that in matters of criminal defamation the heavy burden is on
the Magistracy to scrutinise the complaint from all aspects.
The Magistrate has also to keep in view the language
employed in Section 202 CrPC which stipulates about the
resident of the accused at a place beyond the area in which
the Magistrate exercises his jurisdiction. He must be
satisfied that ingredients of Section 499 CrPC are satisfied.
Application of mind in the case of complaint is imperative.
198. We will be failing in our duty if we do not take note
of submission of Mr. Bhambhani, learned senior counsel. It is
submitted by the learned senior counsel that Exception to
Section 499 are required to be considered at the time of
summoning of the accused but as the same is not conceived
in the provision, it is unconstitutional. It is settled position of
law that those who plead Exception must prove it. It has
been laid down in M.A. Rumugam (supra) that for the
purpose of bringing any case within the purview of the Eighth
and the Ninth Exceptions appended to Section 499 IPC, it
would be necessary for the person who pleads the Exception
to prove it. He has to prove good faith for the purpose of
protection of the interests of the person making it or any
other person or for the public good. The said proposition
would definitely apply to any Exception who wants to have the
benefit of the same. Therefore, the argument that if the said
Exception should be taken into consideration at the time of
the issuing summons it would be contrary to established
criminal jurisprudence and, therefore, the stand that it
cannot be taken into consideration makes the provision
unreasonable, is absolutely an unsustainable one and in a
way, a mercurial one. And we unhesitatingly repel the same.
In view of the aforesaid analysis, we uphold the
constitutional validity of Sections 499 and 500 of the Indian
Penal Code and Section 199 of the Code of Criminal
Procedure.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO. 184 OF 2014
SUBRAMANIAN SWAMY Vs UNION OF INDIA,
Dated;May 13, 2016
Dipak Misra, J.
This batch of writ petitions preferred under Article 32 of
the Constitution of India exposits cavil in its quintessential
conceptuality and percipient discord between venerated and
exalted right of freedom of speech and expression of an
individual, exploring manifold and multilayered, limitless,
unbounded and unfettered spectrums, and the controls,
restrictions and constrictions, under the assumed power of
“reasonableness” ingrained in the statutory provisions
relating to criminal law to reviver and uphold one’s
reputation. The assertion by the Union of India and the
complainants is that the reasonable restrictions are based on
the paradigms and parameters of the Constitution that are
structured and pedestaled on the doctrine of
non-absoluteness of any fundamental right, cultural and
social ethos, need and feel of the time, for every right engulfs
and incorporates duty to respect other’s right and ensure
mutual compatibility and conviviality of the individuals based
on collective harmony and conceptual grace of eventual social4
order; and the asseveration on the part of the petitioners is
that freedom of thought and expression cannot be scuttled or
abridged on the threat of criminal prosecution and made
paraplegic on the mercurial stance of individual reputation
and of societal harmony, for the said aspects are to be treated
as things of the past, a symbol of colonial era where the ruler
ruled over the subjects and vanquished concepts of
resistance; and, in any case, the individual grievances
pertaining to reputation can be agitated in civil courts and
thus, there is a remedy and viewed from a prismatic
perspective, there is no justification to keep the provision of
defamation in criminal law alive as it creates a concavity and
unreasonable restriction in individual freedom and further
progressively mars voice of criticism and dissent which are
necessitous for the growth of genuine advancement and a
matured democracy.
2. The structural architecture of these writ petitions has a
history, although not in any remote past, but, in the recent
times. In this batch of writ petitions, we are required to dwell
upon the constitutional validity of Sections 499 and 500 of5
the Indian Penal Code, 1860 (for short, ‘IPC’) and Sections
199(1) to 199(4) of the Code of Criminal Procedure, 1973 (for
short, “CrPC”). It is necessary to note here that when the Writ
Petition (Crl) No. 184 of 2014 was taken up for consideration,
Dr. Subramanian Swamy, the petitioner appearing in-person,
had drawn our attention to paragraph 28 of the decision in R.
Rajagopal alias R.R. Gopal and another v. State of T.N.
and others1
which reads as follows:-
“In all this discussion, we may clarify, we have not
gone into the impact of Article 19(1)(a) read with
clause (2) thereof on Sections 499 and 500 of the
Indian Penal Code. That may have to await a
proper case.”
3. Dr. Swamy had also drawn our attention to the
observations made in N. Ravi and others v. Union of India
and others2
, which are to the following effect:-
“Strictly speaking on withdrawal of the complaints,
the prayer about the validity of Section 499 has
also become academic, but having regard to the
importance of the question, we are of the view, in
1
(1994) 6 SCC 632
2
(2007) 15 SCC 6316
agreement with the learned counsel for the
petitioners, that the validity aspect deserves to be
examined. In this view, we issue rule, insofar as
prayer (a) is concerned.”
4. On the aforesaid plinth, a mansion of argument was
sought to be built, and that is why we have used the term
‘history’. Regard being had to the importance of the matter,
we had asked Mr. K. Parasaran and Mr. T.R. Andhyarujina,
learned senior counsel to assist the Court and they have
assisted with all the devotion and assiduousness at their
command.
5. We feel obliged to state at the beginning that we shall
refer to the provisions under challenge, record the
submissions of the learned counsel for the parties, dwell upon
the concepts of ‘defamation’ and ‘reputation’, delve into the
glorious idea of “freedom of speech and expression” and
conception of “reasonable restrictions” under the
constitutional scheme and x-ray the perception of the Court
as regards reputation, and appreciate the essential anatomy
of the provisions and thereafter record our conclusions.7
Despite our commitment to the chronology, there is still room
for deviation, may be at times being essential in view of
overlapping of ideas and authorities.
