Yusra Khatoon & Avinash Ray are Law Students
Now we have come up to an era where the legality of defamation is great topic of discussion in India as we have criminalized in IPC, Constitution. But do we ever thought of how does the defamation get evolved and gets it legality in India. In this paper we are going to critically analyze that with the help of certain case laws. But at the end court should be cautions while dealing with the cases in this context. As defamation is being criminalized in Indian Penal Code and Constitution under Article 19(1)(a) not only post-constitutional but also pre-constitutional. As we interpret Article 21 in wider sense it also because it deals with persons’ personal liberty.
Keywords: Defamation, Constitutional Legality, Criminalized, Civil Wrong, Criminal Wrong.
This is a write up on critical analysis of evolution and legality of defamation in India. This will show the present position of defamation law in India and how it gets its legality. In this analysis many judgements of the Apex court like Subramaniam Swamy v. Union of India1 and Shreya Singhal’s v. Union of India2. As a final point, the analysis will conclude that court should be cautions whenever restrictions are imposed on right to freedom of speech. It has also been held by the court that in judging the reasonableness of restrictions, the court is fully entitled to take into consideration matters of common report, history of the times and matters of common knowledge and the circumstances existing at the time of legislation.
Provision of Criminal Defamation criminalizes speech that is envisioned to harm the reputation of any person. The person was constructed broadly, so chances of its misuse to frame critical broadcasting or independent comment were high since it was unified into Indian Penal Code in 1860. Finally, now its constitutional status was questioned. Recently, in the cases in which the court bank on upon Constituent Assembly’s assent to let Criminal Defamation Laws survive without bearing in mind further progress in constitutional jurisprudence and wider interpretation to personal liberty. However, mere presence of pre-constitutional defamation law does not make it pass muster of ‘Reasonable’. Secondly, exceptionally eclectic protection was given to the “Right to be offended” without considering the fact that additional protection was given in Article 19(1)(a) of the Constitution of India, not taking into version precedents given by larger benches.
Now the question arises how the evolution of defamation takes place? In the early times or present reputation of any person is very precious thing which he earns for the whole life and if somebody harms it, the person feels that his soul is dead and he has lost his everything. Defamation is an all-inclusive term that covers any intentional false communication either written or spoken, that harms person’s reputation: declines the respect, regard, or confidence in which a person is held; or includes disparaging, hostile, or disagreeable opinions or feelings against a person, entity group, government etc. Defamation are of two types Libel & Slander, where ‘written defamation’ is known as libel and ‘spoken or oral defamation’ is called slander. They both are derived from the English Common Law, but they are not treated as distinct from each other in Indian Jurisprudence
From the very early times, people have grasped defamatory and injurious statements made in a public manner. There is probability that the very first case involving to defamation was New York v. Sullivan 3 In this case Sullivan the plaintiff, a police official, demanded that false allegations about him appeared in the New York Times, and sued the newspaper for libel. The court balanced the plaintiff’s interest in preservative his reputation against the public’s interest in freedom of expression in the area of political debate. It held that a public official asserting libel must prove actual malice in order to convalesce damages. The court declared that the First Amendment protects open and robust debate on public officials. A public official or other plaintiff who has voluntarily assumed a position in the public eye must prove that defamatory statements were made with knowledge that they were false or with reckless disregard of whether they were false. Where the plaintiff in a defamation action is a private-citizens who is not in the public eye, the law extends a lesser degree of constitutional protection to defamatory statements. Public figures voluntarily place themselves in a position that invites close scrutiny, whereas private citizens who have not entered public life do not relinquish their interest in protecting their reputation. In addition, public figures have greater access to the means to publicly counteract false statements about them. For these reasons, a private citizen’s reputation and privacy interests tend to outweigh free speech considerations and deserve greater protection from the courts stated in the case Gertz v. Robert Welch4. There is a distinguish between public and private figures for the purposes of defamation law is sometimes difficult. For an individual to be considered a public figure in all situations, the person’s name must be so familiar as to be a household word.
