Laws in IPC that could do with Amendment - Part II

In part 1 of the article, which you can read by clicking here; Laws in IPC that could do with Amendment [Part-II/II]; I discussed two such laws which could fare better with some changes made to them. Listed below are three such more laws in the Indian Penal Code, which could do with a few alterations, or absolute state of non-existence in my opinion. As we move down this list, it would seem apparent to note that the laws mentioned herewith become tougher to deal with as one ponders over their scope of advancement or change in the current Indian socio-politico state of affairs.

iii) Defamation

It is defined as an act of injuring the reputation of someone. When a person commits such an act in writing, it would be defamatory libel. When defamatory things are spoken or verbal, it would amount to slander.  The offence of defamation as described in the Indian Penal Code, however, incorporates further elements;

Section 499: The Indian Penal Code, 1860

Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.

The 9 exceptions to this offence require either one of the two constituents: That the imputation made by the accused was in good faith, or that the imputation made was true. However, mere truth of the statement in question is not sufficient to safeguard a person from being held criminally liable. 

Akin to the offence of sedition, this section falls within the exceptions to the fundamental right of freedom and speech and expression; (given under Article 19(2) of the Indian Constitution.) However, even the Supreme Court has observed in numerous cases that the constitutional validity of criminal defamation yet remains a question with considerable scope of debate. This is because, as aforementioned, even when a statement is true, if it's not required for the 'public good', a person can still be held liable for criminal defamation and be sentenced to imprisonment and/or fine. 

Whether or not a statement is for the good of the public is a question of fact depending solely upon how the court deems it. This hinders a potential amount of facts from surfacing for many are unwilling to risk testing what court discretion amounts to as to the notion of 'public good.' Moreover, even a jest or an ironical remark can amount to defamation. For instance, if A says, 'B is an honest man, he would never steal C's car,” to have it believed by others that B in fact stole C's car, A could be held liable under section 500. 

MY TAKE: Article 19(2) of the Indian Constitution clarifies that exercise of the right conferred by article 19(1) can be restricted only up to a reasonable extent. Defamation as expounded under section 499 and 500 of the Indian Penal Code, in my opinion, is not in conformity with principles that would fairly go about determining the degree of reasonable restriction. Thus, defamation should be decriminalized and its two sections repealed. Moreover, a civil suit for defamation can also be filed, thus common law already equips one with legal remedy for injury caused to one's reputation. Also, in my opinion, the statement or imputation must be established to be false in order to attract liability, as is the case in the UK.

iv) Sedition

Sedition, in simple terms, means any conduct or language which is capable of inciting people to rebel against their government. However, the definition of it given in the Indian Penal Code is seemingly broader.

Section 124A: The Indian Penal Code, 1860

Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government estab­lished by law in India, shall be punished with im­prisonment for life, to which fine may be added, or with impris­onment which may extend to three years, to which fine may be added, or with fine.

The concept of disaffection has been touched upon under explanation 1, interpreted as disloyalty and feelings of enmity, used in contrast to the term 'disapprobation' used in explanation 2 and 3, which means 'mere disapproval.'

Section 124A: The Indian Penal Code, 1860

Explanation 2- Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

Explanation 3-Comments expressing disapprobation of the admin­istrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

The proponents of this section are perhaps as high as those who oppose sedition having the nature of an offence. However, though this fine line of difference (between disaffection and disapprobation), added by the 1891 amendment, so the section roughly falls in queue with the (later constitutional) right of freedom and speech and expression, sufficiently satisfies the staunch 'nationalists' as to the section's validity, majority agrees that this is but another highly misused provision mostly enacted to aid the personal interests of those who are in power.

Thus some are of the view that strict adherence of the provisions, or perhaps a more minute interpretation is likely to fix the problem, but sedition cannot be done away with altogether.    

'The law of Sedition is absolutely necessary. If democracy has to survive, then there should be some restrictions on the people talking against the country. No country can ever compromise on its integrity'.- N. Santosh Hegde, the former Justice of the Supreme Court and former Solicitor General, making a comment on the JNU Sedition Case in 2016.

Others, on the contrary, are of the opinion that it should be completely scrapped, and find it an affront to the notion of democracy itself. Sedition was in fact introduced by the British at the time to keep the Indian population under control and avoid them from protesting against the Imperial rule. (Note that the provision shields against seditious acts with regard to the 'Government estab­lished by law in India' and not remarks against India itself.) This should be noted in purview of the overall rights that Indian citizens used to possess back then.  