6. Sections 499 of the IPC provides for defamation and
Section 500 IPC for punishment in respect of the said offence.
The said provisions read as follows:-
“Section 499. Defamation.— Whoever, by words
either spoken or intended to be read, or by signs or
by visible representations, makes or publishes any
imputation concerning any person intending to
harm, or knowing or having reason to believe that
such imputation will harm, the reputation of such
person, is said, except in the case 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 imputation8
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.
First Exception.—Imputation of truth which public
good requires to be made or published – It is not
defamation to impute anything which is true
concerning any person, if it be for the public good
that the imputation should be made or published.
Whether or not it is for the public good is a
question of fact.
Second Exception.—Public conduct of public
servants.—It is not defamation to express in good
faith any opinion whatever respecting the conduct
of a public servant in the discharge of his public
functions, or respecting his character, so far as his
character appears in that conduct, and no further.
Third Exception.—Conduct of any person touching
any public question.—It is not defamation to
express in good faith any opinion whatever
respecting the conduct of any person touching any
public question, and respecting his character, so
far as his character appears in that conduct, and
no further.
Fourth Exception.—Publication of reports of
proceedings of Courts – It is not defamation to
publish substantially true report of the proceedings
of a Court of Justice, or of the result of any such
proceedings.
Explanation.—A Justice of the Peace or other
officer holding an inquiry in open Court9
preliminary to a trial in a Court of Justice, is a
Court within the meaning of the above section.
Fifth Exception.—Merits of case decided in Court or
conduct of witnesses and others concerned – It is
not defamation to express in good faith any opinion
whatever respecting the merits of any case, civil or
criminal, which has been decided by a Court of
Justice, or respecting the conduct of any person as
a partly, witness or agent, in any such case, or
respecting the character of such person, as far as
his character appears in that conduct, and no
further.
Sixth Exception. —Merits of public performance – It
is not defamation to express in good faith any
opinion respecting the merits of any performance
which its author has submitted to the judgment of
the public, or respecting the character of the
author so far as his character appears in such
performance, and no further.
Explanation.—A performance may be substituted
to the judgment of the public expressly or by acts
on the part of the author which imply such
submission to the judgment of the public.
Seventh Exception.—Censure passed in good faith
by person having lawful authority over another – It
is not defamation in a person having over another
any authority, either conferred by law or arising
out of a lawful contract made with mat other, to
pass in good faith any censure on the conduct of
that other in matters to which such lawful
authority relates.
Eighth Exception.—Accusation preferred in good
faith to authorised person – It is not defamation to
prefer in good faith an accusation against any
person to any of those who have lawful authority10
over that person with respect to the subject-matter
of accusation.
Ninth Exception.—Imputation made in good faith
by person for protection of his or other's interests –
It is not defamation to make an imputation on the
character of another provided that the imputation
be made in good faith for the protection of the
interests of the person making it, or of any other
person, or for the public good.
Tenth Exception.—Caution intended for good of
person to whom conveyed or for public good – It is
not defamation to convey a caution, in good faith,
to one person against another, provided that such
caution be intended for the good of the person to
whom it is conveyed, or of some person in whom
that person is interested, or for the public good.
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.”
Section 199 CrPC provides for prosecution for
defamation. It is apposite to reproduce the said provision in
entirety. It is as follows:-
“199. Prosecution for defamation.—
(1) No Court shall take cognizance of an offence
punishable under Chapter XXI of the Indian Penal
Code (45 of 1860) except upon a complaint made by
some person aggrieved by the offence:
Provided that where such person is under the age
of eighteen years, or is an idiot or a lunatic, or is11
from sickness or infirmity unable to make a
complaint, or is a woman who, according to the
local customs and manners, ought not to be
compelled to appear in public, some other person
may, with the leave of the Court, make a
complaint on his or her behalf.
(2) Notwithstanding anything contained in this Code,
when any offence falling under Chapter XXI of the
Indian Penal Code (45 of 1860) is alleged to have
been committed against a person who, at the time of
such commission, is the President of India, the
Vice-President of India, the Government of a State,
the Administrator of a Union territory or a Minister
of the Union or of a State or of a Union territory, or
any other public servant employed in connection
with the affairs of the Union or of a State in respect
of his conduct in the discharge of his public
functions a Court of Session may take cognizance of
such offence, without the case being committed to
it, upon a complaint in writing made by the Public
Prosecutor.
(3) Every complaint referred to in sub-section (2)
shall set forth the facts which constitute the offence
alleged, the nature of such offence and such other
particulars as are reasonably sufficient to give
notice to the accused of the offence alleged to have
been committed by him.
(4) No complaint under sub-section (2) shall be
made by the Public Prosecutor except with the
previous sanction—
(a) of the State Government, in the case of a
person who is or has been the Governor of that
State or a Minister of that Government;12
(b) of the State Government, in the case of any
other public servant employed in connection with
the affairs of the State;
(c) of the Central Government, in any other case.
(5) No Court of Session shall take cognizance of an
offence under sub-section (2) unless the complaint
is made within six months from the date on which
the offence is alleged to have been committed.
(6) Nothing in this section shall affect the right of
the person against whom the offence is alleged to
have been committed, to make a complaint in respect
of that offence before a Magistrate having
jurisdiction or the power of such Magistrate to
take cognizance of the offence upon such complaint.”
It may be stated that the aforesaid provision came into
existence in the present incarnation after introduction of
Section 199(2) to (5) by the Code of Criminal Procedure
(Amendment) Act, 1955 on 10th August, 1955.
