LAW COMMISSION OF INDIA: SUBMISSION

CONSULTATION PAPER ON MEDIA LAW


SUBMISSION
JUNE, 2014
iProbono is a non-profit online network connecting civil society organisations in need of legal
assistance to lawyers and law students who want to contribute their skills to the public good.
iProbono seeks to build a culture of pro bono amongst the legal community so that civil society
organisations can access legal support. iProbono hosts consultations, legal panels, workshops and
roundtable discussions, bringing parties together in the real world to exchange ideas and to
network with one another.
One of iProbono‟s initiatives, „Defending Public Participation‟ is to develop a network of
lawyers to combat so-called Strategic Litigation Against Public Participation (SLAPP). In line
with this initiative, iProbono submits its suggestions/comments on the Law Commission‟s
Consultation Paper on Media Law. Specifically, our suggestions/comments relate to Section 9
(Defamation) and Section 10 (Publications and Contempt of Courts).



9. Defamation
9.2 Currently, civil defamation is dealt with under the law of torts whereas criminal
defamation is an offence under Section 499 of the Indian Penal Code. A journalist has no
special status under defamation laws in India. Although the press enjoys the freedom of
speech and expression under Art. 19(1)(a) of the Constitution, defamation is a ground for a
reasonable restriction to this freedom under Art. 19 (2).
9.4. To that end, the following question arises for consideration:
1. Should there be modifications in the law of civil and criminal defamation as it applies to
journalists? If so, what should these modifications be?
1. The criminal defamation provision as it applies to journalists should be repealed. Free speech
is the cornerstone of a democratic society and an independent media is an important tool for
promoting good governance and human development. This provision is not reasonably justifiable
in India‟s democratic society and is inconsistent with the spirit of freedom of expression
guaranteed in the country‟s Constitution as well as its commitments to the international
community.
2. An increasing number of countries and international authorities believe that criminal
defamation laws should be repealed. International bodies such as the United Nations (UN) and
the Organization for Security and Cooperation in Europe (OSCE) have recognised the threat
posed by criminal defamation laws and have recommended that they be abolished. Another
example is the OSCE Parliamentary Assembly that has called for the abolition of all laws that
provide criminal penalties for the defamation of public figures or which penalise defamation of
the state or state organs. The UN and Organization of American States Special Mandates have
gone further, stating: “Criminal defamation is not a justifiable restriction on freedom of
expression; all criminal defamation laws should be abolished and replaced, where necessary,
with appropriate civil defamation laws.” The jurisprudence of the European Court of Human
Rights has repeatedly ruled that imprisonment for defamation is a disproportionate restriction on
journalists‟ right to freedom of expression. It has emphasised that that such a penalty has a
chilling effect on journalists and inhibits the media even when the sentence has not been
effectively executed. Furthermore, the Foreign and Commonwealth office has also explicitly
highlighted criminal defamation as being a threat to human rights worldwide, stating, “On the
national level, some countries exploit criminal and civil law to silence or stifle legitimate debate
whether through accusations of sedition, libel, defamation, or violations of laws on tax or
national security.”
3. A number of authoritative statements have been made by various international officials to the
effect that criminal defamation laws and penalties breach the right to freedom of expression. The
UN Special Rapporteur on Freedom of Opinion and Expression has reiterated this on numerous
occasions. In his 1999 Report to the UN Commission on Human Rights, he stated:
“Sanctions for defamation should not be so large as to exert a chilling effect on freedom of
opinion and expression and the right to seek, receive and impart information; penal
sanctions, in particular imprisonment, should never be applied.”
In his Report in 2000, and again in 2001, the Special Rapporteur went further, calling on States
to repeal all criminal defamation laws in favour of civil defamation laws.

