SC Agrees To Examine Whether Corporate Bodies Can File Criminal Defamation Cases

The Supreme Court’s verdict is expected to strike a careful balance between Article 19 of the Constitution and the right of corporate bodies to file criminal defamation case for alleged damage to reputation.  

The Supreme Court on Monday agreed to examine the question whether corporate bodies can initiate criminal defamation proceedings. A bench headed by Justice J.S. Khehar asked Essar Limited and the Centre to reply within eight weeks.

The question came to the fore when Priya Pillai, a Greenpeace activist, challenged the constitutional validity of ‘criminal defamation’ filed against her by Essar Limited. She petitioned that the same should be quashed as it was aimed to curb her freedom of expression and prevent her from raising voice against the alleged wrongdoings of the company. She had alleged that corporates seek to embroil activists in multiple litigations and, thereby, preventing public intervention. Pillai’s counsel advocate Shyam Divan said since corporates do not have the right to life, they cannot initiate criminal defamation proceedings.

A Division Bench comprising Justice Dipak Misra and Justice Prafulla C. Pant had earlier upheld the criminal defamation law, which is crucial to keep a tab on the use of freedom of speech and expression and its abuse to damage reputation.

Justice Misra said the right to reputation should be read under Article 21 i.e., right to life guaranteed under the Constitution.

Though the petition raised the following questions, the bench has agreed to hear the matter relating to locus standi of corporate bodies to initiate criminal proceedings only:

1. 
   

   Whether the impugned criminal defamation provisions of the IPC impinge on the fundamental rights of the petitioner to speech, expression, assembly and association?

   
   


2. 
   

   Whether the impugned criminal defamation provisions of the IPC are reasonable restrictions pursuant to Article 19(2) of the Constitution of India serving a compelling state interest, with no reasonable alternatives?

   
   


3. 
   

   Whether the “protection of the reputation” against discussion and advocacy on issues that concern the public is a compelling state interest as enumerated in Article 19(2) of the Constitution of India?

   
   


4. 
   

   Whether it is ‘reasonable’ under Article 19(2) for corporations to have the same rights as individuals to invoke criminal defamation?

   
   


5. 
   

   Whether the intelligible differentia between corporations and individuals under Article 14 of the Constitution of India demonstrates that corporations are sufficiently compensated for damage to their reputation via actions for civil defamation?

   
   


6. 
   

   Whether the impugned criminal defamation provisions exceed the scope of Article 19(2) in seeking to penalise the expression of the truth?

   
   


7. 
   

   Whether the meaning and scope of the word ‘defamation’ as used in Article 19(2) ought to be read to exclude matters of private or commercial interest or substantially arising out of private or commercial interest?

   
   


8. 
   

   Whether the exercise of a fundamental right may be limited or curtailed through the use of public funds and state machinery to protect a private commercial interest?

   
   


9. 
   

   Whether the meaning and scope of the impugned criminal defamation provisions create an impermissible discrimination in permitting dual standards of liability with different defences in respect of the same cause of action?

   
   


10. 
    

    Whether the impugned criminal defamation provisions violate the guarantee of a fair trial in reversing the burden of proof?

    
    


11. 
    

    Whether the meaning and scope of the impugned criminal defamation provisions create a discrimination between speech in commercial interest as against and public interest speech?

    
    


12. 
    

    Whether the meaning and scope of the impugned criminal defamation provisions create an impermissible monopoly on information and the dissemination of information?

    
    


13. 
    

    Whether the impugned criminal defamation provisions infringe the guarantee of Article 21 by seeking to incarcerate an individual for an action that does not in any manner negatively impact public / societal peace and security?

    
    

Defamation is a criminal offence punishable with the maximum sentence of two years of imprisonment or fine or both u/s 499 and 500 IPC. The provision aims to punish malicious and intentional damage to reputation. However, it has been often challenged for hampering freedom of expression.

Civil society has repeatedly been slapped with defamation charges for highlighting ‘murky truths’ and has often felt throttled by legal sanctions. The Supreme Court’s verdict is expected to address this concern and strike a careful balance between Article 19 of the Constitution and the right of corporate bodies to file criminal defamation case for alleged damage to reputation.

Advocates Karuna Nundy, Avi Singh, Liz Mathew, Neeha Nagpal and Rajan Nair appeared for the parties.

Read the order here.