Category Archives: Defamation

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)

Additionally:

“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 “Balancing” Test and Its Discontents

At the heart of the Supreme Court’s upholding of criminal defamation is the argument that the right to freedom of speech under Article 19(1)(a) must be “balanced” against the right to “reputation” under Article 21 (as I pointed out in my post about the judgment, the Court’s examination of the reasonableness of criminal defamation under Article 19(2) simply merges into its balancing test. No finding is returned with respect to the former – thus leaving balancing as the sole basis of the judgment).

The criminal defamation judgment is not the first time that the Court has resorted to “balancing” the textually guaranteed right under Article 19(1)(a) against unenumerated rights under Article 21 (R. Rajagopal and In Re Noise Pollution are two others). One problem is that the method of balancing has never been described – the “balancing” invariably leads to subordination of free speech to whatever right the Court decides to find under Article 21.

There is a deeper problem, however. The Court never justifies the balancing test in the first place. To understand why this is a problem, consider the famous American Supreme Court judgment in United States vs StevensPut simply, United States vs Stevens was about the constitutionality of a statute that prohibited the dissemination of videos depicting cruelty to animals. The State attempted to defend the statute by arguing that the “value” of such speech was far outweighed by the social interests advanced by its prohibition. Rejecting this argument by an 8 – 1 majority, the Court observed:

“As a free-floating test for First Amendment coverage, that sentence is startling and dangerous. The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.””

There is little I can add to the soundness of this reasoning, except to note that this applies with even greater force to the Indian Constitution than it does to the American. Textually, the American First Amendment is a broad, freedom of expression clause that contains no restrictions. On the contrary, Article 19(2) lists out eight restrictions upon the freedom of speech that can be imposed by law. The argument that the “balancing” between free speech and various social interests has already been achieved within the constitutional text is therefore far more compelling in the Indian context. Given that the framers (and then the amenders) specifically enumerated eight restrictions upon the freedom of speech within the constitutional text strongly suggests that the process of balancing has already been undertaken in the drafting of Articles 19(1)(a) and 19(2). It is not for the Court to further “balance” the freedom of speech against interests that do not form part of Article 19(2) (and certainly not by invoking the DPSPs and Fundamental Duties!)

Three further textual points support this reasoning. The first is that Article 19(2) does not contain a “public interest” restriction (as opposed to, say, Article 19(6)). This suggests a deliberate choice on the part of the framers to reject a general balancing between the freedom of speech and those “social interests” not specifically enumerated under Article 19(2). The second point is that where the Constitutional text intends such a balancing, it specifically says so. Article 25(1)’s freedom of religion guarantee, for instance, is expressly made “subject to” the other provisions of Part III. Article 19(1)(a) is not. A purely textual analysis, therefore, precludes “balancing” Article 19(1)(a) against other provisions of the Constitution. And the third point is that in Constitutions where the balancing test is part of free speech jurisprudence, it is based on specific textual guarantees that allow the State to limit free speech in the interests of “the rights of others” (something similar to Article 25(1)). Article 19(2) contains no such limitation.

Over the last twenty years, it has become established judicial wisdom that Article 19(1)(a) is to be “balanced” against Article 21 (in its capacious, ever-proliferating avatar), and even “balanced” against Part IV, and the fundamental duties chapter. This has come to a point where, in the criminal defamation judgment, the Court hasn’t even returned a finding on Article 19(2), preferring instead to decide the case on the basis of balancing. However, the Court has never interrogated the foundation of that claim (Shreya Singhal, which implicitly holds that restrictions upon freedom of speech must meet the test of Article 19(2) is an exception, as it is an exception in many other ways). Because of the strong textual evidence against this balancing exercise, the Court must show overwhelming reason why this method is constitutionally mandated. So far, it has not done so.