7. The constitutionality of the aforesaid provisions have
been challenged on many a score and from many an angle by
different counsel appearing for the writ petitioners who belong
to different walks of life. First, we shall record the
submissions in their essential facets of the learned counsel
for the petitioners, the contentions advanced by the learned13
Attorney General and the Additional Solicitor General in
defence of the provisions and thereafter the arguments put
forth by the learned Amicus Curiae. We may immediately
state that the effort would be to record the submissions in
fullest, may be sans elaborations and individualistically
crafted and sculptured nuances during the oral hearings.
8. Submissions of Mr. P.P. Rao and Ms. Mahalakshmi
Pavani
i. The right to uninhibited freedom of speech conferred by
Article 19(1)(a) is basic and vital for the sustenance of
parliamentary democracy, which is a part of the basic
structure of the Constitution. The “reasonable restrictions”
are those which are meant to prevent the expression of a
thought which is intrinsically dangerous to public interest
and would not include anything else. The enabling power in
Article 19(2) to impose reasonable restrictions on the right
conferred by Article 19(1)(a) is intended to safeguard the
interests of the State and the general public and not of any
individual, and, therefore, Article 19(2) cannot be regarded as
the source of authority for Section 499 of IPC which makes14
defamation of any person an offence. That apart, Article
19(2), being an exception to Article 19(1)(a), needs to be
construed narrowly and it cannot constrict the liberal
interpretation warranted to be placed on Article 19 (1)(a) of
the Constitution. The schematic intendment in clause (2) of
Article 19 is founded on the fundamental tenet of interests of
the State and the public in general and hence, regard being
had to the nature of fundamental rights and scope of
reasonable restrictions to be imposed thereon, the exception
has to be understood applying the principle of noscitur a
sociis and excluding criminal defamation.
ii. It is to be borne in mind that defamation of an individual
by another individual is a civil wrong or tort, pure and simple
for which the common law remedy is an action for damages.
It has to be kept in mind that fundamental rights are
conferred in the public interest and defamation of any person
by another person is unconnected with the fundamental right
conferred in the public interest by Article 19(1)(a) and,
therefore, Section 499 is outside the scope of Article 19(2) of
the Constitution. Right to one’s reputation which has been15
held to be a facet of Article 21 is basically vis-Ã -vis the State,
and hence, Article 19(2) cannot be invoked to serve the
private interest of an individual. That apart, crime means an
offence against the society of which the State is the custodian.
Considering the scope of Article 19(1)(a) and Article19(2),
defamation of any person by private person cannot be treated
as a “crime”, for it does not subserve any public interest.
iii. Section 499 of IPC ex facie infringes free speech and it is
a serious inhibition on the fundamental right conferred by
Article 19(1)(a) and hence, cannot be regarded as a reasonable
restriction in a democratic republic. A restriction that goes
beyond the requirement of public interest cannot be
considered as a reasonable restriction and would be arbitrary.
Additionally, when the provision even goes to the extent of
speaking of truth as an offence punishable with
imprisonment, it deserves to be declared unconstitutional, for
it defeats the cherished value as enshrined under Article
51-A(b) which is associated with the national struggle of
freedom. The added requirement of the accused having to
prove that the statement made by him was for the public good16
is unwarranted and travels beyond the limits of
reasonableness because the words “public good” are quite
vague as they do not provide any objective standard or norm
or guidance as a consequence the provisions do not meet the
test of reasonable restriction and eventually they have the
chilling effect on the freedom of speech.
iv. “Reasonableness” is not a static concept, and it may vary
from time to time. What is considered reasonable at one point
of time may become arbitrary and unreasonable at a
subsequent point of time. The colonial law has become
unreasonable and arbitrary in independent India which is a
sovereign, democratic republic and it is a well known concept
that provisions once held to be reasonable, become
unreasonable with the passage of time.
v. The Explanations and Exceptions appended to the main
provision contained in Section 499 IPC, in case the
constitutionality of the said Section is upheld, are to be
interpreted with contextual purpose regard being had to the
broad canvas they occupy and the sea change that has taken
place in the society. 17
vi. The words like “company”, “association” or “collection of
persons as such” as used in Explanation 2 should exclude
each other because different words used in the Section must
be given different meanings and it is appropriate that they are
not given meanings by which an indefinite multitude can
launch criminal cases in the name of class action or common
right to reputation.
vii. Section 199(2) CrPC provides a different procedure for
certain category of person and Court of Session to be the
Court of first instance, and thereby it creates two kinds of
procedures, one having the advantage over the other. This
classification is impermissible as it affects the equality clause.
That apart, it also uses the State machinery by launching of
the prosecution through the Public Prosecutor, which enables
the State to take a different route to curb the right of freedom
of speech and expression.
9. Contentions advanced by Dr. Rajeev Dhawan
i. Free Speech which is guaranteed by Article 19(1)(a) and
made subject to certain limitations in Article 19(2) is essential18
to a democracy, for democracy is fundamentally based on free
debate and open discussion, and a citizen has the right to
exercise his right to free speech in a democracy by discerning
the information and eventually making a choice and, if it is
curtailed by taking recourse to colonial laws of defamation,
the cherished value under the Constitution would be in peril
and, therefore, the provisions pertaining to criminal action
which create a dent in free speech are unconstitutional.
