==================================== Its not about AAP but about the Archaic laws ==================================== Arvind Kejriwal’s imprisonment puts a very important question firmly in the spotlight. Instead of spending our energies on questioning the merits or demerits of his decision not to pay the bail bond, and turning this into a Pro-AAP/Anti-AAP argument, we should all be asking ourselves this basic question: what do we think of a law that allows a man to be put in prison because he called a politician “corrupt”? 1. The immediate cause for Arvind Kejriwal to be dispatched to Tihar Jail under judicial custody was his refusal to pay a bail bond 2. Nitin Gadkari filed a defamation case against Arvind Kejriwal for being called corrupt. The case was made possible because of Sections 499 and 500 of the Indian Penal Code. 3. Section 499 defines “defamation” to include statements written or published, that are made with the intention of harming the reputation of an individual, or with the knowledge that they are likely to harm his reputation. 4. Section 500 prescribes the punishment for defamation to be imprisonment for two years, or a fine, or both. 5. Defamation is of two types - Civil and Criminal. If you defame me, I can sue you and claim compensation. 6. If it is civil defamation, court will order compensation. If its a criminal defamation, then section 499 and 500 of the IPC get involved. The consequence can be imprisonment. 7. Why do we have two kinds of penalties: --> Defamation was first established as an offence in England many hundred years ago. --> Defamationas a civil offense was meant to compensate a person for the loss he suffered due to damaged reputation --> Defamation as a crime was linked to the propensity of defamatory statements to cause a breach of the peace, or of public order. If, in the opinion of the Court, it had a general tendency towards threatening public order, that was enough to impose criminal penalties. 8. We have come a long way since 18th century of England. The very country of this laws birth, Britain, passed a law to abolish it in 2009. The United Nations Commission on Human Rights called criminalizing peaceful expression as “one of the most reprehensible practices employed to silence people and… a serious violation of human rights.” ==================================================== Three reasons why Criminal defamation laws are unconstitutional ==================================================== **Reason One: --> Article 19(1)(a) of our Constitution guarantees the freedom of speech and expression. --> Article 19(2) permits reasonable restrictions upon this right, in relation to— among other things— defamation. --> A reasonable restriction must achieve a degree of proportionality between the degree to which speech is being restricted, and the goal that is sought to be achieved. --> When civil remedies are already available, imprisoning people for what they might speak or write, is not a proportional remedy. Unlike a civil suit, a criminal prosecution has the potential of directly depriving a person of their liberty. A criminal prosecution places upon the accused a mark of public disapproval and social stigma that sticks for life. One only has to look at the frequently expressed concern about the number of parliamentarians accused of crimes, to see how true this is. --> There is a broader concern with criminal defamation that goes beyond the case of Kejriwal: it is a particularly potent weapon to silence independent and critical journalism. --> A civil defamation suit will often be directed at newspapers, which have deeper pockets, and will often be able to settle a case without financial ruin. --> A criminal case directly attacks the writer, and threatens him with imprisonment or a heavy fine. --> Consequently, criminal defamation laws are far more likely to cast a chilling effect on speech, leading to self-censorship, than civil laws. When we place this in the context of the importance of free speech to any functioning democracy, as a tool of dissent and critique, something our Supreme Court has held many times, it is difficult to see how criminalizing defamation is a “reasonable” restriction upon our Article 19(1)(a) rights. ***Reason Two: --> One historic exception to criminal defamation laws, in pre-democratic England, was parliamentary privilege. Parliamentarians were exempted because it was felt that the public interest in having free and unfettered discussion, without threat of prosecution, among the lawmakers, was vital to the functioning of the State. This view, however, rests upon a notion in which the supreme authority within a polity rested in the body of the Parliament. Free speech was restricted to the proceedings of the parliament in the belief that effective governance ought not to be impeded. That theory, however, was superseded when we adopted a democratic Constitution after our independence. --> Under a democracy, ultimate governing authority lies not in Parliament, but in the people. Consequently, insofar as free speech is to be protected because of its governing importance, that protection must no longer be restricted to Parliament, but extended to the people as a whole. If, then, criminal defamation was inapplicable to Parliament, for the reasons described above, there is good reason now to hold it inapplicable at large, in a democracy. **Reason Three --> Civil and criminal defamation laws existed separately because they were understood to serve two distinct purposes. --> The purpose of criminal defamation laws was to preserve public order and prevent breaches of the peace. Under our Constitutional jurisprudence, however, the Supreme Court has adopted a stringent test for when speech can be regulated on public order grounds: there must be a close and direct connection between the speech and the public order disturbance, a relationship that the Court has colloquially described as a “spark in a powder keg”. A classic example is inciting an enraged mob to immediate violence. The reason for this is obvious: public order is the first blunt instrument that governments reach for when they want to stifle speech. Consequently, there must be a clear showing that there is an immediate and tangible threat, and the burden of showing that lies upon the State. ***Finally*** Sections 499 and 500 do not require any such test of public order: they are blanket laws that justify imprisonment purely on the basis of harm to reputation. But that objective is already served by the civil law. Consequently, insofar as the purpose of criminal defamation is to protect reputation, it is both superfluous, and an unreasonable restriction under Article 19(1)(a). Insofar as its purpose is to preserve public order, it fails the Supreme Court’s test by some distance. About the author: Gautam Bhatia — @gautambhatia88 on Twitter — is a graduate of the National Law School of India University (2011), and presently an LLM student at the Yale Law School. He blogs about the Indian Constitution at indconlawphil. wordpress
Posted on: Sun, 25 May 2014 10:23:00 +0000
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