Today, a two-judge bench of the Supreme Court began to hear the constitutional challenge to Sections 499 and 500 of the IPC, which criminalise defamation. This is a hugely significant free speech case, for many reasons. Section 499 has been on the statute books since 1860, and this is the first time that the Supreme Court is hearing a frontal challenge to its constitutionality; the many abuses of criminal defamation as a weapon to silence investigative journalism are well-documented; furthermore, this is the first case after Shreya Singhal vs Union of India, where a legal provision has been challenged on the ground of Article 19(1)(a), and it gives the Supreme Court a chance to build upon the progressive jurisprudence advanced in that case. In short,

The Centre for Communications Governance at NLU-Delhi has reported the first day of the hearings, and we seem to have gotten off to a rather bad start. CCG reports:

“The Attorney General at the outset requested the court to refer the matter to a constitutional bench as per Article 145(3) of the Indian Constitution. The bench however did not seem very inclined and provided examples of multiple cases in the recent past including Suresh Kumar Koushal and Shreya Singhal which were decided by a two judge bench. In response the Attorney General submitted that if in other instances the correct course was not followed, that should not be a reason to not refer the matter in the present case. Mr. TR Andhyarujina, who has been appointed as an amicus in the case also supported the Attorney General’s contention. The Court has allowed the Union of India to raise this issue in their final arguments and has agreed to answer it in the final judgment.”

Actually, I’d love to read the final judgment just to find out what reasons the Court invents to justify not referring this case to a Constitution Bench. Article 145(3) states:

“The minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under Article 143 shall be five.”

If challenging the constitutionality of criminal defamation on the touchstone of Article 19(1)(a) is not a “substantial question of law as to the interpretation of the Constitution“, then what is? Whichever way you lean on this issue, it is undeniable that the case will raise some complex and significant questions of constitutional law. Since Article 19(2) specifically mentions defamation as one of the grounds on which speech can be restricted, the Petitioners’ arguments will have to impugn its reasonableness. In other words, Petitioners will need to argue that the very fact of criminalising defamation violates Article 19(2)’s requirement of reasonableness – both procedurally and substantively. This, in turn, will require the Court to go deep into the the scope of “reasonableness”, and apply it to an entirely novel set of contentions. Furthermore, it will require the Court to take into account two divergent branches of law – civil defamation and criminal defamation – and examine them in light of each other. This is because in Rajagopal’s Case, civil defamation has already been modified in order to bring it into conformity with Article 19(1)(a), but the same has not been done for S. 499. At this stage, therefore, we have two divergent regimes of defamation law, with radically different standards: civil defamation, that requires the New York Times vs Sullivan test of actual malice, and is heavily in favour of speakers; and Section 499, whose defences require the speaker not just to prove the truth of his statement, but also that he made it in public interest. Contrary to civil defamation, this stacks the deck against the speaker almost as far as it is possible to go. Whatever decision the Court takes, it will be faced with the complex task of harmonising the two facets of defamation, or explaining why differential standards are justified when it comes to free speech.

Lastly, the pragmatic implications are immense: the Court is asked to rule upon the constitutional validity of an entire legal regime – that of criminal defamation. It is not simply S. 499 at stake, but also the sentencing provision (S. 500), as well as the CrPC provisions, such as S. 199, which lay out the procedure for prosecution. The judgment, therefore, has the potential to bring about far-reaching changes in the law. By any standards, this is a substantial question of law as to the interpretation of the Constitution, and ought to be decided by a bench of five judges. The references to Koushal vs Naz and Shreya Singhal are – as the Attorney-General rightly pointed out – compounding an error. Both those cases ought to have been decided by a Constitution Bench. The constitutional validity of S. 377 would – and did – require the Court to venture into wholly unrelated terrain in the realm of equality, non-discrimination and privacy; and the constitutional validity of S. 66A likewise required the Court to investigate a series of crucial concepts such as over-breadth, vagueness and the chilling effect, and determine their place in the constitutional scheme. This case simply continues the trend whereby matters of critical constitutional importance are being decided by a two-judge bench. The inevitable effect of this is a fragmentation of doctrine, the erosion of stare decisis, and the incremental erasure of the rule of law.

CCG further reports:

“The bench clarified that it will only be dealing with the issue of constitutionality of sections 499 and 500 of IPC and will not look into how these sections are applied. The bench also stated that it cannot abolish a provision as that is the job of the parliament, it can only look at the constitutionality of the provision.

The Attorney General also dealt with the issue of criminal and civil defamation and stated that a civil suit for damages in such instances keeps pending for years and there is hardly any award provided, nor is there any deterrence effect whereas criminal provision at least has some deterrence effect. He also compared the situation to the English system and was supported by Mr. Andhyarujina and both of them stated that unlike the India system its easy to approach the civil court for damages in such cases and obtain a relief whereas in India the system should be kept in mind. However, the bench reiterated that it will only examine the constitutionality of the sections and the system that exists for civil defamation and the time take to decide such suits will have no bearing on that.”

Unfortunately, the Court gets this wrong. The issue of application is critically important to a fair adjudication of this case, because at the petitioners’ contentions are founded upon the procedural unreasonableness of the fact of criminalising defamation. Procedural unreasonableness can only be established before the Court by describing how the criminal process actually works. Criminal defamation chills speech precisely because it is possible to harass speakers by filing multiple cases in different parts of the country, because the pre-charge stage drags on for years, and because defences are only available at the time of trial. Instances of misapplication are the best evidence of how the criminal procedure is manipulated to chill speech.

Similarly, the fact that civil remedies are largely toothless is significant because, as Shreya Singhal reminded us, to be constitutional, speech restricting statutes must be drawn narrowly. A crucial aspect of the petitioners’ case will be that the criminal defamation provision is not drawn narrowly precisely because there exists a narrower remedy – civil defamation, which infringes upon rights to a lesser degree, while performing the function of protecting peoples’ reputation. The Union, therefore, should be entitled to show that the way things are in India, the civil remedy is no remedy at all; consequently, S. 499 ought to be upheld, because it is the narrowest possible way in which the legislature can achieve its goal of protecting reputation.

What the above paragraphs demonstrate is that – as the Court recognised in V.G. Row so many years ago – context is crucial in any reasonableness enquiry. The Court has to look at the importance of the State’s professed goal, the extent to which rights are being curtailed to achieve it, and the proportionality between the two. In the case of criminal defamation, that context is precisely the workings of the civil and criminal process in India. In blinkering oneself to these realities, the Court risks writing a judgment that fails to be roooted in reality.

These are early days, and I hope that my pessimism turns out to be unfounded. But it seems to me that right at the outset, the Court has made two rather serious blunders: refusing to refer this case to a Constitution Bench, and refusing to listen to arguments about the application of S. 499. Whatever the outcome, the judgment – as well as free speech jurisprudence – will be much the poorer for these blunders.

Original author: gautambhatia1988