(Ed. My thanks to Jawahar Raja, whose strong objections to the balancing test made me rethink my own intuitive acceptance of it)

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Why the Supreme Court’s Criminal Defamation Judgment is Per Incuriam

In common law, a judgment that is per incuriam has no legal force or validity, and does not count as precedent. Classically, per incuriam is a very narrow concept, applicable only in two circumstances: to a judgment that is passed in ignorance of a relevant statutory provision, or without considering binding precedent of a coordinate or larger bench. In 2015, however, in Sundeep Kumar Bafna v State of Maharashtra, the Supreme Court expanded the definition of per incuriam, noting that:

“It cannot be over-emphasised that the discipline demanded by a precedent or the disqualification or diminution of a decision on the application of the per incuriam rule is of great importance, since without it, certainty of law, consistency of rulings and comity of Courts would become a costly casualty. A decision or judgment can be per incuriam any provision in a statute, rule or regulation, which was not brought to the notice of the Court. A decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a Co-equal or Larger Bench; or if the decision of a High Court is not in consonance with the views of this Court. It must immediately be clarified that the per incuriam rule is strictly and correctly applicable to the ratio decidendi and not to obiter dicta. It is often encountered in High Courts that two or more mutually irreconcilable decisions of the Supreme Court are cited at the Bar. We think that the inviolable recourse is to apply the earliest view as the succeeding ones would fall in the category of per incuriam.”

The expansion of the doctrine of per incuriam in the Indian context makes sense, for at least two reasons. The first is the proliferation of two-judge benches of the Supreme Court pronouncing on important constitutional issues, and invariably at odds with each other. Recent examples include Koushal and NALSADevidas Tuljapurkar and Aveek Sarkar, and (as I shall explain) Subramaniam Swamy (the present judgment) and R. Rajagopal. As the Supreme Court correctly notes in Bafna, “certainty of law” and “consistency of rulings” is a very important principle (one of the basic constituents of the rule of law), and given the sheer volume of cases being decided by two-judge benches, it must be applied with greater rigour.

The second reason is that at present, judgments tend to reproduce submissions of counsel at great length, including cases cited by counsel. The reasoning of the judgment, however, fails to engage with those judgments in any meaningful way, apart from – once again – reciting them while describing the law on the point. A good example is Rajbala vs State of Haryana, where the Justice Chelameswar held that the arbitrariness doctrine under Article 14 could not be used to strike down legislation. This was contrary to the binding decision in Mardia Chemicals. That case was not considered while arriving at the above conclusion, but is nonetheless found in the judgment, in a footnote while reproducing counsel’s submissions. A strict application of per incuriam in such a situation would defeat the purpose of the doctrine itself, since what it stipulates is that a Court is bound to consider precedent (although, having once considered it, it can choose to read it in a way that is obviously incorrect – in such a situation, the latter decision will then become binding law.

It is my submission that Subramaniam Swamy vs Union of India is per incuriam on both the narrow and the broad conceptions of the doctrine. It is per incuriam because of its failure to consider the ratio of R. Rajagopal vs State of Tamil Nadu, that is, the finding that a regime of no-fault liability in defamation causes a chilling effect upon free speech.

Subramaniam Swamy vs Union of India mentions Rajagopal at exactly one point in the 268-page long judgment: at page 5 of the judgment (paragraph 2), where it cites the passage in Rajagopal stating that:

“In all this discussion, we may clarify, we have not gone into the impact of Article 19(1)(a) read with clause (2) thereof on Sections 499 and 500 of the Indian Penal Code. That may have to await a proper case.”

Let us now come to Subramaniam Swamy’s consideration of the chilling effect. The Court holds:

“Once we have held that reputation of an individual is a basic element of Article 21 of the Constitution and balancing of fundamental rights is a constitutional necessity and further the legislature in its wisdom has kept the penal provision alive, it is extremely difficult to subscribe to the view that criminal defamation has a chilling effect on the freedom of speech and expression.”

Previously, I have argued that this paragraph makes some fundamental conceptual errors in its understanding of what the chilling effect is. Be that as it may, let us now consider R. Rajagopal’s Case

In R. Rajagopal’s Case, the Supreme Court modified the common law of civil defamation. It replaced the no-fault liability standard with either a New York Times v Sullivan standard of actual malice, or the English standard of reasonable publication (I say “either” because the judgment seemingly adopts both tests, which are actually very different). Crucially, it cited New York Times v Sullivan, and cited that exact paragraph where Sullivan held that no-fault liability causes a chilling effect upon free speech. It then made the following finding:

“… in the case of public officials, it is obvious, right to privacy, or for that matter, the remedy of action for damages is simply not available with respect to their acts and conduct relevant to the discharge of their official duties. This is so even where the publication is based upon facts and statements which are not true, unless the official establishes that the publication was made (by the defendant) with reckless disregard for truth. In such a case, it would be enough for the defendant (member of the press or media) to prove that he acted after a reasonable verification of the facts; it is not necessary for him to prove that what he has written is true.”

