Alka Vasudeva
Living in democracy has been blessing to all of us born post 1947 but certain questions keep surfacing. Since you are the highest seat in the hierarchy of judicial system therefore the onus lies with you to clear the haze and allow the citizens respite from their doubts.
First of all you make us understand the benefit of archaic laws established by imperialist mindset of British. The recent judgment regarding the defamation law is really upsetting. The bench feels that a person is half dead when defamed where as in our country the life of dignity cease to exist for 25% of the population.
The particular case of keeping Article 499 saves the honor of the elite. As per this judgment anyone is not free to express the discontentment with the system. Moreover it is leaving a loophole in the judicial system as in 2015 the honorable court struck off Article 66A.
When I was reading a blog post by Pranesh Prakash, who is a Policy Director with the Centre, and is a graduate of the National Law School of India University, Bangalore, with a degree in Arts and Law, I realized that 499 is very similar in nature to 66A.
For reference some part of his post is copied and pasted as such with no editing as the sole purpose has been to re confirm the reasons as to why clinging on to this Defamation law is futile exercise as its twin has already been scrapped.
“Section 66A which punishes persons for sending offensive messages is overly broad, and is patently in violation of Art. 19(1) (a) of our Constitution. The fact that some information is “grossly offensive” (s.66A(a)) or that it causes “annoyance” or “inconvenience” while being known to be false (s.66A(c)) cannot be a reason for curbing the freedom of speech unless it is directly related to decency or morality, public order, or defamation (or any of the four other grounds listed in Art. 19(2)). It must be stated here that many argue that John Stuart Mill’s harm principle provides a better framework for freedom of expression than Joel Feinberg’s offence principle. The latter part of s.66A(c), which talks of deception, is sufficient to combat spam and phishing, and hence the first half, talking of annoyance or inconvenience is not required. Additionally, it would be beneficial if an explanation could be added to s.66A(c) to make clear what “origin” means in that section. Because depending on the construction of that word s.66A(c) can, for instance, unintentionally prevent organizations from using proxy servers, and may prevent a person from using a sender envelope different from the “from” address in an e-mail (a feature that many e-mail providers like Gmail implement to allow people to send mails from their work account while being logged in to their personal account). Furthermore, it may also prevent remailers, tunneling, and other forms of ensuring anonymity online. This doesn’t seem to be what is intended by the legislature, but the section might end up having that effect. This should hence be clarified.”
It is pertinent to mark that “what statements are defamatory and the span of defenses varies from jurisdiction to jurisdiction but there is common agreement in all jurisdictions that statements that are unflattering, annoying, irksome, embarrassing or hurt one’s feelings are not actionable”.
Court in various cases held that for proving the clause of defamation it is pertinent to prove the means read of the defendant. Here, it is to be taken into consideration “that if a statement is made with a good intent and is for a good purpose, it cannot be said to be a case of defamation even if it contains allegations against a party”.
Across the countries Defamation law protects an individual’s reputation or feelings from unwarranted attacks. There is little dispute that defamation laws can serve a legitimate purpose and it is recognized internationally as a valid grounds for restricting freedom of expression. A good defamation law – one which lays the groundwork for striking a proper balance between the protection of individuals’ reputation and freedom of expression – aims to protect people against false statements of fact which cause damage to their reputation.
Surely the bench of learned judges might have some considerations other than the dignity of human being. The logic to use such words rest in the fact that as per this law a person can be penalized with financial fine or prison term.
Can reputation be purchased with money? No is the immediate and firm replying when this question is tossed among the scholars. Can the dent on the image of a person repaired by sending the accuser behind the bars? Can the damages claimed in terms of money establish the image again?
If the courts think that only rich spare the time to sue someone using defamation case then there is going to be need of separate courts only to deal with huge pile of such cases almost every day.
Spending eight years in prison with label of MACOCA offence Sadhvi Pragya Singh has been acquitted of the charges. Now it means that the entire list of officers engaged in the exercise to falsely implicate her in Malegaon bomb blast case is either going to be put behind the bars or forced to shell out some whopping amount as penalty. Practically both the measures are going to prove futile as those who believed in her innocence they continue to do so even today and those who heard her name for the first time through news channel debates are either unconcerned or they may keep the suspicion intact.
For elaboration let us talk about Hindi cine star Salman Khan and Sanjay Dutt. Both had been in the limelight for wrong reasons but it hardly reflected on their fan following.
Rajiv Gandhi died in 1991 but people have not been able to give him the clean chit in Bofors deal case. Lalu Yadav might have been instrumental in winning the elections for Bihar but his reputation is associated with fodder scam.
If the law is sustained then greater injustice is done towards millions who keep waiting for dates as these rich influential class keeps the courts busy with their bundles of defamation suits.
Here in our country where cases of physical abuse are very high and ignored the continuity of this law seems to be mockery. In our society there is reluctance to accept the survivor of a sexual assault and character assassination is handy how come the monitory compensation restores the lost self esteem? It is a big question.
Though under pressure of public outrage the Nirbhaya Fund was constituted but even today the conservative think tanks exist that do not talk with respect about the brave girl Jyoti. Her rapists are behind bars and one of them freed too. Does it mean the half population of fairer sex does not count when it comes to Reputation? Why the rapists are not held accused and tried under Article 499?
The civil courts are also brimming with cases as every now and then in the offices the employees are put under suspension or terminated citing ” verbal brawl ” as violation of code of conduct . In certain cases the employees daring to seek information using RTI law are also implicated with charges of defamation. Is it acceptable in the democratic set up? Is it not encroaching by legal force the employees’ right to express resentment at work place? Is this law not entangling the procedure?
