Understanding the Context

For the past century, freedom of speech has been popularly identified as a hallmark of any strong liberal democracy. In a political system defined by public participation and accountability, the right to raise opinions becomes sacrosanct for citizens. The makers of the Indian constitution recognized this; Article 19, affords the fundamental right of free speech to all of its citizens.

Yet, as is often the case, we often forget to read the fine print of such rights. Free speech in India, according to the various sub-clauses of Article 19, exists within a spectrum of respectability. So, while citizens have the right to say what they want, others’ fundamental rights allow for some kinds of speech to be deterred. Defamations laws are a mechanism for citizens to try fellow citizens or organizations for public speech and content that has personally affected or offended their lives.

In India, two types of punitive recourse for defamatory speech exist: civil and criminal defamation suits. People convicted under ‘civil defamation’ cases have to monetarily compensate the defamed party. People convicted under ‘criminal defamation’ on the other hand, are imprisoned for up to two years.

The continued criminalization of defamation has come under increasing scrutiny for its chilling effect on free speech. It has been tactfully used by the powerful to silence adversaries with less clout and hide the truth from public view (by threatening to put them in jail). Concern surrounding criminal defamation has only increased in the wake of responses emerging on social media with the #MeToo movement. All over the world, powerful figures accused of sexual harassment have relied on filing criminal defamation suits to counter the accusations levelled against them.

On the one hand, an individual accused of harassment has the right to protest against false claims made against them with an intent to malign their public character. On the other, the threat of imprisonment silences victims of sexual harassment who choose to seek justice by speaking out. In the context of #MeToo, should the legal provision of criminal defamation retain its place in a Constitution that is committed to enhancing the lives of all its citizens? Is it the only viable route to protect an individual’s reputation, or has the #MeToo movement done enough to rattle the status quo?

Click on a quote to read an opinion

What criminal defamation does in the context of #MeToo is silence victims of sexual harassment from speaking up about their experiences for the fear of landing themselves in jail. Artfully used by the likes of MJ Akbar against the women who called them out, retaining this provision will maintain a patriarchal status quo that ignores power inequalities embedded in India’s social relations.

— Aarathi Ganesan

False (albeit rare) allegations of sexual abuse or assault irrevocably tarnish one’s public image, and could hinder future employment, induce social ostracization and damage mental wellbeing. With this at stake, it is well within every citizen’s constitutional right to exercise defamation laws.

— Kartik Sundar

Written by Aarathi Ganesan

The #MeToo movement has come under severe scrutiny for bypassing established legal ‘due process’. Its supporters have (rightly) argued that when due processes disadvantage victims of sexual harassment, circumventing it is the only option. The result? A proliferation of testimonies across the Internet, against hundreds of alleged predators.

Yet, the fact remains that those who raise #MeToo testimonies will have to face the courts at some point in time. Allegations of sexual harassment, whether true or false, have an irreversible effect on a person’s reputation and life. That’s probably why many powerful figures accused of sexual harassment, immediately file defamation claims in court. If you can prove you’ve been defamed, you can retain some dignity in public and private settings.

The problem here isn’t using defamation itself. Given that societies are made up of people who have incentives to lie every now and then, defamation laws need to be in place to counter slander and libel. Beyond #MeToo, on a wider scale, individuals and organizations in any society should have the right to protect their reputations and dignity. Free speech exists within a ‘reasonable’ spectrum.

However, in India, we criminalize defamation, with ‘successful’ cases resulting in jail time of up to two years. In this case, an individual’s right to preserve their reputation comes at the cost of another’s right to free speech. Used by the powerful for years now to hound oppositional voices, criminal defamation is an effective form of political censorship.

In the context of #MeToo, criminal defamation silences victims of sexual harassment from speaking up about their experiences for the fear of landing themselves in jail. Artfully used by the likes of MJ Akbar against the victims who call them out, retaining this provision will maintain a patriarchal status quo that ignores power inequalities embedded in India’s social relations.