ii. Free speech encapsulates the right to circulate one’s
independent view and not to join in a chorus or sing the same
song. It includes the right of propagation of ideas, and the
freedom of speech and expression cannot brook restriction
and definitely not criminal prosecution which is an anathema
to free speech. Free speech has priority over other rights and
whenever and wherever conflict emerges between the freedom
of speech and other interest, the right of freedom of
expression can neither be suppressed nor curtailed unless
such freedom endangers community interest and that apart
the said danger should have immediate and proximate nexus
with expression. 19
iii. Reasonable restriction is founded on the principle of
reasonableness which is an essential facet of constitutional
law and one of the structural principles of the constitution is
that if the restriction invades and infringes the fundamental
right in an excessive manner, such a restriction cannot be
treated to have passed the test of reasonableness. The
language employed in Sections 499 and 500 IPC is clearly
demonstrative of infringement in excess and hence, the
provisions cannot be granted the protection of Article 19(2) of
the Constitution. Freedom of expression is quintessential to
the sustenance of democracy which requires debate,
transparency and criticism and dissemination of information
and the prosecution in criminal law pertaining to defamation
strikes at the very root of democracy, for it disallows the
people to have their intelligent judgment. The intent of the
criminal law relating to defamation cannot be the lone test to
adjudge the constitutionality of the provisions and it is
absolutely imperative to apply the “effect doctrine” for the
purpose of understanding its impact on the right of freedom
of speech and expression, and if it, in the ultimate20
eventuality, affects the sacrosanct right of freedom, it is ultra
vires. The basic concept of “effect doctrine” would not come
in the category of exercise of power, that is, use or abuse of
power but in the compartment of direct effect and inevitable
result of law that abridges the fundamental right.
iv. Reasonable restriction cannot assume any
disproportionate characteristic in the name of
reasonableness, for the concept of reasonableness, as a
constitutional vehicle, conceives of the doctrine of
proportionality. The Constitution requires the legislature to
maintain a balance between the eventual adverse effects and
the purpose it intends to achieve and as the provisions under
assail do not meet the test of proportionality or least
restrictive measure, they do not withstand the litmus test as
postulated under Article 19(2) of the Constitution.
v. The provisions under assail being pre-constitutional,
statutory provisions are to be examined with deeper scrutiny
and, therefore, when the freedom of speech is treated as a
monumental socially progressive value in a democratic set up21
at the international level, the restrictive provisions deserve to
be declared as unconstitutional as they create an
unacceptable remora in the growth of an individual. That
apart, societal perception having undergone a great change,
the constitutional right has to be given a pietistic position and
analysed in these parameters, the colonial law meant to invite
people to litigate should be allowed a timely extinction.
vi. Section 199(2) to (4) CrPC protects civil servants and
creates a separate class and said classification has no
rationale and this distinction has no basis to withstand the
constitutional scrutiny. Differential treatment granted to
them is an unacceptable discrimination and for the said
reason, provisions contained in Section 199(2) to (4) CrPC are
liable to be struck down.
vii. Section 499 IPC read in conjunction with Explanation IV
provides a storehouse of criteria for judging reputation and it
allows a greater width and discretion without any guidance
and hence, the provision is arbitrary and unreasonable. There
is no justification to enable a company or association or22
collection of persons to have the benefit of defamation in the
criminal law. Similarly, there is no justification for any
criminal defamation to save reputation of dead persons and
for allowing his legal heirs to prosecute on the ground that it
is intended to be hurtful to the feelings of his family and other
near relatives.
viii. The provision relating to defamation under Section 499
IPC does not recognize truth as an absolute defence but
qualifies that if anything is imputed which is even true
concerning any person, it has to be for the “public good”. If a
truthful statement is made and truth being the first basic
character of justice, to restrict the principle of truth only to
public good is nothing but an irrational restriction on the free
speech. The concept of “good faith” has been made intrinsic
to certain Exceptions and that really scuttles the freedom of
speech and freedom of thought and expression and thereby it
invites the discomfort to Article 19(1)(a). The words “good
faith” and “public good” have to meet the test of
reasonableness and proportionality which would include23
honest opinion with due care and attention and the concept
of reasonable restriction has to be narrowed to the sphere of
mala fide and reckless disregard. When the concept of
defamation is put in the compartment of criminal offence by
attributing a collective colour to it, it stifles the dissenting
voices and does not tolerate any criticism that affects the
foundation of popular and vibrant democracy which is a basic
feature of the Constitution. Quite apart from that, the
concepts of information, ideas, criticisms and disclosures are
not only the need of the hour but also have imperatives; and
in such a climate, to retain defamation as a criminal offence
will tantamount to allow a hollowness to remain which will
eventually have a chilling effect on the freedom of speech and
expression that shall lead to a frozen democracy.
10. Arguments of Mr. Datar, learned Senior Counsel
i. Freedom of thought and expression includes a dissent
because disagreement or expression of a contrary opinion has
significant constitutional value which is engrafted under24
Article 19(1)(a) and also is an acceptable pillar for a free and
harmonious society.
ii. Control of free speech by the majority is not an
acceptable principle and, therefore, the provision pertaining
to defamation is fundamentally a notion of the majority to
arrest and cripple freedom of thought and expression which
makes the provision unconstitutional. Criminal prosecution
as envisaged under Section 499 Cr.P.C. cannot be based on
the principle of the State to take appropriate steps when an
offence of this nature is committed, for an offence of this
nature is really not an offence against the State, because it
does not encompass the ultimate facet of criminal
prosecution which is meant for “protection of the society as a
whole”.
iii. Reputation at its best can be equated with an element of
personal security or a significant part of one’s life and
unification of virtues which makes the person proud to
protect such private interest but that cannot be regarded as a
justification to whittle down freedom of speech and25
expression which subserves the public interest. The language
in which Section 499 IPC is couched does not incorporate the
seriousness test which has the potentiality of provoking
breach of peace by instigating people as a consequence of the
public interest is endangered but, on the contrary, it
subserves only the private interest and as it caters to
individual revenge or acrimony which in the ultimate
eventuate, makes imposed silence to rule over eloquent free
speech.
