• “I may not agree with what you have to say, but I will defend to death your right to say it” — Evelyn Beatrice
      • Free speech and expression forms the very foundation of any liberal, progressive democracy. The provision of Article 19(1) in the constitution highlights the wisdom and foresight of our constitution makers in regards to the concern of free speech. However, the presence of a draconian provision of IPC (section 499) has led to much uneasiness in the society regarding ability to speak, dissent and disagree without fear of criminal charges.
      • The recent Supreme court judgment that upheld the criminal nature of defamation opens pandora’s box in this debate.
    • The court has upheld the Sections 499/500 and 199(2) of the IPC.
    • Why important?
      • Freedom of Speech and Expression: The status of defamation as a criminal offense as per section 499 and 500 of the IPC leads to suppression of freedom of speech and expression guaranteed by Article 19 of the constitution.
        • Speech and Expression are the very fundamentals of a liberal democracy and without these, rights cannot be achieved in whole.
        • Self-Censorship is also a regressive outcome of these sections as individuals are afraid of pursuing free speech without fear of criminal prosecution.
      • Misused by Large corporates and powerful individuals
        • Due to high legal costs and complex legal mechanisms involved, it is frequently used by powerful individuals and organizations to stifle dissent, disagreement and sometimes even open reporting against them.
      • Historical Burden
        • Section 499 and 500 of Lord Macaulay’s Indian Penal Code of 1860, therefore, continue to stand in India. — prescribe 2 years’ punishment in case of defamation.
      • Outlawed Elsewhere: No other modern democracy prescribes defamation as a criminal offense anymore.
        • Already outlawed in most of the progressive democracies in the West, as well as countries like Sri Lanka.
    • Judicial Pronouncement:
      • Supreme court upholds defamation as criminal offence
      • The court said that “mutual respect is the fulcrum of fraternity that assures dignity. It does not mean that there cannot be dissent”
      • Article 21: The court said that “Right to Reputation” is also a constituent of Article 21.
      • Free Speech not absolute: Supreme Court has said that free speech cannot be used by media to injure an individual’s reputation. It noted that free speech is a “highly valued and cherished right”
        • It has said that while free press is heart and soul of political intercourse and is a public educator, an individual’s reputation is precious and cannot be maligned by the media.
      • Role of Media as a “Public Educator”: It called for media to act like a “public educator” and make formal and non-formal education possible at a large scale, particularly in a developing country like India.
        • Hence, press must observe “reasonable restrictions” and play its role of “advancing public interest by publishing facts and opinions without which a democratic electorate cannot make responsible judgements”
    • The court provided two different strokes on the issue of free speech.
      • In the first, it regards the “freedom of speech and expression as the first condition of liberty”.
      • While, in the other, it reins this liberty by cautioning that free speech is “not an absolute value under our constitution”
      • It also says that voice of dissent or disagreement has to be regarded and respected and not to be scuttled as “unpalatable criticism”.
    • The advocates of making free speech absolute by removing criminal aspect of defamation argued that this makes free speech difficult and suppresses it effectively due to the threat of prosecution. It said that criminal defamation has a chilling effect on press.

The Supreme Court also called defamation as a “crime against the society, and not just an individual”