Every year, the UN
Commission on Human Rights, in its resolution on freedom of expression, notes its concern with
"abuse of legal provisions on defamation and criminal libel.”
4. The International Covenant on Civil and Political Rights (ICCPR) and Universal Declaration
on Human Rights (UDHR) also emphasize the importance of the right to hold and impart
opinions without restrictions. India has acceded to both these conventions on 10 April 1979 and
30 October 1945 respectively.
Article 19 of the ICCPR states “Everyone shall have the right to hold opinions without
interference; 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”.
Article 19 of the UDHR provides: "Everyone has the right to freedom of opinion and
expression; this right includes freedom to hold opinions without interference and to seek,
receive and impart information and ideas through any media and regardless of frontiers."
In this manner, abolishing the criminal defamation provision will also serve to bring India‟s
legislation into compliance with international legal standards on freedom of expression.
5. India‟s criminal defamation provision has originally descended from English defamation laws.
A damning critique of the UK‟s law of libel had been issued by UNHCR at its 93
rd
session where
it held the “practical application of the law of libel has served to discourage critical media
reporting on matters of serious public interest, adversely affecting the ability of scholars and
journalists to publish their work.” (Emphasis supplied) Subsequently, in 2009 the UK
government abolished the offence of criminal defamation.
6. The continuous presence of criminal defamation provisions in the Indian Penal Code and its
application to journalists is incompatible with basic democratic ideals as well as international
guarantees of freedom of expression. Most recently, Indian law and justice Minister Mr.
Veerappa Moily stated: “We are considering a proposal to decriminalise defamation to the
extent it applies to journalists. The endeavor is to save them from malicious prosecution since
there is no criminal motive involved in their professional duties." The threat of criminal penalties
hanging over journalists in connection with their reports leads to self-censorship and the loss of
information that is important for society. Civil defamation laws provide sufficient remedy for the
publication of information that is incorrect and deemed offensive.
Recommendations relating to Section 9:
We have the following recommendations on the criminal and civil law of defamation:
(A) Repeal Of Section 499 Of The Indian Penal Code:
We recommend a repeal of the criminal defamation provision as it applies to journalists. A repeal
of this law in an increasing number of countries shows that such laws are not necessary for
protecting reputations.


Some countries that have abolished criminal defamation laws include:

Country
Year Criminal
Defamation Law was
Abolished
Armenia 2010
Bosnia and Herzegovina 2001
Croatia 2006
Cyprus 2003
Ghana 2001
Grenada 2012
Jamaica 2013
Macedonia 2006
Maldives 2009
Mexico (at the federal level)
Mexico City
State of Chiapas and Sonora
2007
2006
2007
Montenegro 2011
New Zealand 1992
Sri Lanka 2002
United Kingdom 2009
Zimbabwe 2014

In light of this international trend, and for the reasons set out in detail in the preceding
paragraphs, we recommend the removal of the criminal defamation provision from the Indian
Penal Code.

(B) Introduction of new Legislation
Further, we recommend adopting legislation to actively protect legitimate voices who speak out
on public issues and issues of public interest. Civil and criminal proceedings for defamation have
become an all-too-common tool for intimidating and silencing critics of businesses, often for
environmental and local land development issues. The purpose of such suits are to intimidate and
silence critics by redirecting their energy and finances into defending a lawsuit and away from
their original public criticism of a person, company, or project. The accompanying effect of such
suits is to act as a warning to other potential critics and as a result discourage public debate. To
provide a remedy and protect legitimate voices, a law could be enacted wherein hearings can be
expedited and the burden of proof is placed on the complainant‟s shoulders to prove that the
words they are complaining about have caused “substantial harm” rather than the prevailing
standard of “harm to their reputations”.
For instance, twenty-eight states in the United States of America have enacted legislation to
counter Strategic Litigation Against Public Participation (commonly known as “SLAPP”).
SLAPP is defined as a lawsuit started against one or more people or groups who speak out or
take a position on an issue of public interest. Under most of these statutes, the person sued makes
a motion to strike the case because it involves speech on a matter of public concern. The plaintiff
then has the burden of showing a probability that they will prevail in the suit. That is, they must
make more than allegations of harm and actually show that they have evidence that can result in
a verdict in their favor. If the defendant prevails on the motion, many of the statutes allow them
to collect reasonable attorney's fees from the plaintiff.
The state of California has a model anti-SLAPP statute. To challenge a lawsuit as a SLAPP, you
need to show that the plaintiff is suing you for an "act in furtherance of [your] right of petition
or free speech under the United States or California Constitution in connection with a public
issue." Although people often use terms like "free speech" and "petition the government" loosely
in popular speech, California‟s anti-SLAPP law gives this phrase a particular legal meaning,
which includes four categories of activities:

