Medha Patkar, the well known social activist has been sentenced to five months imprisonment on conviction for the offence of “criminal defamation” under section 500 of the Indian Penal Code, 1860 (IPC). The newly rechristened penal code the Bhartiya Nyaya Sanhita, 2023 (BNS) retains the offence of criminal defamation with the concomitant punishment of imprisonment up to two years as Section 356 BNS. The case was filed by the present Delhi Lieutenant Governor VK Saxena in 2001. The curtailment of liberty by incarceration brings us to the vital issue of whether defamation should at all fall within the domain of criminal law or rightfully falls within the domain of a civil wrong. The remedy for civil wrongs is damages and apology while a criminal offence is punishable with imprisonment and fine.
The definition of criminal defamation in the IPC is based on the English Common Law which places a high value on reputation as a ‘man’s’ property more valuable than material assets and a jus in rem, a right good against all the people in the world. The definition of criminal defamation remains broad and vague with the threat of curtailment of liberty through imprisonment and leaves space for harassment, especially by the high and mighty. Mr. M.J. Akbar, erstwhile Minister in the BJP Government filing a case of criminal defamation against journalist Priya Ramani – the victim-survivor, is a case in point.
Under the Common Law statements exposing a person to public hatred, contempt and hatred were considered defamatory and fell in the category of libel and slander. Libel involved publishing defamatory statements tending to injure the reputation of another person and slander constituted statements through spoken words or gestures. Criminal liability under English Law was attracted when libellous matter had a direct tendency to provoke breach of the peace. This involved a tendency to arouse angry passions, provoking revenge or challenges to fight, thus endangering public peace and therefore fell in the category of criminal offence. Defamatory statements without the element of breach of peace were civil wrongs.
In the Indian law, the liability for the civil wrong of defamation is not codified and continues to be governed by the Law of Torts, as evolved in England. The Law of Torts, coming from tortuous or twisted conduct, continues to primarily depend on judgments of common law courts of England. However, the law with regard to criminal liability for defamation was codified under section 499 and made punishable under Section 500 of the Indian Penal Code, 1860. Defamation has been made punishable with imprisonment up to two years or with fine or both. Imprisonment directly affects the valuable right to life and liberty guaranteed under Article 21 of the Constitution.
Criminal Defamation has been defined as imputation by publishing, spoken words or signs intending or knowing or having reason to believe that it will harm the reputation of the person. Harming a person’s reputation has been defined broadly as an imputation which lowers the moral or intellectual character, or lowers the character of a person in respect to his caste or calling or lowers his credit or causes to be believed that the body of the person is in a loathsome or disgraceful state. Ironical expressions are also included in defamation and imputations could be against a person or a company or an association or collection of persons. Reports of court proceedings, merits of decided cases or conduct or witnesses, merits of public performances, censure by lawful authority, accusation in good faith to authorized person and imputation or caution made in good faith to protect interests or for the public good have been carved out as exceptions under Section 499 IPC. Truth is not a defense to a charge of criminal defamation, and it must also be proved that the imputation was made for the public good. Public conduct of public servants and conduct of a person touching any public question have been taken out of the category of criminal defamation.
V K Saxena versus Medha Patkar case
Saxena was the president of an Ahmedabad-based NGO with the official sounding title of National Council for Civil Liberties. In 2000 Saxena published an advertisement against Narbada Bachao Andolan (NBA), the movement that opposed the construction of dams over the Narmada river. As a reaction to the advertisement Medha Patkar as the leader of NBA, issued a press statement that Saxena was agent of the Gujarat government and was mortgaging the people of Gujarat and their resources to Bill Gates and Wolfensohn. The present conviction and sentence is by a Metropolitan Magistrate after twenty-three years. The court has stayed the sentence for thirty days to give time to appeal to the leader.
The case will find its way through the labyrinthine legal system of our country where the courts will decide whether being called an “agent of Gujarat Government” lowers the character of a person. Public debates and differences of opinion whether constructing dams on a river will bring in prosperity or impoverish people are integral to democracy. Imputation that a person is mortgaging the people of a state by supporting the construction of dams appear to be bonafide expressions of opinion expressed and made for public good. Bringing down the wrath of the law by throwing a person in jail may be an unreasonable restriction to the freedom of speech and expression enshrined in Article 19(1)(a) of the Constitution.
The learned Magistrate’s findings that the complainant Saxena suffered tremendous damage to his reputation, trustworthiness and social standing seem to have weighed heavily in the decision to jail Patkar. Mr. Saxena from being the president of an NGO in 2000 is today the Lieutenant Governor of Delhi NCR enjoying plenipotentiary powers. The latin phrase “Res ipsa loquitur” translatable as “the thing speaks for itself” seems befitting in the circumstances.
Way ahead
Exceptions have been carved out in the provision, however, criminal defamation law enacted in 1860 remains broad and vague with the Damocles Sword of imprisonment curtailing liberty. It is relevant to keep in mind that even the civil defamation law is, by and large, a recourse for wealthy public figures hiring expensive lawyers to seek damages against individuals and perceived unfair treatment by the press. Perhaps, restricting to defamatory statements inciting to an offence or violence as punishable offences in the arena of criminal defamation could be a possible middle ground to explore between the law as it stands today and decriminalization.
Rakesh Shukla practices law in Delhi and is a member of the Supreme Court Bar Association
