DEFAMATION LAW –PROTECTION OR SUPPRESSION

There exists a delicate difference between a person’s freedom of speech and another’s right to protection of identity and status. It often becomes difficult to control the incensed hotheads for giving statements which affects the reputation of the other person in the society and labels it under the freedom to speech. It has become the question to think whether – What to speak in public and what not to speak. This makes the need and understanding of defamation law more vital.  This strengthens the need of defamation law. Unlike many other countries such as China, Former Soviet Union, Netherland etc., which adhere to only one type of defamation, India has both – civil defamation and criminal defamation. Though, not much difference exists between criminal and civil defamation. The only distinguishing factor is the punishment awarded in each case, which becomes a legal grey area.  Many countries such as UK, US, Sri Lanka, Dominican Republic etc., has removed criminal defamation from their laws because of the reason that it curtails the freedom of speech of the citizens by imposing the threat of harsh punishments. But if the criminal defamation is decriminalized then a person who is wealthy enough would easily hurl abuses at others and pay off the money and can escape the clutches of criminal liability. Such things cannot be permitted in the civilized society since this will lead to anarchy. The defamation in India falls under the scope of law of torts in case of Civil law whereas; under Criminal law it falls under Section 499 and Section 500 of Indian Penal Code. Damages are awarded in civil suits whereas punishment is awarded in case of criminal law cases.The Section 499 of Indian Penal Code as defined Defamation as - 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. There are exceptions to this provision such as truth exposed for public good, act of public servant in good faith to discharge his/her duty, opinions stated by any person, publishing true reports of the Proceedings of Court, statements made by witnesses etc. Section 500 of IPC states the punishment for defamation has - whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both. The law of tort divides defamation into libel and slander. Libel deals with the written form of defamation which is permanent and slander deals with false spoken statement which is in transient form. Here, the defences provided by the Indian courts are that the statement is made in absolute and qualified privilege, fair comment and the statements which are justified.

Many incidences of defamation has been taken place shortly which included many imminent personalities and specially the politicians. The Delhi Chief Minister Arvind Kejriwal in 2016 has 6 active defamation cases against him. The defamation case filed by Nitin Gadkari against Kejriwal resulted him in 2 days judicial custody, has this case was filed under criminal defamation. Whereas the case filed by Arun Jaitley against Kejriwal on the false scam charges framed by Kejriwal on DDCA (Delhi and District Cricket Association) resulted him the civil defamation suit of Rs 5 crore. The criminal suit has been filed on many other politicians such as Digvijay Singh, Subramanian Swamy, Rahul Gandhi etc. The most trending issues related to defamation are going on in Tamil Nadu for the rumors spread against their Chief Minister Jayalalitha. This shows the inefficiency of the legal system to control the acts of defamation as the cases of defamation is increasing day by day. Maybe more number of injunctions should be passed by the courts in the cases of defamation to control the increasing defamatory practices. The defamation law on one side protects the dignity of an individual by protecting their reputation but on the other side curtails the Freedom of Speech and Expression given to its citizens. Article 19 of Indian Constitution provides the individual with the freedom to speech and expression but later it was subjected to some restrictions by imposing the Section 19(2) by the Amendment made in 1961. This curtails the freedom to speech and expression by stating that the statement should be made for “Public Interest” and should be “Reasonable”.
In case of civil law, reputation when seen as a property can be estimated as money and thus adequately compensated through a civil action for damages but loss of dignity is not a materially certifiable loss, and thus, monetary compensation appears inappropriate. The main aim of the defamation law should either be to ensure whether the reputation is not deceitfully deprived of its legitimate market value or of the respect/acceptance of the society. Citizens most of the time have a proper reason to believe that the threat of criminal defamation will be used by the government in such a way that it will muzzle up the freedom of speech and expression, this criminal defamation law will impose as a threat on whistle blowers in society. However, increasingly, there is reason to be most concerned about that is the journalists and bloggers (especially those without the resources to fight back) because they will face harassment from powerful corporate and business houses. Well established defamation laws are essential to ensure the journalistic freedom and integrity. The law should be made to protect the rights of the citizen and not to suppress their rights. The main aim of defamation law should be to ensure the freedom to life to the citizen, which includes living with dignity and respect; while at the same time it should not affect the freedom of speech and expression.