I had earlier defended Explanation 1 to Section 499 of the IPC (‘How do you criminally defame a corpse? Ask the SC’) and the judgment in Subramanian Swamy v. Union of India, [Writ Petition (Criminal) No. 184 of 2014], in the wake of strong arguments that Section 499 criminalizes what is essentially a private wrong, and thus amounts to a disproportionate restriction upon free speech and that the legal regime of defamation as set out in Sections 499 and 500 is unconstitutional.
The legislature in its wisdom has still not thought it appropriate to abolish criminality of defamation in the ‘obtaining social climate’. In the recent judgment of Mohd. Abdulla Khan v. K. Prakash, [Criminal Appeal No. 2059 of 2017] Justice Chelameswar accepts that wisdom:
“Committing any act which constitutes defamation under Section 499 IPC is a punishable offence under Section 500 IPC. Printing or engraving any defamatory material is altogether a different offence under Section 501 IPC. Offering for sale or selling any such printed or engraved defamatory material is yet another distinct offence under Section 502 IPC.”
In fact, the Division Bench of Chelameswar and Nazeer JJ. have a question to ask that potentially may stretch the ambit of Section 499:
“If the content of any news item carried in a newspaper is defamatory as defined under Section 499 IPC, the mere printing of such material “knowing or having good reason to believe that such matter is defamatory” itself constitutes a distinct offence under Section 501 IPC. The sale or offering for sale of such printed “substance containing defamatory matter” “knowing that it contains such matter” is a distinct offence under Section 502 IPC.
The extent of the applicability of the principle of vicarious liability in criminal law particularly in the context of the offences relating to defamation… is not argued before us… therefore, we desist from examining the question in detail. But we are of the opinion that the question requires a serious examination in an appropriate case because the owner of a newspaper employs people to print, publish and sell the newspaper to make a financial gain out of the said activity. Each of the abovementioned activities is carried on by persons employed by the owner. Where defamatory matter is printed (in a newspaper or a book etc.) and sold or offered for sale, whether the owner thereof can be heard to say that he cannot be made vicariously liable for the defamatory material carried by his newspaper etc. requires a critical examination.”
The casual acceptance of Section 499 by the Second Senior-Most Judge of the SC strikes a blow to the well-crafted material of the likes of Gautam Bhatia and Apar Gupta. Unless, in that ‘appropriate case’, the constitutionality of Section 499 is revisited as well.