Defamation laws in India were conceived by Lord Macaulay in 1837 in the first draft of the Indian Penal Code and subsequently codified in 1860. The offence of defamation was along the same lines of the prevailing English Law. The intention behind criminalizing the act of defamation in British India was certainly linked with protecting the interests of the British Raj, the security of the state, and public order. Consequently, Section 499 of the Indian Penal Code 1860 was enacted and has remained unaltered for the last 158 years and section stated as:
“Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishers any imputation will harm, the reputation of such person, is said except in the cases hereinafter expected, to defame that person.
Explanation 1: It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living and is intended to be hurtful to the feelings of his family or other near relatives.
Explanation 2: It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.
Explanation 3: An imputation in the form of an alternative or expressed ironically, may amount to defamation.
Explanation 4: No imputation is said to harm a person’s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.”
Section 500: Punishment for defamation- “Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.”5
In July 1988, Rajiv Gandhi’s administration, injured by allegations of the Bofors affair, introduced a defamation bill which sought to create new offences of “criminal imputation” and “scurrilous writing”. The bill widened the definition of the term ‘Defamation’ and shifted the burden of proof from the aggrieved to the accused. The Lok Sabha had passed the bill and the bill was to be introduced in the Rajya Sabha thereafter. A highly successful nationwide strike by the newspaper industry and increasingly strident popular protests forced the government to withdraw the bill. The press release withdrawing the bill stated:’ A free press is an integral part of the inner strength and dynamism of our democracy. Without a free press there can be no democracy. The imperishable values of our freedom struggle have gone into the making of the press in India. And the above, mentioned section were framed to criminalize the defamation. It is both civil as well as a criminal offence. In past few years, defamation cases are rapidly increasing in India like anything.
In India, there is no such distinction between libel and slander. Both libel and slander are criminal offence. For better understanding it is divided into two categories:
Defamation as an individual wrong (Criminal): Defamation as a crime is governed under Indian Penal Code Chapter XXI sections 499 & 500 along with this defamation against state is being governed under Section 124A [Sedition] stated as: “Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in India shall be punished with imprisonment for ;life, to which fine may be added , or with imprisonment which may extend to three years, to which fine may be added, or with fine”.
The first case that tackled the constitutionality of Section 124-A was Ram Nandan v. State of U.P.6 The Allahabad High court held that S.124-A of the IPC is ultra vires as it violates Article 19(1) (a) of the Constitution. 124-A was said to restrict freedom of speech and struck at the very roots of the constitution.However, this was overruled in the case of Kedarnath Das v. State of Bihar. The court in this case held that this section should limit acts involving intention or tendency to create disorder or disturbance of law and order or incitement of violence. However, if this section is used arbitrarily, it is in violation of Article 19. In the case of Kedarnath Singh v. State of Bihar7 the judgement of the case Ram Nandan v. State was revived by the SC as ‘The facts of the judgements are: Kedar Nath Singh was a member of the Forward Communist Part in Bihar was involved in terming the officers of C.I.D as “dogs”, the ING as “Goondas” he went on saying that he believed in revolution, which will come and in the flames of which the capitalists, zamindars and the Congress leaders of India, who have made it their profession to loot the country, will be reduced to ashes and on their ashes will be established a government of the poor and the downtrodden people of India. He also targeted Vinobha Bhave’s attempts to redistribute land. Subsequently, Kedar Nath Singh was convicted by the trial court under Section 124-A and Section 505 of IPC and was sentenced to undergo rigorous imprisonment for a period of one year. On appeal, a single judge bench of the Patna comprising Justice Naqui Imam upheld the conviction and accordingly dismissed the appeal. In his judgement, it was observed by the learned judge that “the subject matter of the charge against the appellant was nothing but a vilification of the government; that it was full of incitements to revolution and that the speech taken as a whole was certainly seditious. It is not a speech criticising any particular policy of the Government or criticising any of its measures.”On further appeal, the matter was placed before a Divison Bench of the Supreme Court along with a bunch of appeals of the same subject matter from the State of Uttar Pradesh. As there was an issue of constitutional validity of the Section 124-A and Section 505 of the Indian Penal Code, the Divison Bench accordingly referred the matter to a Constitution bench. After examining the impugned provisions by referring to the judicial history of the same the Apex court was confronted with two conflicting judgements of the Federal Court in Niharendu Dutt Majumdar v. The King 8 and The Privy Council in King-Emperor v. Sadashiv Narayan Bhalerao.9
While dealing with these two judgments, the Hon’ble Supreme Court was of the opinion that if the judgement and interpretation of the Federal Court are accepted then the impugned sections would come within the ambit of permissible legislative restrictions on the fundamental right of freedom of speech and expression. On the other hand, if the judgement and interpretations of the Privy Council be accepted then the impugned sections are liable to be quashed as unconstitutional in view of Article 19(1)(a) read with Article 19(2). In this manner, the scope of the impugned sections was restricted and the Constitutional validity of both the impugned sections was upheld. Accordingly, the appeal was dismissed and appeal of other connected matter was remanded back to the concerned High Court.