In other words, Rajagopal holds that in case of statements defaming public officials, the standard is the (Sullivan) standard of reckless disregard for the truth. It’s reason for doing so is the chilling effect caused by a no-fault liability standard (and in fact, that can be the only reason for doing so, since that was at the heart of Sullivan). Consequently, the proposition that a no-fault liability standard causes a chilling effect in case of defamation is part of the ratio decidendi of Rajagopal. As recently as 2015, in M/s Fibre Boards v CIT, the Supreme Court clarified that the ratio of a case includes the reasons that form part of its conclusion (paragraph 27)

It may be argued at this stage that Rajagopal was a civil defamation case, and the question of what to do about criminal defamation was left open by that bench. That is true; however, that a no-fault liability provision for defamation causes a chilling effect upon speech is agnostic about whether the liability might take civil or criminal form. The reasoning given in Sullivan was that an individual who will be required to take the stand and prove the truth of his statement in order to avoid liability, will tend to self-censor, and “steer clear of the unlawful zone”, thus impoverishing public discourse. In other words, the chilling effect is caused by the legal standard (no-fault liability), and not by the nature of the liability (chilling effect).

For this reason, Subramaniam Swamy’s finding that criminal defamation’s no fault liability does not chill speech is reached in ignorance of Rajagopal, and is therefore per incuriam.

Even if this argument fails – i.e., even if one believes that since Rajagopal was about civil defamation, it’s ratio cannot be extended to cover cases of criminal defamation – Subramaniam Swamy remains per incuriam under the broader definition of Sundeep Kumar Bafna. This is a much simpler case to prove. After Swamy, the legal standard for imposing criminal liability (no-fault) is lower than civil liability (Sullivan) in case of public officials. This overturns the legal system on its head, and leads to an illogical position as long as both decisions continue to hold the field. In terms of Bafna, it is impossible to “reconcile the ratio” of Subramaniam Swamy with R. Rajagopal.

I submit, therefore, that Subramaniam Swamy vs Union of India is per incuriam, and therefore a judgment that has no legal validity and does not serve as precedent for future cases. It is to be hoped that on an appropriate occasion, a future bench of the Supreme Court will consider these arguments while deciding whether or not to refer another constitutional challenge to criminal defamation for resolution by a bench of five judges (as Article 145 of the Constitution requires).

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The Supreme Court’s Criminal Defamation Judgment: Glaringly Flawed

In a judgment delivered today, a two judge bench of the Supreme Court rejected the constitutional challenge to criminal defamation, and upheld the validity of Sections 499 and 500 of the Indian Penal Code. The opinion was written by Justice Dipak Misra. In this post, I shall discuss the judgment which, unfortunately, commits several glaring errors. Before that, however, let us briefly recall the case against criminal defamation. Article 19(2) of the Constitution permits “reasonable restrictions” upon the freedom of speech, “in the interests of… defamation.” Article 19(2) is silent about whether “defamation” includes both civil and criminal defamation. The word “reasonable”, according to the judgments of the Supreme Courts, requires a relationship of proportionality between the degree to which free speech is infringed, and the corresponding interest at stake. In its public order cases, for instance, the Supreme Court has held that “reasonable” restrictions upon the freedom of speech in the interests of public order must only be limited to speech that “incites” others to public disorder.

The first attack against Section 499 was that by criminalising what is essentially a private wrong, the Section amounted to a disproportionate restriction upon free speech. Private wrongs – that is, wrongs to individuals at the hands of other individuals – are meant to be pursued through the civil courts, with damages and compensation as the remedy. It is only when there is a public element to the wrong (e.g., murder endangering the peace of the society as a whole) that the State steps in (interestingly, there was a public element involved at the time that defamation was first criminalised, in England – it was to stop people from resorting to duels in order to vindicate their honour).

