In the past few months, the Supreme Court (SC) has issued two important statements related to criminal defamation, both of which seem to be at odds with each other. In May 2016, a SC bench upheld the validity of Sections 499 and 500 of the Indian Penal Code (IPC), dealing with criminal defamation, while passing judgment on petitions filed by Congress vice-president Rahul Gandhi, Bharatiya Janata Party (BJP) leader Subramanian Swamy and Delhi Chief Minister Arvind Kejriwal. In its ruling, the court noted that “the right to freedom of speech and expression is not an absolute right” and that freedom of expression has to be “balanced with the other person’s right to reputation”. Yet in August, the apex court took a different stand when it slammed Tamil Nadu Chief Minister J Jayalalithaa for misusing the criminal defamation law, in response to a petition filed by Desiya Murpokku Dravida Kazhagam (DMDK) chief A Vijayakanth, seeking to quash defamation cases lodged against him by the Tamil Nadu government. The court observed that such cases “throttle democracy” and public figures “must face criticism”.  

It is this ambiguity surrounding criminal defamation laws that Biju Janata Dal’s (BJD) Lok Sabha Member of Parliament Tathagata Satpathy seeks to eradicate with The Protection of Speech and Reputation Bill, 2016. Satpathy, who is expected to introduce the Bill in Parliament as a Private Member’s Bill after a round of public consultation, told Newslaundry that “the two contradictory messages from the SC was one of the prompts for the Bill”, which he hopes will “address what the courts have left ambiguous”.

A political maverick, Satpathy has in the past called the ban on marijuana “elitist”, and even defended journalists in the Lok Sabha – a rare sight in times like these.

The standout feature of the Speech Bill, according to Satpathy, is that it decriminalises defamation and treats it as a civil offence. “The most important part of the Bill is that it we are deleting the criminal part of defamation, which is a worldwide phenomenon now,” Satpathy said. Criminal defamation has been repealed in a number of developed and developing countries, he said.

While the Bill seeks to curb the ‘chilling effect’ arising out of criminal defamation, it also offers provisions for recourse to prevent damage to reputation. “When we started working on the Bill, we realised that just decriminalising it won’t do,” said Meghnad S, Chief of Staff of Satpathy’s office and a Newslaundry columnist. “What we’re trying to do is decriminalising the criminal aspect of defamation, but also balancing it by strengthening civil defamation. And we’re balancing it with the right to reputation.” The right to reputation is safeguarded by the Bill with an effective, balanced remedy for civil reliefs, such as corrections, apologies and reasonable damages.

Other noteworthy aspects of the Bill include quantification of damages for defamation, fixing the maximum amount of damages and barring governments and institutions exercising government or statutory functions from filing suit for defamation. However, Meghnad points out that the Bill is still in the drafting stage and is far from being the final product. “There have been some 15 iterations of the Bill already since the last winter session and our ideas are now much clearer. Therefore, we wanted to open it to the public for their opinion. Whatever the public says, whatever opinions they give, we will make changes accordingly and then file it in the Parliament after we’re satisfied,” he said.

On the prospects of the Bill seeing the light of day in Parliament, Satpathy acknowledged that “there are many, many hurdles ahead” and emphasised the importance of public support in making the Bill a reality. The public can pledge support to the Bill and share suggestions on the #SpeechBill website, which went live today.