Experts & Views
An essential request to the SC on criminal defamation: What would happen if it's struck down?
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.
Photo credit to NewTown Graffiti (Flickr / CC BY)
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A chunk of the discussion was left out and here it is: (spliced into parts)
*But then, you have expressed some concern already and one would think that unless one was were very sure of the Court acting in only one manner, such a concern would be misplaced.
-Not so. The concern is a practical one and does not have to rest on a sure certainty over the outcome. If the SC would act to strike down criminal defamation, people would expect it to also provide guidance on certain issues.
*OK. We will come to that in a while. This is truly a matter the outcome in which is awaited by the people at large..
-Very true. The judgment is eagerly awaited.
*Criminal defamation was always thought to deter free speech and the Supreme Court striking it down would send a very strong signal that no unreasonable restraint would be tolerated upon free speech.
-Does criminal defamation deter free speech? Quite doubtful if only you look to the political discourse in this country. Criminal defamation does not seem to have deterred politicians from publicly trading unfounded charges against each other and I don’t think there is concrete evidence at all to say that it has had a deterrent effect, at least, upon political discourse in this country.
*But then, such an argument would be anti-freedom of speech..
-Not at all. As you already know, the freedom of speech that we speak of is a constitutional right and defamation is an exception to freedom of speech.
*Interestingly, the United States Constitution says nothing about defamation and there too, civil defamation is considered to be an exception to free speech.
-True. To say that the defamation law is an exception to guarantee of free speech does not say much at all. Even if the Constitution of India would have said nothing about defamation being an exception to free speech, Courts would have someday carved out such an exception for the same reason that they would have carved out an exception in the name of law of contempt had there been no express exception in its favour – freedom of speech would be unworkable and impractical in the absence of such a restraint.
*Does the fact that Section 499 of the Indian Penal Code, 1860 was an original provision in a pre-constitution statute and was therefore, present to the makers of the Constitution come in the way of the Court readily inferring unreasonableness?
-Not so. The framers of our Constitution knew that some pre-constitution laws could violate the fundamental rights and have therefore, expressly provided in Article 13(2) that even pre-constitution laws would be liable to be struck down by the courts in the event of they being ‘inconsistent’ with the fundamental rights.
*Have there been instances of the Supreme Court striking down pre-constitution laws on the ground of violation of a fundamental right?
-Some. Take the practice of inam in British India and of hereditary appointments to public service. There were several statutes that were regulating such appointments and emoluments at the time of commencement of the Constitution. The Supreme Court expressed its opinion in 1954 that such laws contravene Article 16 of the Constitution – guarantee of right to equality in matters of public employment; hereditary appointments were clearly seen to be unconstitutional though they were in existence for more than a hundred years in many provinces and States at that time. Consequently, a large number of State Legislatures passed laws to abolish such hereditary appointments and emoluments.
*Coming back to your statement that criminal defamation has not deterred politicians from trading unfounded charges against each other, why do you say so?
-Tell me – how many politicians in this country have been convicted under the law of criminal defamation? Public discourse requires that a speaker hold a honest view on what he thinks to be the truth and be willing to apologize to a person who has been hurt should he learn about the fallacy in his perception. Criminal defamation law hasn’t produced such gentleness yet in our political discourse and it would be quite laughable for politicians to claim – inside or outside the court - that criminal defamation has somehow deterred them from speaking freely.
*Politicians are the mostly the ones who are before the Supreme Court this time…
-True. And, one would have expected a better profile of petitioners at the Supreme Court – say, commentators, academics, writers or journalists. One who values his own speech that could publicly injure another’s reputation has a duty to remain mindful of when his view of the truth is no longer tenable and to willingly apologize to any person hurt by his statements and the politicians in India, generally speaking, do not seem to value the reputation of their adversaries at all. And, publicly apologizing under revelatory circumstances is mostly out of their contemplation. So, it is only natural that we all wanted a better profile of petitioners at the Supreme Court.
*Certainly, the SC cannot say that politicians haven’t made out a case for striking down criminal defamation because they cannot show deterrent yet from it?
-This is a terribly complicated matter. I don’t think that the Supreme Court would openly say so about politicians and decline relief on that ground.
*The Supreme Court really has an extraordinary burden in this case…
-Yes. Let us take a bad tune and let me or you try to sing that one - nobody would want to hear it. But then, give that same tune to a professional playback singer and you will hear it very differently. It is the same expectation about the apex court in the largest democracy in the world. Criminal defamation is fine so long as it is not challenged – but once it becomes the subject of a judicial challenge, in this day and age, sustaining it on merit could be greatly problematic for the reputation of the Supreme Court.
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