Secondly, iR. Rajagopal’s Case, decided in 1994, the Supreme Court considered the relationship between free speech and civil defamation. The Court held that the common law of defamation, as it then stood, unreasonably restricted speech under Article 19(1)(a). This was because common law defamation imposed a regime of no-fault liability: in case of factual errors, the speaker could not escape liability by showing that she had taken reasonable care in checking the veracity of her statement. Following the established jurisprudence from the United States and Europe, which had modified civil defamation law in order to bring it in line with the guarantee of freedom of speech, the Supreme Court adopted the “Sullivan test“: in making statements about public officials, speakers were liable only if it could be shown that they had acted with “actual malice” – that is, having knowingly spoken falsely, or acted with reckless disregard for the truth.

The concept of “reasonableness” in the context of defamation and free speech, therefore, was considered and decided by the Court in Rajagopal. Now criminal defamation, under Section 499 of the IPC, contains a far lower threshold than this. It follows pre-Rajagopal law in criminalising false statements without regard for due care, and also adds an additional “public interest” requirement to the defence of truth (in civil law defamation, if it can be shown that the statement was true, there is no liability). The core of this argument, therefore, is that the regime of criminal liability set up by Sections 499 and 500 goes beyond the “reasonableness” requirement of Article 19(2).

It is vitally important to distinguish the first and the second argument. According to the first argument, criminalising defamation per se is unconstitutional. According to the second argument, the legal regime of defamation as set out in Sections 499 and 500, is unconstitutional. Unfortunately, it is a distinction that is entirely lost upon the Court. In its judgment, the Court spends reams and reams of pages dealing with the apparent importance of reputation, and how criminalising defamation is proportional. However, it pays no attention to the fact that the language of Section 499 sets up an even harsher regime than was found to be unconstitutional in Rajagopal, in the context of civil defamation. As a result, we now have a truly bizarre position in Indian law: civil defamation law is more speech protective than criminal defamation law. This turns jurisprudence entirely on its head.

The judgment itself is difficult to read and analyse. It is 268 pages long, and most of it is irrelevant, since it either describes various judgments, or incorporates quotations from various sources such as the Gita, and Patrick Henry. Very broadly, however, this seems to be the flow of the judgment. The first 69 pages are spent in rehearsing the submissions of counsel. Pages 69 to 73 are spent discussing the meaning of “defamation” (on which there was really no controversy). On Page 73, there is a heading titled “Concept of Reputation“, with sub-headings such as “Vision of the Ancients” and “Thoughts of Creative Writers and Thinkers.” Following this, judgments from various Courts are excerpted that talk about the importance of “reputation”, with the conclusion that the right to reputation is an “inseparable facet of Article 21.” (page 97) This goes on until page 97.

From page 98, the Court considers the freedom of speech and expression. It spends about twenty-five pages dealing with a submission that seems to be something of a straw man: that the word “defamation” under Article 19(2) ought to be read in conjunction with “incitement to an offence“, which follows it, and therefore be given a restricted meaning. After citing extensively from the Constituent Assembly Debates, the Court rejects this submission. Without going into the merits of the Court’s examination of the Constituent Assembly Debates, this argument proves nothing. The core of the case against criminal defamation is not that the word “defamation” under Article 19(2) must be read to exclude criminal defamation, but that criminalising defamation in the manner that the Indian Penal Code does is an unreasonable restriction upon free speech.

From page 123, the Court considers the argument that criminalising defamation is disproportionate, since defamation is a private wrong. The Court observes:

“Individuals constitute the collective. Law is enacted to protect the societal interest. The law relating to defamation protects the reputation of each individual in the perception of the public at large. It matters to an individual in the eyes of the society. Protection of individual right is imperative for social stability in a body polity and that is why the State makes laws relating to crimes. A crime affects the society. It causes harm and creates a dent in social harmony. When we talk of society, it is not an abstract idea or a thought in abstraction. There is a link and connect between individual rights and the society; and this connection gives rise to community interest at large.” (page 123)

This, however, is no reasoning at all, since it effectively dissolves the distinction between private and public wrongs altogether. If individuals make up society, and if therefore a wrong to an individual is ipso facto a wrong to society, then there’s no such thing as an individual wrong in the first place.

