Defamation and the law: India
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Contents
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Introduction
By Soli Sorabjee
India Today, May 19, 2016
Soli Sorabjee
In order to protect a person's reputation, defamation does not have to be a criminal offence.
The right to freedom of speech and expression has been guaranteed as a fundamental right under Article 19(1)(a) of our Constitution. Like all fundamental rights in our Constitution, this precious right is not absolute. It can be reasonably restricted, as is evident from Article 19(2), which envisages imposition of restrictions inter alia on the head of defamation. Right to reputation is also guaranteed as part of the fundamental right of personal liberty in Article 21 of the Constitution, as expansively interpreted by the Supreme Court. Hence no one can claim a fundamental right to defame a person. This was recognised by the Supreme Court in its judgment in Subramanian Swamy vs Union of India where the court was considering a challenge to the constitutionality of Section 499 of the Indian Penal Code whereunder a person found guilty can be punished with simple imprisonment of two years or with a fine or with both. In the course of the judgement, Justice Dipak Misra, speaking for the Bench, which included Justice Prafulla C. Pant, observed that the "reputation of one cannot be allowed to be crucified at the altar of the other's right of free speech" and that "the object of defamation, civil or criminal, is not to suppress dissent or criticism but to protect the reputation and dignity of an individual against scurrilous attacks.... Reputation being an inherent component of Article 21, it should not be allowed to be sullied solely because another individual can have its freedom of speech".
Therefore, according to the bench, a balance between the two rights needs to be struck. In the result, the court upheld the constitutionality of Section 499 of the IPC. For whatever it is worth, the bench clarified that since the offence of criminal defamation has its own gravity, the magistrates have to be extremely careful in issuing summons. In reality and practice, this admonition will be honoured more in breach than observance. As a further sop, the bench stated that it will be open to the petitioners to challenge the issue of summons before the high court, either under Article 226 of the Constitution or Section 482 of the CrPC as advised, and seek appropriate relief. Unfortunately, the court failed to notice the actual trauma and harassment persons have to face in criminal prosecution for defamation. It did not appreciate the pervasive uncertainty and the expenses involved in adopting legal proceedings at all. To that extent, the judgement ignores the realities on the ground.
Has the Supreme Court struck the right balance? I think not. In order to protect a person's reputation, defamation does not have to be a criminal offence. The court failed to appreciate that Section 499 of the IPC in reality and its actual operation undoubtedly have a chilling effect on free speech. That leads to self-censorship, stifling free speech, which is an unhealthy development in any democracy. The Law Commission has noted that the defamation law as it stands can lead to a chilling effect on the publication of free and independent news.
The court's reasoning that the legislature in its wisdom has not thought it appropriate to abolish criminality of defamation in the obtaining social climate is unconvincing. It is precisely because of the inaction of the legislature which results in the violation of the right to free speech that judicial intervention is warranted. Many democracies the world over which recognise the right to free speech as also a person's right to reputation do not treat defamation as a criminal offence. In 2010, the UK abolished criminal libel as anachronistic, recognising it was used less to protect reputations and more to silence dissent. There are exceptions as in the case of Pakistan, Malaysia and Singapore. India does not need to be in their company. Balancing is a difficult and delicate task, especially when it involves two fundamental rights, equally important and which also embody our constitutional values. Unfortunately, the court has unduly tilted the balance against free speech. This imbalance needs to be promptly rectified.
A backgrounder
February 17, 2021: The Times of India
Source: Citations from Additional Chief Metropolitan Magistrate Ravindra Kumar Pandey's judgment in MJ Akbar vs Priya Ramani
Explained: What is defamation and how is it caused?
NEW DELHI: In a verdict that is likely to set a precedent for future #MeToo cases, a Delhi court on Wednesday acquitted journalist Priya Ramani in a criminal defamation case filed by former Union minister M J Akbar.
Ramani had made allegations of sexual misconduct against Akbar in the wake of #MeToo movement in 2018. Akbar, in turn, accused her for defaming him with allegations of sexual harassment dating back several years when he was a journalist. He filed the complaint against Ramani on October 15, 2018. What is defamation?
Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.
Explanation 1: It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives.
Explanation 2: It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.
