Digital Natives Blog

On July 5, 2016, the Madras High Court saved Perumal Murugan’s novel, Mathorubhagan from oblivion when it dismissed the claims against Murugan on the grounds of obscenity, spreading disharmony between communities, blasphemy, and defamation and upheld his freedom of expression in S. Tamilselvan & Perumal Murugan versus Government of Tamil Nadu. This judgment has received wide appreciation for its support for freedom of expression. What made it applause-worthy? Do we have reservations with the view of the High Court?

Murugan’s book is about a married couple, Kali and Ponna, who fail to have a child despite decades of their marriage. They succumb to social and familial pressures to allow Ponna (the wife) to participate in a sexual orgy (unrestrained sexual encounter involving many people) at a religious festival (the Vaikasi Car Festival) that takes place in Arthanareeswarar Temple, for begetting a child. The local community claimed that in the book, Murugan denigrated the Arthanareeswarar Temple, the deity, Lord Arthanareeswarar, festivities relating to Vaikasi Car Festival and the women of the Kongu Vellala Gounder community. Some sections of the community believed that the facts in the story were not true and found that the sexual mores associated with the community in the book were offensive.

The Court was required to evaluate, whether the novel was obscene (Section 292 of Indian Penal Code, 1860 (IPC)), offensive to the community (Section 153A of IPC) and the religion (Section 295 of IPC); and whether the State had the responsibility to protect the writer from mob violence on account of his controversial book. The Court held that the book was neither offensive nor did it hurt community or religious sentiments. The Court also held that the State had a positive obligation to protect Murugan against the mob. It would be useful to look at the analysis of the Court in drawing these conclusions and see if we completely agree with it.

1. The Court relied on the standard for determining obscenity in Aveek Sarkar v. State of West Bengal wherein, it was held that what is lascivious/appealing to the prurient interest/depraved or corrupt has to be tested using the contemporary ‘community standards. The Court was of the view that the novel was not offensive by the current mores (para 150 and 151). The Court further relied on MF Hussain v. Rajkumar Pandey, (also decided by Justice Sanjay Kishan Kaul) wherein it was held, that while evaluating obscenity in a work, “the judge has to place himself in the position of the author in order to appreciate what the author really wishes to convey and thereafter, placing himself in the position of the reader in every age group in whose hand the book is likely to fall, arrive at a dispassionate conclusion.”It is necessary to mention here that the community standards test has been criticised by scholars, worldwide, as it is difficult to divorce subjective morality of an individual and ascertain what those standards are. This indeterminacy interferes with the ability of judges to apply these standards. There is established scholarship that says that judges cannot divorce themselves from their subjectivities while evaluating obscenity in work of art or literature and may often reinforce the moral norms of the majority in the society thus crushing the moral standards of the minority. In India, we have a mixed bag of judgments that address the issue of obscenity. Seeing the difficulty in application of the community standards test, it is noteworthy that the ultimate fate of a book, painting or a film is dependent on the morality of an individual judge. In fact, the Court had asked a pertinent question in the judgment, “Would it be desirable for the Courts to intervene or should it be left to the readers to learn for themselves what they think and feel of the issue in question?” (para 136) However, it eventually reinforced these standards by applying the existing precedents on obscenity. The Court added thatunder Section 292, it was required to first prove whether the novel was obscene at all and only if it was found to be obscene it should be tested within the parameters of exceptionsit would fall under. The Court found that the novel was not obscene. There was no need to evaluate its social character to save it from a ban. While drawing this conclusion, the Court stated that, “sex, per se, was not treated as undesirable, but was an integral part right from the existence of civilization” (para 149) and that “in our society, we seem to be more bogged down by conservative Victorian philosophy rather than draw inspiration from our own literature and scriptures.”The Court also said, “there are different kinds of books available on the shelves of book stores to be read by different age groups from different strata. If you do not like a book, simply close it.”(para 148) While this reflects a progressive view of the judges on sexual morality, we have reservations on court’s reliance on ancient literature to justify why sex and its depiction in art or literature is not obscene.
2. We appreciate the observations that the Court has made while determining whether the novel hurt community or religious sentiments. The Court has acknowledged the declining tolerance level of the society (para 154) and stated that “any contra view or social thinking is met at times with threats or violent behaviour” (para 142).
3. The Court addressed the issue of harassment of writers and artists at the hands of a mob and held that there should “be a presumption in favour of free speech and expression as envisaged under Article 19(1)(a) of the Constitution of India” and emphasized the need for the State to protect those who suffer from hostility of several sections of a society as a consequence of holding a different view (para 175).Citing MF Hussain v. Rajkumar Pandey, the Court said “freedom of speech has no meaning if there is no freedom after speech.”The Court has identified the problematic sphere of mob violence and how it affects freedom of expression. However, we do not agree with what the Court held subsequently.

