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      Criminal Defamation : A History of Laws that Govern the Criminal Offence

      The conviction of congress leader Rahul Gandhi in a criminal defamation case has led to calls for change to a law that treats defamation as a crime and instead to make it a civil offence.

      Rahul Gandhi was found guilty of defamation for comments he made in a 2019 election speech and sentence to two years in jail.

      Also Rahul Gandhi is out on bail and is expect to appeal.

      Let us discuss about a history of laws that govern defamation in India and attempts to amend them.

      History

      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 survive 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 jail but a civil offence means they can only be made to pay damages.

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

      UNESCO said in a 2022 report :

      “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,”.

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

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      UNESCO said :

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

      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.

      Countries have Decriminalised Defamation

      Since the 1990s, dozens of countries have decriminalise defamation.

      India’s law on defamation borrows from British laws, but Britain itself repeale it in 2009.

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

      And 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 result in some progress towards decriminalisation in a number of countries in the past two decades.

      Attempts to 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 challenge the criminalisation of defamation include Rahul Gandhi.

      Supreme Court reject 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.

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      Supreme Court Said :

      “Protection of reputation is a fundamental right. It is also a human right. Cumulatively it serves the social interest,”.

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