• Any written or oral statement or writing made before a legislative, executive, or judicial
proceeding, or any other official proceeding authorized by law;
• Any written or oral statement or writing made in connection with an issue under
consideration or review by a legislative, executive, or judicial body, or any other official
proceeding authorized by law;
• Any written or oral statement or writing made in a place open to the public or a public
forum in connection with an issue of public interest; or
• Any other conduct in furtherance of the exercise of the constitutional right of petition or
the constitutional right of free speech in connection with a public issue or an issue of
public interest
The advantages of a enacting a statute such as that enacted in California is that hearings can be
expedited, in cases that have been categorized as SLAPP. For instance, under the California
SLAPP legislation, hearings are scheduled within 30 days of filing the suit. In such cases, the
court first considers whether the defendant has established that the suit arises out of a protected
activity as defined in the Act and then if the court is convinced that it is not a protected activity,
the burden shifts to the plaintiff to prove the essential elements of his legal claim. In this manner,
enacting a legislation to protect against SLAPP litigation can help save the time of the court and
protect against litigation intended to stifle debate on an issue of public interest. It is important for
legislators to carefully consider these issues to address the potential misuse of litigation to
infringe on freedom of speech in India.
OR
(C) Amendment of the Code of Civil Procedure
Alternatively, Order 7 Rule 11 („Rejection of Plaint‟) of the Code of Civil Procedure, 1908 could
be amended appropriately to ensure all legal proceedings that can fairly be characterized as
SLAPP proceedings ought to be rejected under the provision.
Order 7 Rule 11. Rejection of plaint:
„11. Rejection of plaint. The plaint shall be rejected in the following cases: —
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court
to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued but the plaint is written upon paper
insufficiently stamped, and the plaintiff, on being required by the Court to supply the
requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;‟
A new rule of such a nature would fall within the scope of the Order 7 Rule 11 (hereinafter “O.7
R.11”) could be specifically enacted.
In fact, at present, courts have noted that the instances given for rejection of a plaint under O.7
R.11 do not appear to be exhaustive. Further, under O.7 R.11 the court has inherent powers to
see that the vexatious litigations are not allowed to take or consume the time of the court. Also,
in appropriate cases directions can be given by the High Court as well as the court in which the
suit is filed not to entertain the suit, if on reading the allegations in the plaint it reveals that the
same is abuse of process of law. Additionally, a plaint can be rejected even after the issues have
been framed. Therefore, the addition of a new sub-clause (e) to Order 7 Rule 11 ought to be
considered.
Such an amendment to O.7 R.11 coupled with appropriate judicial training on identifying
SLAPP litigation will be a step forward in successfully curbing the menace of vexatious legal
proceedings. In this manner, it will assist lawmakers to discourage meritless SLAPP
proceedings, enabling defendants to defeat them more quickly by striking them at the inception
phase of a lawsuit and thus preventing the stifling of issues of public interest.

10. Publications and Contempt of Court
10.5 In this context, the following question arises for consideration:
2. Should scandalising or tending to scandalise the Court continue as a ground for
contempt of court?
1. The issue is whether the special contempt provision of scandalising or tending to scandalise
the Court is required to protect the administration of justice. Section 2 (c) (i) of the Contempt of
Court Act, 1971 (“Act”) defines “criminal contempt” as the “publication (whether by words,
spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the
doing of any other act whatsoever which— scandalises or tends to scandalise, or lowers or tends
to lower the authority of any court”.
2. The offence of “scandalises or tends to scandalise” the court should be removed as a ground
for contempt of court. As rightly stated by Lord Atkin “Justice is not a cloistered virtue; she
must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of
ordinary men.” The nature of the scandalising offence in the Act as it currently stands, is so
broad and vague that it creates a very uncertain legal standard that creates a chilling effect on the
freedom of speech.