Whether Sections 124A and 505 of the Indian Penal Code are ultra vires in view of Article 19(1)(a) read with Article 19(2) of the Constitution?
Whether the intention or tendency to create disorder, or disturbance of law and order, or incitement to violence is required to constitute the offence of sedition?
ISSUE 1- Whether Sections 124A and 505 of the Indian Penal Code are ultra vires in view of Article 19(1)(a) read with Article 19(2) of the Constitution?
The Supreme Court held that it is the security of the State, which depends upon the maintenance of law and order and is the very basic consideration upon which legislation, with a view to punishing offences against the State, is undertaken. Such a legislation has, on the one hand, fully to protect and guarantee the freedom of speech and expression, which is the sine quo non of a democratic form of Government that our Constitution has established. It held that such a restriction is necessary for the safety and integrity of the State. Accordingly, the Supreme held that Section 124-A and Section 505 of the Indian Penal Code was intra vires of the Constitution of India considering Article 19(1)(a) read with Article 19(2).
ISSUE 2- Whether the intention or tendency to create disorder, or disturbance of law and order, or incitement to violence is required to constitute the offence of sedition?
The Apex Court while perusing the conflicting decisions of the Federal Court and The Privy Council was of the opinion that if the interpretation of Privy Council that even without any tendency to disorder or intention to create disturbance of law and order, by the use of words written or spoke which merely create disaffection or feelings of enmity against the Government, the offence of sedition is complete, then such an interpretation of the sections would make then unconstitutional in view of Art. 19(1)(a) read with clause (2). Accordingly the interpretation of the Federal Court that that the gist of the offence of ‘sedition’ is incitement to violence or the tendency or the intention to create public disorders by words spoken or written, which have the tendency or the effect of bringing the Government established by law into hatred or contempt or creating disaffection in the sense of disloyalty to the State was accepted and the Section was given a restrictive interpretation.
The Supreme Court summarised10 certain well-settled principles to determine the constitutional validity of the provisions of any statute with reference to earlier cases. A legislation can be declared to be illegal and unconstitutional only when it fails to clear the test of arbitrariness and discrimination which would render it violative of Article 14 of the Constitution. A law which has the effect of taking away or substantially abridging the fundamental right will not be saved merely because it doesn’t say so but produces that effect indirectly. The court has to examine with some strictness the substance of the legislation to find what actually and really the legislature has done. In considering the effects of an impugned law, the Court has to distinguish between its “direct and inevitable consequences” and remote consequences or incidental effects. The Court will strike down a legislation which directly affects a fundamental right.11
A legislature lacking legislative power or subject to a constitutional prohibition may frame its legislation so as to make it appear to be within its legislative power or free from the constitutional prohibition. Such a law is “colourable” legislation, meaning thereby that while pretending to be a law in the exercise of undoubted power, it is in fact a law as a prohibited field. It was held that if a legislature with a limited or qualified jurisdiction transgresses its powers, such transgression may be open, direct, overt, or disguised, indirect and covert. The latter kind of trespass is figuratively referred to as “colourable legislation”, connoting that although apparently the legislature purports to act within limits of its own powers, yet, in substance and in reality, it encroaches upon the field prohibited to it, requiring an examination with some strictness, the substance of the legislation for the purpose of determining what it is that the legislature is recalling doing.12 The legislature cannot violate the constitutional prohibition by employing indirect method.13 The true principle is that “it is not permissible to do indirectly what is prohibited directly."
