Why Indian opposition leader Gandhi faces jail for defamation

NEW DELHI: The conviction of Indian opposition leader Rahul Gandhi in a criminal defamation case last week has led to calls for change to a law that treats defamation as a crime and instead to make it a civil offence.

Gandhi was found guilty of defamation for comments he made in a 2019 election speech and sentenced to two years in jail. He is out on bail and is expected to appeal.

Below is a history of laws that govern defamation in India and attempts to amend them.

HISTORY OF DEFAMATION AS A CRIMINAL OFFENCE

Section 499 of the Indian Penal Code enacted by British colonial rulers in 1860 made defamation a criminal offence and Section 500 set out punishment.

These statutes have survived multiple challenges including in the Supreme Court.

India's law of torts considers defamation a civil offence.

Anyone found guilty of criminal defamation can be jailed but a civil offence means they can only be made to pay damages.

The criminal law has been invoked in cases filed against journalists, politicians and industry leaders but convictions have been rare.

"Criminal defamation laws, including insult provisions that increase protection for public officials or that grant similar safeguards to State institutions are often used by powerful actors to silence criticism, limit public discussion and protect interests, rather than to legitimately ensure respect for the right of reputation,” UNESCO said in a 2022 report.

WHERE ELSE IS DEFAMATION CRIMINAL?

UNESCO, the U.N. cultural agency that promotes press freedom, said in 2021 at least 160 countries had laws that consider defamation a criminal offence.

"Criminal defamation laws have an inhibitory and silencing effect, even before a conviction,” it said.

Defamation remains a criminal offence in 39 of 47 countries in Africa, all Arab states, 38 of the 44 UNESCO member states in South, Southeast and East Asia, and 20 of 25 UNESCO member states in west Europe and North America also have it on their statutes.

WHICH COUNTRIES HAVE DECRIMINALISED DEFAMATION?

Since the 1990s, dozens of countries have decriminalised defamation. India's law on defamation borrows from British laws, but Britain itself repealed it in 2009.

Some other countries that have decriminalised defamation since 2000 include Ukraine (2001), Sri Lanka (2002), Ireland (2009), Norway (2015), Zimbabwe (2016), Kenya (2017) and the Maldives (2018).

While the United States does not have any federal criminal defamation laws, about 20 of its states and territories still have them, the Organization for Security and Co-operation in Europe said in a 2021 report.

UNESCO said advances in jurisprudence and soft law, as well as strong pushes by advocacy groups, had resulted in some progress towards decriminalisation in a number of countries in the past two decades.

WHAT ATTEMPTS HAVE BEEN MADE IN INDIA TO DECRIMINALISE DEFAMATION?

In a landmark 2016 case, India's Supreme Court upheld the constitutional validity of the penal code section that makes defamation a criminal offence. The two dozen petitioners who challenged the criminalisation of defamation included Rahul Gandhi.

The top court rejected the challenge to the provision and held that it was a reasonable restriction on free speech and was neither "vague, nor excessive nor arbitrary" and did not consider criminal defamation disproportionate.

"Protection of reputation is a fundamental right. It is also a human right. Cumulatively it serves the social interest," the court said.

WHAT DO LEGAL EXPERTS SAY?

As conviction with maximum punishment is uncommon in criminal defamation cases, researchers with the Vidhi Centre for Legal Policy think tank argued that in most cases "conviction of the accused is rarely the goal".

"Harassment and intimidation through the process of prosecution is the actual punishment, particularly when an alternative civil remedy against defamation is available," they wrote in the Times of India on Saturday.

However, Supreme Court advocate Raju Ramachandran said the section on criminal defamation "is carefully and elaborately worded" and should stay. "The test should be how it affects the common citizen and not journalists or politicians," he told Reuters.