Breaking down the basics of Article 19 and defamation

Gitanjali Balkrishna

My freedom of speech vs. your reputation

“The only freedom which deserves the name, is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it.”  ― John Stuart MillOn Liberty

What is Freedom of speech and expression?

Freedom of Speech and expression simply put is each individual’s right to express his or her own thoughts, convictions and opinions freely through whichever mode that person wants- verbally, in writing, through print or publication, photography and so on. It includes the expression of individual ideas through any communicable medium or visible representation, such as gesture, signs etc. Guarantee of freedom of speech and expression as a right contains an element of articulation of one's opinions and ideas without fear of government retaliation or censorship, or societal sanction. 

The Universal Declaration of Human Rights recognizes freedom of speech as a human right i.e. a right all humans are inherently entitled to. Further, the International Covenant on Civil and Political Rights affirms that "everyone shall have the right to hold opinions without interference" and "everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice". 

In India, the freedom of speech and expression is a fundamental right guaranteed by Constitution of India to all Indian citizens. The resolve of the framers of the constitution to fully acknowledge and provide the citizens with liberty of thought and expression is reflected at the very start of the Constitution, wherein the Preamble to our Constitution pledges to ensure citizens the liberty of expression. 

You’re free to express, but…

An individual’s liberty is the functional unit of the entire gamut of civil and political rights. However, since the society at large is a conglomerate of hundreds of such individuals, the guarantee of absolute liberty to individuals has a self-defeating effect. Justice Patanjali Shastri had rightly observed in one of the most important Supreme Court decisions related to freedom of expression that “man as a rational being desires to do many things, but in a civil society his desires will have to be controlled with the exercise of similar desires by other individuals”. The Constitution of India mentions eight grounds which can be used to curtail or restrict the freedom of speech and expression. They are enumerated as reasonable restrictions pursuant to balancing individual freedom with larger public or national interest. 

Hence, freedom of speech and expression of citizens can be restricted for security of the state, maintaining friendly relations with foreign states, public order, decency or morality, contempt of court, defamation, incitement to offence and protecting sovereignty & integrity of India.

So what is the problem with defamation?

Amidst other grounds mentioned as reasonable restrictions, the ground of defamation becomes tricky for numerous reasons. Defamation at present can be pursued as a criminal wrong, which involves punitive measures and also as a civil wrong which involves claiming damages which are quantified monetarily. 

Defamation was codified as a criminal wrong under the Indian Penal Code during the colonial subjugation of India by the British. It was intended to serve the purpose of curbing the freedom of dissent and to censor publication and/or public communication of opinions against the British Raj. 

Defamation as a ground to restrict freedom of speech is essentially required to have a reasonable character (for why it is miles away from the entire zip-code of reasonable, read- https://speechbill.in/blog/defamation-what ). But by the virtue of it being a criminal offence, it becomes a fairly easy tool to curb any unpopular opinion or criticism.  A criminal recourse to defamation starts with a mere filing of the complaint and then the accused, irrespective of the nature of his/her statements or publication (as that will only be established after the criminal trial) gets a societal sanction of committing a criminal wrong. It results in an instant deterrence to voice criticism or a general disagreement, as there is the background apprehension of being involved in lengthy criminal proceedings. 

Existence of defamation as a criminal offence offers a quick and damaging recourse to people in power to suppress dissent. One of the most recent examples of this was the misuse of the criminal defamation by the Tamil Nadu government to silence journalists from reporting the inefficient management and poor-governance in the state after the floods in Chennai.  

Criminal defamation has a chilling effect on free speech, as it is an easily available option to harass and deter journalists, public-spirited citizens, bloggers from holding the authorities or multi-nationals accountable. 

Hence, decriminalization of defamation is primary the first step towards a more reasonable regime of curtailing freedom of speech on the grounds of the speech being defamatory or prejudicial to the reputation of an individual. 

Then civil defamation is the way to go?

Decriminalization of defamation essentially involves pursuance of defamation as a civil wrong, providing defamation the framework of a private wrong and keeping defamation at being a matter of dispute between the defamer and the defamed to be settled by proving the case of defamation and then quantifying the damage to the reputation in terms of a monetary compensation. 

For civil defamation to qualify as a reasonable ground to restrict free speech, the damages claimed as compensation needs to be reasonably affixed, unlike the present scenario where the objectivity comes from various cases decided by different courts. There is a pertinent need to follow a reasonable and non-arbitrary approach in ascertaining the compensation to be paid, wherein the damages claimed is fair to the harm to the reputation of the defamed and also to the defamer, instead of the amount being whatever the allegedly defamed ‘whimsically’ deems fit! 

To put it in clear terms…

Any guarantee of liberty can only be sustainably maintained if the system at large recognizes that each one is entitles to their own good in their own way, so long as it does not result in depriving others of theirs, or impede their efforts to obtain what is legitimately theirs. A person’s reputation is part of their constitutionally guaranteed right to life and personal liberty. This right to dignity and protection of personal reputation, needs to be necessarily balanced with the other person’s right to free speech and expression, which makes defamation a valid ground to curb or restrict expression. However, defamation in itself needs to be objectively defined in order to keep it within the ambit of a reasonable restriction, and not make it an unwarranted instrument to stifle free speech which is the building block of democracy. 

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