iv. Though reputation has been treated to be a facet of
Article 21 of the Constitution, yet the scheme of the said
Article is quite different and a distinction is required to be
drawn for protection of reputation under Article 21 and
enabling the private complainant to move the criminal court
for his sense of self-worth. The individual reputation can very
well be agitated in a civil court. But fear of a complainant
who on the slightest pretext, can file criminal prosecution,
that too, on the base of subjective notion, the fundamental
value of freedom of speech and expression gets paralysed and26
the resultant effect is that Sections 499 and 500 IPC cause
unnecessary discomfort to Article 19(1)(a) and also to Article
14 of the Constitution.
v. The purpose of criminal prosecution is not concerned
with repairing individual injury, especially, reputation or
vindicating or protecting the reputation of an individual. The
purpose of such law has to be the ultimate protection of the
society. Quintessentially, the provision cannot cater to
individual whims and notions about one’s reputation, for it is
done at the cost of freedom of speech in the society which is
impermissible. The restriction as engrafted under Article 19(2)
has to be justified on the bedrock of necessity of the collective
interest. The nature of Exceptions carved out and the manner
in which they are engrafted really act as obstruction and are
an impediment to the freedom of speech and expression and
such hindrances are inconceivable when appreciated and
tested on the parameters of international democratic values
that have become paramount as a globally accepted
democratic culture. 27
11. Arguments on behalf of Mr. Aruneshwar Gupta
i. Defamation is injury or damage to reputation which is a
metaphysical property. Criminal prosecution was entertained
in defamation cases because of the erroneous doctrine of
‘malice in law or intended imputation or presumption by law
of the existence of malice’, when the said doctrine has been
kept out of criminal jurisprudence, the enactments based on
the said doctrine cannot be allowed to survive. Once there is
no presumption of malice by law, the thought, idea and
concept of ‘per se malicious or per se defamatory’, and the
basis and foundation of defamation becomes non-existent and
is eroded and the criminal content in defamation in Article
19(2) has to be severed from the civil content in it.
ii. The reputation of every person does not have any
specific identifiable existence for it is perceived differently, at
different times, by different persons associated, related,
concerned for affected by it, who, in turn, are acting with their
multi-dimensional personality for multiple reasons and28
prejudices and as such, they are bereft of any social impact or
criminal element in it.
iii. On a reading of Sections 499 & 500 IPC and Section 199
CrPC, it is manifest that there is presumption of facts as a
matter of law and that alone makes the provision arbitrary
and once the foundation is unreasonable and arbitrary, the
provisions deserve to be declared ultra vires Articles 14, 19
and 21 of the Constitution.
12. Submissions of Mr. Anup J. Bhambhani
i. The restrictions imposed under Article 19(2) on the
fundamental right to free speech and expression as contained
in Article 19(1)(a) should be reasonable in substance as well
as in procedure. The procedural provisions applicable to
complaints alleging criminal defamation under Sections 499
and 500 IPC do not pass the test of reasonableness as
envisaged under Article 19(2) of the Constitution. That apart,
in the absence of any definition of the crime of defamation in
a precise manner, it is hit by the principle of “void for
vagueness”, for the Constitution of India does not permit to29
include all categories of situations for constituting offence
without making it clear what is prohibited and what is
permitted.
ii. The procedural safeguards can only stand the test of
reasonableness if the Exceptions to Section 499 IPC are taken
into consideration at the time of summoning of the accused
and if it is ensured that all material facts are brought on
record at that stage. But on a plain reading of the provision
that is not permissible and hence, the provision is ultra vires
as the procedure enshrined affects the basic marrow of the
fundamental right pertaining to freedom of speech and
expression.
iii. Section 199(1) CrPC which is intended to be a restriction
on who may file a criminal complaint under Section 499/500
IPC has to be narrowly construed so as to confer a meaning to
the words “person aggrieved” that would not in its width,
include a person other than the victim, for that indirectly
would affect the procedural safeguard which eventually
affects the substantive right. 30
iv. The essential ingredients of the offence under Section
499 IPC which include making or publishing any imputation
concerning any person and that the said imputation must
have been made with an intention to harm or having reason
to believe that the imputation will harm the reputation of a
person should not be allowed to have a free play to permit
multiple points of territorial jurisdiction for the prosecution of
a single offensive matter as that would place an unreasonable
fetter on the exercise of right of free speech and expression of
a person by oppressive litigation.
13. Arguments of Mr. Sanjay R. Hegde
i. The architecture of the Section as envisioned by its
draftsmen criminalises speech that harms reputation and
then provides Exceptions to such speech in certain specific
circumstances. The concept of defamation as a crime
remained unchallenged even during the drafting of the
constitutional guarantees of free speech. In fact, the
Parliament further re-affirmed its intent, when the First
Constitutional Amendment Act was passed, primarily to31
overcome judgments of this Court that provided expansive
definitions of the fundamental rights of free speech and
property. With the passage of time, the manner of
transmission of speech has changed with the coming of
modern means of communication and the same is not under
the speaker’s control. The provisions when judged on the
touchstone of Articles 14 and 19(2) do not meet the test
inasmuch as they are absolutely vague and unreasonable.