Reproducing an extract of the judgment here, “There is bound to be a presumption in favour of free speech and expression as envisaged under Article 19(1)(a) of the Constitution of India unless a court of law finds it otherwise as falling within the domain of a reasonable restriction under Article 19(2) of the Constitution of India.” (para 184) The words, “unless a court of law finds it otherwise as falling within the domain of a reasonable restriction under Article 19(2) of the Constitution of India.” indicate that the judiciary has the power to determine whether a certain type of speech could be restricted under Article 19 (2) of the Constitution of India. This understanding is incorrect. The language of Article 19 (2) makes it clear that speech could only be restricted by ‘law’ and judiciary cannot assume the authority to restrict speech. It has the authority to decide the applicability and the constitutionality of the law that restricts speech. The relevant part of Article 19 (2) is reproduced below for reference. “(2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right….” The Court further acknowledged that “the State and the police authorities would not be the best ones to judge such literary and cultural issues, which are best left to the wisdom of the specialists in the field and thereafter, if need be, the Courts” (para 181). The Court thus issued directions to the Government to constitute an expert body to deal with situations arising from such conflicts of views so that an independent opinion is forthcoming, keeping in mind the law evolved by the judiciary(para 181). There are concerns with this mandate of the Court; firstly, constituting an expert body to resolve conflict of views will not serve any purpose unless there are guidelines to evaluate work. It is difficult to dissociate subjectivity and ascertain objective standards for evaluating offensiveness of literary or artistic work. Secondly, reliance on expert opinion and then courts completely disregards existing law. Under Section 95 of the Code of Criminal Procedure,1973, the Government has the power to declare forfeiture of works which, it considers in violation of section 153A or section 153B or section 292 or section 293 or section 295A of the Indian Penal Code, 1860. The power to evaluate a piece of writing or other work has already been given to the government. The Court has created a parallel mechanism for evaluation by giving directions to constitute an expert panel. In the event this mechanism fails to resolve the conflict, it is suggested that courts would then be approached to address the matter. This is in complete disregard of the powers of the Government under Section 95.

In the Murugan judgment, the Court has attempted to provide a narrow interpretation of what is considered obscene, emphasized the need for the society to be more tolerant and for State to protect those members of the society who, on account of their views, suffer at the hands of an intolerant society. It is for these reasons, the judgment is, undoubtedly a sound precedent for protection of speech in India. However, it is concerning to see that in drawing these conclusions, the Court has reinforced vague legal standards of obscenity and in that regard, it remains yet another addition to the mixed bag of judgments.

The judgment on the plea to de-criminalise defamation is out and despite its verbosity and rich vocabulary is an embarrassment to our recent judicial milestone of constitutional challenges. In the case of Subramanian Swamy vs. Union of India, a two judge bench headed by Justice Dipak Misra, has upheld the constitutionality of Section 499 and Section 500 of Indian Penal Code, 1860 (IPC) and Section199 of Code of Criminal Procedure, 1973 (CrPC) that criminalise defamation.

The judgment has not satisfactorily answered several pertinent questions. Various significant issues relating to the existing regime of defamation have been touched upon in the judgment but the bench has skipped the part where it is required to analyse and give its own reasoning for upholding or reading down the law. This post points out what should have been looked at.

A. Whether defamation is a public or a private wrong?  What is the State’s interest in protecting the reputation of an individual against other private individuals? Is criminal penalty for defamatory statements an appropriate, adequate or disproportionate remedy for loss of reputation?

At the core of the debate to decriminalise defamation lies the question, whether defamation is a public or a private wrong. The question was raised in the Subramanian Swamy case and the court held that defamation is a public wrong. Our problem with the court’s decision lies in its failure to provide a sound and comprehensive analysis of the issue. In order to understand whether defamation is a public or a private wrong, it is necessary that we look at what reputation means, what happens when reputation is harmed and whose interests are affected by such harm.

Reputation is not defined in law, however the Supreme Court has held that reputation is a right to enjoy the good opinion of others and the good name, the credit, honour or character which is derived from such favourable public opinion. The definition reflects several elements that constitute reputation which when harmed have different bearing on the reputation of an individual. Academic Robert C Post in his paper, The Social Foundations on Defamation Law: Reputation and Constitution, says that reputation can be understood as a form of intangible property akin to goodwill or as dignity (the respect including self-respect that arises from observance of rules of the society). While reputation when seen as property can be estimated in money and thus adequately compensated through a civil action for damages, loss of dignity is not a materially quantifiable loss, and thus, monetary compensation appears irrelevant. The purpose of the defamation law could either be to ensure that reputation is not wrongfully deprived of its proper market value or the respect/acceptance of the society. Explanation 4 to Section 499 of the IPC accommodates both such situations and provides that reputation is harmed if it directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.