Explanation 3: An imputation in the form of an alternative or expressed ironically, may amount to defamation.
Explanation 4: No imputation is said to harm a person’s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.
Examples
(a) A says—“Z is an honest man; he never stole B’s watch”; intending to cause it to be believed that Z did steal B’s watch. This is defamation, unless it fall within one of the exceptions. (b) A is asked who stole B’s watch. A points to Z, intending to cause it to be believed that Z stole B’s watch. This is defamation unless it fall within one of the exceptions.
(c) A draws a picture of Z running away with B’s watch, intending it to be believed that Z stole B’s watch. This is defamation, unless it fall within one of the exceptions as under:
First Exception: Imputation of truth which public good requires to be made or published — It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact.
Second Exception: Public conduct of public servants — It is not defamation to express in a good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further.
Third Exception: Conduct of any person touching any public question — It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further. Illustration It is not defamation in A to express in good faith any opinion whatever respecting Z’s conduct in petitioning Government on a public question, in signing a requisition for a meeting on a public question, in presiding or attending a such meeting, in forming or joining any society which invites the public support, in voting or canvassing for a particular candidate for any situation in the efficient discharges of the duties of which the public is interested.
Fourth Exception: Publication of reports of proceedings of Courts — It is not defamation to publish substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings. Explanation: A Justice of the Peace or other officer holding an inquiry in open Court preliminary to a trial in a Court of Justice, is a Court within the meaning of the above section.
Fifth Exception: Merits of case decided in Court or conduct of witnesses and others concerned — It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a party, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further.
Example
(a) A says—“I think Z’s evidence on that trial is so contradictory that he must be stupid or dishonest”. A is within this exception if he says this is in good faith, in as much as the opinion which he expresses respects Z’s character as it appears in Z’s conduct as a witness, and no further. (b) But if A says—“I do not believe what Z asserted at that trial because I know him to be a man without veracity”; A is not within this exception, in as much as the opinion which he express of Z’s character, is an opinion not founded on Z’s conduct as a witness.
Sixth Exception: Merits of public performance — It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance, and no further.
Explanation: A performance may be substituted to the judgment of the public expressly or by acts on the part of the author which imply such submission to the judgment of the public.
Illustrations
(a) A person who publishes a book, submits that book to the judgment of the public.
(b) A person who makes a speech in public, submits that speech to the judgment of the public.
(c) An actor or singer who appears on a public stage, submits his acting or signing in the judgment of the public.
(d) A says of a book published by Z—“Z’s book is foolish; Z must be a weak man. Z’s book is indecent; Z must be a man of impure mind”. A is within the exception, if he says this in good faith, in as much as the opinion which he expresses of Z respects Z’s character only so far as it appears in Z’s book, and no further.
(e) But if A says—“I am not surprised that Z’s book is foolish and indecent, for he is a weak man and a libertine”. A is not within this exception, in as much as the opinion which he expresses of Z’s character is an opinion not founded on Z’s book.
Seventh Exception: Censure passed in good faith by person having lawful authority over another — It is not defamation in a person having over another any authority, either conferred by law or arising out of a lawful contract made with that other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates
Illustration
A judge censuring in good faith the conduct of a witness, or of an officer of the Court; a head of a department censuring in good faith those who are under his orders; a parent censuring in good faith a child in the presence of other children; a schoolmaster, whose authority is derived from a parent, censuring in good faith a pupil in the presence of other pupils; a master censuring a servant in good faith for remissness in service; a banker censuring in good faith the cashier of his bank for the conduct of such cashier as such cashier—are within this exception.
Eighth Exception: Accusation preferred in good faith to authorised person — It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subjectmatter of accusation.
Illustration: If A in good faith accuse Z before a Magistrate; if A in good faith complains of the conduct of Z, a servant, to Z’s master; if A in good faith complains of the conduct of Z, and child, to Z’s father—A is within this exception.
Ninth Exception: Imputation made in good faith by person for protection of his or other’s interest — It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good.
Illustrations (a) A, a shopkeeper, says to B, who manages his business—“Sell nothing to Z unless he pays you ready money, for I have no opinion of his honesty”. A is within the exception, if he has made this imputation on Z in good faith for the protection of his own interests. (b) A, a Magistrate, in making a report of his own superior officer, casts an imputation on the character of Z. Here, if the imputation is made in good faith, and for the public good, A is within the exception.