Section 499 IPC, as it stands, one may consider an opinion,
and, another may call it defamation and, therefore, the word
“defamation” is extremely wide which makes it unreasonable.
ii. Section 199(2) by which a “Court of Session may take
cognizance of such offence, without the case being committed
to it upon a complaint in writing made by the Public
Prosecutor”, when any offence falling under Chapter XXI of
the IPC is alleged to have been committed against “any other
public servant employed in connection with the affairs of the
Union or of a State in respect of his conduct in the discharge
of his public functions”, if appositely appreciated deprives the32
accused of an appeal to the Court of Session and brings in
the State machinery to prosecute a grievance which would be
otherwise personal to the concerned public servant.
iii. In terms of the press, criminal defamation has a chilling
effect which leads to suppress a permissible campaign. The
threat of prosecution alone is enough to suppress the truth
being published, and also the investigating journalism which
is necessary in a democracy.
iv. If the Court is not inclined to strike down Section 499
IPC, at least in relation to criminal complaints arising out of
media report where the members of the media are prosecuted,
a procedure akin to the decision in Jacob Mathew v. State
of Punjab and another3
should be adopted. To elaborate, a
similar mechanism may be devised for media professional,
either through statutory bodies like the Press Council of India
or non-statutory bodies like the News Broadcasting Standards
Authority which may be given the power to recommend
3
2005 (6) SCC 133
prosecutions in cases of grossly negligent or malicious
reporting made with ulterior motives.
PROPONEMENTS IN OPPUGNATION
14. Submissions of Mr. Mukul Rohatgi, learned Attorney
General for India
i. Article 19(2) must be read as a part of the freedom of
speech and expression as envisaged under Article 19(1)(a), for
the freedom of speech as a right cannot be understood in
isolation. The freedom of speech is a robust right but
nonetheless, not unrestricted or heedless. Even though the
Courts have often drawn the difference between free speech
under the U.S. Constitution and that under the Indian
Constitution, yet even in the United States, where free speech
is regarded as the most robust, it is not absolute. The
restrictions have not been left to the courts to carve out but
have been exhaustively set out in Article 19(2). It is for the
legislature to determine the restrictions to impose and the
courts have been entrusted with the task of determining the
reasonableness and in the present case, the right to free34
speech under Article 19(1)(a) is itself conditioned/qualified by
the restrictions contained in Article 19(2) which includes
“defamation” as one of the grounds of restriction and the term
“defamation” has to include criminal defamation, and there is
nothing to suggest its exclusion. Article 19(2) has to be
perceived as an integral part of the right to free speech as
Article 19(1)(a) is not a standalone right and, therefore, it
cannot be said that there is an unbridled right to free, much
less defamatory speech.
ii. The submission that defamation being only protective of
individual cases between two individuals or a group of
individuals and no State action is involved, cannot be elevated
to the status of a fundamental right, is without much
substance inasmuch as Article 19(2) represents varied social
community interest. That apart, contextual meaning of the
term “defamation”; and if the grounds of exception under
Article 19(2) are analysed, each of them represent a public
interest and so does defamation, for its principal object is to
preserve reputation as a shared value of the collective. 35
iii. The stand that criminal defamation under Section 499
IPC smothers the freedom of speech and expression or is a
threat to every dissent and puts private wrong at the level of
public wrong, is totally incorrect. The legal theorists and
thinkers have made a subtle distinction between private and
public wrong and it has been clearly stated that public wrong
affects not only the victim but injures the public and
ultimately concerns the polity as a whole and tested on that
count, criminalization of defamation or damage to reputation
is meant to subserve basic harmony in polity.
iv. Right to reputation is an insegregable part of Article 21
of the Constitution. A person’s reputation is an inseparable
element of an individual’s personality and it cannot be
allowed to be tarnished in the name of right to freedom of
speech and expression because right to free speech does not
mean right to offend. Reputation of a person is neither
metaphysical nor a property in terms of mundane assets but
an integral part of his sublime frame and a dent in it is a
rupture of a person’s dignity, negates and infringes
fundamental values of citizenry right. Thus viewed, the right36
enshrined under Article 19(1)(a) cannot allowed to brush away
the right engrafted under Article 21, but there has to be
balancing of rights.
v. In many a country, criminal defamation does not infringe
the freedom of speech. The submission that protection of
reputation can be sufficiently achieved by taking recourse to
civil law cannot be a ground to declare Section 499/500 IPC
as unconstitutional. It is to be borne in mind that the
criminal law and the civil law operate in different spheres and
aspects and in societal connotations have different
perceptions. Monetary damage in civil law cannot be said to
be the only panacea; and permitting an individual to initiate
criminal action as provided under the law against the person
making a defamatory remark does not affect the
constitutional right to freedom of speech and in no case
ushers in anarchy. That apart, mitigation of a grievance by
an individual can be provided under a valid law and the
remedy under the civil law and criminal law being different,
both are constitutionally permissible and hence, the
provisions pertaining to defamation under the IPC do not37
cause any kind of discomfort to any of the provisions of the
Constitution. In addition to this, it can be said that civil
remedy for defamation is not always adequate. The value of
freedom of speech cannot be allowed to have the comatosing
effect on individual dignity, which is also an integral part
under Article 21 of the Constitution.
vi. It is a misconception that injury to reputation can
adequately be compensated in monetary terms. Reputation
which encapsules self-respect, honour and dignity can never
be compensated in terms of money. Even if reputation is
thought of as a form of property, it cannot be construed solely
as property. Property is not a part of individual personality
and dignity, whereas reputation is, and, therefore, the stand
that the damage caused to a person’s reputation should be
compensated by money and that the same is realizable by way
of obtaining a decree from the civil court is not justified and
regard being had to that, criminal defamation is
constitutionally permissible.38
vii. The State is under an obligation to protect human
dignity of every individual. Simultaneously, freedom of speech
has its constitutional sanctity; and in such a situation,
balancing of rights is imperative and, therefore, the Court
should not declare the law relating to criminal defamation as
unconstitutional on the ground of freedom of speech and
expression as it is neither an absolute right nor can it confer
allowance to the people to cause harm to the reputation of
others. The apprehension of abuse of law, or for that matter,
abuse of a provision of law would not invalidate the
legislation. Possibility of abuse, as is well settled, does not
offend Article 14 of the Constitution. A distinction has to be
drawn between the provision in a statute and vulnerability of
the action taken under such a provision.
