Should the law of defamation end, why debate is happening in the country, know what experts are saying

Virag Gupta

Last week, a Gujarat court sentenced Rahul Gandhi to a maximum of two years’ imprisonment under Section 500 of the IPC in a case registered under Section 499. In this case, the complainant had also filed a case under section 504. This law also has a provision of maximum punishment of two years. After this decision, defamation law is once again in discussion and some aspects of it are being questioned.

In case of defamation due to objectionable talk, speech, cartoon or article etc., the aggrieved person can claim compensation in the district court or the High Court. In this, the aggrieved person will have to prove that he has been defamed publicly because of the words of the other person. Courts have been awarding punishment on conviction, but in Rahul Gandhi’s case there are some reasons for which its decision is being criticized.

Section 202 of CrPC determines the jurisdiction of magistrates in criminal cases. In the Rahul case, the objectionable speech was given in Karnataka. Questions are being raised that from where did this matter again come under the jurisdiction of Surat’s CJM Court? The Supreme Court, while dismissing the criminal defamation case against Manoj Tiwari in October 2022, had said that there must be clear and direct defamation of the victim to make allegations under Section 499. The names of Nirav, Lalit and Narendra Modi were mentioned in Rahul’s speech, so there are questions about the defamation of MLA Purnesh Modi and the validity of the lawsuit filed by him.

For speedy trial, 764 fast track courts have been set up in the country. According to a report, the number of cases in these courts has increased from 10.7 lakh to 15 lakh in the last three years. In the era of sluggish judicial system, in Rahul’s case, the new CJM finished the hearing within a month and pronounced the verdict and sentence. The Supreme Court had said in the Kultar Singh case of 1965 that cases of political rhetoric should be avoided from being brought under the ambit of crime. The 168-page judgment in Gujarati mentions the old decision of the Supreme Court, but does not respect what the Supreme Court has said.

There are 10 more criminal defamation cases pending against Rahul, but he is yet to be convicted in any of the others. That’s why questions are being raised even on the maximum punishment of two years for the first offence. It is being said that the law of defamation attacks on our fundamental right of expression and speech under Article 19(1)(a). On this basis, a lot has been done against it in the Supreme Court.

According to the Supreme Court’s 2013 decision in the Lily Thomas case, membership of Parliament is automatically canceled if the sentence is more than 2 years. A PIL has been filed in the Supreme Court demanding a reconsideration of the law to disqualify members of Parliament in cases of conviction for criminal defamation. In 2015, 25 petitions were filed against the criminal defamation law in the Supreme Court on the grounds of freedom of expression. Along with Rahul Gandhi, leaders of other parties like Dr. Subramanian Swamy and Arvind Kejriwal were also included.

In 2016, the Supreme Court held that there are several reasonable restrictions on freedom of expression under Article 19(2). According to the court, under Article 21, every person has a fundamental right to maintain dignity. That’s why the court stamped the law of criminal defamation, citing sections 499 and 500 of IPC as rational. Critics say that countries such as Britain, Australia and New Zealand have repealed this law. But Explanation-4 of Section 499 of IPC in India is too broad, lacking legal clarity to prevent its misuse. In such a situation, this debate is becoming more intense.