Debate reignited over need to redefine and reform defamation law

The misuse of laws relating to criminal and civil defamation have become a talking point in the society as it is allegedly being selectively used against those leaders who raised questions with regard to crucial decisions about the affairs of the government, writes Mudit Mathur The Constitution of India guarantees free speech and expression to be a fundamental right of every citizen which is not absolute but subject to certain reasonable restrictions; defamation being one of them. The recent political developments slapping criminal defamation cases on prominent politicians and journalists allegedly, as a tool to muzzle dissent and obstructing them from raising uncomfortable questions before the political leadership. This has reignited debate among legal fraternity to redefine and reform the scope of criminal defamation as reasonable restriction vis-à-vis constitutional guarantee of freedom of speech and expression in the light of Subramanian Swamy versus Union of India with special reference to Shreya Singhal’s case. Whether it is the filing of Strategic Lawsuits against Public Participation (SLAPP) or other cases on infringement of private or public rights, defamation is adopted in defence as a matter of prerogative and that being right to reputation. Therefore, legal circles felt that it becomes imperative to re-examine these issues in the light of the judgement delivered so that clouds of doubt go away and give vent to an informed consensus on the issue of defamation. Shreya Singhal’s case is a landmark judgement in the field of freedom of speech and expression. This landmark case brings forth various dimensions which are important facets of article 19(a). Section 66A which was widely criticised for its over breadth, vagueness and its chilling effect on speech was struck down by the apex court as it was unconstitutional. Regarding over breadth, apex court opined that the net cast by section 66A was so wide that virtually it covered any opinion on any subject. Nariman J’s opinion has highlighted that the liberty of thought and expression is not merely an aspirational ideal. It is also “a cardinal value that is of paramount significance under our constitutional scheme.” On the purported justification offered by the state on grounds of defamation, incitement to an offence, and decency or morality, under article 19(2), the Supreme Court, ruled it as pithily dismissive. The court pointed out that there was no nexus whatsoever between the criminalisation of “grossly offensive” or “annoying” speech and the restrictions permitted under the constitution were self-evident.