The idea conveyed by the expression is that although apparently a legislature in passing a statute purported to act within limits of its powers, yet in substance and in reality it transgressed these powers, the transgression being veiled by what appears, on proper examination, to be a mere pretence or disguise. It was held by the court that any legislation which provided for confiscation or the payment of something which amounted to no compensation was a fraud on the above legislative power and was bound to be struck down as a colourable legislation. The nature of enquiry must always be to the true nature and character of the challenged legislation. For the purpose of such investigation the court could certainly examine the effect of the legislation and take into consideration its object, purpose or design.
The object behind the legislation was to curb sowing feelings of enmity or hatred against the Government. But in the mean while the provisions of the impugned section provided a very handy tool in the hands of ruling elite to supress the individual liberties ultimately violating the provisions of the Constitution as envisaged in Article 19. It is to be noted that in the veil of upholding the sovereignty, integrity and security of the State the impugned section is transgressing the limits of constitutional prohibition in the form of posing serious threat to freedom of speech and expression of individuals voicing their concerns vide criticising of policies of the Government.
The Constitution of India guarantees freedom of speech and expression, which means the right to express one’s own convictions and opinions freely by words of mouth, writing, printing, pictures or any other mode. The fundamental rights contained in Article 19(1) are those great and basic rights which are recognised as the natural rights inherent in every citizen.14 The basic requisite of validity of law with reference to Article 19 is that it should not be arbitrary15 and the restrictions or limitations imposed on the rights under Article 19(1)(a) must comply with the reasonable restrictions mentioned in Article 19(2).
The essential requirement of any restriction on the freedoms contained in Article 19(1) is that they must be reasonable. The expression “reasonable restrictions” signifies that the limitation imposed on a person in the enjoyment of a right should not be arbitrary or excessive in nature beyond what is required in the interest of the public. It is not enough that the restrictions are for the benefit of the public; they must be reasonable as well and the reasonableness could be decided only on a conspectus of all the relevant facts and circumstances.16 Reasonableness of restriction is to be determined in an objective manner and from the standpoint of interest of the general public and not from the standpoint of the interest of persons upon whom the restrictions have been imposed or upon abstract considerations. There must be a direct and proximate nexus or a reasonable connection between the restrictions imposed and the object sought to be achieved. The court has to see whether the restrictions imposed really fulfil or frustrate the object of the statute.
Freedom of speech and expression includes freedom of propagation of ideas and that freedom is ensured by the freedom of circulation. The Supreme Court has struck down even indirect attempts to curb this fundamental right. The right to freedom of speech could not be curtailed in the interest of the general public like the right to carry on business.17 Freedom of expression, as learned writers have observed, has four broad social purposes to serve: (i) it helps an individual to attain self-fulfilment; (ii) it assists in the discovery of truth; (iii) it strengthens the capacity of an individual in participation in decision-making; and (iv) it provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change.18 All members of society should be able to form their own beliefs and communicate them freely to others.19
As far as maintenance of public order is concerned it is an expression of wide connotations and includes public safety or interest and signifies that the state of tranquillity prevailing among the members of a political society, as a result of the internal regulations enforced by the Government which they have instituted. In short, public order implies an orderly state of affairs in which citizens can peacefully pursue their normal avocations of life.20 Even though the legislature has the right to curb tendencies to create a breach of public order in cases where the breach of peace has actually taken place21, this would not enable the legislature to provide for situations which have only a problematic relationship with public order. Whether in a particular case an utterance would have tendency to create a breach of public order is to be determined objectively from the circumstances in which the utterance is made, the nature of audience and the like.22 Where the relation between advocacy or incitement and the threat to public peace and tranquillity is not proximate but problematic, it cannot be restricted on the so-called ground of “public order”. The restriction can only be imposed in cases where there exists incitement of enmity or hatred feelings between different sections of the society23or insulting the religious feelings of any class of citizens, with a deliberate and malicious intention not in cases of mere criticism of a Government or any of its policies.24
It is the fundamental right of every citizen to have their own political theories and ideas and to propagate them #and work for their establishment so Then where the pledge# of a society amounted only to an undertaking to propagate the political faith that capitalism and private ownership are dangerous to the advancement of society and work to bring about the end of capitalism and private ownership and establishment of a socialist State for which others are already working under the lead of working classes, it was held that it was open to members of the society to achieve these objects by all peaceful means.25 Ceaselessly fighting public opinion that might be against them and opposing those who desired continuance of the existing order of the society and the present Government that it would also be legitimate to presume that they desired a change in the existing Government so that they could carry out their programme and policy that the mere use of words “fight” and “war” in their pledge did not necessarily mean that the society planned to achieve its object by force and violence.26
Along with the Section 295A [Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs] stated as: “Whoever, deliberate and malicious intention of outraging the religious feelings of any class of citizen of India by words, either spoken or written, or by signs or by visible representations or otherwise, insults or attempts to insult the religion or the religious beliefs of the class, shall be punished with imprisonment of either description for a term which may extend to three to four years or with both.”
