THE law of defamation in India is in a shambles; both in civil as well as criminal law.

Civil law punishes it as a tort; a civil offence punishable in damages awarded to the plaintiff by a court in a civil suit. It is not codified by any statute but is based on case law, very largely on English cases.

The criminal law of defamation is codified in Section 499 of the Indian Penal Code 1860 which is unconstitutional and void. So is the civil law unless a vital proviso is added to the law based on a ruling by the US Supreme Court in 1964 in the famous case of The New York Times Company vs Sullivan, 1960.

Justice William J. Brennan said 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”.

Justice Brennan stated the rule of libel law that would meet the demands of the First Amendment, guaranteeing 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 law of libel in India is not codified by any statute.

He noted that 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 to “the citizen-critic of government”. It is as much his duty to criticise as it is the official’s duty to administer.

On Oct 7, 1994, in the Nakkeeran case, the Supreme Court of India approved the rule in The New York Times case in India’s context.

It was held: “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.”

But there was no opinion on “the impact of Article 19(1) (a) (guarantee of free speech) read with Clause (2) thereof on Sections 499 and 500 of the Indian Penal Code”.

However, since imprisonment is a greater deterrent than monetary damages, the Supreme Court’s dicta should apply with greater force to criminal cases.

Section 499 of the Indian Penal Code stands clearly in violation of the right to freedom of speech and expression. It was introduced by the British rulers to protect their officials. A vital safeguard in English law against the abuse of the criminal law was omitted.

Under the Libel Amendment Act, 1888 prior leave from a high court judge was required before filing a complaint for criminal libel.

He had to be satisfied that an exceptionally strong prima facie case existed, and the libel was serious and public interest required the institution of criminal proceedings.

The last such cases were brought by Sir Oliver Goldsmith in 1977 against the editor of Private Eye. He settled it. Another in 1992 failed completely. The Law Commission advised that it be abolished. The Coroners and Justice Act, 2009 abolished the criminal offence of libel.

That statute does not apply outside the UK. But rulings of courts of eminence are cited in our courts as precedents of high persuasive authority.

Article 10(1) of the European Convention on Human Rights and Fundamental Free­doms embodies “the right to freedom of expression”.

Clause (2) permits restriction by law on stated grounds if they “are necessary in a democratic society”. This is akin to Article 19(2) of the Indian constitution which permits “reasonable restrictions” on that right.

In Lingens vs Austria (1986) Bruno Kreisky, leader of the Austrian Socialist Party, successfully prosecuted Lingens, editor of a paper that had attacked him for “the basest opportunism” for entering into an alliance with ex-Nazis.

The European Court of Human Rights quashed the conviction. “The limits of acceptable criticism are wider as regards a politician as such than as regards a private individual.”

The great judge Lord Diplock held in the House of Lords in 1980 that the offence of criminal libel violated the European Convention on Human Rights. Both dicta render Section 499 of the Penal Code, defining the criminal offence of defamation, void as being a violation of the right to freedom of speech and expression.

The writer is an author and a lawyer based in Mumbai.

Published in Dawn, March 19th, 2016