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What happened in Day 2 of the decriminalise defamation trials? Read PP Rao’s written submission, Dhavan’s arguments & more

After Subramanian Swamy and PP Rao began arguing yesterday in the multi-petitioner challenge of sections 499 and 500 of the Indian Penal Code (IPC), Swamy, senior counsel Rao and Rajeev Dhavan today continued their arguments.

The Centre for Communication Governance at at NLU Delhi tweeted @CCGDelhi:

In the #Defamation challenge today Mr. PP Rao completed the arguments on behalf of Mr. Rahul Gandhi &2/n Dr. Rajeev Dhavan started his arguments on behalf of Mr. @ArvindKejriwal in WP (Crl.) 110/2015. The arguments will continue on Tuesday.

Following up on his contentions yesterday Mr. Rao submitted that FRs cannot be waived & are given in public interest.

Whereas right to reputation is a right provided in private interest & not public & is a right arising from common law.

Only FRs which are given in public interest can be restricted under 19(2).

Language employed in 19(2) as far as defamation is concerned has to be constructed as a right in common law & therefore action cannot be taken against it under criminal law as in that case it will be unreasonable.

Mr. Rao then added that since first amendment by itself cannot be challenged some meaning needs to be given to defamation in 19(2).

Mr. Rao asked the court to add false statement as an ingredient to the offence and move the burden which is currently on the accused to show that the statement was true & in public good to the complainant to show that it was a false statement.

Mr. Rao also submitted that a crime is an offence against the society, whereas defamation is a tort committed by one individual against another & to treat that as an offence will be arbitrary. Only offences against the state can be punishable with imprisonment.

Mr. Rao then discussed the concept of severability & reasonableness before concluding. There were some other interesting observations from the bench which will be detailed in our blog.

Mr. Rao's written submission can be found here drive.google.com/file/d/0BycAZd…

Dr. Dhavan then started his arguments with a reference to Arthashastra (Ch. 8.XIII) which deals with defamation.

Dr. Dhavan then referred to the Maharaj Libel Case (which was the first case decided by the SC in 1862 after the enactment of IPC).

The entire judgment can be found here archive.org/stream/MN40117…

He further argued that there are design faults in Macaulay's creation of what became s. 499 of IPC & these defects have stayed with us

He pointed out 4 such faults. 1. linking defamation to breach of peace 2. Slander was not part of English law in 1860 but was included in IPC. 3. Truth is not a complete defence 4. Truth does not matter in 8 of the exceptions.

He stated that the way the provision is worded & applied its difficult for journalists to know what's defamatory & what's not.

He stated that criminal defamation has become a playground for politicians to fight each other or with journalists or general public.

Like Mr. Rao, Dr. Dhavan also stated that since defamation is there in 19(2) & we can't just remove that it needs to at least be decriminalised. On the question of abuse of power he stated that there are various cases decided by the SC which state that wide latitude must be given to state in cases of tax & customs but added that this cannot be the situation in cases of FoE.

The list of all the 25 petitions is here drive.google.com/file/d/0BycAZd… & our update from the first hearing is here ccgnludelhi.wordpress.com/2015/07/08/bus…

To be updated…

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