Category Archives: Constitutional Scholarship

Notes from a Foreign Field: The High Court of Kenya Strikes Down Criminal Defamation

In an interesting judgment handed down yesterday, the High Court of Kenya held that criminal defamation unjustifiably restricted the right to freedom of speech and expression, and consequently, was unconstitutional and void. The judgment is part of a growing worldwide trend (with a few noticeable exceptions) to decriminalise defamation, whether judicially or legislatively.

The Constitutional Provisions

Article 33(1) of the Kenyan Constitution guarantees the right to freedom of speech and expression. Article 33(2) provides that this right shall not extend to propaganda for war, incitement to violence, hate speech, or advocacy of hatred. Article 33(3) provides that every person must “respect the rights and reputation of others.”

In addition, Article 24 of the Constitution contains a general limitation clause that states:

“A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including— (a) the nature of the right or fundamental freedom; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; (e) and the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.” 

It is important to note that Article 24 lays down a test of proportionality, which is broadly similar to the test laid down by the Indian Supreme Court in State of Madras vs V.G. Row, where the Supreme Court had held that under Article 19 of the Indian Constitution, the relevant test required consideration of:

“The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict.”

As we can see, there is an overlap between four of the five prongs of the two tests.

The Court’s Analysis

The Petitioners argued that “criminal libel is not a reasonable or justifiable restriction on freedom of expression and added that it is a “disproportionate instrument for protecting the reputations, rights and freedoms of others” and that the remedy in tort is sufficient and less restrictive means of achieving the purpose.” (pg. 3) To buttress this submission, they cited comparative law, including the judgment of the African Court on Human and Peoples’ Rights, the judgment of the High Court of Zimbabwe, and the 2008 Report of the U.N. Special Rapporteur on Freedom of Opinion.

The Court agreed. First, it held that criminal defamation was not saved by Article 24, because the general limitations clause was clearly intended to protect social interests, while criminal defamation was intended to protect an individual interest (the interest of the person defamed). To substantiate this argument, the Court applied the doctrine of noscitur a sociis (a word is known by the company it keeps), on the authority – interestingly – of the Indian Supreme Court. Consequently:

“It is to be borne in mind that defamation of an individual by another individual is a civil wrong or tort, pure and simple for which the common law remedy is an action for damages. It has to be kept in mind that fundamental rights are conferred in the public interest and defamation of any person by another person is unconnected with the fundamental right conferred in the public interest and, therefore, Section 194 out to be construed outside the scope of Article 24 of the Constitution which in my view aims at largely protecting public interest.”

And, with respect to Section 33:

“Section 194, which stipulates defamation of a private person by another individual, has no nexus with the fundamental rights conferred under article 33 of the Constitution, for Article 33 is meant to include the public interest and not that of an individual and, therefore, the said constitutional provision cannot be the source of criminal defamation. I base this argument on two grounds:- (i) the common thread that runs through the various grounds engrafted under Article 33 (2) (a)-(d) are relatable to the protection of the interest of the State and the public in general and the word “defamation” has to be understood in the said context, and (ii) the principle of noscitur a sociis, when applied, “defamation” remotely cannot assume the character of public interest or interest of the crime inasmuch a crime remotely has nothing to do with the same.”

(There is a parallel worth thinking about here, because the Indian Supreme Court has often held that the purpose of Article 19(2) is to protect “social interests“.)

However, given that Section 24 spoke about the “rights of others“, and Section 33 spoke about “reputation”, was that not a basis for the constitutionality of criminal defamation?  The Court responded that the question was whether criminalising defamation was a proportionate method of protecting the rights of others. It held that it was not. To start with, the Court observed:

“Human rights enjoy a prima facie, presumptive inviolability, and will often ‘trump’ other public goods.” (p. 8)

Within this framework, the Court held that the question of proportionality would have to be answered in two phases: “firstly, what are the consequences of criminalizing defamation and, secondly, is there an appropriate and satisfactory alternative remedy to deal with the mischief of defamation.” (p. 11)

