Supreme Court advocate KV Dhananjay argues that if the Supreme Court would strike down criminal defamation as unconstitutional on the ground that it is an unreasonable restraint on freedom of speech, it must also specify on what will happen to all pending criminal defamation cases. Should the complainant therein be able to institute a civil defamation even if the period of limitation to do so has run out in certain cases?

For ease of reading, this article is shown in the format of answers to questions posed by his colleagues at the Bar.

So, will the Supreme Court strike down criminal defamation?

Someday, yes. But, whether it will be this time or some other day in the future, I do not know and nobody knows.

The argument against criminal defamation runs like this, I think, that defamation is no doubt, an exception to the guarantee of free speech. The Constitution of India itself says so. But then, all these exceptions must be reasonable and the law of defamation too must pass the test of reasonableness and the criminal defamation law cannot pass such a test and so, should be struck down.

Implied therein is that the law of civil defamation is a reasonable restraint?

Yes, impliedly. I think that the Supreme Court is expected to say that much if it would strike down criminal defamation – it will have to contrast the law of criminal defamation with that of the law on civil defamation and conclude that one is reasonable while the other one is not.

So if the Supreme Court were to strike down criminal defamation, would it not be a simple thing for the magistrates or the High Courts to close those cases?

Simple? Take the case of Section 66-A of the Information Technology Act, 2000. The Supreme Court struck down that provision in its entirety on the ground of it being unconstitutional.

Do you want to know how many courts below are still prosecuting under that provision in cases where the prosecution was initiated prior to the Supreme Court’s judgment?

Really?

Yes. I have personally heard about any number of cases and I myself can readily speak about a case I have come across – a person was charged under Section 66-A of the IT Act and the Magistrate had taken cognizance of it last year; the accused then approached the High Court.

After the High Court was informed of the Supreme Court judgment, the High Court judge was not too sure of what to do. He declared in his judgment that because the Supreme Court had struck down Section 66-A of the IT Act, prosecution could not be taken in its name and simply pushed the matter back to the Magistrate - without even being sure enough of the constitutional law and did not even strike down the prosecution under Section 66-A.

The Magistrate is now hearing the challenge and is being taken through various textbooks on the Constitution. It is that bad in a large number of cases.

Shocking!

It truly is. Let me assume hereinafter that the Supreme Court would strike down criminal defamation as being unconstitutional.

I am afraid that if the Supreme Court would not offer further guidance, there could be a great deal of confusion in the courts below in regard to all the pending cases or appeals and running convictions, if any.

What is a ‘running conviction’?

A conviction of imprisonment that is running its course at the relevant time.

Could the Supreme Court say that its judgment invalidating criminal defamation will only have effect from a future date and not affect past transactions? Of course, if it would say so, most of the petitioners at the Supreme Court themselves would recover nothing!

You see, that is why, this whole aspect of the matter deserves a great deal of consideration from the Supreme Court.

Post judgment ramifications are of a substantial nature in this case and leaving it unsaid can create great confusion and undermine the very usefulness of the judgment to a large number of people.

Say, the cause of action for initiating a defamation complaint or suit happened on day 1. Say, within a period of 1 year, the aggrieved person had filed a criminal complaint before a Magistrate complaining about defamation. Now, if that complaint is going to be struck down by the Supreme Court, he should be afforded an opportunity to opt for a civil defamation.

But why should the Supreme Court say any such thing?

There is a period of limitation to institute a civil or criminal defamation; for civil defamation, it is 1 year from the date of the event and for criminal defamation, it is a period of 3 years from the date of the event.

There is no bar in law for a person to choose both civil and criminal defamation at the same time, though one of it would generally remain stayed so as to let the other continue.

So, if a person had merely instituted criminal defamation and that is now quashed, you are saying that he should be allowed to pursue civil defamation. But, why is the Supreme Court required to say so? Cannot he simply file a civil suit on his own?

Difficult or nearly impossible otherwise.

Say, the defamatory event happened on 1-Jan-2014. The period of limitation to file a civil suit runs out on 31-Dec-2014. If the aggrieved had initiated criminal defamation on 01-Aug-2014 and that action is now struck down by the Supreme Court, he would not be able to pursue civil defamation now as we are in September, 2015 and the period of limitation to initiate a civil defamation has already run out for him.

The Limitation Act, 1963 does not afford help to the aggrieved in such circumstances and confusion may take hold when different courts are asked to deal with such cases. At the same time, if the aggrieved in this example had filed a criminal defamation only in February, 2015, he would have, at the very time of filing of his criminal defamation, run out of limitation for filing a civil defamation and quashing of his criminal complaint now should not give him any fresh cause of action to file a civil defamation.

Some would say that these things should be dealt with by the Supreme Court as and when concrete cases emerge before them..

Those ‘some’ would be terribly wrong. It is not difficult for the Supreme Court to foresee that confusion will take hold in the courts below if it would say nothing at all on what is to happen to pending cases. So, what is this conservatism about wanting to deal with cases only after confusion takes hold and not wanting to prevent the arising of such confusion in the first place? A superior court of justice is expected to foresee the immediate consequence of its judgment and to provide for a remedy in its judgment.

Well then, one might want the Supreme Court to also say in such cases that the complaint in the criminal court should itself be transferred to the Civil court..

Not possible in law. Civil and criminal defamation are two distinct things.

