By Kush Kafra
Free speech, which is guaranteed by Article 19(1)(a) and made subject to certain limitations in Article 19(2), is essential to a democracy, for democracy is fundamentally based on free debate and open discussion. A citizen has the right to exercise free speech in a democracy by discerning information and eventually making a choice.
The article argues that if freedom is curtailed by taking recourse to colonial laws of defamation, the cherished value under the Constitution would be in peril. Free speech encapsulates the right to circulate one’s independent view and not to join in a chorus or sing the same song.
Free speech includes the right of propagation of ideas. The freedom of speech and expression cannot be restricted unless such freedom endangers community interest and that danger has an immediate and proximate nexus with the expression.
Reasonable restriction is founded on the principle of reasonableness, an essential facet of constitutional law. If a restriction invades and infringes a fundamental right in an excessive manner, it cannot be treated as having passed the test of reasonableness.
The article contends that Sections 499 and 500 of the Indian Penal Code are demonstrative of infringement in excess and therefore cannot be granted the protection of Article 19(2). Freedom of expression is quintessential to democracy, which requires debate, transparency, criticism and dissemination of information.
The intent of criminal law relating to defamation cannot be the lone test to adjudge constitutionality; the article emphasizes the ‘effect doctrine’ for understanding the impact of a law that abridges a fundamental right.
Freedom of speech and expression in a spirited democracy is a highly treasured value. It permits argument, allows dissent to have a respectable place and honours contrary stances. Yet the question arises whether freedom should be so wide that it makes the reputation of another individual, group or collection of persons absolutely ephemeral.
Reputation and Article 21
The freedom of thought and expression includes dissent because disagreement or expression of a contrary opinion has significant constitutional value and is an acceptable pillar for a free and harmonious society.
Reputation is part of Article 21 of the Constitution. The right enshrined under Article 19(1)(a) cannot simply brush away the right under Article 21; there has to be balancing of rights.
In many countries, criminal defamation does not infringe freedom of speech. The submission that protection of reputation can be sufficiently achieved through civil law cannot, according to the article, by itself be a ground to declare Sections 499 and 500 IPC unconstitutional. Criminal and civil law operate in different spheres and have different societal perceptions.
Monetary damages in civil law cannot be said to be the only panacea. Permitting an individual to initiate criminal action against a person making a defamatory remark does not, according to the reasoning reproduced in the article, affect the constitutional right to freedom of speech.
Reputation, which encapsulates self-respect, honour and dignity, cannot be adequately compensated in money. Even if reputation is thought of as a form of property, it is not merely property: reputation is part of individual personality and dignity.
The State is under an obligation to protect the human dignity of every individual. Simultaneously, freedom of speech has constitutional sanctity. In such a situation, balancing of rights is imperative.
Conclusion
Right to freedom of speech and expression is a highly valued and cherished right, but the Constitution conceives of reasonable restriction. In that context, criminal defamation in the form of Sections 499 and 500 IPC is not a restriction on free speech that can be characterized as disproportionate. Right to free speech cannot mean that a citizen can defame another. Protection of reputation is a fundamental and human right and cumulatively serves the social interest.