On the first issue, the Court focused on the specific aspects of the criminal process: “The practical consequences that would ordinarily flow from a complaint of criminal defamation are as follows; the accused person would be investigated and face the danger of arrest. This would arise even where the alleged defamation is not serious and where the accused has an available defence to the charge. Thereafter, if the charge is prosecuted, he will be subjected to the rigors and ordeal of a criminal trial. Even if the accused is eventually acquitted, he may well have undergone the traumatizing gamut of arrest, detention, remand and trial. Moreover, assuming that the accused has employed the services of a lawyer, he will also have incurred a sizeable bill of costs which will normally not be recoverable.” (p. 11)

While, admittedly, this problems would afflict any person accused of any criminal offence, the case of free speech was crucially different because of the chilling effect. According to the Court:

“The overhanging effect of the offence of criminal defamation is to stifle and silence the free flow of information in the public domain. This, in turn, may result in the citizenry remaining uninformed about matters of public significance and the unquestioned and unchecked continuation of unconscionable malpractices.” (p. 11)


“The chilling effect of criminalizing defamation is further exacerbated by the maximum punishment of two years imprisonment imposable for any contravention of section 194 of impugned section. This penalty, in my view, is clearly excessive and patently disproportionate for the purpose of suppressing objectionable or opprobrious statements.” (p. 11)

Furthermore, if proportionality was about ensuring that the least restrictive method was applied to serve a particular goal, then the very existence of an equivalent civil remedy made criminalising the offence disproportionate. The Court held:

“I am clear in my mind that there is an appropriate and satisfactory alternative civil remedy that is available to combat the mischief of defamation. Put differently, the offence of criminal defamation constitutes a disproportionate instrument for achieving the intended objective of protecting the reputations, rights and freedoms of other persons. Thus, it is absolutely unnecessary to criminalize defamatory statements. Consequently, I am satisfied that criminal defamation is not reasonably justifiable in a democratic society within the contemplation of article 24 of the Constitution. In my view, it is inconsistent with the freedom of expression guaranteed by 33 of that Constitution.” (p. 14)

Finding that this view was also in accord with international practice as well as the decisions of the African Court, the Kenyan High Court struck down criminal defamation.

Comparisons with India

It is interesting to note that all the arguments that proved decisive with the High Court of Kenya, were argued before the Supreme Court last year in Subramanian Swamy vs Union of India – and almost completely ignored. It was argued that defamation was primarily aimed at protecting individual reputation, and therefore inconsistent with the very purpose of criminal law (to provide public remedies). It was argued that criminalising defamation was a disproportionate response under Article 19(2), because of the nature of the criminal process. And it was also argued that the Court was required to be particularly solicitous to the question of balance as far as the freedom of speech was concerned, because of the reality of the chilling effect. However, instead of engaging with these issues, the Court decided to elevate reputation to the status of the right to life, invented a doctrine of “constitutional fraternity” out of thin air, and upheld criminal defamation in a rambling, 270-page long judgment, which was notable for its failure to address the precise arguments that – as pointed out above – the High Court of Kenya found convincing.

It is not only for its verdict, but also for its lack of reasoning, that Subramanian Swamy needs an urgent rethink. The Kenyan High Court’s terse and lucid 14-page judgment provides us with a good template of what such a rethinking might look like.



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Filed under Comparative Constitutional Law, Constitutional Scholarship, Defamation, Free Speech, freedom of speech, Kenya, Uncategorized

The International Journal of Constitutional Law’s Coverage of Indian Constitutionalism (or the lack thereof)

(Disclaimer: I should state at the outset that I have had two papers rejected by the International Journal of Constitutional Law, and entirely correctly: the first time was when I submitted an individual article as a third-year law student – naturally, it was of terrible quality; the second was a paper submitted as part of a group of papers for an India-themed symposium – the collection was rejected as a whole, probably because it was rather unbalanced – it had only five papers, two of which were on the death penalty).

The International Journal of Constitutional Law is the leading and most authoritative law review on comparative constitutionalism. It has been in existence for the last thirteen years, and publishes three or four volumes every year. From time to time, it publishes symposia either on a regional basis, or on a thematic basis. It is undoubtedly the leading forum for comparative constitutional conversations, from the academic perspective.

