Why in News:
In staying the conviction of Congress leader Rahul Gandhi in a case in which he was found guilty of defaming all those who have ‘Modi’ as their surname, the Supreme Court of India has restored his membership of the Lok Sabha as well as a much-needed sense of proportion in public affairs.

IPC sections 499 and 500:  
·         Section 499 of the IPC elaborates on how defamation could be through words – spoken or intended to be read, through signs, and also through visible representations.
·         These can either be published or spoken about a person with the intention of damaging the reputation of that person, or with the knowledge or reason to believe that the imputation will harm his reputation.
·         Section 500 stipulates imprisonment of up to two years, with or without a fine, for someone held guilty of criminal defamation.

Meaning of Defamation:  
·         Defamation is the act of communicating false statements about a person that injure the reputation of that person when observed through the eyes of an ordinary man.
·         Any false and unprivileged statement published or spoken deliberately, intentionally, knowingly with the intention to damage someone's reputation is defamation.
·         History of defamation can be traced in Roman law and German law. Abusive chants were capital punishment in Roman.

Defamation Law in India:  
·         Article 19 of the Constitution grants freedom of speech to its citizens. However, Article 19(2) has imposed certain reasonable exemptions to this freedom such as - Contempt of Court, defamation and incitement to an offense.
·         In India, defamation can both be a civil wrong and a criminal offense, depending on the objective they seek to achieve.
·         A Civil Wrong sees a wrong being redressed with monetary compensation, while a criminal law seeks to punish a wrongdoer and send a message to others not to commit such acts, with a jail term.
·         In a Criminal Offense, defamation has to be established beyond reasonable doubt but in a civil defamation suit, damages can be awarded based on probabilities.

Free Speech v/s Defamation laws:  
o   It is argued that the defamation laws are a violation of Fundamental Rights guaranteed under Article 19 of the constitution.
o   The Supreme Court has ruled that the criminal provisions of defamation are constitutionally valid and are not in conflict with the right to free speech.
o   The SC has also held that it is valid to treat defamation as a public wrong and that criminal defamation is not a disproportionate restriction on free speech, because protection of reputation is a fundamental right as well as a human right.
o   The Court relied on the judgments of other countries and reaffirmed the right to reputation as a part of the right to life under Article 21.
o   Using the principle of ‘balancing of fundamental rights’, the court held that the right to freedom and speech and expression cannot be “allowed so much room that even reputation of an individual which is a constituent of Article 21 would have no entry into that area”.

Previous Judgements related to Defamation:  
·         Mahendra Ram Vs. Harnandan Prasad (1958): A letter written in Urdu was sent to the plaintiff. Therefore, he needed another person to read it to him. It was held that since the defendant knew the plaintiff does not know Urdu and he needs assistance, the act of the defendant amounted to defamation.
·         Ram Jethmalani Vs. Subramanian Swamy (2006): The High Court of Delhi held Dr. Swamy for defaming Ram Jetmalani by saying that he received money from a banned organization to protect the then Chief Minister of Tamil Nadu from the case of assassination of Rajiv Gandhi.
·         Shreya Singhal Vs. Union of India (2015): It is a landmark judgment regarding internet defamation. It held unconstitutional Section 66A of the Information Technology Act, 2000 which punishes for sending offensive messages through communication services.

About disqualification  
Constitutional provisions:
·         The provision for disqualification is given in Article 102 of the Constitution.
·         It specifies that a person shall be disqualified for contesting elections and being a Member of Parliament under certain conditions.
·         If he holds any office of profit under the Union or state government (except that of a minister or any other office exempted by Parliament).
·         If he is of unsound mind and stands so declared by a court.
·         If he is an undischarged insolvent.
·         If he is not a citizen of India or has voluntarily acquired the citizenship of a foreign state or is under any acknowledgement of allegiance to a foreign state; and
·         If he is so disqualified under any law made by Parliament.
·         Article 102 also authorises Parliament to make laws determining conditions of disqualifications.
·         There are analogous provisions for members of state legislatures.

