “Speech Bill”, which aimed to replace criminal defamation with a detailed, statutorily codified regime of civil defamation. The bill is pending consideration. But the recent spate of cases in the wake of #Metoo gives the court – that recently invalidated two colonial-era rights-invasive provisions – Section 377 and Section 497 (adultery) – to complete a hat-trick, and in the process, once again cement its reputation as an institution that sheds its own past, and evolves towards greater protection of rights.
Gautam Bhatia is an advocate in the Supreme Court The views expressed are personal