I’ve often used IJCL for my research and writing, but rarely come across work on Indian constitutionalism in the journal. After Madhav Khosla’s well-received piece on social rights, the first time I did so was when I chanced upon a footnote in another article, that referred me to Catherine MacKinnon’s piece in the ICJL on Indian sex discrimination law. This made me uneasy, for more than one reason. Apart from it being the first time, in years, that I had come across an IJCL reference to India, I was also struck by the fact that it was an American constitutional scholar, who – to the best of my knowledge – had no history of engagement with Indian constitutionalism – writing on a fairly nuanced and complex area of Indian constitutional law (I have a lot of problems with the content of that article, but this isn’t the place to go into them). It struck me immediately: couldn’t they have found an Indian to write about Indian constitutional law? 

I then undertook a survey of the IJCL archives, to find out pieces on Indian constitutional law and constitutionalism. This is what emerged:

  1. Vol. 1(3) has an article by Burt Neuborne on the Supreme Court of India:
  2. Vol. 1(4) has an article by Upendra Baxi on Dworkin and the Indian Constitution:
  3. Vol. 2(1) has an article by Vijayashri Sitapati and Arun Thiruvengadam on the Right to Education:
  4. Vol. 3(4) has a contribution by N. Santhosh Hegde as part of a judges’ round-table:
  5. Vol. 4(2) has a contribution by Catherine MacKinnon on gender equality under the Indian Constitution:
  6. Vol. 4(4) has Smita Narula reviewing The Wheel of Law:
  7. Vol. 7(3) has an article by Sujit Choudhry on ‘linguistic nationalism through constitutional design’:
  8. Vol. 8(4) has an article by Madhav Khosla on social rights:
  9. Vol. 11(1) has a book review by Morag Goodwin, of ‘Corruption and Human Rights’,


Quite apart from the fact that I see no conceivable reason why Burt Neuborne, an American constitutional scholar, should have a piece on the Indian Supreme Court (again, was there no Indian to write about the Indian Supreme Court?), there are a couple of things that need to be noted. The first is that thirteen years of the IJCL have resulted in nine pieces on Indian constitutionalism. Out of these, two are book reviews, and one is a part of a judicial round-table. This brings the number of substantive pieces to six in thirteen years – an average of less than one every two years. Out of these six, in turn, two (1 and 2) are generic. I.e., four pieces on substantive constitutional issues in thirteen years, an average of less than one every three years. Let’s assume that I’ve missed a few – I’d venture to suggest that we still won’t get to an average of one a year. There has been no India-themed symposium in thirteen years (i.e., around forty-five issues). Given that India is the world’s largest constitutional democracy, I’d suggest that there is a rather serious problem of under-representation.

The second point I want to highlight is that out of the four substantive pieces, three have been written by scholars based abroad (two of whom are foreigners, out and out). The exception is Khosla’s piece (Khosla was at CPR Delhi when it was written). I am not for one moment advocating some variant of constitutional nativism or parochialism, but I do feel that there is something very seriously wrong when, in its history, IJCL has had one piece written by an Indian constitutional scholar, based in India, on Indian constitutional law.

(Again, I might have missed some pieces, so my figures may be off by a little – but as it stands, they are so microscopic, that I doubt it will make a difference).

To this I wish to add a brief point. During my time in the UK and the US, I took courses in comparative constitutional law at both universities. India was represented – as the country of PIL and of socio-economic rights adjudication. It was not represented – or minimally represented – on issues of civil and political rights, separation of powers, federal structures, emergency jurisprudence etc, issues on which we have detailed and complex jurisprudence. Going through the IJCL archives drives home a rather unfortunate realisation – beyond PIL and socio-economic rights, it seems that Indian constitutionalism is simply not a part of the global conversation. Part of the reason, of course, is probably that there are not enough Indians writing – and yet I cannot but help feel that institutions like the IJCL – which has “international” and “constitutional” next to each other – could do a little, or a lot more, when it came to issues of equitable representation.


Filed under Constitutional Scholarship