The law of defamation protects the glitterati and the intelligentsia while snaring the unwary journalist. Like Justice Swatanter Kumar of the Supreme Court who came under a cloud when a law intern alleged he had made inappropriate advances towards her. He filed a Rs 25 crore defamation suit against two prominent media houses and got a gag order passed against the media. Period.
That is why the defamation law either needs to be decriminalised to permit free flow of information or its stringent punishment of two years should be reduced to six months with fine so that journalists are not deterred from exposing global brands like Nestle whose Maggie noodles can turn new-born babies into idiots because of its toxic lead content. Similarly, the concentrate of a famous soft drink has been known to contain cocaine and caffeine, both harmful if ingested continuously, while the worms found in the chocolates of another famous brand created news some years ago and then died down.
The law of defamation has its roots in the obsolete British thinking that until convicted, everybody enjoyed a good reputation and it was better to allow 99 criminals to walk free than to convict one innocent person. As a matter of fact, a large number of men who murder their wives for dowry and rapists are acquitted, so that the Law Commission of India has recommended that the dictum of proving beyond reasonable doubt should be lowered.
The Right to Information Act, 2005, does not apply to private business houses like Nestle, making it impossible for reporters to access confidential documents and allowing corruption to flourish so that Transparency International (TI) has ranked India at 86 out of 175 most corrupt countries in the world, while another global watchdog, Reporters Without Borders (RWB), ranked India at 136 out of 180 nations on its world press freedom index. The TI list means India is the 86th most corrupt country in the world while the RWB list means there are 135 countries which enjoy more media freedom than India.The penal law of defamation ensures that the corrupt thrive in darkness.
Although the word defamation is incorporated into one of the reasonable restrictions imposed on free speech, it fails the test of proportionality as laid down by the Supreme Court because it excessively curtails the fundamental right to free speech and the right to information of all Indian citizens, blocking free flow of information and benefiting big business and corrupt politicians.
The fundamental test for proportionality is whether the criminal law of defamation, as it exists on the statute books, benefits the people of India or a minority. If it prevents the media from disseminating information to the Indian public, it fails the test of reasonableness and proportionality and should either be abrogated or diluted.
That is why Amnesty International had recommended that defamation should be decriminalized because it is easy to file a criminal complaint for defamation against the media under sections 499 and 500 of the Indian Penal Code, 1860, and wreck the career of young reporters while protecting the reputation of wrong doers against whom it is impossible to collect evidence. The excessive verbosity of section 499 should be recast by the Law Commission of India to permit free flow of information or both sections 499 and 500 should be abrogated totally.
The civil law of defamation is uncodified which means there is no written law so that the courts can examine the facts of each case without being bound by the legislature. There is no limit to damages which a person who has been defamed by incompetent reportage can claim. In fact, Justice P.B.Sawant, who retired from the Supreme Court and later from the Press Council of India, was awarded Rs 100 crore as damages for his mug-shot wrongly being flashed on a prominent TV channel as an accused in a provident fund scam.
Other remedies for victims of incompetent reporters are to insert an advertisement rebutting the bogus allegations levelled against them or approach the Press Council of India which should be cloaked with punitive powers. Till today, the Press Council, like the Advertising Standards Council of India, cannot send offenders to jail. There is no reason why these bodies should not be given punitive powers.
The argument that it will create a parallel judiciary does not hold good because without punitive powers, both these bodies are toothless tigers. They can be imbued with specific jurisdictions to try only those complaints pertaining to the media and advertising with the power to send deliberate and repeat offenders to jail.
The Law Commission of India has to drastically overhaul the law of defamation in the light of the ‘actual malice test’ laid down by the U.S. Supreme Court in 1966 which stated that an author or reporter could be held liable for defamation only if he deliberately published falsehood against a public figure. Hence, the broadcast or print media should be allowed to apologize for genuine errors after proving they made efforts to verify the news. This will ensure free flow of information to the public and redress the grievances of incompetent reporting.