Legal perspective on defamation within the context of

democracy.

Media Law and IT Act

PRAJAKTA NAYAK

ROLL NO. 052101010

5th (fifth) semester

Submitted to :
Dr. Soubhagya Nanda
Abstract :

In India, defamation is considered both a criminal and civil offense, punishable by

imprisonment under Sections 499 and 500 of the Indian Penal Code (IPC) and through
damages in tort law. Defamation occurs when someone creates or spreads content that harms
another person's reputation. While the intent is to protect individuals' reputations, there are
instances where defamation laws are misused for personal or political motives. The recent
conviction and disqualification of Mr. Rahul Gandhi, a prominent opposition leader,
exemplify this issue. His two-year sentence, the maximum for defamation, raises concerns
about India's democratic image, suggesting a regression rather than progress in its democratic
maturity.
This article examines two main aspects: firstly, it assesses whether the defamation laws in the
Indian Penal Code are constitutional and valid. Secondly, it questions whether Mr. Gandhi's
conviction for a statement made during a political speech has tested the boundaries of these
defamation laws under the IPC.

Evolution and Rationale of Defamation Law in the Indian Penal Code

(IPC):

Defamation as a crime has its roots in the English Star Chamber during the 16th Century. The
main goals were twofold: firstly, to maintain public order by preventing disturbances caused
when individuals, offended by defamation, resorted to duels. Secondly, criminalizing
defamation aimed to safeguard state security, with certain accusations being labeled as
"seditious libel."
In 1837, Lord Macaulay introduced criminal defamation in India, and it was later formalized
in 1860. The main purpose was to safeguard the interests of the British Raj, state security, and
public order. Section 499 of the Indian Penal Code 1860 was established for this purpose.
According to the Law Commissioners and the making of the Indian Penal Code, the initial
intention behind including defamation laws was to treat defamation as a criminal offense.
However, over time, criminal defamation began to be mainly employed to suppress political
speech during the British Raj.
Global Status of Criminal Defamation Laws - Highlighting Key Examples:

Internationally, the legitimacy of criminal defamation laws has long been a subject of debate,
not only in India but in various countries. Many nations worldwide have either completely
eliminated or partially removed criminal defamation from their legal frameworks due to
concerns about its impact on freedom of speech. Some of these countries include Cyprus, El
Salvador, England and Wales, Estonia, Georgia, Ireland, Jamaica, Macedonia, Maldives,
Montenegro, Romania, and Sri Lanka.

In the context of the UK, when the Secretary of State at the Ministry of Justice, Ms. Claire
Ward, announced the repeal of seditious libel, defamatory libel, obscene libel, and sedition
offenses, she expressed that these were outdated laws from a time when freedom of
expression wasn't as recognized as it is today. She noted that these obsolete laws in the
Zimbabwe: In 2014, a nine-judge bench of the Zimbabwe Supreme Court in Nevanji
Madanhire v. Attorney General,1 CCZ 2/14 unanimously held that the offence of defamation
was not reasonably justifiable in a democratic society within the contemplation of s 20(2) of
the former Zimbabwe Constitution.

Current position of criminal defamation laws in India :

As of now, in the case of Subramanian Swamy v. Union of India 2, the Supreme Court has
affirmed the constitutional validity of Section 499 of the Indian Penal Code (IPC). The court
expressed the view that since society is essentially a collective of individuals, harm to
individuals can ultimately impact society. Therefore, the court deemed it appropriate and
valid to consider defamation as a public wrongdoing. Consequently, the Supreme Court
concluded that criminal defamation serves as a reasonable restriction on the fundamental
right to freedom of speech and expression (Article 193). This decision was grounded in the
belief that safeguarding one's reputation is a fundamental right (Article 214). Some argue that
this ruling in the Subramanian Swamy case reflects a shift in legal principles towards a more

1 CCZ 2/4
2 AIR 2016 SC 2728
3 Indian Constitution

4 Indian Constitution
paternalistic and fear-based approach, highlighting deeper issues within the justice system
regarding the distinction between public and private wrongs.

Analysis of provision:
A vital pillar of a democracy is the essential right to freedom of speech and expression,
outlined in Article 19 of our constitution. This right not only empowers individuals to express
their beliefs and opinions, whether political or otherwise, but it also maintains a crucial
balance between peace and social progress by enabling citizens of India to actively
participate in the country's social and political processes.

The current interpretation of freedom of speech and expression in Article 19(1)(a) 5

encompasses the right to dissent against the government, thereby questioning the relevance of
criminal defamation laws. This perspective is supported by various post-independence
judicial decisions. These decisions emphasize that political speech, as a form of expression in
India, deserves the highest level of protection.

