SECTION 499 of the Indian Penal Code 1860 defines the offence of defamation; Section 500 prescribes the punishment for it. In Britain the offence of criminal libel is obsolete.

On Feb 18 this year, India’s minister for information and broadcasting, Ambika Soni, told the executive committee of the Editors Guild of India that she would ask the law minister to consider their proposal that the Penal Code be amended to decriminalise defamation. Sections 499 and 500 are 150 years old and are a fertile source for harassment of journalists. The civil law is sufficient. Many countries like the US, Britain and Sri Lanka had decriminalised defamation.

In 1980, Lord Diplock pointed out in a case decided by the House of Lords (Gleaves vs Deakin [1980] AC 447 at 483) that the law on criminal libel conflicted with the European Convention on Human Rights. By the same token criminal law of defamation violates the fundamental right to freedom of speech and expression embodied in the constitutions of Pakistan (Article 19) and India (Article 19 (1)(a) ).

The law of Libel Amendment Act 1888 provided a safeguard (Section 8) — leave from a high court judge prior to a prosecution. There was no such safeguard in the CrPC of 1898 or the Penal Code, 1860.

Opinion on the conduct of a public servant “in the discharge of his public functions or respecting his character, so far as his character appears in the conduct” will, if it is defamatory, require proof of “good faith” as a defence. Section 52 of the Penal Code defines these words to mean something done or believed only with “due care or caution”.

But as applied to the conduct of public servants themselves, when faced with legal action for their wrongs, Section 33 (22) of the General Clauses Act 1897 says that “a thing shall be deemed to be done in ‘good faith’ where it is in fact done honestly, whether it is done negligently or not”.

Negligence is no offence in the rulers. It is in a citizen if he exposes the public servant’s misdeeds.

The celebrated case of the New York Times Company vs Sullivan, decided by the US Supreme Court in 1964, is very relevant.

Justice William J. Brennan spoke for the court: “We are required in this case to determine for the first time the extent to which the constitutional protections for speech and press limit a state’s power to award damages in a libel action brought by a public official against critics of his official conduct.”

On the issue of falsity, Justice Brennan rested his conclusion on two grounds. The first was that “erroneous statement is inevitable in free debate and … must be protected if the freedoms of expression are to have the ‘breathing space that they need … to survive’.”

He added: “A rule compelling the critic of official conduct to guarantee the truth of all his factual assertion — and to do so on pain of libel judgments virtually unlimited in amount — leads to … ‘self-censorship’. Allowance of the defence of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred. … Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which ‘steer far wider of the unlawful zone’.” …The rule thus “dampens the vigour and limits the variety of public debate.”

Justice Brennan stated the rule of libel law that would satisfy the constitutional guarantee of free speech: “The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”

The rule was “appropriately analogous to the protection accorded a public official when he is sued by a private citizen. A similar privilege should be given the citizen-critic of government” … “it is as much his duty to criticise as it is the official’s duty to administer.”

Also relevant is an Indian case. On Oct 7, 1994, in the case of the journal Nakkheeran, the Supreme Court approved the rule in The New York Times case as a good law in India also. Delivering the court’s judgment, Justice B.P. Jeevan Reddy recalled that in England as well, the rule was applied in Derbyshire County Council v Times Newspapers Ltd. in 1993.The House of Lords ruled that there are rights available to private citizens (to sue for libel) which institutions of government are not in position to exercise unless they can show that it is in the public interest to do so. Lord Keith said that not only is there no public interest favouring the right of organs of government, whether central or local, to sue for libel, but that it is contrary to the public interest because to admit such actions would place an undesirable fetter on freedom of speech.

A public official has no right to privacy or for that matter, the remedy of action for damages in respect of conduct in his official capacity. Justice Reddy said, “This is so even where the publication is based upon facts and statements which are not true, unless the official establishes that the publication was made (by the defendant) with reckless disregard for truth. In such a case, it would be enough for the defendant (member of the press or media) to prove that he acted after a reasonable verification of the facts; it is not necessary for him to prove that what he has written is true.”

The Supreme Court’s observations should apply a fortiori to criminal cases as well although it did not opine on this point.

The writer is an author and a lawyer.