Now the procedure for these offences is being defined under the Code of Criminal Procedure which clearly states that offences under this section is non-cognizable and bailable. Those who are accused of the offence would generally not be taken into custody without warrant, and as such, an aggrieved person would not be able to simply file a police complaint but would, in most cases, have to file a complaint before a magistrate. As far as the ‘truth defence’ is concerned, although ‘truth’ is generally considered to be a defence to defamation as a civil offence, under criminal law, only truth is a defence to defamation as a crime only in a limited number of circumstances, This can make persons particularly vulnerable to being held guilty of having committed defamation under the IPC even if the imputations they made were truthful.
Defamation as a Public Wrong (Civil/ Tort): As far as defamation under tort law is concerned, as a general rule, the focus is on libel and not a slander. In order to establish that a statement is libellous, it must be proved that it is false, written, defamatory and published in public. As interesting aspect of defamation as a tort is that it is only a wrong if the defamation is of a nature which harms the reputation of a person who is alive. In most cases, this translates to saying that it is not a tort to defame a deceased person since as a general rule, the plaintiff needs to be able to prove that the defamatory words referred to him. However, this does not mean that there can be no cause of action if a dead person is defamed. Further, if an action for defamation is instituted, and defamation is found to have been committed, damages will be payable to the plaintiff. In addition to this, a person apprehensive of being defamed in a publication may seek are rarely granted of an injunction to restrain such publication. However, pre-publication injunctions are rarely granted as Indian courts have tended to follow the principle laid down in the year 1891 in the famous case Bonnard v. Perryman27 :
“The court has jurisdiction to restrain by injunction, and even by an interlocutory injunction, the publication of a libel. But the exercise of the jurisdiction is discretionary, and an interlocutory injunction ought not to be granted except in the clearest cases- in cases in which, if a jury did not find the matter complained of to libellous, the court would set aside the verdict as unreasonable. An interlocutory injunction ought not to be granted when the defendant swears that he will be able to justify the libel, and the court is not satisfied that he may not be able to do so.”
This principle has been followed by the division bench of the Delhi High Court in the year 2002 case of Khushwant Singh v. Maneka Gandhi.28 As such, even if there is an apprehension that content may be of a defamatory nature, it is likely that publication would not be restrained except in exceptional cases- presumably, those cases where the later payment of damages would clearly not suffice to set right the wrong done to the person defamed. In non-exceptional circumstances, Indian courts have shown a tendency to support free speech, and have not displayed a tendency to grant injunctions which would have the effects of muzzling speech on the ground of possible defamation.