The defenses available to a scandalising charge are uncertain, and the procedure for dealing with
cases is questionable. This offence has been described by Mr. Fali Nariman as one with a
mercurial jurisdiction in which there are no rules and no constraints. He and others were
perfectly correct in saying there should be certainty in the law, and not uncertainty. Moreover,
the history of contempt by scandalising the court, both in Britain and especially in the
Commonwealth, argues strongly for its abolition. The Act replicates an English statute from
which the provision “scandalises or tends to scandalise” has been derived. This offence is
officially dead in its country of origin where Clause 22 of the Crime and Courts Act 2013,
proclaims that: “Scandalising the judiciary (also referred to as scandalising the court or
scandalising judges) is abolished as a form of contempt of court under the common law of
England and Wales.”
3. The courts in India have also seen instances of a questionable use of this power of
“scandalising a court.” Dr. S.P. Sathe cites one case where a newspaper was required to
apologize for reporting that beneficiary of an illegal allotment of largesse was the son of a judge,
despite the fact that the Court itself had noted this allotment in another decision. Another
example involved an Allahabad High Court judge who, unable to secure a reserved berth on a
train at New Delhi railway station, held up the entire train, constituted an open court on the
platform and charged the terrified station master with contempt.
4. The current rationale it seems for the offence of scandalising the court derives from the need
to uphold public confidence in the administration of justice. When looked at through the lens of a
democracy, this need is particularly acute where the power and legitimacy of the judicial branch
of government derives from the willingness of the people to be subject to the rule of law. In
consequence, the public must have faith in the judicial system. Yet, in a democracy, the public
also has the right to speak freely about the exercise of power, which must include the freedom to
criticise the judicial system and judiciary. Further, in a democracy where the judicial system
enjoys high levels of public confidence, there should be greater room for criticism (whether
unfounded or otherwise) because displacing that confidence through such criticism is unlikely.
5. Further, other categories of criminal contempt found in section 2 (c) of the Contempt of Courts
Act, 1971,such as „lowers or tends to lower the authority‟ of any court, „Prejudices, or interferes
or tends to interfere with the due course of any judicial proceeding‟, or „Interferes or tends to
interfere with, or obstructs or tends to obstruct, the administration of justice in any other
manner‟, sufficiently protect the concerns of administration of justice and maintenance of the
authority of the court. Moreover, in cases where frivolous or wrongful allegations of dishonesty
or corruption are made against judges personally, there always remain remedies under the law of
defamation.
6. It seems that unlike other public servants whose actions are open to criticism only Judges have
been given this special protection. In fact, in this context as in others, freedom of expression
would help to expose error and injustice and promote debate on issues of public importance.
Further, a criminal offence of scandalising the judiciary may inhibit others from speaking out on
perceived judicial errors. Predictably, prosecutions for scandalising are counter productive as
they give the impression that the judicial establishment is trying to stifle criticism. As argued by
Justice Black:
“The assumption that respect for the judiciary can be won by shielding judges from
published criticism wrongly appraises the character of American public opinion. For it is
a prized American privilege to speak one’s mind, although not always with perfect good
taste, on all public institutions. And an enforced silence, however limited, solely in the
name of preserving the dignity of the bench, would probably engender resentment,
suspicion and contempt much more than it would enhance respect.”

Recommendation relating to Section 10:
We recommend that section 2 (c) (i) of the Contempt of Courts Act be amended to remove
reference to “scandalising the court”. This category of criminal contempt should cease to exist as
a form of contempt in the law of India. To suppress citizens‟ rights to speak out in the name of
scandalising the court is no guarantee that the respect and dignity of the court will be enhanced.
As Lord Denning remarked (in Quintin Hogg‟s Case), “Let me say at once that we will never use
this [contempt] jurisdiction as a means to uphold our own dignity. That must rest on surer
foundations.”



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