Tenth Exception: Caution intended for good of person to whom conveyed or for public good — It is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good.
What is the punishment for defamation?
Under section 500 of the IPC, whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.
Sexual harassment laws
In India, the Vishaka Guidelines was the first ever legal action that provided a broad framework for preventing and addressing cases of sexual harassment of women within the workplace. It recognized that sexual harassment of women in the workplace resulted in the violation of their fundamental rights of gender equality, right to life and liberty, and the right to carry out any occupation, trade or profession
Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013
In 2012, India saw increased and strong calls for addressing violence against women, with the increasing number of reported cases of sexual harassment and violence against women.
In this context, the Sexual Harassment of Women (Prevention, Prohibition and Redressal) Act 2013 was enacted to provide protection against sexual harassment of women at workplace and for preventing and addressing complaints of sexual harassment.
The Act recognizes that sexual harassment results in the violation of a woman’s fundamental right to equality under Articles 14, 15 and 21 of the Constitution which provide for equality before law, prohibition of discrimination on grounds of religion, race, caste, sex or place of birth and protection of life and personal liberty.
The Act includes key definitions and measures to be taken by different stakeholders for preventing and addressing sexual harassment at the workplace. Section 28 of the Act mentions that its provisions shall be in addition to and not in derogation of the provisions of any other law for the time being in force.
Decriminalization of defamation
The Times of India, Jul 25 2015
A Subramani
HC: Can't decriminalize defamation
While the Supreme Court is seized of a batch of petitions questioning the constitutionality of criminal defamation proceedings, the Madras high court stopped just inches short of decriminalizing the `offence' when it ruled that persons facing such cases could not be considered to have a `criminal background'. “The trend appears to be towards decriminalization of defamation. The SC is also seized of the issue. In such circumstances, it is not possible for us to convince ourselves that filing of a private complaint of defamation against a person for writing articles in a magazine could make him a person with criminal background,“ ruled a division bench of Justice V Ramasubramanian and K Ravichandrabaabu.
Tamil Nadu government is the biggest defamation complainant in the state, having filed more than 110 criminal defamation complaints since 2011.The bench was passing orders on a petition filed by freelance journalist M Nedunchezhian, whose application to be enrolled as an advocate was rejected by the Bar Council of TN and Puducherry, because a criminal defamation complaint was pending against him.
Compensation/ damages
Public apology better than monetary damages
Public apology better than money, says HC, May 3, 2017: The Times of India
Public apology in defamation matters is a more appropriate relief than monetary damages, the Delhi high court has said.
The court said compensation in monetary damages can never set the record straight or restore the damaged reputation caused by a libelous news report.
“I may also record that in my opinion the harm done by defamation to the reputation of a person, a direction to issue a public apology or a direction to correct the errors, if any, particularly in defamation arising out of libel by media, appears to be a more appropriate relief than a relief of monetary damages,“ a bench of Justice Rajiv Sahai Endlaw said.
The court's verdict came as it decideda nearly 20-yearold defamation suit filed by Tosiba Appliances against Japanese company Toshiba, a magazine and an advocate.
In 1997, the magazine had published an article on the business of counterfeiting wellknown brands and the lawyer was shown standing next to a few products. Though the court rejected the plaint, but directed the magazine to publish a clarification within six weeks.
Constitutional validity of criminal defamation challenged
The Times of India Dec 22 2015
TIMES NEWS NETWORK
The maintainability of the criminal defamation case filed by finance minister Arun Jaitley against AAP leaders Arvind Kejriwal and five others hinges on the impending judgment of the Supreme Court on petitions challenging the constitutional validity of the criminal defamation provision in IPC.
A bench of Justices Dipak Misra and Prafulla C Pant is likely to pronounce its verdict in January on petitions filed by Congress vice-president Rahul Gandhi, BJP leader Subramanian Swamy and Kejriwal. After holding extensive hearing over 19 days, the SC had reserved its order on August 8.
The court will decide whether IPC Sections 499 and 500 are an infringement on the individual's right to freedom of speech and expression and whether remedy against defamatory statements can be sought only through civil process--defamation suit -seeking damages from offender. The SC will also consider whether the tone, tenor and stringency of Sections 499 and 500 of the IPC needs to be read down.