In Shreya Singhal v. UOI29 in so far as abridgement and reasonable restrictions are concerned, both US SC and this court have held that a restriction in order to be reasonable must be narrowly tailored or narrowly interpreted or restrict only what is absolutely necessary. Firstly, Private wrong, i.e., wrongs to individuals at the hands of other individuals are meant to be pursued through the civil courts with this compensation and damages result of it. It is only when there is a public element to the wrong, states responsibility comes in. In the Superintendent Central Prison Fatehgarh v. Ram Manohar Lohia30 the Court observed as follows: “Be reasonable restriction in the interests of public order to proximate connection or nexus with public order, but not one farfetched of its relation with the public order. We cannot accept the argument of the learned Advocate General that instigation of a single individual not to pay tax ir dues is a spark which may in the long run ignite a revolution movement destroying in the Public Order. Secondly, in Ram Manohar Lohia v. State of Bihar & Ors, the court explained the meaning of Public Order Comprehend disorders of less gravity than those affecting Security of State it is then easy to see that an act may affect law and order but no public order just as Defamation is perfect example of it. Defamation law is not used exclusively by the disempowered against the powerful. It is also used by big complaints to silence journalists who speak truth to power.”
Although the rights to be included in the Constitution were considered to be fundamental and enforceable by the courts, they cold not however, Assembly members realized, be absolute. Before analysing Constituent Assembly Members Debate on limiting fundamental rights or Reasonable Restrictions. There was no easy agreement at this issue was the explosive question of freedom versus state security and to a lesser extent of liberty versus license in individual behaviour. Thus, after a long discussion Constitution placed a major restriction on the scope of legislative competence for the judges may review the reasonableness of restriction placed upon rights and thus have MUTATIS MUTANDIS the same power in relation to Article 19which American judges generally exercise under the clause of “due process of law”. This shows that the Constituent Assembly never intended to put wide limitations which courts may have put had the Assembly not carved out specific limitations. Perhaps they intended to impose limitations only under these exceptions which proves that they placed more faith in freedom and tried to shield this from courts unrestricted power.
Defamation means the act or result of defaming or being defamed. Therefore, arguing that this word encapsulates both civil and criminal defamation is conceptually wrong. Hence, it is proposed that the Parliament could make a law to address the problem of Defamation under Article 19(2). The law so made can be a civil or criminal law. The law must relate to defamation but the nature of the law including its civil/criminal character should fall for consideration under the reasonableness requirement. Now just because there was a pre-existing statute when Article 19(2) was enacted and when it was later amended does not ispo facto imply that the pre-existing law gets saved by Art 19(2) without any need for further inquiry as to its reasonableness in Art 19(1)(a). This is how reasonable restrictions are being added to the Article 19.
Now when Defamation is criminalized it has been alleged that it takes away fundamental right of freedom and expression guaranteed under Article 19(1) of the Constitution of India. Because the right to freedom to speech and expression is regarded as one of the most basic elements of a healthy democracy for it allows its citizens to participate fully and effectively in the social and political process of the country. Freedom of speech provides opportunity to express one’s belief and show political attitudes. But the question arises whether defamation comes under reasonable restrictions imposed by state under Article 19(2) of Constitution or not? Now following are the critical analysis of the cases which shows that yes defamation comes under reasonable restrictions imposed under Article 19(2).
R.Raj Gopalan v. State of Tamil Nadu31: This case pertains to constitutionality of civil defamation. In this case, SC of India mentioned about one of the landmark judgements of the US SC in New York Times v. Sullivan 32 stated that government official who is on his duty can recover damages only when the truth claim is false and reckless regard for truth. Through this case, the judges examined the relationship between free speech and civil defamation. The court held that common law defamation stood unreasonably restricted under Article 19(1)(a) because it thrust undue advantage of no-fault liability. The primary assault against Section 499 was that by criminalizing what is basically a private wrong. The section added up to limitation upon free discourse.