The Court attempts to buttress its argument by citing numerous English authorities that have questioned the distinction between public and private wrongs. At the end of its citations, however, it accepts the distinction as lying between the violation of individual civil rights, and breaches of “public” rights or duties. (page 127) The Court then spends a few pages extracting quotations from various judgments that talk about what constitutes a crime. At the end of it, it observes that “it cannot be stated that the legislature cannot have a law to constitute an act or omission done by a person against the other as a crime. It depends on the legislative wisdom.”

No further analysis is offered on this point. The main contention – that criminalising a private wrong is a disproportionate – and therefore, unreasonable – restriction upon free speech, is not considered by the Court.

From page 138, the Court embarks upon a topic titled “Sanctity and significance of freedom of speech and expression in a democracy.” The next 30 pages may be skipped, as the Court extracts quotations from various judgments dealing with value of freedom of speech in a democracy. From page 166, it begins a discussion on “reasonable restrictions”. Various judgments are extracted. The Court sums up its discussion by observing that “The principles as regards reasonable restriction as has been stated by this Court from time to time are that the restriction should not be excessive and in public interest.” (page 175) This, it bears repeating for the umpteenth time, is entirely incorrect. Article 19(2) does not have a public interest restriction. Numerous judgments, from Shreya Singhal to Sakal Papers, have pointed this out. Other sub-clauses under Article 19 do. The Court cannot justify restrictions upon the freedom of speech by invoking public interest. It is extremely unfortunate that this basic textual error continues to be made, sixty-five years after the Constitution.

From reasonable restrictions, the Court then leaps straight to Article 21. No analysis is given about the link between the two. Under a heading called “Balancing of Fundamental Rights”, commencing from page 182, the Court deals with “balancing” the right to reputation under Article 21, and the freedom of speech and expression under Article 19(1)(a). After spending a few pages dealing with various cases on balancing rights, the Court then cites the In Re Noise Pollution Case (whose incorrect reasoning I had commented on a few days ago) to hold:

“Reputation being an inherent component of Article 21, we do not think it should be allowed to be sullied solely because another individual can have its freedom. It is not a restriction that has an inevitable consequence which impairs circulation of thought and ideas. In fact, it is control regard being had to another person’s right to go to Court and state that he has been wronged and abused. He can take recourse to a procedure recognized and accepted in law to retrieve and redeem his reputation. Therefore, the balance between the two rights needs to be struck. “Reputation” of one cannot be allowed to be crucified at the altar of the other’s right of free speech.”

Except that, this is a complete non-sequitur. It is nobody’s case that reputation be “crucified” at the altar of free speech. The Court needs to explain why taking away a criminal remedy amounts to “crucifying” reputation. It does not even attempt to do so.

Matters grow worse in the next paragraph, however, because the Court then says:

“Once we have held that reputation of an individual is a basic element of Article 21 of the Constitution and balancing of fundamental rights is a constitutional necessity and further the legislature in its wisdom has kept the penal provision alive, it is extremely difficult to subscribe to the view that criminal defamation has a chilling effect on the freedom of speech and expression.” (page 199)

If the previous passage contained a non sequitur, then this one is simply incorrect. Whether or not criminal defamation has a chilling effect is entirely independent of whether reputation is a basic element of Article 21, and legislative “wisdom” in keeping it alive. The chilling effect refers to the manner in which over-broad and severe laws “chill” speech. It takes the existence of a law as a given, and it is that law which must be examined for its chilling effect. Instead, the Court seems to be saying that the existence of a law means that there can never be a chilling effect!

On page 205, the Court begins an examination headed by the ominous phrases “constitutional fraternity” and “fundamental duty“. After excerpting some passages on the meaning of fraternity, it then says that “The individual should have all the rights under the Constitution but simultaneously he has the responsibility to live upto the constitutional values like essential brotherhood – the fraternity – that strengthens the societal interest. Fraternity means brotherhood and common interest.” (page 208)

This is all very well as a moral point, but as a legal standard, it’s rather vague and entirely irrelevant. It was not enough that the right to freedom of expression could be restricted on the eight grounds stipulated in Article 19(2). It was not enough that the Court would then bring in a boundless Article 21, and use it as a sword to cut down free speech further. Over and above all of that, the Court introduces a further ground for restricting speech: the “duty” of “constitutional fraternity”. At this stage, it is difficult to see what remains of Article 19(1)(a). The Court follows this up with an even more disturbing discussion about “constitutional duties” under Part IVA of the Constitution (which are expressly unenforceable), holding that “respect for the dignity of another is a constitutional norm. It would not amount to an overstatement if it is said that constitutional fraternity and the intrinsic value inhered in fundamental duty proclaim the constitutional assurance of mutual respect and concern for each other’s dignity.” (page 214 – 215) “Fraternity” and “fundamental duties”, neither of which are found anywhere in Article 19(2) or Part III, have become tools to restrict the freedom of speech and expression.

