Tag Archives: article 19(1)(a)

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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Guest Post: Unconstitutional Laws and Non-Citizens

(In this guest post, Vikram Hegdea Delhi-based Supreme Court lawyer, discusses how Section 66A of the IT Act, which was struck down by the Supreme Court in Shreya Singhal’s Case, nonetheless continues to exist insofar as non-citizens are concerned)

For those who happened to have been living under a rock at the relevant time, Section 66A of the Information Technology Act, 2000 was struck down by the Supreme Court in Shreya Singhal in March 2015. The decision has been widely praised, with even the grumbles about the decision being that it didn’t do enough[1] and not that it did wrong. While the general celebratory consensus, is that this decision has sounded the death knell of Section 66A and all its malice, an old anomaly in the constitutional provision for freedom of speech may have the effect of commuting the death sentence of Section 66A to a banishment from India, but free to haunt foreigners. Shorn of comedic bombast, this means that while 66A is struck down as far as citizens of India are concerned, it may still survive as against foreign persons.

To improve the SEO value of this post, and also for ready reference, we may extract some provisions of the Constitution of India with selective outrage supplied emphasis:

Article 13. Laws inconsistent with or in derogation of the fundamental rights.—

(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.

Article 19. Protection of certain rights regarding freedom of speech, etc.—

(1) All citizens shall have the right—

(a) to freedom of speech and expression;

Now coming back to the Shreya Singhal case, the petitioners contended that Section 66A, in addition to being violative of Article 19, was also violative of Article 14[2]. The contravention of Article 14, it was argued, arose from the fact that the ingredients of the offence are vague and thus arbitrary. It was also argued that there is no intelligible differentia between the medium of print, broadcast and live speech as opposed to speech on the internet. The Court while holding that Section 66A is violative of Article 19(1)(a), being vague and overbroad, held that the intelligible differentia in the case of speech on the internet is clear and therefore the challenge to the provision under Article 14 must fail.[3] [Editor’s Note: My own reading is that the Court rejected an Article 14 challenge insofar as the internet is a space where certain specific offences exist, such as phishing, spam mails, cyber theft etc., which have no offline equivalents. Consequently, there can be a law framed to catch such offences; however, a law cannot impose different standards upon online speech, based upon spurious considerations such as the speed, or extent, to which online material can be disseminated) The conclusion of that judgment unequivocally states that Section 66A is struck down as violative of Article 19(1)(a).

Rights under Article 19[4], are available only to “citizens”. It has been urged by some that this means that only a citizen can challenge a legislation as violative of Article 19 and not a non-citizen, but once a law is struck down for violation of Article 19, the law is completely void, even as regards non-citizens. The judgment of the Constitution Bench of the Supreme Court in State of Gujarat v. Shri Ambica Mills says otherwise. The court, taking into account the phrase “to the extent of the contravention” in Article 13(2), expressly held

“[L]aw offending article 19, remains operative as against non- citizens as it is not in contravention of any of their fundamental rights.”

Seen in this light, the effect of the Shreya Singhal judgment is that Section 66A is void only as against citizens and not as against non-citizens. When this line of thought was voiced on fora on which freedom was enhanced by the judgment in question, questions were raised as to whether this meant that Section 66A was still available against non-citizens, such as corporates and other non-natural persons. The answer to that would lie inter alia in Bennet Coleman v. Union of India[5] where it was held that the shareholders exercise their rights under Article 19(1)(a) through the juristic person of the company and thus where the shareholders were citizens, their company was protected. However, as regards companies where the shareholders are not Indian, Section 66A would still apply.[6]

It is now time to ask ourselves an important question.

“What about 1984?”

That is the year in which the Law Commission of India examined and published a report on this very issue. While the Law Commission recommended that Article 19 be amended by adding an explanation some non-natural persons would be deemed “citizens” for the purpose of Article 19. However, this was limited to entities that have the character of “Indianness”. The recommendation has not yet been acted upon.

While I am aware of at least one legal proceeding where, post the judgment in Shreya Singhal, Section 66A has been applied to a foreign company, that dispute is currently at the lowest level in the judicial hierarchy. For a direct answer from the Courts on this point, we may have to wait.

[1] The resident author of this blog, in his excellent book Offend, Shock, or Disturb, states that the part of the order reading down Section 79 “is not entirely satisfactory”.

[2] Article 14, not being very important to our enquiry is treated unequally here and is consigned to a footnote: Equality before law.—The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

[3] I don’t know if and why the rational nexus angle was not raised and at this point am too afraid to ask.

[4] As also Articles 15, 16 and 29.

[5] The long list of cases supporting this proposition includes Chiranjit Lal Chowdhury, Sakal Newspapers, R.C. Cooper etc.

[6] I offer generous help in this regard. If the management of a foreign company such as Google or Facebook wishes that its rights under 19(1)(a) be protected, they can ensure the same by transferring a significant chunk of shares in those companies to me.

 

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PUCL v Union of India: The Supreme Court and Negative Voting

(This is an immediate response to the judgment; I hope to have a couple of guest posts on this in the coming week)

Yesterday, the Supreme Court, in PUCL v. Union of India, upheld the constitutional right of citizens to cast a negative vote in elections. The exact political ramifications of this judgment will probably become clear once the Election Commission comes up with the modalities of its implementation; from a constitutional point of view, this judgment is important as it further underscores the centrality of Article 19(1)(a) to election disputes.