Subramanian Swamy v. Union of India33: Two judges’ bench of SC consisting of Justice Dipak Mishra and Justice P.C. Pant decided to maintain constitutional validity of the country’s criminal defamation laws, deciding that laws are not in disagreement with freedom of right to speech. The decided judgement had put most of the publication and the media figure on the round side. Some even argued that it could hold back freedom of speech. The case will be remembered more for its indistinct colourful languages than for its educational values. It is clear from the announcement that there has been a alarming effect on freedom of speech. They communicated that through their analysis, there is a requirement of public for the loss of reputation they suffer and wanted to provide public remedies for private wrongs. They communicated that through their analysis, there is a requirement of public for the loss of reputation they suffer and wanted to provide good grounds to think that judgement is an atrocious blow against freedom of expression. Article 19(2) of the Indian Constitution stated reasonable restrictions upon the freedom of speech, in the interests of Defamation34. But the Article does not say about the defamation whether it deals with criminal as well as civil defamation. The word reasonable entails proportionality aspect in terms of relationship between the degree to which freedom of speech contravened and the interest of the public at stake. It is not necessary for all in the chorus to sing the same song. A magistrate should be extremely careful in issuing summons on a plea for the initiation of any criminal defamation case. It is noteworthy to note that to justify the penal provisions centre pronounced about the anarchical way of how Indian society works and opined about how criminal defamation deters people from practicing freedom of speech and expression. It has been logically deduced that mostly politicians are facing the criminal defamation case against their opponents. Subramanian Swamy v. UOI 2016. The SC held that section 499 and section 500 of the IOC dealing with criminal defamation as constitutionally valid.
It recognized the right to reputation as a part of the right to life assured to citizens under Article 21 of the Constitution. It declared that the right to free speech under Article 19(1)(a) had to be balanced against the right to reputation under Article 21.
The SC said a free press is the heart and soul of political intercourse and is a public educator, but this freedom is not absolute and cannot be used by the media to cause injury to an individual’s precious reputation.
The court said that the press has to also observe reasonable restrictions and its purpose is to advance the public interest by publishing facts and opinions without which a democratic electorate cannot make responsible judgements.
The court said that the reputation of an individual was an equally important right and stood on the same pedestal as free speech.
The court held the criminalization of defamation to protect individual dignity of life and reputation is a reasonable restriction on the fundamental right of free speech and expression.
The right to reputation is a constituent of Article 21 of the Constitution.
It is an individual’s fundamental right.
It is also a human right. Cumulatively, it serves social interest.
Upholding defamation provisions do not silence free speech.
The court observed that deliberate injury to the reputation of an individual is not a mere private wrong, worth only a civil case for damages.
Defamation is a crime committed against society at large and the state has a duty to redress the hurt caused to its citizen’s dignity.
Nobody has a right to denigrate others’ right to person or reputation. Interest of the people involved in the acts of expression should be looked at not only from the perspective of the speaker but also the place at which he speaks, the scenario, the audience the reaction of the publication, the purpose of the speech and the forum in which the citizen exercises his freedom of speech and expression.
Constitutional validity of criminal defamation, the SC also rejected demands to strike down Section 199(2) to (4) of the Cr.PC.
The court rejected the argument that this section creates a separate class. It also dismissed the contention that the classification enumerated in this provision has no rationale and does not bear constitutional scrutiny.
The provision in the Cr.PC allows public servants to file a complaint in a sessions court through a public prosecutor for alleged defamatory comments on their official acts.
The court said the right of a public servant, under Cr.PC 199(2) to (4), to file defamation complaint is over and above his or her right under Section 199(6) to personally file a complaint before magistrate.
Section 199(6) gives to a public servant what every citizen has as he cannot be deprived of a right of a citizen. There can be cases where sanction may not be given by the State Government in favour of a public servant to protect his right and, in that event, he can file a case before the magistrate under section 199(2) to (4).
The courts’ reasoning is not always easily penetrable: its differentiation between public and private wrongs is far from clear, it refers to scripture and works of literature without clear indication of why it does so, and it speaks of such things as fundamental duty and constitutional facility.
Constitutional concept: Fraternity as a concept is characteristically different from the other constitutional goals. It, as constitutional concept, has a keen bond of sorority with other concepts.
The breed of homogeneity in a positive sense and not to trample dissent and diversity. It is neither isolated nor lonely.
The idea of fraternity is recognized as a constitutional norm and a precept. It is a constitutional virtue that is required to be sustained and nourished.
