New Delhi, Nov 16 (IANS): India is way behind other legal systems that have long junked defamation as a criminal offence, retaining it only as a civil offence involving exemplary costs.
Most developed and even some developing democracies have turned their back on the law which criminalizes defamatory utterances, but India's legal fraternity is surprisingly chary of letting this go. Several legal eagles of redoubtable commitment to personal liberty and freedom of expression seem to favour continuing with the 150-year-old-law, framed by Thomas Macaulay in 1860, in the face of a challenge to it in the Supreme Court.
The court is yet to examine the plea by the brilliant maverick of a politician and now BJP leader Subramanian Swamy.
Swamy has urged the court to read down the law so that no one is convicted for criminal defamation. Instead, exemplary costs could be imposed if the charges was proved beyond doubt.
The law, as it stands now, epitomized in Section 499 and 500 of the Indian Penal Code (IPC), carries a jail term of up to two years or a fine or both. Swamy wants the top court to do away with this penal clause.
He has also urged the court to strike down Section 199 (2) (prosecution for defamation of those holding public positions) of the Criminal Procedure Code.
Senior advocate Ram Jethmalani only partially agrees with Swamy. He was reluctant to countenance a view where defamation was reduced to a mere civil offence, but agreed that the law cannot treat those in public office and others on a different footing.
"Just because you are a higher public servant, why should law make a difference? But completely doing away with it as a criminal offence was a matter of policy since Macaulay made it," Jethmalani told IANS.
"Some defamation is so wicked and wild that criminal punishment is desirable," he added.
Senior advocate K.T.S. Tulsi, however, said that functionaries defined under Section 199(2) require protection from motivated and irresponsible utterances.
"Constitutional functionaries have to be protected from the ignominy of irresponsible criticism and utterances if the peoples' faith in them and democratic institutions has to be preserved," Tulsi told IANS.
Several international covenants favour the abolition of criminal prosecution in defamation cases, but why is India reluctant to do away with a provision that has been used to gag dissent?
Former Delhi High Court chief justice Rajinder Sachar said that tarnishing someone's reputation was in many ways worse than inflicting an injury.
"You cause a physical hurt or give a blow on my nose. The hurt will heal and the scar will go. But loss of reputation is a serious matter," Sachar told IANS.
"Reputation is my life, my existence. If it goes, everything goes. I can't exist. Prima facie to me it (Swamy's stance) looks like an extreme view. If monetary compensation is the only alternative, it will be a vulgar thing to happen and prone to mischief," he added.
Another former judge of the Delhi High Court, Jaspal Singh, questioned the logic of lobbing everything to civil courts.
"Supposing the victim is not interested in compensation in terms of money? A civil suit would be an exercise in futility. The criminal justice system is faster and retributive," Jaspal Singh told IANS.
However, the rigour of the law could well be toned down without striking down the law itself, suggested senior advocate Bishwajit Bhattacharya as an alternative.
"Any harsh provision by itself may not always be liable to be struck down as ultra vires of the constitution. It is up to the criminal court to be extremely cautious and circumspect while dealing with such provisions," Bhattacharya told IANS.
Whether or not it continues to be a criminal offence in India is more a matter of executive policy and legislative wisdom, he added.