In PUCL v. Union of India, the constitutional validity of Rules 41(2), (3) and 49-O of the Conduct of Election Rules, 1961, was impugned. Both sides agreed on the fact that thecombined effect of these rules was that persons who did not vote in elections were recorded (by the presiding officer) as having not voted. The petitioners argued that this was a violation of the right to secret balloting, protected by Articles 19(1)(a) and 21 of the Constitution.

Relying upon Kuldip Nayar v. Union of Indiathe State raised a preliminary objection on the ground that since voting was not a fundamental or constitutional right, but only a “statutory right” brought into existence by the Representation of Peoples Act, this wasn’t an Article 32 fundamental rights petition in the first place. Rejecting this contention, the Court distinguished between the “right to vote” and the “freedom of voting as a species of the freedom of expression“. [Paragraph 19] This is what explained the Court’s earlier decisions in PUCL v. Union of India and Association for Democratic Reforms v. Union of India, where  the right to know the antecedents of politicians had been brought within the ambit of Article 19(1)(a) as part of the “right to know”. [Paragraph 20]

The Court then found that in a system of direct elections, secrecy was essential in order to ensure the effectiveness of the vote – that is, elections could not be free and fair unless secrecy was maintained (that much is logical; naturally, the only way of preventing bribery, coercion and post-election reprisals is secrecy).  Further, since the freedom to vote naturally included the freedom not to vote, it would be arbitrary to extend secrecy to one and not the other. [Paragraph 31]  It buttressed its argument by invoking Indira Nehru Gandhi v. Raj Narain and Kihoto Hollohan v. Zachilhu for the unexceptionable proposition that an effective democracy functioning through periodic fair and free elections is part of the basic structure of the Constitution. [Paragraph 45] In addition, the act of not voting was as much a positive exercise of free expression under Article 19(1)(a) as was voting itself, and so deserved similar levels of protection [Paragraph 49].  The Court therefore directed the Election Commission to introduce a “None of the Above [NOTA]” option into the Electronic Voting Machines. [Paragraph 61]

The judgment of the Court is important, as it clarifies the constitutional status of voting. What does it mean to say that the right to vote is only statutory, but the act of voting is an exercise of free speech protected by Article 19(1)(a)? Only this: the right to vote is statutory insofar as the modalities of voting are regulated by statute (the Representation of Peoples Act); questions of who can vote, when and in what manner, what restrictions and rules political parties must abide by, and so on – these are matters undoubtedly determined by statute, and subject to the control of the legislature. The act of voting, however, is – at least in theory – the most important act of expression through which the citizen participates in a representative democracy. So while the right to vote remains only a statutory right, parliament nonetheless may not erect any formal or substantial barriers that render voting ineffective or nugatory. Consider the following hypothetical: parliament tomorrow repeals the Representation of Peoples Act, and substitutes it… with nothing (effectively creating itself as a permanent oligarchy). Can one seriously suggest that that act would be constitutional? It is in this sense that the freedom to vote is – in its abstract sense – a constitutional and a fundamental right, the contours and lineations of which are to be worked out by parliament through statute.

This conclusion follows inexorably from Article 19(1)(a) and from the structure of the Constitution itself. On this blog, we have often discussed how, in a series of cases, the Court has located the philosophy of Indian free speech in a functioning liberal democracy where speech plays the important role of raising political awareness, communicating views to government, and so on; would this mean anything if the basic mechanism that defines a representative democracy – periodic change in government through elections – was compromised or made ineffective (for a similar argument deriving the right to free speech from the right to petition government for grievances, see Charles Black, Structure and Relationship in Constitutional Law)? In addition, Part XV  of the Constitution is devoted entirely to the conduct of elections, including non-discrimination rules (Article 325); and Article 326 expressly states that elections to the House and the Assemblies are to be on the basis of adult suffrage; what would be the point of all this if the government was free to abolish elections altogether? And lastly, representative democracy – as discussed above – is a basic feature of the Constitution; potentially, the government might someday come up with an alternative way of doing representative democracy that dispenses with elections. Until that time, however, effective elections – and consequently, an effective vote – remain a constitutional right and a fundamental right.

It is submitted, therefore, that the Supreme Court’s decision is correct, and that it’s analysis of the relationship between elections, the right to vote, and Article 19(1)(a) is substantially correct as well. One minor objection might be made: it was enough for the Court to have said – as, in substance, it did – that the freedom envisioned by Article 19(1)(a) is the freedom to have a say in government through the mechanism of the vote, and that naturally must include the option to not vote as well; but it was a mistake to further ground the right by referring to potential negative consequences of revealed identity. It is easy enough to imagine how, if one’s vote is revealed after an election, the winning (or losing) party might exact reprisals – which, in turn, will affect how one votes in the election. Yet it is difficult to see how by not voting at all (for anyone), and having that fact as public knowledge, would lead to repression or reprisal. That remains, however, a minor quibble.

And lastly, as a closing aside, it is worthwhile to note while the challenge was made under Articles 19(1)(a) and 21, the final holding turned only upon Article 19(1)(a) [see paragraph 61]. In an age where it is often said that Article 21 has been transformed into a bottomless receptacle for the judiciary to pour in its own ideas of the right and the good, the Court’s conscious resistance to Article 21’s siren call is to be commended.

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