The Court spends the next thirty pages of its judgment examining the scope of Section 499 itself. After citing many judgments, it comes to the conclusion that the provisions of Section 499 are not vague. As I pointed out at the beginning of this post, however, it fails entirely to deal with the issue of no-fault liability as disproportionate under Article 19(2). In fact, it goes further, and justifies the additional public interest requirement under the First Exception, in the following way:

“… examples pertain to an imputation that a person is an alcoholic; an imputation that two family members are involved in consensual incest; an imputation that a person is impotent; a statement is made in public that a particular person suffers from AIDS; an imputation that a person is a victim of rape; and an imputation that the child of a married couple is not fathered by the husband but born out of an affair with another man. We have set out the examples cited by the learned senior counsel only to show that there can be occasions or situations where truth may not be sole defence. And that is why the provision has given emphasis on public good.”

This, however, seems to be an unnecessary requirement. If I correctly state that you suffer from AIDS, or have been born out of an adulterous affair, then I may be liable to you in an action for privacy. Why would this lead to an action for criminal defamation? And why, when there exists a remedy in a claim for privacy, is there a need to have an additional remedy for criminal defamation?

The Court concludes (more or less) with the following observation:

“One cannot be unmindful that right to freedom of speech and expression is a highly valued and cherished right but the Constitution conceives of reasonable restriction. In that context criminal defamation which is in existence in the form of Sections 499 and 500 IPC is not a restriction on free speech that can be characterized as disproportionate. 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 the social interest.”

The last twenty pages of the judgment deal with the procedure for defamation under Section 199 CrPC, which I will not examine here.

At the end of all this, however, the following points should be clear. The Court spends 268 pages excerpting quotations, extracting cases, and making blanket assertions without justification. It fails to do the following:

(a) Explain how defamation is a public wrong (stating that society is an aggregation of individuals does not count)

(b) Explain why, if defamation is a private wrong with elements of a public wrong, criminalisation is a proportionate response

(c) Explain why no-fault liability and an added test of public good in the defence of truth is proportionate and reasonable, especially in the light of Rajagopal’s Case, and consistent jurisprudence from across the common law world

(d) Explain why the chilling effect is not a valid concern

(e) Explain why the “balancing” between the enumerated right to freedom of speech and the unenumerated right to “reputation” under Article 21 yields criminalising defamation as the solution

(f) Explain how fraternity and fundamental duties have become independent grounds to restrict free speech

In addition, the judgment continues the profoundly disturbing trend of using Article 21 as a sword to limit other fundamental rights, an issue I had written about a few days ago.

Lastly, the judgment is difficult to analyse not only because of conceptual slippages and screaming silences where there should be argument, but also because of its language. What, for instance does it mean to exposit “cavil in its quintessential conceptuality and percipient discord“? What is an “asservation“? What is an “oppugnation“? What does it mean to say that “reputation is fundamentally a glorious amalgam and unification of virtues which makes a man feel proud of his ancestry and satisfies him to bequeath it as a part of inheritance on posterity“? Do Judges not have a duty to write clearly, stick to the point, and give reasons for their conclusions? Unfortunately, the indiscipline with which the Court examines the law and the Constitution here, is equally matched by its indiscipline with language.

The result is not pleasant.

 

 

 

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The Bombay High Court’s Ruling on NSE’s Defamation Case against Moneylife

In a significant judgment delivered yesterday, the Bombay High Court rejected the National Stock Exchange’s application for injunction, in a defamation action, against the journalist Sucheta Dalal (and others), for articles published on the financial news website, moneylife.in. Justice Gautam Patel also imposed heavy damages upon the NSE, in what seems to be an acknowledgment of the need to put a halt to proliferating SLAPP lawsuits (although imposing damages in an injunction application without disposing off the main suit seems a little incongruous). The imposition of damages will be particularly controversial, but it is not an issue I will deal with here.

