Prashant Kanojia's arrest underscores need to revisit law on criminal defamation, restrictions on right to free speech

Much has been written about the recent arrest of journalist Prashant Kanojia by the Uttar Pradesh Police. He was arrested for posting a tweet, in which a woman claimed she was in a relationship with Chief Minister Yogi Adityanath and wanted to marry him. Kanojia had shared the tweet with his own mocking comment. (The Supreme Court ordered Kanojia's immediate release on Tuesday after hearing his wife’s petition challenging his “illegal arrest”.) Despite the procedural irregularities related to the arrest, the case presents yet another opportunity to revisit the law regarding criminal defamation , often used by the police in such cases to abuse the process. Sections 499 and 500 of the Indian Penal Code give legitimacy to criminal defamation in our country. Summarily, a defamatory act may encompass elements that are either spoken or intended to be read, as well as gestures and visual representations published or put up in the public domain, which could have a negative impact on the reputation of an individual. The offence is punishable with up to two years of imprisonment, or a fine, or both. [caption id=“attachment_6790661” align=“alignleft” width=“380”] Representational image of freedom of speech being curbed in India under defamation laws. Reuters[/caption] Criminal defamation has often been used to curb people’s freedom of speech and expression, which has instilled a fear criminal sanctions among people, forcing them to refrain from exercising their right to free speech. Therefore, it has always been a matter of academic debate, with many advocating for the revocation of this law. The British had introduced this provision to penalise any and every voice of dissent, with the primary aim to target the national movement. Its sustenance in Indian law is believed to be directed at favouring a token of colonialism and regressive ideology, and thus, criminal defamation is criticised as it defeats the idea of free speech and opinion, the very foundation upon which the Constitution and the tenets of democracy rest. The matter concerning the constitutionality of criminal defamation came up in the case of Subramaniam Swamy versus the Union Of India . The Supreme Court had held the provisions as constitutional, observing that they do not stand in conflict with the right to free speech. The court had observed that the right to freedom of speech and expression was not an absolute right , and the criminal sanctions of criminal defamation would not have any “chilling effect” on such freedom. The main reasons for the court to arrive at this decision was that the law on defamation serves the larger interest of the public, and that the mere possibility of its abuse should not make it unconstitutional. However, there are serious flaws attached to this judgment. To understand the problem with the verdict and then the entire law on criminal defamation, we need to understand the conspectus within which the right of freedom of speech of a citizen of India operates. The freedom to speech and expression is guaranteed to every citizen of the country under Article 19 (1)(a) of the Constitution of India. However, this is not an absolute right, and certain reasonable restrictions can be enforced upon it as provided under Article 19(2) — defamation is one of these restrictions specified. However, the Article does not mention whether the reasonable restriction is one of civil defamation or criminal. Nevertheless, a glance at the Supreme Court’s previous judgments helps understand that the term “reasonable” requires striking a proportionate balance between the degree to which free speech is infringed upon and the primary interest at stake. Defamation is essentially a private wrong, wherein only the person affected is concerned, whereas criminal wrongs are graver and affect the society. Converting defamation into a criminal offence enforces a disproportionate restriction on free speech, and thus, cannot be used to curb the right guaranteed under Article 19 (1)(a) of the Constitution of India. Till a significant public element is not involved in making the restriction proportionate, freedom of speech should be given precedence over defamation. Furthermore, the question of the “reasonableness” of civil defamation was settled in the case of R Rajagopal versus the State of Tamil Nadu, wherein the Supreme Court had adopted the “Sullivan test”, which makes the accused liable for defamation only if he had made the statements with reckless disregard for the truth. However, this does not apply for criminal defamation cases, where even the defence of showing due or reasonable care while speaking is not reason enough to escape the liability.

Moreover, the procedure governing the prosecution for defamation under the Code of Criminal Procedure (CrPC) is also unreasonable as the criminal process itself creates a substantive burden on free speech. Here, the court’s argument that the mere possibility of abuse should not make criminal defamation unconstitutional does not hold water.

With the proliferation of news today, the instances where a statement can be construed as defamation have no limits. Kanojia’s “offensive” tweet can be considered an example of a defendant’s hardship in defamation cases and of how such cases get augmented when they go through various jurisdictions, with any number of cases being allowed to be filed against an accused under Section 199 of the CrPC. Therefore, for just one tweet, Kanojia will now have to travel to every jurisdiction and defend himself in every case filed against him. The innocent defendant also faces the abuse of law as he is supposed to be present at the location where the case was lodged against him. In our time, as information spreads rapidly, anyone who finds a statement defamatory can file a case. This is mostly done by those who hold power. For example, politicians file defamation cases to harass civil activists as they have to undertake every journey to wherever a case is filed against them at their own expense. In fact, Human Rights Watch has reported several instances of such harassment, including by the Tamil Nadu government, which had filed nearly 200 cases of criminal defamation against individuals between 2011 and 2016. As a result, in addition to being an unreasonable restriction on free speech, the way the law on criminal defamation operates in India has a chilling effect on citizens’ sacrosanct freedom of speech and expression. Kanojia’s arrest highlights precisely why India ranks as low as 140 among 180 countries on the World Press Freedom Index. It is high time that we, as a nation, recognise the importance of freedom of speech and expression in a democracy. Various countries have declared the law on criminal defamation unconstitutional because of the aforementioned problems, and with such instances of illegal arrests persisting, it is time India follows suit. The author is an assistant professor of law at Maharashtra National Law University, Mumbai, and Neelabh Bist is a fourth-year student of law at the institute