Criminal defamation law injures free speech, as a Delhi court noted. SC should review the law
Politics in today’s India is arguably more heated than anywhere else in the world, which makes it passing strange how thin-skinned its lead actors sometimes profess to be. They complain of criminal defamation with dainty regularity. In dismissing one such complaint, filed by BJP’s Rajeev Chandrasekhar against Congress’s Shashi Tharoor, a Delhi court has underlined the larger stakes in this political pastime. If every speech is viewed as defamation then “freedom of speech and expression would be reduced to nought.” To be clear, this is not an apologia for harming the reputation of any person. Rather, it’s about proportionality. About the fitness of civil, rather than criminal, remedy in such cases.
Courts, however, are inconsistent. In 2023, the most high-profile such case saw a Surat court convict Rahul Gandhi for a remark made four years earlier, plus give him the maximum sentence of two years imprisonment, which set off his disqualification from Lok Sabha. The Supreme Court stayed the conviction within weeks, and Rahul returned to Parliament. He’s perhaps unfazed. But when a common citizen stands similarly accused, after she’s raised a sexual harassment grievance or he’s made a sharply anti-govt cartoon, the effect is much more suffocating. Conviction or not, there’s punishment enough in the process. Thus, criminal defamation has a ‘chilling effect’ on freedom of expression by its very existence. It’s a constant overhang on media freedoms as well. By putting dissent on notice, it puts democracy in danger.
Parliament, via BNS, has failed to reform this colonial-origin censor. The new criminal code has retained all the harsh intent of the original. From an “imputation…intended to be hurtful to the feelings…or expressed ironically” to one that “lowers the moral or intellectual character” of a person, its definition of defamation remains dispiritingly expansive. The Supreme Court, on its part, has sadly failed to find criminal defamation as an excessive and arbitrary restriction on free speech. Politicians can use these cases to play politics, even if they are also the victims of harassment. But for the rest of us, there is no upside to this – only bullying and intimidation. A full SC bench should right this wrong.
This piece appeared as an editorial opinion in the print edition of The Times of India.
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