Criminal defamation has a chilling effect on free speech. Civil law can protect right to reputation

Two defamation cases decided within a week again highlight why criminal defamation is an unreasonable restriction on free speech. A Delhi court upheld activist Medha Patkar’s conviction in a case filed by VK Saxena 24 years ago when the current Delhi LG headed an NGO in Gujarat, and Patkar led NBA. Last year, she was sentenced to 5 months in jail and fined Rs 10L. Patkar will receive her sentence on April 8. In Bengal, Calcutta HC quashed a defamation suit by an educational institute’s superintendent, who had sued over 280 people in 2013 for petitioning Bengal CM against him. Calcutta HC said public interest far outweighed official’s right to reputation. But for 15 years, 280 people had a criminal case against them – that can wreak havoc with students’ futures.

Rahul Gandhi was convicted in a defamation case and disqualified from Parliament. Kejriwal apologised to Arun Jaitley. From Digvijaya Singh to Subramanian Swamy, defamation is a suit easily slapped, hard to shake off. If the widely varying outcomes of such cases are any indication, what stands out is the inconsistency and vague interpretations of ‘reputation’ and chilling effect on free speech. There are two ways to review this. Ideally, remove defamation totally. Removal will not leave reputation unprotected. BNS Sec 351 deals with criminal intimidation – threatening someone with harm to body, reputation, or property. Further, BNS Sec 352 provides for “insult to someone to provoke breach of peace”. Both are reasonable restrictions on free speech with provisions that protect right to reputation. Or, decriminalise defamation. A civil law would reflect the sensitivity required to preserve both right to free speech and right to reputation. And of course, our politicians do need to grow a thick skin. 

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This piece appeared as an editorial opinion in the print edition of The Times of India.

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