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#MeToo: Defamation case brews up a storm

#MeToo movement highlights need for criminal charges

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The criminal defamation action, initiated by former union minister MJ Akbar against a woman journalist over sexual harassment charges, has reignited the debate on the need to retain criminal defamation on the statute book.

This provision, contained in Section 499 of the Indian Penal Code (IPC), has attracted attention for the fact that there is wide scope of its misuse to stifle press freedom and have a "chilling effect" on the constitutional guarantee of Right to Free Speech and Expression. On one hand, a person's Right to Dignity and Reputation contained in Article 21 is pitted against another person's Fundamental Right to Free Speech contained in Article 19(1)(a).

This conflict was addressed by the Supreme Court on May 13, 2016, by a two-judge bench headed by Justice Dipak Misra. It upheld the validity of Section 499 IPC, holding reputation to be an "inextricable aspect of right to life."

On the other hand, the Right under Article 19(1)(a) is subject to reasonable restrictions as provided under Article 19(2) and criminal defamation can be understood to mean as a reasonable restriction.

In May 2014, the Law Commission of India did engage its attention on laws that concern media i India. One of the aspects, on which it invited a nation-wide consultation, was on IPC Section 499. The Commission noted, "Demands have been made in the past by entities such as the Editors' Guild of India to decriminalise defamation as it pertains to journalists. A comprehensive review of laws regulating the media must consider the question of defamation laws as well." Countries like the US, UK, Australia, Zimbabwe, and Sri Lanka have decriminalised defamation.

But why does a person often take recourse to criminal defamation than civil defamation? To a common man, these may be two remedies for curing a single ill. But the devil is in the details. Criminal defamation puts the onus on the accused to show that what he said or wrote was in public good besides being truthful. If public good is made out, the accused can escape punishment of two-year term under defamation. But what is public good is vague and depends on facts from case to case. In civil defamation, if what is alleged is true, it is sufficient defence.

Proceedings in criminal defamation are time consuming and require the accused to remain present in court. For this reason, persons resort to filing criminal contempt cases in far-flung courts just to harass and intimidate the accused who needs to be present in court at each hearing. Civil defamation procedure is not so rigorous and a suit can be filed in the local court of the area where the defamatory statement was published or the person who made the statement resides.

Noted criminal lawyer and senior advocate KV Vishwanathan said, "Once Supreme Court has upheld criminal defamation, a judicial ombudsman can be appointed to act as a screening authority which can call for an explanation from the accused and be satisfied that a criminal case is made out. Only then, the complaint should proceed to be filed in court. This judicial ombudsman can be a serving or retired district judge. Only in this manner can the abuse of Section 499 be prevented."

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