Given the evolving perceptions of society regarding "free speech" and "reasonable
restrictions," the provisions of criminal defamation laws no longer serve a purpose in
addressing contemporary issues related to freedom of speech. These laws not only violate the
fundamental right to freedom of speech and expression but also fail to meet the criteria of a
"reasonable restriction" when judged by current standards of freedom of speech. The original
intent and purpose of defamation laws have become obsolete due to the changing nature of
the right to free speech.

Various national and international judicial pronouncements support the nullification of

archaic laws that hamper the effective operation of an individual's rights under the
Constitution. In this regard, as noted in various jurisdictions the world over, including
England, from where the IPC derives its provisions, the criminalisation of defamation acts as
fetter on the freedom of speech and expression under Article 19(1)(a).

Therefore, in our view, it is time that the constitutionality of these Defamation law provisions
is revisited, as these provisions fail to reflect the changes that have occurred in the society in
relation to the right of free speech, as protected under the Constitution.

5 Indian Constitution
Defamation: Pursuit of justice and Free Speech:

In 2021, Italy's Constitutional Court, which still considers defamation a criminal offense,
ruled that imprisonment sentences in defamation cases should only be applied in
exceptionally severe situations. The court urged the Italian parliament to undertake a
comprehensive reform of its defamation laws.

Internationally, the Inter-American Commission on Human Rights and the Inter-American

Court of Human Rights have strongly supported the right to freedom of expression outlined
in Article 13 of the American Convention. These courts have granted special protection to
political speech and expressions related to public matters and the conduct of public officials.

In 2022, courts in England and Wales gained new authority to dismiss strategic lawsuits
against public participation (SLAPPs) filed by wealthy claimants. The courts now apply a
three-stage test to dismiss intimidating legal actions against reporters and publishers,
considering factors like public interest, potential abuse of the legal process, and the case's
likelihood of success.

It's noteworthy that in the Western world, politicians generally don't sue each other for
making political speeches. This practice is uncommon from Canada, Australia, and New
Zealand to England, Europe, and the US. Instead, it's typically the media that faces civil
lawsuits from politicians, celebrities, corporations, and occasionally even criminal figures.
Some recent high-profile defamation cases involve Prince Harry against the British tabloid
Daily Mail, Australia's attorney general Christian Porter against an ABC journalist, and
Dominion Voting Systems against Fox News.

Unlike the West, Indian politics has seen a significant impact from defamation cases,
reshaping the landscape through legal actions.

Why India’s defamation laws are hurting its democracy?6

On April 3, Rahul Gandhi, a member of a family with a legacy of former Indian prime
ministers, arrived in Surat, a city in the state of Gujarat. He was there to challenge his
defamation conviction and the ensuing two-year sentence, which automatically disqualified
him from India's Parliament. Gandhi, who is a prominent figure in the opposition Congress
party, was joined by his sister and other key party leaders. Congress supporters staged

6 https://www.codastory.com/authoritarian-tech/rahul-gandhi-criminal-defamation/
protests in Surat, as has been happening nationwide since March 23 when Gandhi received
his conviction.

India's Minister of Law and Justice, a member of the ruling Bharatiya Janata Party (BJP),
characterized it as a "childish attempt to bring pressure on the appellate court" when Rahul
Gandhi, a key figure in the opposition Congress party, contested his defamation conviction.
Critics of the BJP argue that Gandhi received an unusually harsh maximum sentence for
statements made during the 2019 campaign that didn't warrant criminal defamation. They
highlight the apparent political calculation behind the two-year sentence, precisely the
duration needed for Gandhi's disqualification from Parliament and potential exclusion from
the upcoming general election.

The perceived political manoeuvring sparked swift outrage, with various opposition parties
joining forces to condemn Gandhi's expulsion. Tamil Nadu's Chief Minister, M.K. Stalin,
decried the BJP's rapid move to ensure Gandhi's disqualification as a "fascist action" and
called on all Indian political parties to recognize it as an assault on progressive democratic
forces.

While Gandhi was in Surat on April 3, Stalin hosted key figures from major opposition
parties, aiming to forge a united front against "bigotry and religious hegemony," a pointed
reference to the BJP's Hindu nationalist politics. Academic and political commentator
Apoorva Nand noted that opposition to the BJP was unified because the expulsion of Gandhi
from Parliament was seen as a bold signal by the government, indicating its readiness to
undermine political forces challenging it democratically.

The extent of the challenge posed by Rahul Gandhi to the BJP is a matter of ongoing debate.
Over the years, he has faced ridicule, characterized as an impulsive, inexperienced, and
entitled politician who perceives leadership as his birthright. The BJP has successfully
portrayed Gandhi as a princely figure, receiving undue adoration within the Congress party,
seemingly more devoted to a political dynasty than to the nation. This portrayal has proven
remarkably effective.

