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The poor can’t defame & other arguments in today’s defamation decriminalisation hearings when Swamy & Rahul (via PP Rao) made their cases

The hearings in the Subramaniam Swamy v Union of India case began today, with Swamy, alongside several other petitioners, seeking to get the Supreme Court to strike down section 499 and 500 of the Indian Penal Code.

IANS reported:

Attacking the Narendra Modi regime's refusal to decriminalize defamation, BJP leader Subramanian Swamy on Tuesday told the Supreme Court that the government's stand was "strange".

"The government has said that the person may not be able to pay. This paucity of funds is a strange argument, so criminal defamation is an appropriate remedy," Swamy told a bench of Justice Dipak Misra and Justice Prafulla C. Pant that is examining the validity of penal provisions relating to criminal defamation.

"To defame someone, a person must have the status to do so. He can't be that low in the social order," Swamy told the court thrashing the government stand on retaining criminal defamation as a person accused of defamation may not be in a position to shell out money.

Arguing for the junking of the law which even its framers (British) have given up, he said that this law made it oppressive for every free-thinking person to express his views as it made truth in public interest a limited defence.

There is a social opprobrium associated with criminal prosecution of a person, Swamy told the court as he pointed out that even jokes and cartoons could not escape the rigour of the law.

Besides Swamy, Congress vice president Rahul Gandhi, Delhi Chief Minister Arvind Kejriwal, NGO Foundation For Media Professionals and others in a batch of petitions have challenged the constitutional validity of sections 499 and 500 of the Indian Penal Code providing for criminal defamation.

The Software Freedom Law Centre (SFLC) tweeted @SFLCin today:

#decriminalize#defamation- Final arguments begin in SubramaniamSwamy's petition challenging criminal provisions of defamation.(S.499,500IPC)

Swamy argued in person- says Protection of Reputation & freedom of speech can't be simply balanced as though they are of equal weight.

If one has to lean, one must lean in favor of freedom of speech

Citing dangers of criminal defamation, Swamy says 'critics are turning into criminals'.

Criminal defamation chills public debate due to fear from arrest and criminal prosecution.

If a law strikes fear of speaking truth in public, it clearly erodes Art. 19(1)(a) of the Constitution

It is ironic that in a nation whose motto is “Satyamev Jayate”, truth is not a complete defense for criminal defamation in India

We have accepted British laws in toto, but the British themselves have given up criminalization of defamation

Swamy asks the Bench “Is there no other means to restore the reputation of a defamed person except imprisonment?”

India has ratified ICCPR which provides that state parties shud considr decriminalization. ICCPR completely rules out imprisonment.

There is nothing sacrosanct about S. 499 and 500 of the IPC. It is a disproportionate punishment, which is out of date

Even though its a ground for restricting freespeech u/Art19(2),defamation as defined by S.499&500 fails 'reasonableness' test of19(2)

Swamy said there is no application of mind by sanctioning authorities & the State Exchequer is used for filing frivolous complaints

#decriminalizedefamation- Rahul Gandhi's petition (also challenges criminal defamation)was heard after Swamy&was argued by Senior Adv.PP Rao

Fundamental Rights are basic human rights which the State is bound to protect.

Art 19(2) is an exception to Art 19(1)(a) and it needs to be construed narrowly

Under reasonable restrictions imposed on free speech,ground of defamation needs 2 b understood applying the principles of Noscitur a sociis.

Right to free speech cannot be restricted for securing better enjoyment of another fundamental right

Court must reconcile the social interest involved in freespeech and public interest involved in the provision of law under challenge

S.499,500not confined to defamation of State or its components by a citizen,but include defamation of any pvt person by another person

Art 19(2) cannot be invoked to serve private interest

Defamation of an individual by another is a “civil wrong” for which common law remedy is an action for damages

Right to one's reputation, which has been held to be a facet of Art 21 is vis-a-vis the State, not a private individual

As the invalid part and valid part of S. 499 are inextricably mixed up and cannot be separate from one another, the principle of severability cannot be applied.

For more details on the petitions please visit SFCL blog

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