viii. The provisions have stood the test of time after the
Constitution has come into existence and the concept
ingrained in the term “reputation” has not been diluted but,
on the contrary, has become an essential constituent of
Article 21. That apart, the ten Exceptions provide reasonable39
safeguards to the provision and, therefore, it can never be
said that the provision suffers from lack of guidance thereby
inviting the frown of Article 14 of the Constitution.
ix. The words “some person aggrieved” used in Section
199(1) CrPC deserve a strict construction so as to prevent
misuse of the law of criminal defamation. It should be the
duty of the court taking cognizance to ensure that the
complainant is the person aggrieved. The court may refer to
earlier authorities and clarify the concept of “some person
aggrieved” and explain the words in the present context.
Similarly, the grievance that the provisions give room for filing
of multiple complaints at various places is not correct as the
concept of territorial jurisdiction is controlled by CrPC.
15. Submissions by Mr. P.S. Narsimha, learned
Additional Solicitor General
i. The submission that the word “defamation” occurring in
Article 19(2) is confined only to civil defamation and not
criminal defamation cannot be countenanced on the basis of
our constitutional history. The Constitutional debates amply
clarify the position that when the Constituent Assembly40
debated about the inclusion of defamation as a ground for
imposing restrictions on the freedom of speech and
expression, the statutory provision for defamation, i.e., Section
499 of IPC was already an existing law. The wisdom of the
founding fathers is quite demonstrable inasmuch as at the
time of drafting of the Constitution, the only statutory law on
defamation was Section 499 of IPC providing for criminal
defamation and, therefore, it stands to reason that the framers
always contemplated criminal defamation to fall within the
ambit of the word “defamation” occurring in Article 19(2).
ii. The argument that the word “defamation” occurring in
Article 19(2) must be read in the light of the other grounds
mentioned therein by applying the rule of noscitur a sociis is
not correct, for the said rule has a very limited application.
The word “defamation” is clearly not susceptible to analogous
meaning with the other grounds mentioned therein. The word
“defamation”, in fact, has a distinct meaning as compared to
the other grounds and it does not stand to reason that the
word “defamation” will take colour from terms like “security of41
the State”, “friendly relations with a foreign state”, “public
order”, “decency and morality” and the like thereby restricting
and narrowing the ambit of the word “defamation” in Article
19(2). Defamation of an individual or collection of persons
serves public interest which is the basic parameter of
restrictions under Article 19(2) and, therefore, it can never be
perceived as individual interest in a narrow compartment.
iii. The contention that the fundamental rights are matters
between the State and the citizens and not between private
individuals per se is untenable because it has been already
recognized that it is the duty of the State is to protect the
fundamental rights of citizens inter se other citizens and
many a legislation do so project. In fact, the State is indeed
obligated to enact laws to regulate fundamental rights of
individuals vis-Ã -vis other individuals.
iv. The stand of direct effect test or, to put it differently,
“direct and inevitable impact test” is concerned with
incidentally creating a dent in the freedom of speech and
expression but has no nexus with the content of the free42
speech per se. A distinction has to be drawn between the
external constraints on free speech and the direct assault on
the free speech. The “subject matter test” can have direct and
inevitable impact on the right, but the “regulation test by law”
has a different connotation.
v. The object of guaranteeing constitutional protection to
freedom of speech and expression is to advance public debate
and discourse. However, speech laden with harmful intent or
knowledge of causing harm or made with reckless disregard is
not entitled to the protection of Article 19(1)(a) since it does
not serve any of the purposes mentioned above. Such speech
has no social value except in cases where it is a truthful
statement meant for the public good or where it is made in
good faith, in which case it is protected by the Exceptions in
Section 499 IPC and is not criminalized.
vi. The Preamble to the Constitution plays an important
role in interpreting the freedoms mentioned in Article 19. The
ideals mentioned in the Preamble cannot be divorced from the
purpose and objective of conferring the rights. The freedom of43
speech and expression under Article 19(1)(a) must take colour
from the goals set out in the Preamble and must be read in
the light of the principles mentioned therein. The Preamble
seeks to promote “Fraternity assuring the dignity of the
individual and the unity and integrity of the Nation”. In its
widest meaning and amplitude, fraternity is understood as a
common feeling of brotherhood. While justice, liberty and
equality have been made justiciable rights under the
Constitution, the idea of fraternity has been used to interpret
rights, especially horizontal application of rights. The
Preamble consciously chooses to assure the dignity of the
individual, in the context of fraternity, before it establishes
the link between fraternity and unity and integrity of India.
The rights enshrined in Part III have to be exercised by
individuals against the backdrop of the ideal of fraternity, and
viewed in this light, Article 19(2) incorporates the vision of
fraternity. Hence, the restriction imposed by the statutory
provision satisfies the content of constitutional fraternity.