Regional leaders such as Akhilesh Yadav in Uttar Pradesh and Mamata Banerjee in West
Bengal have been hesitant to align too closely with Gandhi. They resist the general
assumption that he would lead any opposition coalition against the BJP, showcasing a
reluctance to be overly associated with him.

Just before Rahul Gandhi was disqualified from parliament, Mamata Banerjee reportedly
informed her party workers that the BJP deliberately portrayed Gandhi as the face of the
opposition because he was an easy target for Modi to defeat. Now, with opposition parties
rallying behind him, Gandhi may seem more formidable. The U.S. and Germany cautiously
referenced "judicial independence" in response to Gandhi's expulsion, drawing ire from the
BJP government. Foreign Minister Jaishankar criticized the West for commenting on other
countries, calling it a perceived right. Congress politician Shashi Tharoor humorously
advised restraint to Jaishankar.

In a year when the BJP aims to showcase India's influence in the G20 presidency, the
treatment of Rahul Gandhi appears to reinforce the belief that Modi and the BJP use the law,
including the courts and investigative agencies, to silence critical voices in politics, media, or
online.

The BJP is notably sensitive to criticism, especially in foreign media or on foreign soil.
India's Parliament has faced prolonged disruptions, partly triggered by BJP representatives
demanding an apology from Rahul Gandhi for criticizing India during a UK visit. Gandhi's
comment about an "attack on the basic structure of democracy" was construed by the BJP as
a call for foreign interference.

Against this backdrop, Gandhi was convicted in Surat for remarks made in 2019, sarcastically
linking prominent Indian frauds to the name Modi. This led to his defamation conviction,
exposing regressive aspects of India's criminal defamation law enacted in 1860. The law
criminalizes any imputation concerning a person, even if indirectly named, allowing relatives
of deceased persons to claim defamation.

In this case, the complainant was a BJP legislator, Purnesh Modi, who alleged defamation on
behalf of all 130 million people in India with the last name Modi. The Surat court supported
this seemingly unreasonable charge.

India and major democracies have different approaches to defamation law. The U.S. and UK
transformed defamation law, emphasizing free speech. The U.S. Supreme Court's 1964 ruling
in New York Times Co. v. Sullivan shifted the balance in favor of robust speech, introducing
the "actual malice" standard and limiting criminal defamation laws. In contrast, India, even
after independence, retained legislation favoring the colonial elite, maintaining criminal
defamation and separate procedures for public officials.

Despite constitutional guarantees of free speech, the Indian judiciary interprets defamation
restrictions narrowly. In 2016, the Supreme Court upheld the constitutionality of criminal
defamation, a decision criticized for serving no legitimate public purpose. The legal
landscape contrasts with the trend in former British colonies and common law countries,
which have abolished or amended criminal defamation laws to protect public discourse.

Just before Rahul Gandhi was disqualified from parliament, Mamata Banerjee reportedly
informed her party workers that the BJP deliberately portrayed Gandhi as the face of the
opposition because he was an easy target for Modi to defeat. Now, with opposition parties
rallying behind him, Gandhi may seem more formidable. The U.S. and Germany cautiously
referenced "judicial independence" in response to Gandhi's expulsion, drawing ire from the
BJP government. Foreign Minister Jaishankar criticized the West for commenting on other
countries, calling it a perceived right. Congress politician Shashi Tharoor humorously
advised restraint to Jaishankar.

In a year when the BJP aims to showcase India's influence in the G20 presidency, the
treatment of Rahul Gandhi appears to reinforce the belief that Modi and the BJP use the law,
including the courts and investigative agencies, to silence critical voices in politics, media, or
online.

The BJP is notably sensitive to criticism, especially in foreign media or on foreign soil.
India's Parliament has faced prolonged disruptions, partly triggered by BJP representatives
demanding an apology from Rahul Gandhi for criticizing India during a UK visit. Gandhi's
comment about an "attack on the basic structure of democracy" was construed by the BJP as
a call for foreign interference.

Against this backdrop, Gandhi was convicted in Surat for remarks made in 2019, sarcastically
linking prominent Indian frauds to the name Modi. This led to his defamation conviction,
exposing regressive aspects of India's criminal defamation law enacted in 1860. The law
criminalizes any imputation concerning a person, even if indirectly named, allowing relatives
of deceased persons to claim defamation.
In this case, the complainant was a BJP legislator, Purnesh Modi, who alleged defamation on
behalf of all 130 million people in India with the last name Modi. The Surat court supported
this seemingly unreasonable charge.

India and major democracies have different approaches to defamation law. The U.S. and UK
transformed defamation law, emphasizing free speech. The U.S. Supreme Court's 1964 ruling
in New York Times Co. v. Sullivan shifted the balance in favor of robust speech, introducing
the "actual malice" standard and limiting criminal defamation laws. In contrast, India, even
after independence, retained legislation favoring the colonial elite, maintaining criminal
defamation and separate procedures for public officials.