During the hearings, the Centre and many state go vernments had opposed the plea for quashing of criminal defamation provisions in IPC.They had argued the penal provision acted as a deterrent and prevented people from maligning reputations. They had contended that scrapping the law would lead to anarchy in society as people would get away with destroying the hard-earned reputation of a person.
Attorney general Mukul Rohatgi had told court that such a penal provision was a must in the present era of social media when a person's reputation could be sullied in a second. He had said such activities could not be allowed under the guise of constitutional right to freedom of speech and expression. “If Section 499 goes then it means that a person will have aright to hurl abuses at others.Can any civilised society permit such a thing? Someone's hard-earned reputation will be destroyed in a second. It will result in anarchy in society,“ he had said.
Swamy and other petitioners submitted that criminal defamation was unconstitutional as it put unreasonable restrictions on right to free speech and expression and it should be scrapped for violation of fundamental rights.
Misuse of law
Politicians, corporates using defamation to intimidate media: HC
Mere Inaccuracies In Reporting Cannot Justify Initiation Of Prosecution: Court
Chennai:
Powerful politicians and corporates are using defamation cases against media as “tools of intimidation”, and the higher judiciary will not desert its duty when it comes to protection of fundamental rights, Madras high court has said.
Holding that mere inaccuracies in reporting cannot justify prosecution of media for defamation, Justice G R Swaminathan of the court on Tuesday quashed defamation proceedings initiated against Economic Times and two journalists.
Fortifying further the fundamental right to freedom of expression, the judge said: “An activist role will have to be played by the higher judiciary because it is a matter of record that criminal defamation proceedings have become a tool of intimidation before corporate bodies and powerful politicians whose pockets are tunnel-deep and whose hands are long... even media houses having good resources have capitulated.”
There can always be a margin of error, Justice Swaminathan said, adding that the permissible width of the margin will depend on the facts and circumstances of each case. “The media can avail (itself of) this defence whether the complainant is a public official or a private entity. Mere inaccuracies in reporting cannot justify initiation of prosecution.”
The defamation case was instituted by V V Minerals taking exception to an article published on July 1, 2015 in Economic Times. Though it was authored by freelance journalist Sandhya Ravishankar, it named her husband also as an accused, and a magistrate court issued summons for four people, including the Economic Times editor and grievance redressal officer.
Quashing the case, Justice Swaminathan pointed to two inherent errors in the proceedings. One, none of the four lived within the jurisdiction of judicial magistrate-1, Tirunelveli. Rapping the magistrate for issuing the summons without any application of mind, the judge said: “A mere look at the cause title would have revealed that the accused are not residing within the jurisdictional limits of judicial magistrate.”
Two, since the accused have not been named in person with appropriate description, the court ought to have returned the defamation complaint itself as defective. “In this case, the trial magistrate appears to have mechanically taken cognizance of the offences even without noting that the grievance redressal officer and the editor of Economic Times have not been named in person at all.” The judge also pointed out that the article was published only in the wake of notice being issued by the first bench of the Madras high court on a PIL relating to irregularities in beach sand mining. “When the Hon’ble First Bench thought it fit to issue notice based on the allegations made by a litigant and when it raised a public question, the media is certainly entitled to carry a story on it,” said Justice Swaminathan.
The newspaper and the author of the article have shown their bonafides by reaching out to Vaikundarajan, owner of V V Minerals, and publishing his response in the very same article, he said. Underscoring the role of higher judiciary vis-a-vis freedom of expression, he said, merely singing paeans to freedom of press is not enough, if one cannot go to its rescue when its right is faced with a serious threat.
Prominent judicial rulings
What is defamation?
Calling a man impotent is defamation: HC
Referring somebody as an “impotent person” reflects badly on his manhood and prima facie amounts to defamation, the Bombay high court (HC) said and refused to quash criminal proceedings initiated against a resident of Rajahmundry in Andhra Pradesh, by her estranged husband for terming him ‘impotent’ in her writ petition.
