Report No. 179

7.29 Punishment for False or Frivolous Disclosures : (proposed section 16).-

We have seen in Chapter IV that while dealing with the Right to Freedom of Expression as contained in Article 19 (1) (a) of our Constitution, and the similar right contained in the US Constitution and in Article 10 of the European Convention, it has now been held that allegations against public servant are not actionable merely because they are wrong or have been found to be not proved. It is necessary to further establish that the allegations were made by the person with knowledge that they were false or were made, recklessly or maliciously.

In India, our Supreme Court has also laid down the same rule in Rajagopal's case referred to in Chapter IV. We have also referred to several other cases in Chapter V which have protected disclosures with a view to protect public interest or interest of public policy. Therefore, any provision which proposes to punish the person making the disclosure, must necessarily take notice of the above provisions of law as laid down by the Supreme Court of India.

In fact, in Australia and New Zealand, the relevant statutes which permit punishment of the person making the disclosure, take note of the above principle of law in the section which deals with punishment of the person making the disclosure. It may also be noticed, in the context, that 111 clause (c) of the section 2 in the present Bill defines 'disclosure' as a disclosure of information that the person making the disclosure reasonably believes, that it tends to show disclosable conduct. We have also provided in sub-section (3) of section 3 that every disclosure shall be made in good faith and the person making shall solemnly affirm that he reasonably believe that the information disclosed and any allegation contained therein, is substantially true.

Therefore, it will not be constitutionally or even otherwise permissible to punish a person merely because, in the inquiry conducted by the Competent Authority, the facts and allegations mentioned in the disclosure could not be proved.

We have, therefore, taken note of the above principle in drafting the section dealing with punishment of the person making the disclosure. The Section as proposed reads as follows:

"Section 16: any person who makes any disclosure which falls to his knowledge or reckless or malicious shall be punishable with imprisonment for a term which may extend upto 3 years and also to fine which may extend upto fifty thousand rupees".