India, soon after its independence, was established as a democratic republic, not as an authoritarian government. Disagreement and conflict are the very foundation of what constitutes democracy. 'Government of the people, by the people, for the people' is meant to reiterate the idea that the supreme power vests with the nation's citizens, not that the Government stands superior to its people. Every learned opinion counts, and it's only by a healthy competition of ideas; by a democracy constantly transitioning and reinventing itself, that the latter can truly prosper.

Consider the case of Aseem Trivedi, who was slapped with sedition charges and sentenced to jail merely for drawing cartoons to satirise widespread corruption among the politically elite in India.

MY TAKE: It would perhaps be unwise to repeal the law altogether, if it already isn't seemingly impossible at this stage.

Simply put, people are unpredictable. A general comment on the state of affairs could lead to a constructive discussion, or it could lead to commotion and protests. Perhaps, the ambit of section 124A could be restricted to utterance or writing of words, capable of inciting violence, that relate explicitly to the overthrowing of the government (in other words, would be 'treasonous' and not merely marked by hate.) Or perhaps, the ambit of section 121 under the Indian Penal Code could be widened to incorporate this suggested form of seditious speech. However, in my opinion, the explanations to section 124A, in their present language, are too ambiguous to serve this goal.

The United Kingdom has a law essentially similar to the above suggestion, only it's termed as treason. Section 3 of the Treason Felony Act, 1848 lists the 'advocating of the abolition of the monarchy by any means' (printing, writing etc,) as a felony; (Though this hasn't been deployed since 1879.) The offence of seditious libel, on the other hand, was repealed in the UK in 2009.

The United States has restricted treason to the acts of waging war against the government and/or aiding others for the said purpose, but does not recognize seditious speech as an offence unless it indicates 'immediate threat.' Thus, sedition laws, though retained by developed nations, are barely put to use, and very narrowly construed. A slender, more precise interpretation of sedition in India as well may help in preventing misuse of it.   

v) Blasphemy

Section 295A: The Indian Penal Code, 1860

Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written, or by signs or by visible representations or otherwise, insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

Indeed the term 'blasphemy' hasn't been used in the Indian Penal Code, which is essentially the act of saying things against God or religion that may be offensive to some. This section was, in fact, enacted by the British rulers after 1929's case of Rangila Rasul's publisher (unnamed and murdered; acquitted then for there existed no law against insult to religion,) who wrote this controversial book during the 1920's, inquiring into the sex life of Prophet Mohd.  

In 1957, the constitutional validity of this section was upheld by a 5-judge bench in the Supreme Court case Ramji Lal Modi v State of UP, reinstated again in the 1960 case Superintendent, Central Prison, Fatehgarh v Ram Manohar Lohia, in which it was held that in order to attract liability as per the constituents of this section, there would have to be a proximate connection between the 'blasphemous speech/writing material' and 'public disorder,' and that such a connection should not be far-fetched. The court in Arup Bhuyan v State of Assam in 2011, however, held that only speech that amounted to 'incitement to imminent lawless action' would be punished. Not only does this uproot the section's constitutional foundation set forth in Ramji Lal Modi's case but makes possible for the terms and scope of this section to be interpreted in an even broader light, thus providing with a wider platform for this provision's exploitation. Moreover, under no interpretation can it be assuredly said that intentional insult to religion or religious feelings is necessarily equivalent to 'incitement'.

Consider the case of TV actor and comedian Kiku Sharda, who merely mimicked a scene from a film starring Dera Sacha Sauda chief Gurmeet Ram Rahim Singh and was slapped with charges under section 295A for outraging the 'religious feelings' of his followers.  Or the case of Wendy Doniger, a renowned book publisher and author of 'The Hindu's-An Alternative History', against whom a case under 295A was filed for hurting religious sentiments.   

MY TAKE: Even honest attempts at fighting superstition and prejudices can wind up as hugely detrimental to those who are merely intellectually or academically inclined. To criticize philosophies and existing beliefs is but an essential stepping stone towards further prosperity and growth of the nation. In the United States, many states have the law against blasphemy invalidated as it is in direct violation of the First Amendment to the US Constitution.

England and Wales had blasphemy laws repealed back in 2008. 'The little-used laws served no useful purpose, while allowing religious groups to try to censor artists,” it was put forth by several prominent public figures in light of the first proposal to have the laws lifted in the UK.

If ideas or notions are let through without being challenged, the political and ideological realms are but going to remain resolutely wrought up with each other. India shall continue to remain weighed down with this oppressive system of subduing free thought and quenching true thirst for knowledge. In my opinion, this section should entirely be removed.  

 

Raveena Kataria 
on 08 August 2017
Published in Criminal Law
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