A Civilizing Mission

As of now, there are “no civil laws under which sexual harassment [outside of the workplace] can be punished.” Victims are forced to lodge FIRs with the police as a result and pursue the procedures of criminal justice. Given the shadowy nature of harassment itself and the focus on ‘absolute proof’ in criminal justice, this disadvantages victims further, making the likelihood that they can win these cases low. It is in this biased framework, that the Internet becomes an emancipatory safe space for victims of sexual harassment to share their experiences. This same framework inevitably also exposes them to criminal defamation charges.  

Legal provisions of criminal defamation in India mandate that the ‘defamatory content’ should have been issued in ‘public good’. Not only do victims have to prove their cases of harassment, but they also have to justify why doing so in public was necessary for its larger ‘good’.

When sexism and cronyism are often silently concealed in a State’s infrastructure, arguments defending the necessity of #MeToo as a movement could fall on deaf ears. A victim’s truth is thus “illegal if it does not serve the public good.” Whose public, and whose good? Once again, the system is rigged against the victims.

One solution is to for India to follow a trend that has been witnessed in many countries over the past few decades, ranging from the UK to Lesotho: the decriminalization of defamation.

If defamation were decriminalized, it would fall under the purview of civil law in India. Criminal cases require proof “beyond reasonable doubt”. On the other hand, civil cases require the “preponderance of probability”, which means that the evidence only needs to show that it is likely/not likely that something has occurred. In the context of defamation cases related to #MeToo, a victim of sexual harassment doesn’t have to prove their allegations to be true; rather, the accused has to prove that they are untrue. If the claims are proven to be false, the victim of defamation would receive monetary compensation. In this scenario, you are not criminalized for simply exercising your free speech.

Strengthening Indian Democracy

Given that the burden of proof lies in the hands of the defendant in civil defamation, it’s easy to see why in India, criminal defamation is preferred. It’s also quicker, inexpensive, and more decisive (after all, the accused goes to jail). On the other hand, cases of civil defamation in India, are currently expensive to undertake, long-drawn-out and suffer from structural bloating (much like most of India’s legal system).

These cannot be sufficient justifications for the continued criminalization of defamation; if anything, they are cries for legal reform in an increasingly sensitive social environment. Developing civil laws that protect victims of sexual abuse and harassment, to promote the safe ‘outing’ of abuse is a key first step.

Another potential solution could be setting up separate fast-track tribunals or panels for #MeToo cases, which accounts for the nuances of the movement surrounding sexual harassment and its stakeholders. Beyond #MeToo, the spillover effects of improving civil hearings strengthen the press in a democracy where it is often under attack from powerful figures.

Although the Supreme Court upheld the legitimacy of criminal defamation in 2016, there have been some positive developments in India’s legal environment. The recent striking down colonial-era provisions in Article 377 and Article 497, cementing its commitment to decriminalizing laws drenched in archaic and subjective understandings of morality and social good. One can only hope that such attitudes find their way into judgements on defamation.

Caste violence has been described as the “public secret of [India’s] secular modernity” — if we continue to criminalize ‘defamatory speech’, sexual harassment could well be indelibly added to this list of public secrets.

Featured image for representation purpose only

Aarathi Ganesan
Aarathi Ganesan Author, The Bastion Staff

 

Co-authored by Kartik Sundar and Tia Matthew

23 out of the 28 nations in the European Union still have criminal defamation as standard legal tenure. Even in one of the most developed and ‘progressive’ regions of the world, restrictions on free speech are commonplace. In India, these restrictions were introduced pre-independence, and have remained ever since.

Article 19(2) of the Indian constitution makes it abundantly clear that free speech is not absolute, with defamation falling under the ‘reasonable restrictions’ clause. However, given the context of this debate, and the stakes for the accuser and accused within #MeToo cases, a more long-term analysis is valuable. Should we as a polity do away with criminal defamation in its entirety, or, do we retain it as a necessary recourse for protecting those individuals who are falsely accused?