Despite constitutional guarantees of free speech, the Indian judiciary interprets defamation
restrictions narrowly. In 2016, the Supreme Court upheld the constitutionality of criminal
defamation, a decision criticized for serving no legitimate public purpose. The legal
landscape contrasts with the trend in former British colonies and common law countries,
which have abolished or amended criminal defamation laws to protect public discourse.

The complex interplay between defamation laws and democracy:

In examining both defamation laws and democracy, particularly in the context of Rahul
Gandhi's recent expulsion and the broader landscape in India, several critical points emerge.
The use of defamation laws as a tool to stifle political dissent raises concerns about the health
of democratic principles and freedom of expression. The conviction of political figures like
Rahul Gandhi underscores the need for a careful revaluation of defamation laws in India,
which, unlike in many Western democracies, still carry criminal implications.

The contrasting approaches to defamation laws in the U.S. and the U.K., where legal reforms
prioritize robust free speech and accountability, highlight the regressive nature of India's legal
framework. The persistence of criminal defamation and the seemingly disproportionate
impact on political discourse raise questions about the true purpose of such laws in a
democratic society.

Rahul Gandhi's case also sheds light on the global perception of India's commitment to
democratic values, with reactions from foreign governments emphasizing the importance of
judicial independence. The use of legal measures to target political opponents, especially
when faced with criticism from foreign entities, raises concerns about the potential chilling
effect on public discourse and the democratic process.

In the broader international context, the trend toward reforming or abolishing criminal
defamation laws in former British colonies and common law countries aligns with a
consensus that such laws can impede free speech and public debate. The divergence in
approaches underscores the need for India to reassess its legal framework to better align with
the principles of a vibrant democracy.

Ultimately, the treatment of defamation cases in India, exemplified by Rahul Gandhi's

situation, prompts a crucial conversation about striking the right balance between protecting
individual reputations and safeguarding democratic ideals. Reforms that prioritize free
speech, transparency, and accountability are essential for fostering a robust democratic
environment, where citizens can actively engage in political discourse without fear of legal
repercussions.

Conclusion:

In conclusion, the examination of defamation laws in India, particularly in light of recent

events surrounding Rahul Gandhi's conviction, reveals a nuanced and complex interplay
between legal frameworks and democratic principles. The dual nature of defamation as both a
criminal and civil offense in India, as outlined in Sections 499 and 500 of the Indian Penal
Code, underscores the multifaceted challenges faced by the democratic process.

The historical evolution of defamation laws in India, rooted in colonial-era objectives of

maintaining public order and safeguarding state security, raises pertinent questions about their
relevance in the contemporary democratic landscape. The retention of criminal defamation,
coupled with its potential misuse for personal or political motives, poses a threat to freedom
of expression and democratic ideals.

Comparisons with global standards highlight the divergence in approaches, with many
countries having abolished or reformed criminal defamation laws to prioritize robust free
speech. The persistence of such laws in India, as reaffirmed in the Subramanian Swamy case,
invites scrutiny into whether they align with the evolving standards of freedom of speech and
expression.
The case of Rahul Gandhi, facing a two-year sentence for statements made during a political
speech, brings to the forefront the need to reevaluate the constitutionality and validity of
defamation laws under the IPC. The seemingly disproportionate impact on political discourse
and the potential misuse of these laws for political ends prompt a critical examination of their
role in a democratic society.

The international landscape, marked by instances such as Italy's call for defamation law
reforms and the recognition of the right to freedom of expression by the Inter-American
Commission on Human Rights, provides a broader context for assessing India's stance on
democratic values.

In light of these considerations, it becomes imperative for India to reevaluate and possibly
reform its defamation laws. The current legal framework, with its criminal implications and
potential for misuse, may hinder the democratic process by stifling political dissent and
discouraging free speech. Striking a balance between protecting individual reputations and
upholding democratic ideals requires a thoughtful reassessment of defamation laws in India.

Reforms that prioritize transparency, accountability, and alignment with contemporary

standards of freedom of speech are crucial for fostering a robust democratic environment.
The case of Rahul Gandhi serves as a catalyst for initiating a broader conversation on the role
of defamation laws in Indian democracy and the imperative of ensuring that legal frameworks
actively contribute to the flourishing of democratic principles.
 BIBLIOGRAPHY

1. Indian Penal Code (IPC) - The primary legal document for defamation laws in India.

2. Subramanian Swamy v. Union of India Case

3. International Perspectives on Criminal Defamation

4. Evolution and Rationale of Defamation Law in the Indian Penal Code

5. Recent Conviction of Rahul Gandhi

6. Global Status of Criminal Defamation Laws

7. Italy's Constitutional Court Ruling on Defamation

8. Inter-American Commission on Human Rights

9. Recent Developments in England and Wales Defamation Laws