Justice SB Shukre said the word ‘impotent’ in its plain and grammatical sense, reflects adversely upon the manhood of a person and has the tendency to invite derisive opinions about such person. Therefore, the use of the word would be prima facie sufficient to constitute the offence of defamation, punishable under section 500 of the Indian Penal Code.
The matrimonial dispute between the estranged couple had taken a bitter turn. After leaving her matrimonial home at Nagpur along with her minor daughter, the woman had filed a divorce petition before a local court in Rajahmundry.
After an interim custody order of the family court, she had approached the Bombay HC, stating in her petition that the respondent (her estranged husband) is an impotent person and the child was born by medical ovulation period technique as was suggested by the gynaecologist”.
Taking it as an offence, the husband then approached the local magistrate court at Nagpur, with a private complaint seeking prosecution of his wife and some of her maternal relatives for defamation, criminal intimidation, etc. The woman had approached the HC after a magistrate court on July 24, 2017, issued process against her and her relatives on the basis of her husband’s complaint.
The woman argued before HC that she did not intend to defame her husband by using the term “impotent” and that the term cannot be read in isolation. She claimed that she used the term because her husband’s medical condition, due to which it was impossible for her to conceive and that their child was born using an advanced medical technique.
Justice Shukre, however, refused to accept the contention. The judge said reading the woman’s statement the way it is, one gets an impression that it is per-se defamatory in character and has been calculated to cause harm or injury to the reputation of her husband.
The HC rejected the woman’s plea, saying even if the expression “impotent person” was read in all its contextual setting — in particular in the context of the birth of the child by adopting a medical procedure — even then the apparent harm that causes, is not diluted or washed out.
Calling to police station not defamation: HC
The Times of India, Aug 8, 2016
Ajay Sura
The Punjab and Haryana high court has held that merely being called to the police station in relation to a complaint does not amount to criminal defamation.
The HC passed these orders while dismissing an application filed by a retired colonel from Rewari district, who had sought directions to prosecute a person for criminal defamation because he had to go to the police station after a false complaint was filed against him. The plea by Col Ranbir Singh Yadav (retd) had earlier been dismissed by a court in Rewari on May 2, 2015. In his plea, Col Yadav had sought registration of a case under sections 499 (defamation) and 500 (punishment for defamation) of the IPC against one Chet Ram. Col Yadav had said that he was a former Army officer with permanent disability and commanded respect in society for his achievements. He submitted that Ram had filed a police complaint accusing him of trespassing into his fields and axing a tree there with the intent to harm his reputation. Col Yadav said he was made to appear before police officials as if he was named as a culprit, and described the episode as humiliating and stressful. However, Justice Hari Pal Verma of the high court dismissed the plea on August 1. "Merely because the respondent has filed a complaint to the police and a consequence, thereof, police questioned the applicant, this act does not fall within the ambit of Section 500 of the IPC. The applicant has not been able to establish that in what manner filing of complaint by the respondent had harmed his reputation," Justice Verma observed.
Police did not find any substance in the complaint against Col Yadav and it was dismissed after a preliminary enquiry, it was submitted. Aggrieved that he was summoned to a police station, the retired Army officer had filed a complaint in the court in Rewari.
The Rewari court had observed that the retired Army officer was questioned by the police after receiving a complaint against him and it was duty of the police to ascertain facts. Not happy with the Rewari court's orders, the military veteran approached the HC.
‘Minor Errors, Enthusiasm Not Defamation’: SC
Dhananjay Mahapatra, Media must enjoy freedom fully: SC, January 9, 2018: The Times of India
Endeavouring to protect freedom of speech and expression enjoyed by the media, the Supreme Court on Monday said minor errors or enthusiasm in reporting on a scam or alleged involvement of certain individuals will not amount to defamation, even if it had been held to be constitutionally valid.
A woman petitioner, who mentioned in the petition that she is the daughter of a senior bureaucrat and that her mother was a minister in the Bihar government, had challenged a September 12 judgement of Patna high court quashing cognizance taken by a magistrate of her defamation complaint accusing reputed journalists of telecasting incorrect news defaming her and family members.
The news report aired in April 2010 had alleged irregular allotment of land in Bihiya Industrial Area by Bihar Industrial Area Development Authority to her for establishing a proposed food processing unit. She had alleged that the Hindi TV news channel had made some specific “scandalous and derogatory” comments against her and her parents forcing her to file defamation complaint.