The case is significant because it adds to a growing body of (High Court) jurisprudence on the relationship between defamation and the freedom of speech and expression. The constitutionalisation of defamation law, which began in the 1994 judgment of the Supreme Court in R. Rajagopal’s Case, has enjoyed an uneven history over the last twenty years.  The Bombay High Court’s decision bucks an emerging trend of subjecting defamation law standardsto rigorous constitutional scrutiny.

The disputed articles effectively accused the NSE of actively permitting illicit trading advantages to users of certain high-end technology. The two articles were written on the basis of a detailed anonymous letter that was sent to Sucheta Dalal. After receipt of the letters, Ms Dalal emailed the SEBI Chairman, as well as two persons “at the helm of” NSE’s affairs, but received no reply. A reminder email and a reminder SMS were also met with silence. After this failed correspondence, the two articles were published.

NSE claimed that the accusation was false, since the illicit advantage it talked about was technically impossible to arrange. NSE’s argument, consequently, was that the articles were defamatory, and not saved by the defences of truth, fair comment, or qualified privilege (the standard defences in civil defamation law).

In dealing with this submission, Justice Patel focused at length on Ms Dalal’s attempts at investigating the veracity of the claims made in the anonymous letter, and the NSE’s refusal to furnish her with the information they then put in their plaint, in order to argue that the Moneylife articles were false (i.e., the “illicit advantage” was not technically possible). Notice, however, that the common law of defamation is a strict liability offence: i.e., a false defamatory statement results in liability for the defendant, notwithstanding the care he or she took to establish its veracity. The relevance of Ms. Dalal’s investigations, therefore, depended upon modifying the common law standard of defamation, which is what Justice Patel proceeded to do. In paragraph 22, he noted:

“Mr. Basu has also done some quite formidable legal research. The point he makes is this: that there is a material difference when the complainant plaintiff is a public persona or figure or institution, as the NSE undoubtedly is, as opposed to a private citizen. He cites, of course, the classic decision in New York Times Co. v Sullivan, for its proposition that a public official cannot recover damages in a defamation action unless he proves with convincing clarity that the statement was made with knowledge of its falsity or with reckless disregard of whether or not it was false. This standard has been generally applied to public figures, but I will for the present, set this to one side since Sullivan seems to me to be closely hinged on the First and Fourteenth Amendments to the US Constitution. Mr. Basu’s reliance on Reynolds v Times Newspapers Ltd & Ors. may be more appropriate. That seems to me to be a case closer to our conception of the law in the field, though the law it states is somewhat different, as Radhakrishnan J noticed, from our own standard. I do not think this distinction is material, given the facts of this case. The House of Lords in Reynolds inter alia reviewed the law from other jurisdictions, including ours: it referenced the Supreme Court decision in Rajagopal v State of Tamil Nadu, 16 to much the same effect as Sullivan in relation to public officials. Now if there is no doubt, and I do not think there can be any doubt, that the NSE is very much a public body, then this standard must apply. In that situation, a demonstration that the defendant acted after a reasonable verification of the facts is sufficient to dislodge a claim for an injunction and a charge of malice.”

There is one crucial advance in this paragraph. In Rajagopal’s Case, the Supreme Court – following Sullivan – limited the higher threshold for defamation to public officials. As Justice Patel correctly notes, in the United States, “public officials” has subsequently been expanded to include public figures as well as issues of public importance. Although Justice Patel refuses to adopt the Sullivan standard here, in adopting the House of Lords decision in Reynolds, he definitively extends the threshold to public bodies and public figures. This is important, because a number of SLAPP defamation suits have been brought by large-scale private corporations that are (at least arguably) performing public functions. Justice Patel’s reasoning, therefore, opens the door to heightened scrutiny being applied to private corporate defamation claims as well. Something similar had been attempted six years ago by Justice Ravindra Bhat of the Delhi High Court in Petronetwhere in a claim injunction against disclosure of confidential information, a company with 50% state shareholding, and performing the important public function of gas distribution, was held to a Pentagon Papers-level threshold. Petronet, however, did not directly deal with defamation law. The Bombay High Court’s judgment is squarely on point.

