Friday, May 13, 2016

Why the India Supreme Court judgment upholding the constitutionality of the criminal defamation law fails to convince

Read the judgment here

The Constitution of India guarantees the right to free speech under Article 19(1)(a) and this right can only be restricted for limited reasons expressly enumerated in Article 19(2) of the Constitution with the additional requirement that any restrictions imposed on this right satisfy the test of reasonableness. The recent judgment of the Supreme Court of India which has dismissed challenges to the criminal law on defamation based upon pleas that it violated the right to free speech is unconvincing as it completely fails to consider and apply the mandatory test of the “reasonableness” of restrictions permitted under Article 19(2). This to my mind was or ought to have been the crux of the challenge. The constitutional point being that criminalizing defamatory free speech (with a potential 2 year prison sentence) is an unreasonable restriction because it is excessive in righting the wrong committed against the allegedly defamed person, A person wrongfully defamed can reasonably obtain redress and justice and reclaim her reputation by pursuing a civil remedy. It is excessive to imprison the defamer for 2 years. The legislature or the judiciary would be free to make recourse to civil remedies for defamation easier and provide more effective civil action relief by way of damages, public apologies, etc.

The judgment in my opinion discloses a complete misunderstanding of the constitutional scheme. There is no doubt that reputation is a valuable right and that it is part of the right to life. But Article 21 which guarantees the right to life in the Indian Constitution is only available against the State. A starving man has no right to demand food from a private citizen, but might enforce this right against the State under Article 21. The judgment goes wrong in basing its decision on some kind of balancing act between Articles 19(1)(a) and 21.

The State is empowered to make laws including criminal laws to protect citizen/ resident rights. So the State can certainly protect reputations by enacting/ enforcing anti-defamation laws.

The issue before the Supreme Court was, whether in view of the fundamental right to free speech guaranteed under Article 19(1)(a), a criminal defamation law amounts to an unreasonable restriction impermissible under Article 19(2), when the purpose of protecting reputations from wrongful and malicious harm can be achieved through less restrictive means. This central issue is not addressed in the judgment and this question is not answered. 

The references in the judgment to the objective of fraternity mentioned in the preamble to the Indian Constitution and to the Constitution's concept of unenforceable fundamental duties are also misconceived. These values cannot enlarge the scope of Article 19(2) and cannot be a reason to restrict the right to free speech.

I also wonder if someone should have challenged the constitutionality of the Article 19(2) amendment itself brought in soon after the Constitution was enacted.

This judgment authored by J. Dipak Misra is also an excellent example of how not to write a judgment or a legal submission or any piece of writing that you actually want people to understand. The judgment attempts to compensate for the superficiality and overall lack of rigor of its constitutional and legal analysis by using incomprehensible words and sentences that only serve the purpose of making the judgment impenetrable, particularly to a non-lawyer. Thin on analysis and original reasoning, the judgment is overloaded with quotations. In some places, words are used incorrectly and contrary to their natural meaning. At one place the judgment states "… freedom of speech has to be allowed specious castle …” a good example of a spurious or maybe specious gem of questionable judicial wisdom.   

The opening paragraph of the judgment reproduced below is particularly illustrative of this abstruse language and as an example of how to reduce simple legal concepts to unneeded and self-defeating complexity. This unfortunately is one of the more coherent passages of original judicial pronouncement in this judgment.      
This batch of writ petitions preferred under Article 32 of the Constitution of India exposits cavil in its quintessential conceptuality and percipient discord between venerated and exalted right of freedom of speech and expression of an individual, exploring manifold and multilayered, limitless, unbounded and unfettered spectrums, and the controls, restrictions and constrictions, under the assumed power of “reasonableness” ingrained in the statutory provisions relating to criminal law to reviver and uphold one’s reputation. The assertion by the Union of India and the complainants is that the reasonable restrictions are based on the paradigms and parameters of the Constitution that are structured and pedestaled on the doctrine of non-absoluteness of any fundamental right, cultural and social ethos, need and feel of the time, for every right engulfs and incorporates duty to respect other’s right and ensure mutual compatibility and conviviality of the individuals based on collective harmony and conceptual grace of eventual social order; and the asseveration on the part of the petitioners is that freedom of thought and expression cannot be scuttled or abridged on the threat of criminal prosecution and made paraplegic on the mercurial stance of individual reputation and of societal harmony, for the said aspects are to be treated as things of the past, a symbol of colonial era where the ruler ruled over the subjects and vanquished concepts of resistance; and, in any case, the individual grievances pertaining to reputation can be agitated in civil courts and thus, there is a remedy and viewed from a prismatic perspective, there is no justification to keep the provision of defamation in criminal law alive as it creates a concavity and unreasonable restriction in individual freedom and further progressively mars voice of criticism and dissent which are necessitous for the growth of genuine advancement and a matured democracy.

For another well-done critique of this judgment read lawyer Gautam Bhatia at The Supreme Court’s Criminal Defamation Judgment: Glaringly Flawed

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