When her counsel challenged the HC decision, a bench headed by Chief Justice Dipak Misra observed: “In a democracy you must learn to tolerate. The case has continued since 2011. The persons have spent a lot of time and money in defending themselves. Defamation may be constitutionally valid. But, an alleged incorrect news item about a scam does not amount to defamation.”
The bench further observed: “There could be some error or enthusiasm in reporting an alleged scam. But, we must allow freedom of speech and expression to press at the fullest. There may be some wrong reporting. For that they need not be hauled up for defamation.”
Retweets can be libellous
HC junks AAP man's plea on Twitter RTs, September 26, 2017: The Times of India
The Delhi high court on Monday rejected the argument of AAP leader Raghav Chadha that he shouldn't face criminal defamation for re-tweeting chief minister Arvind Kejriwal's tweet against Union minister Arun Jaitley in the DDCA row.
In a setback to Chadha, Justice Sangita Dhingra Sehgal dismissed as “as devoid of merit“ his argument that if at all he can only be booked under the Information Technology Act and not the Indian Penal Code.
It said that Jaitley's complaint and the statements of witnesses examined by the finance minister till now “depict that the petitioner (Chadha) along with other accused persons participated in press conference, is sued derogatory statements orally, used twitter handles, retweeted, disseminated, defamatory imputa tions targeting the complainant through platform of press and media from December 15, 2015 onwards and continued till December 20, 2015 after sleuths from CBI went to Delhi secretariat for conducting a search“.
HC opined that these “acts, aimedtargeted the complainant and his family members, and attracted adverse attention of the public.“
The court said the trial court's decision was a “well-reasoned order“ where it summoned him as an accused in a criminal defamation case filed by Jaitley against him and five other AAP leaders, including Kejriwal.
“It is not for this court, while exercising the inherent powers under section 482 of the CrPC to go into the merits of the case,“ Justice Sehgal noted on the issue if Chadha committed an offence by re-tweeting the CM's tweets.
HC observed that it cannot embark upon weighing of evidence and arriving at a conclusion to hold if the allegations in the complaint by Jaitley constitute an offence of defamation, which entails a maximum punishment of two year jail term under section 500 of IPC.
Re-tweets can be defamatory, SC
The Supreme Court rejected AAP functionary Raghav Chadha’s plea to wriggle out of trial in a Rs 10-crore defamation case filed by finance minister Arun Jaitley against him and five others, including Delhi CM Arvind Kejriwal, on the contention that there was no law making a re-tweet defamatory.
Chadha’s counsel, Anand Grover, argued that his client had been summoned by the trial court without there being any law to prosecute a retweet of an allegedly defamatory tweet by Kejriwal. “There is no law and no ruling by any court in the world declaring that re-tweet of a tweet amounts to publication of defamatory material which could be liable for prosecution,” Grover said.
A bench of Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud disagreed with Grover’s contention. Justice Chandrachud said, “Take for example a tweet which is per se derogatory, abusive or contains graphic pornographic material. Can one who re-tweets such a tweet say he has only re-tweeted the material and is not the author of it and hence should not face prosecution?”
‘Can petitioner go on defaming people?’
Can one who re-tweets say he was completely oblivious to the contents of the tweet even if it is highly derogatory and pornographic?” Justice Chandrachud asked.
Grover said a re-tweet was an issue covered under the Information Technology Act and since Section 66A was deleted by the apex court in the Shreya Singhal case, there was no provision in the IT Act to prosecute defamation.
“Section 499 and 500 of the Indian Penal Code cannot apply to an alleged offence under the Information Technology Act,” he said.
Contesting Grover’s plea that defamation was not covered under the IT Act, senior advocate Mukul Rohatgi, appearing for Jaitley, said, “Does the petitioner mean that he can go on defaming people on Twitter and not face any prosecution? A field of law on defamation stands covered under Sections 499 and 500 of the IPC and naturally it would apply to prosecute people who commit the offence of defamation.”
Jaitley’s other counsel, Ranjit Kumar and Sidharth Luthra, said if Grover thought there was no judgment on whether a re-tweet of a tweet amounted to committing the same offence as had been done by the author of the tweet, then he should await the trial court’s decision. This could be the first ruling on this issue.