The Representation of the People Act, 1951:  
Disqualification on Imprisonment:
·         The Representation of the People Act, 1951 provides that a person will be disqualified if convicted and sentenced to imprisonment for two years or more.
·         The person is disqualified for the period of imprisonment and a further six years.
·         Exception for sitting members:
·         There is an exception for sitting members; they have been provided a period of three months from the date of conviction to appeal; the disqualification will not be applicable until the appeal is decided.
  
About Disqualification on Ground of Defection:
·         The Constitution also lays down that a person shall be disqualified from being a member of Parliament if he is so disqualified on the ground of defection under the provisions of the Tenth Schedule.
·         A member incurs disqualification under the defection law:
·         If he voluntarily gives up the membership of the political party on whose ticket he is elected to the House;
·         If he votes or abstains from voting in the House contrary to any direction given by his political party;
·         If any independently elected member joins any political party; and
·         If any nominated member joins any political party after the expiry of six months.
 
Decision of Presiding officer: 
·         The question of disqualification under the tenth Schedule is decided by the Chairman in the case of Rajya Sabha and Speaker in the case of Lok Sabha (and not by the president of India).
·         In 1992, the Supreme Court ruled that the decision of the Chairman/Speaker in this regard is subject to judicial review.
 
Important Supreme Court Judgements: 
·         2002– Union of India (UOI) v. Association for Democratic Reforms: The SC held that every candidate, contesting an election to the Parliament, State Legislatures, or Municipal Corporation, has to declare their criminal records, financial records, and educational qualifications along with their nomination paper.
·         2005- Ramesh Dalal vs. Union of India: The SC held that a sitting MP or MLA shall also be subject to disqualification from contesting elections if he is convicted and sentenced to not less than 2 years of imprisonment by a court of law.
·         2013- In Lily Thomas v. Union of India: The SC held that Section 8(4) of The Representation of the People Act, 1951 is unconstitutional which allows MPs and MLAs who are convicted to continue in office till an appeal against such conviction is disposed of.
·         The court held that MP/MLA convicted for two years or above would be disqualified immediately.
·         2015 – Krishnamurthy v. Sivakumar & Ors: The SC held that disclosure of criminal antecedents (especially heinous crimes) of a candidate at the time of filing of nomination paper as mandated by law was a categorically imperative.

Can the disqualification be removed?  
·         Yes, the Supreme Court has the power to stay not only the sentence but also the conviction of a person.
·         In some rare cases, conviction has been stayed to enable the appellant to contest an election.
·         But the Supreme Court has made it clear that such a stay should be very rare and for special reasons.
·         The RPA itself provides a remedy through the Election Commission.
·         Under Sec. 11 of the Act, the EC may record reasons and either remove or reduce the period of, a person’s disqualification.
·         The EC exercised this power for Sikkim Chief Minister P.S. Tamang, who served a one-year sentence for corruption, and reduced his disqualification so as to contest a byelection and remain in office.
·         Is there legal protection for legislators against disqualification?
·         Under Section 8(4) of the RPA, legislators could avoid immediate disqualification until 2013.
·         Section 8(4) allowed convicted MPs, MLAs, and MLCs to continue in their posts, provided they appealed against their conviction/sentence in higher courts within 3 months of the date of judgment by the trial court.
·         In other words, the mere filing of an appeal against conviction will operate as a stay against disqualification.
·         But in Lily Thomas vs. Union of India, the Supreme Court in July 2013 struck down section 8(4) of the RPA, 1951 and declared it ultra vires, and held that the disqualification takes place from the date of conviction.

Way Forward:  
·         Criminal complaints should not be entertained unless the damage to reputation is prima facie, a serious one.
·         Unnecessary complaints should be dismissed at the threshold. That apart, complaints cannot be entertained except on behalf of the “person aggrieved”.
·         Such a restriction must not be arbitrary or excessive, and the impairment of freedom must be ‘as little as possible’.
·         This is not to say that defamation must not be discouraged.
·         But decriminalising it will bring the IPC in accord with Article 19(2), ensuring that the means used to discourage defamation do not end up damping legitimate criticism.
·          Criminal defamation laws have been repealed in most democracies and it is high time India modernised its law to take cognisance of new modes of communication.