While the Supreme Court is seized of a batch of petitions questioning the constitutionality of criminal defamation proceedings, the Madras high court on Tuesday stopped just inches short of decriminalizing the `offence' when it ruled that persons facing such cases could not be considered to have a `criminal background'.
“The trend all over the world appears to be towards decriminalisation of defamation. The Supreme Court is also seized of the issue. In such circumstances, it is not possible for us to convince ourselves that filing of a private complaint of defamation against a person for writing articles in a magazine could make him a person with criminal background,“ ruled a di vision bench of Justice V Ramasubramanian and Justice K Ravichandrabaabu.
The order gains significance because the Tamil Nadu government is the state's biggest defamation complainant, having filed more than 110 criminal complaints against media firms and political opponents since 2011.
The bench was passing orders on a petition filed by freelance journalist M Nedunchezhian, whose application to be enrolled as an advocate was rejected by the Bar Council of Tamil Nadu and Puducherry , because a criminal defamation complaint lodged by a chit fund company was pending against him. As per HC orders, persons with criminal background are not to be enrolled as advocates. Tracing the criminal defamation trend from Jamaica to the US to the European Union, and coming to his rescue, Justice Ramasubramanian, who wrote the verdict for the bench, said: “In September 2014, the Law Commission of India published a joint consultation paper on media law, in which it considered the need to repeal Section 499 of the IPC on the ground that it violated international norms. It also indicated that the penalty of incarceration up to two years was clearly disproportionate.“ The bench cited a series of uggestions by the Amnesty In ernational to the Law Commis ion, including the repeal of Sec ions 499 and 500 of the IPC “It'strongly recommended that civil defamation be codified. If it is retained as a criminal offence, the law should not use imprisonment as a punishment for those convicted of defamation, in line with international standards on freedom of expression,“ the judges said.
“Publish at your own peril appears to be the philosophy adopted by our country in the last few decades after Independence,“ the bench said, pointing out that a number of countries have repealed laws that make defamation a criminal offence.
The UNHRC urged the states to consider decriminalising defamation while interpreting Article 19 of the International Covenant on Civil and Political Rights so that it did not stifle freedom of expression.
Defamation laws should not stifle freedom of expression, says UN
Chennai:
While the Supreme Court is seized of a batch of petitions questioning the constitutionality of criminal defamation proceedings, the Madras high court on Tuesday stopped just inches short of decriminalizing the `offence' when it ruled that persons facing such cases could not be considered to have a `criminal background'.
“The trend all over the world appears to be towards decriminalisation of defamation. The Supreme Court is also seized of the issue. In such circumstances, it is not possible for us to convince ourselves that filing of a private complaint of defamation against a person for writing articles in a magazine could make him a person with criminal background,“ ruled a di vision bench of Justice V Ramasubramanian and Justice K Ravichandrabaabu.
The order gains significance because the Tamil Nadu government is the state's biggest defamation complainant, having filed more than 110 criminal complaints against media firms and political opponents since 2011.
The bench was passing orders on a petition filed by freelance journalist M Nedunchezhian, whose application to be enrolled as an advocate was rejected by the Bar Council of Tamil Nadu and Puducherry , because a criminal defamation complaint lodged by a chit fund company was pending against him. As per HC orders, persons with criminal background are not to be enrolled as advocates. Tracing the criminal defamation trend from Jamaica to the US to the European Union, and coming to his rescue, Justice Ramasubramanian, who wrote the verdict for the bench, said: “In September 2014, the Law Commission of India published a joint consultation paper on media law, in which it considered the need to repeal Section 499 of the IPC on the ground that it violated international norms. It also indicated that the penalty of incarceration up to two years was clearly disproportionate.“ The bench cited a series of uggestions by the Amnesty In ernational to the Law Commis ion, including the repeal of Sec ions 499 and 500 of the IPC “It'strongly recommended that civil defamation be codified. If it is retained as a criminal offence, the law should not use imprisonment as a punishment for those convicted of defamation, in line with international standards on freedom of expression,“ the judges said.
“Publish at your own peril appears to be the philosophy adopted by our country in the last few decades after Independence,“ the bench said, pointing out that a number of countries have repealed laws that make defamation a criminal offence.
The UNHRC urged the states to consider decriminalising defamation while interpreting Article 19 of the International Covenant on Civil and Political Rights so that it did not stifle freedom of expression.
New Delhi: The NDA government on Wednesday cited a sixdecade-old ruling of the Supreme Court to argue that citizens could not claim privacy as a fundamental right, a stand which could raise the hackles of civil rights groups.
The argument, advanced by attorney general Mukul Rohatgi, ran contrary to many postEmergency judgments of the SC expanding the right to life, guaranteed under Article 21 of the Constitution, to include the right to privacy.
The AG's argument came as he defended the mandatory nature of Aadhaar, which has been challenged on the ground that personal information about citizens stored insecurely by the government could result in gross violation of the right to privacy of individuals, thus infringing Article 21. Rohatgi reminded a bench of Justices J Chelameswar, S A Bobde and C Nagappan that an eight-judge bench of the apex court had in 1954 ruled that the right to privacy was not a fundamental right.He said, over the years, the court had lost sight of the judgment and digressed from it.
Stressing on the gravity of the issue, the AG requested that it be referred to a five-judge Constitution bench.
He said the over 30 judgments passed by the SC since 1954 on the right to privacy were all authored by either twoor three-judge benches and thus could not overrule the ruling of an eight-judge bench. Senior advocate Shyam Diwan, appearing for one of the petitioners, objected to the AG's plea and said the Constitution was a living document which could be expanded and interpreted in accordance with the dynamics of changing times.He insisted that the 1954 verdict was passed in the context of search and seizure by government authorities, and had no relevance to the present case.
Agreeing with the AG, the bench said the 1954 verdict could not be wished away and the case should be referred to a larger bench. The arguments remained inconclusive and will be resumed on Thursday .
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Times View
Whether or not the right to privacy is a fundamental right under the Indian Constitution is a matter for the Supreme Court to decide. However, there is no doubt that it ought to be a fundamental right in a modern, liberal democracy. If the SC decides that this is not the case as the law currently stands, the Constitution should be amended to include this right. Like all rights, there must be reasonable restrictions placed on the right to privacy on grounds such as national security, but that is no reason for not making it a fundamental right in the first place.