Citing the Centre’s recent decision to set up 12 special courts to fast-track trials against politicians facing criminal cases, Rohatgi said in a lighter vein, “Let the Supreme Court direct this defamation case be sent to one of the special courts so constituted. Both parties in the case are politicians.”
Jaitley had filed a criminal defamation case against Kejriwal and five other Aam Aadmi Party functionaries — Ashutosh, Kumar Vishwas, Sanjay Singh, Raghav Chadha and Deepak Bajpai. In his complaint, Jaitley accused Kejriwal and the others of defaming him in a controversy regarding the Delhi and District Cricket Association, of which he was president from 2000 to 2013. He has sought Rs 10 crore in damages.
On free speech
Criminal defamation doesn't stifle free speech: SC
The Times of India, May 14 2016
Dhananjay Mahapatra & Amit Anand Choudhary
Upholding the constitutional validity of criminal defamation provisions in the IPC drafted during the colonial era, the preme Court said these do not muzzle free speech and asked politicians Rahul Gandhi, Subramanian Swamy and Arvind Kejriwal and others to face trial for alleged statements harming others' reputation. Bigger the stature of a person making the defamatory statement, the graver the offence, the court said.“Position of the persons making the imputation would regulate the standard of care and caution,“ it said as it favoured retention of criminal defamation as an option to redress hurt caused to the reputation of a complainant. The Supreme Court on Friday ruled that the current criminal defamation law is constitutionally valid and dismissed a batch of petitions that said the law has a “chilling effect“ on free speech.
“Right to free speech cannot mean that a citizen can defame the other. Protection of reputation is a fundamental right. It is also a human right. Cumulatively, it serves social interest...Each is entitled to dignity of person and of reputation.Nobody has a right to denigrate others' right to person or reputation,“ a bench of Justices Dipak Misra and P C Pant said in its 267-page judgment rejecting argu ments that criminal defamation was a legal tool to silence free speech.
Apart from Congress vice-president Rahul Gandhi, BJP member Swamy and Delhi CM Arvind Kejriwal, as many as 19 others, including many journalists, had challenged the validity of Sections 499 and 500 of IPC that permits a private citizen to file a criminal defamation complaint before a trial court for being subjected to insinuating utterances. The petitioners had said these provisions had a chilling effect on their fundamental right to free speech and expression guaranteed under Article 19 of the Constitution.
During pendency of the petitions challenging the validity of criminal defamation provisions, the SC had stayed all proceedings in trial courts. The bench said the stay on proceedings would continue for another eight weeks to facilitate the petitioners to move HCs concerned to challenge the trial court summons issued to them.
However, if before app roaching the apex court, any of them had already failed in the HC in challenging the summons, “he shall face trial and put forth his defence in accordance with law“, the bench clarified.
Writing the judgment for the bench, elucidating on concepts of free speech, democracy , dignity and reputation of individuals and referring to foreign case laws, Justice Misra said, “It is extremely difficult to subscribe to the view that criminal defamation has a chilling effect on the freedom of speech and expression.“
The court said reputation of a person was intrinsic to most precious right to life guaranteed under Article 21 and for its protection, Parliament has kept intact Sections 499 and 500 of IPC.
Free speech is no right to sully reputation
The Times of India, May 14 2016
Dhananjay Mahapatra
Otherwise a champion of free speech, the Supreme Court ruled that an individual's reputation was part and parcel of the most fundamental right to life which could not be allowed to be besmirched in allowing free speech to others. “Reputation of one cannot be allowed to be crucified at the altar of the other's right to free speech. The legislature in its wisdom has not thought it fit to abolish criminality of defamation,“ a bench of Justices Dipak Misra and P C Pant said.
Appearing for the Centre, attorney general Mukul Rohatgi and additional solicitor general P S Narasimha had said that given the social and political climate in the country, protection of an individual's reputation was important to allow him to live a life with dignity .
The bench accepted this argument in its totality while referring to case laws from the UK, the US, SA and European Court of Human Rights.It referred to the importance of reputation and dignity of individuals by quoting thoughts of William Shakespeare, Socrates, Aristotle and William Hazlitt.