Post adds that an individual’s reputation is a product of his interaction with the society by following the norms of conduct (which he calls rules of civility) created by the society, thus the society has an interest in enforcing its rules of civility through defamation law by policing breaches of these rules. Criminal defamation acknowledges that loss of reputation is a wrong to the societal interests; however these interests have not been deliberated upon by the courts in India.

The Subramanian Swamy case was an occasion where, it was imperative that the court took up this exercise and explained what interest the society had in protecting the reputation of an individual for it to be classified as a public wrong. The court stated, “the law relating to defamation protects the reputation of each individual in the perception of the public at large. It matters to an individual in the eyes of the society. There is a link and connect between individual rights and the society; and this connection gives rise to community interest at large. Therefore, when harm is caused to an individual, the society as a whole is affected and the danger is perceived” With this reasoning it can be inferred that the society has an interest in all private wrongs. Where would that inference land us? This reasoning is ambiguous and inadequate.

On the other hand, criminal penalty for perfectly private wrongs such as copyright infringement and dishonour of cheques urges us to ask if there is a problem with the rigid distinction of public and private wrongs. Should we be asking the question differently?

The judgment has provided extremely inadequate answers to this question and has left matters ambiguous.

B. Can the right to reputation under Article 21 be enforced against another individual’s freedom of expression and are safeguards already built in law so as not to unreasonably restrict and stifle free expression in this regard?

Defamation finds a place in the list of constitutionally allowed restrictions on freedom of speech under Article 19 (2). Defamation protects the right to reputation of an individual thus free expression by this reason is subject to the right to reputation of an individual. The court had repeatedly observed that right to reputation is a part of the right to life under Article 21 of the Constitution. The question of enforceability of right to reputation under Article 21 against freedom of expression under Article 19 (1) (a) came into question in the instant case; it was contended that a fundamental right is enforceable against the State but cannot be invoked to serve a private interest of an individual. Thus, the right to reputation as manifested in defamation being a wrong committed against a private person by another person is unconnected and falls outside the scope of Article 19 (2). It is pertinent to note that Article 21 (which includes right to reputation) is enforceable not only against the state but also against private individuals. What is relevant here is an understanding of horizontal enforceability of fundamental rights (certain fundamental rights can be enforced against private individuals and non-state actors). This would help explain the dilemma in enforcing the right to reputation of an individual against free speech of another individual. It is vaguely mentioned in the judgment (see para 88) but has not been deliberated upon.

What follows from the discussion of enforceability of right to reputation, is the discussion on how reasonably it restricts speech. The Supreme Court has previously held that while determining reasonableness, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. We briefly analyse the critical aspects of the regime of criminal defamation on these parameters.

Underlying purpose

At the heart of the defamation law is the need to find the most suitable remedy for loss of reputation of an individual. How does one restore reputation of an individual in the society and whether criminal penalty an appropriate remedy?

Extent of restriction

The extent to which defamation law restricts free speech could be analysed by looking at various aspects such as what kind of speech is considered defamatory, what procedure is followed to bring action against the alleged wrong doer and scope of abuse of the law. Explanation 1 to Section 499 of IPC provides that a statement or imputation is defamatory if it is not made in public good. It is not sufficient to prove that such statement or imputation is in fact true. The idea of public good is at best vague without any means to evaluate it. Further, under Section 199 of CrPC allows multiple complaints to be filed in different jurisdictions for a single offensive publication. Besides, usage of terms like “some person aggrieved” leaves room for parties other than the person in respect of whom defamatory material is published to bring action and the provision also allows the privilege of two sets of procedures for prosecution (in official capacity and in private capacity) to public servants without satisfactory reasoning provided for such discrimination. These provisions have the potential to be used to file frivolous complaints and could be a handy tool for harassment of journalists or activists among others.

Proportionality

Does the publication or imputation of defamatory material warrant payment of fine and imprisonment? Earlier in the post, we brought up the question of relevance of such measures to the act of defamation. Assuming that it is relevant, do we think it is harsh or commensurate to the wrongful act. It is necessary to look at the process of prosecution before we determine the proportionality of the restriction. Criminal law assumes that the accused is innocent until he is proven guilty. Therefore until the judiciary determines that the act of defamation was committed, how does the process help the accused in maintaining status quo.  It is also pertinent to look at the threshold for civil defamation. Under the civil wrong of defamation, truth works as a complete defence while under criminal defamation, a statement despite being true could invite penalty if it is not published in public good. Thus a lower threshold for criminal liability would upset the balance of proportionality. These aspects are critical to determine the reasonableness of criminal defamation and it is unfortunate that the judgment that runs into hundreds of pages has not evaluated them.

Conclusion

The convoluted debate on criminal defamation remains intact post the pronouncement of this judgment. Questions of competing interests of society and individuals or individuals per se, and ambiguous rationale behind imposition of liability, arbitrariness of procedure for prosecution have not been examined. Further, the hardship in compartmentalising free speech, the right to reputation and the right to privacy remains unanswered.