Decriminalise Defamation & Strengthen Freedom of Speech in India.

THE PROTECTION OF SPEECH AND REPUTATION BILL, 2016 was introduced in Lok Sabha on 10th March 2017. Click here to read the full bill.

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Background

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

A Message

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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.

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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.

Sincerely,

Tathagata Satpathy,
Member of Parliament (LS)

Frequently Asked Questions

What is this #SpeechBill?
  • What does it do? The #Speechbill is a public consultation to help form consensus and debate to reform defamation law in India. It aims to achieve this by doing two things. First, it removes the criminal defamation provision completely and second it brings a civil law to provide a better mechanism to deal with defamation matters. Such a framework may give a good balance to the right to free speech and the protection of a person's reputation.
  • Criminal defamation is a colonial relic of the British Raj: The criminal law of defamation is a colonial law that served a need that no longer exists. It is a law that was made to prevent death by duels, usually done by “society” men who were acting to purge their family’s dishonor in 18th century England. While none of us are fencing and drawing blood, the criminal defamation law is being used to threaten and silence voices. These are the voices of artists, actors, painters, writers, sportspersons and ordinary internet users -- - like you.
  • A threat to digital Indians: As more Indians come online, gaining not only a voice but an audience, colonial laws present a clear threat to freedom of expression. Criminal defamation law is increasingly being used to threaten, harass and prevent speech. Due to this many countries have repealed criminal defamation or are in the process of its repeal. In line with this modern trend the proposed #SpeechBill has incorporated in its principles the best practices found in foreign legislations on defamation.
  • A balanced, modern defamation law: The repeal of criminal defamation also may require a policy choice not to be done in isolation. For this the main thoughts behind the #SpeechBill are to create an effective, balanced remedy for civil reliefs, such as corrections, apologies and reasonable damages. This would provide recourse to an injured party and brings responsibility to a publication. Modern India deserves a modern defamation law. Given that it will apply only to cases that come up in future (not to any pending cases) it is a policy measure we hope nudges defamation law towards civil rights and public interest. 
How do I engage in is this process ?
  • Support the main principles : The main thoughts and principles of the Speech Bill have been suggested in different portions and parts to enable people to give specific inputs.This improves the eventual drafting process as we can first debate principles and then the nuance. Please remember this is just the first stage of the consultation process. Defamation is a 150 year old law and reforming such a law is a process that requires engagement and consensus. If you agree with them please endorse and support them. 
  • Notes that link to authorities: To jump start your research a team of lawyers, journalists, policy wonks and the Office of Tathagata Satpathy have inserted authorities from which these principles have been derived. We anticipate some people may not agree with them but this helps us have a dialogue which builds on the basis of pre-existing thought and best practices. 
  • Technical tools to help you : There is technical ability for people to comment on different principles that are divided as to distinct portions in the Speech Bill. The ability to comment on this rough structure has been enabled by a plugin. We encourage people to even email us in case thats more convenient.
What's the process being followed for the #SpeechBill ?
  • Urgent legislative action necessary: Today, there is a clear need for such a consultation process. The Supreme Court disagreed with arguments made against judicially striking down criminal defamation, holding it to be constitutional. Our legislature remains free to change this law and it must after examining the best policy choices. The #SpeechBill through inviting comments and support hopes to build consensus favouring a reasonable, balanced civil law in India.
  • A democratic, inclusive process: The first round of inputs will be done online through which we hope to build greater public engagement with people in supporting civil liberties on first principles. This website will take in suggestions from the public for two weeks i.e. till 27 September 2016. By inviting comments and reviews we hope to improve the main thoughts and principles on the basis of which a model law can be created. After taking the comments into consideration, the #SpeechBill will be drafted & finalized by the Office of MP Tathagata Satpathy with the aid of supporters of the campaign -- lawyers, journalists and policy professionals. This may be done through stakeholder meetings as far as practically possible. The bill, after complete, will be taken to Parliament as a Private Member's Bill.
  • A consultative approach to help form policy choices: This effort is not adversarial and hopes bring together different stakeholders to reform defamation law in India. The Office of Tathagata Satpathy has requested the Hon’ble Law Minister to have this issue institutionally examined, seeking a reference to the Law Commission. We are also hopeful that the #SpeechBill after drafting may be supported by people across the spectrum. The #SpeechBill campaign has every intent of working with different stakeholders and government and helping them form a position away from criminal defamation through legislative repeal.
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.

#SpeechBill Supporters

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