“Criticism may not be agreeable, but it is necessary. It fulfils the same function as pain in the human body; it calls attention to the development of an unhealthy state of things'' -By Winston Churchill. Right to freedom of speech and expression is a fundamental right guaranteed by the Indian constitution part 3. Article 19 (1) states that “all citizens shall have the right to freedom of speech and expression”. Though fundamental rights are not absolute in nature they are exercised within reasonable restrictions. A human being has no standing in the real world if he can not exercise the right to freedom of speech and expression freely. He becomes utterly invisible in this world. The right to freedom of speech and expression fortifies our identities and it is of extreme importance to express one's view in a democratic country. Article 19 (1) does not only mean the right to freedom of speech but also freedom to criticize freely. Be it any person, politician or government. We often come across news of a journalist being murdered, or a person spent night in jail after tweeting something against a politician or some posts, photos of tweets taken down by the government. All these things seem very mediocre to us now. India is a free democratic country where people without the fear of government can criticize as well as keep their point of view loud and clear. Exercising rights doesn’t mean that any person can say anything and create havoc in the country. Right to live with dignity is also a fundamental which should not be hampered at all. Any person can not go on defaming another person's reputation which would have severe effects on his life. Criminal defamation is defined under section 499 and 500 of IPC. Section 499 reads “ 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 reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person” and section 500 read “Whoever defames another shall be punished with simple imprisonment for a term which may extend to 2 years, or with fine or with both”. Criminal defamation is somewhat part of article 19 (2) which allows the state to make laws which impose reasonable restrictions on this right. To maintain our country’s integrity and sovereignty, friendly relations with other countries, morality, public order, decency and most importantly security. It is to stop contempt of court and to stop the offender from inciting the public. for This curtails article 19(1). Criminal defamation is bailable, a non-cognizable and a compoundable offence. And it violates the right to freedom of speech and expression. Criminal defamation is much graver than civil defamation the accused has to prove that his or her statements have the veracity and were made in public interest and have to prove beyond reasonable doubt. Though we already have civil remedies for defamation and it is made clear by the apex court that it is not sufficient. If they are not sufficient then they should be improvised and amended. It is a smart tactic by the government to curb our rights and silence our voice. Now anyone can be made liable for a simple remark made against the government and will be liable for criminal defamation which is a clear violation of article 19 (1). It gives immense power at governments disposal. The apex body Supreme court in the case of Subramanian Swamy vs Union of India approved the constitutional validity of criminal defamation. The court opined that “individual’s fundamental right to live with dignity and reputation, cannot be ruined solely because another individual can have his freedom” and “the right to freedom of speech and expression is not an absolute right” and has to be “balanced with the right to reputation” which is protected under Article 21 of the Constitution”. This was a slap on the face of democracy. The judgement was delivered in 2014. And in 2016 Biju Janata Dal MP Tathagata Satpathy introduced “The Right to Protection of Speech and Reputation Bill, 2016” as a private members’ Bill. Asking to decriminalize defamation. It recommended more stringent civil remedies and also limited state bodies on filing a number of criminal defamation cases. Also, the law commission of India was not in consonance with current state of defamation laws and agreed on the fact that 2 years for criminal defamation is unreasonable. Defense in criminal defamation cases is not sufficient; it eliminates the defense of showing due or reasonable care while speaking is not reason enough to escape the liability. This ruling muffles citizens' voices to even a greater extent. The supreme court of our country is looked up to, to hold the spirit of the preamble and protect the sole of the constitution, but this judgement dragged us deeper in the swamp of curtailing our right to freedom of speech and expression.
India in the year 2020 ranked 142nd on the global press freedom index, in a country where the media is often claimed as the fourth pillar of democracy. It shows that we don't practice what we preach. A journalist was arrested by the UP police for tweeting that a woman was in a relationship with CM Yogi Adityanath and wanted to marry him. A Manipur journalist criticized Manipur Chief Minister N Biren Singh as a "puppet of Centre" and a "puppet of Hindutva" and spent one year in jail. Recently Arnab Goswami was dragged out of his home by Mumbai police in an old case, but the real reason was evident in front of the nation. Kananga’s office in Mumbai was demolished by BMC, but later on an order was released by the Bombay HC. A website called Let India Breathe was blocked after opposing the EIA draft. The list is long, criminal defamation cases should not be entertained if they are not severe in nature, there must be a preliminary inquiry before knocking the doors of the court. This might help us combat arbitrariness. It is true that be it a legal right or fundamental right it cannot be absolute in nature and we cannot enjoy our rights at the expense of others' rights. But when we already have procedure and remedy for an offence then why further curtail it with the burden of criminal charge.
-By Bhuwaneshi Gupta
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