The law of civil defamation in India is not a statute law. That is, there is no statute or legislation in this country to specially deal with the tort of defamation.

As such, the law of civil defamation in India is founded upon the common law which in turn is based on the common law of England.

However, the English common law of defamation has been subject to certain modifications by courts in India to reflect the notion of justice, equity and good conscience in our circumstances and jurisprudence. Criminal defamation, on the other hand, is a penal law and therefore, statute law. It is contained in Sections 499 to 503 of the Indian Penal Code, 1860.

So what? That is why, we have Article 142 of the Constitution – to let the Supreme Court do complete justice..

Complete justice? What has the notion of ‘complete justice’ got to do with the power of the Supreme Court to convert a criminal proceeding into a civil suit?

Such a power is non-existent in it as a matter of law and, no court needs to possess such a power as it is not quite a judicial power at all but is the power of a despot.

What really is the prime difference between criminal defamation and a civil defamation that would come in the way of converting one into another?

Everything. In a case of criminal defamation, there should be proof beyond reasonable doubt whereas in a civil defamation, it is not so - we rest on what we call as ‘preponderance of probabilities’.

In lay man’s terms..

For example – say A is charged with the offence of murdering B. Say, all that the prosecution brings to the court is A’s confession to the police. Now, such a confession is inadmissible as evidence and the judge should exclude it. Then, left without any other evidence, he acquits A. Thereafter, the deceased’s wife brings a civil suit for compensation against A.

A’s confession to the police is admissible in that civil case. In fact, the famed OJ Simpson was acquitted of a charge of murder by a criminal court but was slapped with huge punitive damages in a civil trial that concluded that he was responsible for the very deaths that a criminal court would not convict him for.

You will even find a case wherein a man was acquitted of a charge of murder in a criminal trial but was depicted as a murderer in a book that was published afterwards and he could not stop the publication of that book in a civil trial because the writer was not required to establish ‘guilt beyond reasonable doubt’ but was only required to show on a ‘preponderance of probabilities’ that the accused did commit that murder by relying on the same evidence that a jury did not think had established his guilt ‘beyond reasonable doubt’.

What other differences between a criminal defamation and civil defamation are relevant in this context?

To begin with, ‘truth is a complete defence to a case of civil defamation’ whereas truth is not a defence by itself in a criminal defamation unless the court is also satisfied that it was uttered in or contributed to public interest.

That is, I think, the strongest ground of attack in these cases. Then, there is punitive damages one can seek in a case of civil trial but the plaintiff should have expressly sought for it in his pleading.

There is no concept of ‘monetary compensation’ in criminal defamation cases..

Also, sometimes, a plaintiff could recover what is called as ‘special damages’ if he could show to the civil court that he has sustained pecuniary loss in his business by reason of the defamatory utterances. Again, he is required to specifically plead to that effect in his evidence and then alone, he would be entitled to recover it.

There is no such thing in criminal defamation cases.

And, criminal defamation rests on numerous exceptions and some of those exceptions apply differently to civil cases - the defence of absolute privilege is available in civil cases whereas only a defence of qualified privilege is available in criminal cases.

In a criminal proceeding, should the accused die before a judgment, the proceeding naturally terminates whereas in a civil case, if the deceased’s responsibility was already determined by the court by then, his estate could be straddled with damages.

Intention to defame and injure the reputation equally matters in both types of cases. Right?

No. In fact, this is an area in which we find the greatest amount of ignorance and confusion in this country. Intention to defame is irrelevant in a civil context but is however, the basic requirement in a criminal case.

To repeat, ‘intention to defame’ is simply irrelevant in a civil context. The problem is – in 8 or 9 out of 10 civil defamation cases in our country, an issue for trial is invariably ‘whether the plaintiff proves that the defendant intentionally uttered the statements in question with a view to injure the reputation of the plaintiff’.

Such an issue has no relevance to deciding compensatory damages at all. It has only a limited role in deciding upon punitive damages but a court may find in the negative on this issue and still come across plenty of other reasons to award punitive damages against the defendant.

So, to conclude, the Supreme Court ought to specify...

what would happen to pending cases of criminal defamation and if a criminal complaint was filed within a year of the cause of action and if that complaint be struck down by the court now, whether the complainant therein should be allowed to pursue a civil defamation.

But, tell us, should not the judgment of the Supreme Court apply only to those actions that would be brought after the date of the judgment?

Take Article 13(1) of the Constitution, which says that no law shall be made that would contravene any fundamental right and any law so made shall be declared to be void.

Obviously, any such judgment should only take effect from the date of its declaration..

But it is not so. The declaration could have even come earlier had only the court acted swiftly or some other person filed years earlier and so on and so forth.

Essentially, the declaration should relate not to the date when the court recognizes that the law in question offends the fundamental right but to that date on which the law in question held the quality of being in contravention of the fundamental right.

It is this principle that you generally come across in most jurisdictions of the world. There is no reason to depart from it in this country.

But, there is this doctrine of prospective overruling.

That is, if the court had earlier ruled upon the same subject and said one thing but now wants to say another thing, those who had relied upon the court’s earlier judgment ought to be protected and hence, this doctrine of prospective overruling was evolved.

It says that this later judgment that upsets the previously declared law will only apply prospectively. I am not aware of any judgment of the Supreme Court upholding the law of criminal defamation and I don’t see, for that reason, the doctrine of prospective overruling holding any relevance here.

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