It said right to freedom of speech and expression could not be allowed so much room that even reputation of an individual, which was part and parcel of Article 21, would have no entry into that area.
SC: Sec. 66A of IT Act an impediment to free speech
The Times of India, May 14 2016
Provision of IT Act junked, IPC's upheld
Why did the Supreme Court quash Section 66A of Information and Technology Act as unconstitutional and term it an impediment to free speech but uphold the validity of Sections 499 and 500 of IPC?
The ruling quashing Section 66A of IT Act by Justices J Chelameswar and R F Nariman on March 24, 2015 on a petition by law student Shreya Singhal was quoted extensively by Justices Dipak Misra and P C Pant while upholding the validity of provisions on criminal defamation.
The SC had quashed Section 66A on finding that it was beyond the eight reasonable restrictions on free speech imposed by the Constitution under Article 19(2). It said, “The law could be used in such a way as to have a chilling effect on free speech and would, therefore, have to be struck down.“
The jurisprudence enunciated in the Shreya Singhal judgment was cited by petitioners as an important ground for quashing of Sections 499 and 500 of IPC. The bench of Justices Misra and Pant clarified that Section 66A was quashed as it did not concern itself with injury to reputation, which was part and parcel of right to life. It said the bench of Justices Chelameswar and Nariman had observed that Section 66A restrictions were different from defamation.
Reporting facts
No defamation in fair reporting of public information: HC
June 27, 2022: The Times of India
Mumbai: The Nagpur bench of the Bombay high court on June 20 quashed summons issued in 2018 by amagistrate first class, Yavatmal, on a private complaint of defamation against Vijay Darda, chairperson, and Rajendra Darda, editor-in-chief, of the Lokmat newspaper, and dismissed the complaint against them.
“The freedom of making a true report regarding affairs in the public domain is a right which flows from the freedom of speech. The action of defamation over true and faithful reporting is unhealthy for a democratic setup,’’ said Justice Vinay Joshi.
The complainant had alleged that the news was published “without verifying its truthfulness”. He said he was not present at the crime site and was later excluded in the chargesheet. The HC said, “The core question is whether publication or reporting of registration of crime amounts to the intentional imputation of a named person’’. Justice Joshi said, “…it is essential that the person responsible for publishing anything in newspapers should take good care before its publication’’. But here it is a fact that FIR was registered and its registration was “correctly reported’’, within three days in the vernacular paper, “therefore subsequent exclusion from chargesheet has no bearing at all’’.
“The publisher is not expected to investigate the matter and ascertain the truthfulness of the FIR before publishing the news item. The liability and responsibility of the editor are restricted to a limited extent,’’ added the HC.
It said that newspapers devote some space to crime registration news, court cases, investigation progress, arrests and “it constitutes news events which the public has the right to know’’ and that “filing complaints about defamation on such news items is nothing but an attempt to shut up and stifle reporters/informants and to force them to withdraw the report filed against persons who are allegedly defamed. ”
In multiple cases, HC to decide where to hear
The Times of India, May 14 2016
If multiple cases filed, HC where to hear
Taking note of concerns on multiple criminal defamation cases instituted to harass a person, the Supreme Court on Friday said the high courts concerned were empowered under the Criminal Procedure Code to determine which trial court was competent to hold trial on identical complaints filed in different courts.
“Section 186 of CrPC gives the HCs power to determine the issue if two or more courts take cognisance of the same offence. If cases are filed in two or more courts in different jurisdictions, then the jurisdic tion to determine the case lies with the HC under whose jurisdiction the first complaint was filed,“ a bench of Justices Dipak Misra and P C Pant said.
After a HC determines which court was competent to entertain the criminal defamation complaint, “proceedings in all other places shall be discontinued“, it said.
“CrPC governs the forum for the trial of cases of defamation. CrPC governs the territorial jurisdiction and needless to say, if there is abuse of the said jurisdiction, the person grieved by the issue of summons can take appropriate steps in accordance with law.But that cannot be a reason for declaring the provision unconstitutional,“ it said.
The SC said since there was no FIR registered in a criminal complaint filed before a trial court and no investigation carried out by police, “the offence has its own gravity and hence, the responsibility of the magistrate is more. In a way , it is immense at the time of issue of process (summons).“