Instances of false accusations of sexual harassment are far from the norm. However, the repercussions to an individual’s reputation resulting from sexual assault allegations are demonstrably and overwhelmingly negative. Defamatory content has the capability to change the perception across society of an individual irrevocably.

For example, in 2014, three men were accused of harassing two sisters on a bus in Rohtak, Haryana. Before the courts even arrived at a judgement, the trio was assumed to be guilty by the media. In September 2018, a sessions court in Haryana declared them to be innocent. This was a year after a sessions court in Rohtak made the same verdict. As a result of the stigma, their families forced them to quit studying and one man had to withdraw from a potential job with the army. The social backlash over four years has left the three men desperately in need of a livelihood.

Not only did the Rohtak case belittle very real and traumatizing instances of sexual assault in villages across India; legally speaking, the girls seem to have exhibited the very deviant behaviour that criminal defamation exists to curtail. Allegations of sexual abuse or assault irrevocably tarnish one’s public image, and could (and when guilty, should) hinder future employment, induce social ostracization and damage mental wellbeing.

With this at stake, it is well within every citizen’s constitutional right to be protected from defamatory speech. In the landmark Maneka Gandhi v Union of India judgement, Article 21 of the Indian Constitution was interpreted not just to exist as a physical right to life, but the right to live a life with dignity. If someone is falsely accused of sexual assault, they will definitely lose this fundamental right. It is unfair to deny their freedom to pursue legal recourse.

Besides, the criminality of false accusations would be decided by the judges’ interpretation of whether there was an intent to harm, and what the extent of subsequent damage incurred by the plaintiff was. Assuming there exists adequate evidence for acquittal, criminal cases can be moved to civil courts if judges deem fit. Albeit rare, alleged sexual offenders’ recourse to justice also needs to be preserved. Legally speaking, the Bench is the final referee and its judgements on such matters hold some credence.

The movement to decriminalize defamation could leave everyone in a state of limbo. If criminal defamation is deemed to be unlawful, the only alternative to false accusations will become civil defamation suits. These are expensive and can be drawn-out to last years on end. Criteria for punishment is clearly laid out in a criminal case, but civil suits have more ambiguous rulings. Reparations received are entirely dependent on the evidence and arguments presented, because of which they vary. Civil cases also tend to be dismissed even before trial with judges prioritising more pressing issues.

A Non-Parochial Outlook

The larger scope of criminalizing speech is centred around what constitutes the public good. Given the fear of imprisonment, criminalization serves as an effective deterrence to blatantly false accusations with an intent to malign. Indeed, the provision to criminalize speech may also scare actual assault survivors from coming out, for the very real fear of being legally outmuscled by the accused.

There is merit to this reality, but public good need not only be defined in terms of the #MeToo movement and women as victims.

Wrongful allegations of sexual misconduct aside, reputed SC advocate Raju Ramachandran believes that criminal defamation protects women in other environments. He notes that “Women in professions are often the victims of the most vicious defamation about how they have progressed in their careers, etc. Should every woman who is subjected to this kind of defamation at the workplace only have an expensive civil suit as the remedy?” The case for removing the provision of criminal defamation altogether is not a black-and-white one when discussed under the grey area of “public good”.

That the #MeToo movement has moved mountains by facilitating conversation about sexual misconduct in otherwise silenced relationships is undeniable. While false accusations constitute rarest-of-rare cases, they cannot be assumed to be an impossibility.

Uncontrollable opinions cascading through social media and vested interests in generating fake news have increased the extent to which an individual’s public character could be damaged. The self-preservation of every citizen and the specific benefits of criminal lawsuits justify the continued existence of criminal defamation as a legal option in India.

Featured image for representation purpose only

Kartik Sundar
Kartik Sundar Author, The Bastion Staff
Tia Matthew
Tia Matthew Researcher, The Bastion Staff

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