It must also be noted that Rajagopal is a highly confusing judgment, which Justice Patel attempts to clarify in at least two ways. FirstRajagopal cites both Sullivan and Reynolds, which lay down very different tests, but does not specify which of them it is adopting. Justice Patel clarifies that he is adopting the latter. SecondlyRajagopal is entirely unclear about the issue of burdens. Under the Sullivan test, the burden of showing that the defendant acted with reckless disregard of the facts is upon the plaintiff. Under Reynolds, the burden of demonstrating reasonable verification of facts is upon the defendant. Justice Patel seems to adopt the latter, when he notes:

… where there is a factual demonstration of sufficient steps being taken to ascertain the ‘other side of the story’ and this opportunity, when presented, has been ignored, no more can be expected if it is also shown that the article when published was not unreasonable in its content, tone and tenor.”

In other words, insofar as a publication relates to a public official, public body or public figure, it is enough of a defence for the defendant to show that even if the publication is false in some respect, she acted only after a reasonable verification of the facts.

Unfortunately, much of the lucidity in the judgment so far is jeopardised in a rather unfortunate paragraph 26. Here, Justice Patel notes:

“For public bodies and figures, I would suggest that the legal standard is set higher to demonstrated actual malice and a wanton and reckless embracing of falsehood though countered at the first available opportunity. I do not think it is reasonable to propose a legal standard of utter faultlessness in reportage or public comment in relation to such bodies or persons. If there is indeed a factual error, can it be said to have been made in good faith, and in a reasonable belief that it was true? The ‘actual malice’ standard seems to me to suggest that one or both of these must be shown: intentional falsehood, or a reckless failure to attempt the verification that a reasonable person would. In this case, I do not think that the Plaintiffs have met that standard, or demonstrated either intentional falsehood or a failure to attempt a verification. The burden of proof in claiming the qualified privilege that attaches to fair comment can safely be said to have been discharged.”

Unfortunately, just like Rajagopal did, this paragraph conflates two very distinct legal standards. “Actual malice” and “reckless embracing of falsehood” is the Sullivan test, which requires proof of either intentional lying, or reckless disregard of truth. “Good faith” and “reasonable belief” in truth is modeled upon the tests currently in vogue in Canada, the UK and South Africa. “Reasonableness” is one step below “recklessness”, and imposes an affirmative burden upon the publisher to take certain measures towards establishing the truth of her claims. There is a further issue with the use of “qualified privilege” without explaining what, precisely, it means. Qualified privilege has now been statutorily abolished in the United Kingdom, and carries a very different meaning in Australia (applicable to statements on matters of political importance).

It is also a little unfortunate that the judgment makes very little mention of the appropriate legal standards to be followed in deciding upon an injunction in a defamation case. The High Courts of Delhi and Bombay have taken opposite views on the issue. The correct position at common law was laid down long ago in Bonnard vs Perryman, and prohibits the grant of an injunction unless it can be shown that the defendant has almost no chance of success at trial. In an otherwise erudite judgment, the failure to deal with the common law precedent directly on point is disappointing.

As an aside, it may also be noted that this judgment has an ancillary effect upon the criminal defamation challenge that has been reserved by a two-judge Bench of the Supreme Court. In affirming that civil defamation law allows for false defamatory statements to escape liability as long as they have been made after reasonable verification, it is once again established that Indian defamation law is unique in that, as it stands, criminal defamation is more stringent than civil defamation. It is to be hoped that this fact will be considered by the Supreme Court in deciding whether to strike down or read down Sections 499 and 500 of the IPC.

To sum up: Justice Patel’s judgment is significant in that it extends the higher threshold of defamation from public officials to all public figures or public bodies. It also seems adopts the Reynolds defence of reasonable verification of facts in case of false defamatory statements, with its attendant evidentiary burdens. Depending on how you read Rajagopal, this may or may not be correct. In any event, it is important to note, once more, that Sullivan (actual malice) is not equivalent to the reasonableness standard, but is considerably more speech-protective. We still await clarity for which of those standards is to be adopted under Indian civil defamation law.

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The Criminal Defamation hearings have begun – and they’re off to a bad start

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.

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 unexplored 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.

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