Despite not being a model of clarity, and despite its conclusion arguably being a disappointment, the decision does not appear to significantly impact existing law. For better or worse, courtesy the SC decision in the case of Subramanian Swamy Case, Ministry of Law & Ors, defamation to be a crime in addition to civil wrong.35
Shreya Singhal v. Union of India36: In the backdrop of Shreya Singhal’s case, and in context of the contemporary age of information technology and social networking how desirable was it to on the part of judiciary to decriminalize defamation.
Shreya Singhal’s case is a landmark judgement in the field of freedom speech and expression. This epic case brings forth various dimensions which are important facets of Article 19(a). Section 66A which was widely criticised for its over breadth, vagueness and its chilling effect on speech was struck down by the apex court as it was unconstitutional. However, in Swamy’s case Mishra J takes a different route and points out that there is a difference in the canvas on which the Shreya Singhal’s case has been. In that case there was a narrow interpretation of the provision. However, in Swamy’s case ‘reputation’ was also involved and narrow interpretation was not the case.
Chilling Effect: The term ‘chilling effect’ in legal context basically describes a situation where a speech or conduct is suppressed by fear of penalisation at the interests of an individual or group. It is the inhibition or discouragement of the legitimate exercise of natural and legal rights by the threat of legal sanction. Regarding over breadth, apex court opined that the net cast by Section 66A was so wide that virtually it covered any opinion on any subject. Nariman’s J opinion has highlighted that the liberty of thought and expression is not merely an aspirational ideal. It is also “a cardinal value that is of paramount significance under our constitutional scheme”.
Article 19(1)(a) of the Constitution guarantees to citizens right to freedom of speech and expression. The immediately succeeding clause, Article 19(2), however limits this right in allowing the state the power to impose by law reasonable restrictions in the interests, among other things, of the sovereignty and integrity of India, the security of the state, public order, decency or morality, defamation or incitement to an offence. According to the petitioners in Shreya Singhal’s Case, none of these grounds contained in Article 19(2) were capable of being invoked as legitimate defences to the validity of section 66A of the IT Act, 2000. They also argued that the provisions of section 66A were contrary to basic tenets of a valid criminal law in that they were too vague and incapable of precise definition, amounting, section 66A produced a chilling effect that forced people to expurgate their speech and expressions of any form of dissent, however innocuous. The SC agreed with the petitioners on each of these arguments. According to the court, none of the grounds, which the state sought to invoke in defending the law, in this case, public order, defamation, incitement to an offence and decency or morality, each of which is contained in Article 19(2), was capable of being justifiably applied. Nariman J stated: “Any law seeking impose a restriction on the freedom of speech can only pass muster”, he further said, “If it is proximately related to any of the eight subject matters set out in Article 19(2), the Supreme Court, ruled it as pithily dismissive. The court pointed out that there was no nexus whatsoever between the criminalization of ‘grossly offensive’ or ‘annoying’ speech and the restrictions permitted under the Constitution were self-evident.
Free speech is the best defence against ill administered government. Politicians who err should be subjected to unfettered criticism. Those who hear it may respond to it; those who silence it may never find how their policies misfired. As Amartya Sen, a Nobel laureate pointed out that no democracy with a free press endured famine. Science cannot develop unless old certainties are queried. Taboos are the enemy of understanding. The law should recognize the right to free speech as nearly absolute. Exception should be rare as envisaged in Constituent Assembly by adding Reasonable before restriction. In volatile countries words that incite violence will differ from those that would do so in a stable democracy. But the principles remain the same. The policy should deal with serious and imminent threats and every other person having a view supported by truth should not be arrested. The chilling effect refers to the manner in which over-broad and severe laws chill speech it is clearly available from these facts that substance and procedure of defamation law both are tyranny for a common man but court found existence of law enough indication that there can never be chilling effect. The discussion brings us to the point in cases of unconstitutional interpretation, the stakes become higher. It is easy to criticize rather than actually get into the depths of matter. Of course, a healthy criticism fosters creativity and growth. Nowadays, it is easy to have a critical approach rather than actually get into the skin of the matter. Also, it cannot be ignored that the judiciary tries its best to give a harmonious construction in such matters. As citizens, we too, have responsibility- it is time to revisit ourselves.