Kartik Agarwal elucidates the problems in the defamation laws in India, and how a balance between the fundamental rights and the restrictions upon them on the ground of defamation should be made, to not deprive the citizenry of their constitutional guarantees.
Lately, the nation has been divided into two groups. People who say that humor, till a high degree, is a part of our right to freedom of speech and expression, and people who say that the current scope of humor in India is one which very much resembles Western ideologies and is not in accordance with our Indian culture and values. We have various comedians in our country, some good, and some bad. We have various topics on which jokes are formed, and various forms in which jokes are shared. But what we do not have, is a sense of humor. Because regardless of the state of humor in India, be it bad humor, or sensitive audience, there is a lack of sense of humor, either on the part of the comedians or the audience respectively. The thing with our country is that people take offense very easily. And when they do that, they can easily use the ultimate weapon that Indian legislation offers. The criminal defamation laws under Section 499 of the Indian Penal Code deals with criminal defamation and Section 500 provides the punishment for criminal defamation.
Section 499 reads as :
“Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reasons to believe that such imputation will harm, the reputation of such person, is said, except in cases hereinafter expected to defame that person.”
Section 500 of the Indian Penal Code provides for imprisonment of up to two years or/and fine.
THE PROBLEM IN THR DEFAMATIOB LAWS
(I) The Need for Balance : The simple problem with the legislation is that it is very vague. Feelings and emotions are non-quantifiable things, but since that is the case, the legislation needs to provide a balance for the alleged criminal. There should be a balance between the right to reputation and the right to freedom of speech and expression. The current laws are a powerful weapon in the hands of politicians and corporates and the government to stifle speech that questions their workings and their methods. They, instead of curbing actually dangerous and seditious statements, curb dissent and criticism.
(I) The Chilling Effect : Another problem of the current defamation laws offer is the existence of ‘chilling effect’. Chilling Effect refers to the inhibition or discouragement of the legitimate exercise of natural and legal rights by the threat of legal sanction. People are unable to freely exercise their rights due to fear of persecution.
Recently, AIB comedian Tanmay Bhat was made a party to national outrage over his Snapchat mockery via impersonation of Sachin Tendulkar and Lata Mankgeshkar, two of country’s favorite personalities. Previously also AIB was put under the scope for its show, AIB Knockout, a comedy-roast show organized with several of Bollywood’s leading personalities. However, regardless of all this, one thing we Indians do very well is take offence. The MNS took offence because a Pakistani actor, Fawad Khan was in a Bollywood movie and extorted money out of Karan Johar for the same. People took offence to Maria Sharapova not knowing who Sachin Tendulkar was. Self-styled godman Gurmeet Ram Rahim Singh’s supporters took offence to comedian Kiku Sharda’s impersonation of him. There are similar other instances of the nation taking offence on every little thing and dragging the defamation laws in the fray.
All this, with respect to chilling effect, creates an atmosphere of fear. People become afraid to voice their opinions. There are both direct and indirect controls over speech. It might be helpful to recognize coordinate controls on free discourse and circuitous or auxiliary controls on free discourse. India has had a long history of fighting immediate and roundabout controls on free discourse and with a couple of special cases, the interests of the press have frequently matched with the interests of a vigorous open circle of level headed discussion and feedback.
In late 1950s and mid-1960s, various substantial media houses fought confinements forced on the press by method for control of the quantity of pages of a daily paper, direction of the span of ads and the cost of imported newsprint. On the substance of it, some of these confinements may have appeared like business questions, yet the Supreme Court properly perceived that circuitous controls could antagonistically affect the individual’s entitlement to communicate or herself and to get data unreservedly.
(II) In the online setting, there has additionally been a comparative acknowledgment of the part of mediators in giving stages of discourse and it is because of this view, various nations have consolidated safe harbor arrangements in their data innovation laws.
People often quote that their offence is a part of their right to freedom of speech and expression, which is reasonable and constitutionally guaranteed. But the problem is that they do not realize that the thing on which they originally took offence to, is also something that is constitutionally guaranteed. We need to ask ourselves if the problem is in our sense of humor or is it that our defamation laws, which are draconian.
Can we not handle a joke, and take offence on every little harmless thing? Or is it that the jokes are in fact, too vulgar and crass? In a lot of cases, it is the former and not the latter.