Colonial laws such as criminal defamation, made over 150 years ago lead to censorship. Criminal defamation can lead to people being put in jail for something they have said publicly. This law needs to be replaced by a modern, progressive law, and you can do your bit to support it. Review the main principles and help us draft a #SpeechBill
Update (23 September 2016): First round of public consultation has ended. Thank you for giving us your suggestions and comments. #SpeechBill is now being finalized.
Criminal defamation is a law made in 1860 and preserved without substantial legislative change till date. This was created by a foreign power with open intentions to curb liberty of a subject nation. A change in times should, ideally, lead to a change in law. What may have been reasonable in medieval England and colonial India is clearly not suited to a modern, democratic society that values free discussion and debate.
The Constitution of India recognises the freedom of speech and expression. But it does so with some restrictions.
There are frequent debates whether these restrictions are relevant in today's day & age. It is a lack of clarity on this that often leads to misuse of defamation laws by using them as a harassment tool. The ultimate result is that this restricts speech.
In the recent case of Subramanian Swamy versus the Union of India, the Supreme Court held Section 499 of the Indian Penal Code (IPC), which contains the criminal remedy of defamation, to be constitutional. The reasoning they presented was based on the existence of the right to reputation, which it balances with the right to free speech. By doing so, the Supreme Court seems to have tilted the proverbial scales of justice in favour of an archaic criminal remedy. Given this, there is a need for the legislature to act. To protect both the right to free speech and a person's reputation.
If we look around the world, there is an emerging global trend to abolish criminal defamation. The Supreme Court of Zimbabwe, in February 2016, slated the law as unconstitutional. In the case of South Africa, the ruling party in the county has passed a resolution stating its intentions to repeal criminal defamation in the country after their Supreme Court also held criminal defamation to be constitutional.
United Kingdom, the country that gave us the IPC in its original form, has repealed criminality in its defamation law in 1996 and, in its place, passed a reasonable law in 2013, properly defining what constitutes as defamation.
India must march in tandem with the world and make an effort to keep up with times. Our legislature needs to step in and deliberate on the nature of the Criminal Defamation law and its effects.
We thought it was time to start making efforts. Not just create awareness regarding our defamation laws, but also try to find a way to propose legislation. I, in the capacity of a Member of Parliament from Dhenkanal (Orissa), and a member of the Biju Janata Dal, along-with a group of professionals from the fields of law, journalism and public policy, decided to draft a bill to solidify our defamation laws.
After debating extensively about the subject, thinking of possible solutions and ways to impact a definitive change, we decided to draft the “Protection of Speech and Reputation Bill”. This Bill would aim to protect speech as well as reputation.
Our idea is to create a mechanism for just, speedy and effective implementation of a law against defamation, while safeguarding our cherished right to free speech, creating a model law that I can present to the Parliament as a Private Member’s Bill. The main pillar of the Speech Bill will be to repeal criminal defamation and make the civil remedy, effective but balanced.
This website contains a separate page elaborating the 10 principles we are following for drafting this bill. We have been working on the #SpeechBill for the past three months. We want YOU, the Citizen of India, to help us make it better.
Allow me to elaborate the primary principles as following. It is understood how defamation is largely interpreted based on rules established through court decisions, how that leads to uncertainty and prevents civil action against defamation. The idea and motivation behind this bill is simple: A future law should bring in simplified procedure to redress defamation complaints. Efforts are to make trial by subordinate judiciary as easy and simple as such a complex law could possibly be.
Ambiguity in the definition of defamation has opened floodgates of court cases, harassment based on false allegations, and has become a way to censor speech. Here it is suggested that the Speech Bill create a mandatory notice process, before a case is filed in court. This will ensure that the person who complains AND the person against whom the complaint is made, can find ways of avoiding courts. This may help prevent abuse of defamation laws as a tool for harassment and addresses the problem of pending cases before the courts.
The Bill also tries to address important issues with respect to territorial jurisdiction and damages awarded, and looks at global best practices on defamation laws, which was mentioned earlier. This could, hopefully, prevent the misuse of the law against defamation for stifling free speech while ensuring just protection against defamation. To reiterate, the present law assists and creates enough opportunities for harassment and causes undue hardships to the prosecuted. This the Supreme Court of India has also acknowledged.
To further the policy discussion, it is proposed that all changes to defamation law, including the proposal for the decriminalization of defamation, should be applicable prospectively. This implies cases that are already being considered by courts will be kept out if its ambit.
After getting your comments, the team #SpeechBill will examine and discuss them and where valid, incorporate your advice. The model law will be drafted taking your views into consideration. It is hoped the efforts will be supported by all sections. The Government could possibly accept it or, better still, alternatively, bring in reforms to this archaic defamation law itself.
We want you to play a part in creating a piece of legislation we can all be proud of.
We want you to feel: This is my Bill.
I personally thank my team for putting in so much effort for expanding on my vision and making project #SpeechBill possible. We hope you offer your suggestions during this round of public consultation and endorse these main principles. If you have any criticism to any of our suggested principles, please feel free (this IS the Free Speech Bill after all) to email us or tweet to us.
Please be sure. We'r listening to you.
Member of Parliament (LS)
Frequently Asked Questions
- What is this #SpeechBill?
- How do I engage in is this process ?
- What's the process being followed for the #SpeechBill ?
- Why are there only 10 principles put up on speechbill.in and not the entire draft Bill?
Two reasons why the draft Bill text is not available on our website:
We want an organic debate on basic issues relating to free speech and defamation. It is an effort to allow people to discuss core aspects of free speech in the context of defamation- break it down to the most elementary ideas. We believe that putting out a draft Bill will not allow an unbiased and free discussion, it will lead to steering debate to a limited territory. We do not want to colour the debate with Bill clauses. There is a risk that the Bill will become the overarching discussion point and eclipse the core idea behind the Bill - balancing free speech and defamation.
The Rules of Procedure and Conduct of Business in Lok Sabha are unclear on whether a Member of Parliament can publish Bill text prior to the admission of the Bill by the Speaker and its circulation to other members. Since the Speech Bill is still in the drafting stage and has not been filed at the Lok Sabha secretariat, we are unclear whether we are allowed to make the draft Bill text publicly available. Rules 64 and 334A are the basis for this concern. The relevant excerpt of Rules 334A and 64 reads as follows:
“Rule 334A. A notice shall not be given publicity by any member or other person until it has been admitted by the Speaker and circulated to member:”
“Rule 64. The Speaker may, on request being made to him, order the publication of any Bill (together with the the Statement of Objects and Reasons, the memorandum regarding delegation of legislative power and the financial memorandum accompanying it) in the Gazette, although no motion has been made for leave to introduce the Bill, and, if the Bill is afterwards introduced, it shall not be necessary to publish it again.”
These two rules read together may imply that a Bill cannot be published on a public forum, aside from by the Speaker of the Lok Sabha. As a result, we are refraining from publishing the Bill text on speechbill.in at the moment.