The fraternal ideal finds resonance also in Part IVA of the
Constitution. Article 51-A of the Constitution, which deals44
with the fundamental duties of a citizen, makes it a duty “to
promote harmony and the spirit of common brotherhood
amongst all the people of India transcending religious,
linguistic and regional or sectional diversities; to renounce
practices derogatory to the dignity of women”. In fact, this
Court has held that Part IVA could be used as an
interpretative tool while assessing the constitutional validity
of laws, especially in the context of restrictions imposed on
rights. Judged on the anvil of the aforesaid constitutional
norms, the provisions pertaining to criminal defamation
withstand scrutiny. The principal objective of the law of
defamation, civil or criminal, is to protect the reputation and
dignity of the individual against scurrilous and vicious
attacks. Section 44 of IPC defines injury as “any harm
whatever illegally caused to any person, in body, mind,
reputation or property.” The said section demonstrates that
the harm caused to the mind and reputation of a person,
protected by the right to dignity, is also treated as injury in
the eyes of law, along with the harm caused to body and
property. From the Preamble to the provisions in Part III, it is45
clear that the aim of the Constitution has been to protect and
enhance human dignity. Reputation in general, and dignity
in particular, are enablers of rights which make the exercise
of other rights guaranteed in the Constitution more
meaningful. Dignity of a person is an affirmation of his/her
constitutional identity and the individual reputation is
constitutionally protected as a normative value of dignity.
Laws relating to initiation of civil as well as criminal action
are, therefore, permissible and withstand assail on their
constitutionality.
vii. The international human right treaties explicitly provide
for the right to reputation as well as right to free speech and
expression. The Universal Declaration on Human Rights,
1948 in Article 12 clearly stipulates that no one shall be
subjected to attack on his honour and reputation.
Scrutinising on this score, it cannot be said that reputation
should be allowed backseat whereas freedom of speech and
expression should become absolutely paramount. Though
certain countries have kept the remedy under common law
and have decriminalized defamation, yet it does not mean46
that where the law criminalizing defamation is maintained,
the said law is unreasonable and, therefore, unconstitutional.
The right to protection of reputation and the right to freedom
of speech and expression are seemly balanced.
viii. The criminal law of defamation is neither vague nor
ambiguous. That apart, the content restrictions in civil law
and criminal law are not identical. Section 499 IPC read with
the Exceptions incorporates all the three classical elements of
a crime while penalizing certain forms of speech and
expression. The provision criminalizes only that speech which
is accompanied by malicious intention to harm or with
knowledge that harm will be caused or with reckless
disregard. The requirement of guilty intention, knowledge or
proof of recklessness (absence of good faith) that form the
bedrock of various provisions of IPC is also incorporated in
Section 499. Moreover, harm to reputation and mind is
treated as injury along with the injury to body and property
under Section 44 of IPC. Therefore, the same standards
applicable to the injury caused to body and property are47
applicable to the injury caused to the mind and reputation
under Section 499 which makes the axis of provision certain,
definite and unambiguous. That apart, each of the Exceptions
marks the contours of the section amply clear and provides
an adequate warning of the conduct which may fall within the
prescribed area. It excludes from its purview speech that
advances public good and demarcates what is accepted
speech and what is proscribed speech. Hence, it cannot be
said that the said Section is vague and that it leads to
uncertainty. First Exception to Section 499 which does not
make truth an absolute defense has a very relevant purpose.
In fact, this Exception is meant to ensure that the defense is
available only in cases where the expression of truth results
in ‘public good’. Thus, the right to privacy is respected, and
will give way only in case the truthful disclosure, albeit
private, is meant for public good.
ix. There is an intelligible differentia between the complaint
of the individual alleging defamation of himself and that of an
official in the context of his governmental functions. This48
intelligible differentia has a rational nexus to the object that
the Parliament has sought to achieve, i.e., there must be
credibility in the functioning of the Government and that it
must protect its functioning through its officers discharging
their duty from malicious disrepute. There is no justification
to assume that the Government grants sanction under
Section 199(4) without due application of mind. In fact, it is a
safety valve to protect a citizen against a government official
filing complaints on behalf of the Government. A public
prosecutor is a responsible officer and this Court has held in
a number of cases that he acts independently and with
responsibility. The fact that the prosecution is by the public
prosecutor goes to show that the proceedings will be
conducted with objectivity and without any personal bias.
16. Submissions by Dr. Abhishek Manu Singhvi:
i. It is fallacious to argue that fundamental rights are
fetters only on State action and that Article 19(2) is intended
to safeguard the interests of the State and the general public
and not of any individual. The exception to this fetter is that49
the State can make laws under Article 19(2) which are
reasonable restrictions on the right under Article 19(1)(a).
Laws constitute State action, whatever their subject matter.
Laws restricting obscenity or offences against public order or
sovereignty of the State, for example, are just as much State
action as a law making defamation of a person a criminal
offence. Therefore, it cannot be said that Article 19(2) is
intended to safeguard only the interests of the State and that
of the general public and not of any individual. The argument
that the law of criminal defamation protects the interests only
of an individual and not the public in general is incorrect
inasmuch as defamation cannot be understood except with
reference to the general public. The law of criminal
defamation protects reputation which is the estimation of a
person in the eyes of the general public. That apart, the
criminal law of defamation is necessary in the interests of
social stability.
ii. Articles 14 and 19 have now been read to be a part of
Article 21 and, therefore, any interpretation of freedom of
speech under Article19(1)(a) which defeats the right to50
reputation under Article 21 is untenable. The freedom of
speech and expression under Article 19(1)(a) is not absolute
but is subject to constrictions under Article19 (2). Restrictions
under Article 19(2) have been imposed in the larger interests
of the community to strike a proper balance between the
liberty guaranteed and the social interests specified under
Article19(2). One’s right must be exercised so as not to come
in direct conflict with the right of another citizen. The
argument of the petitioners that the criminal law of
defamation cannot be justified by the right to reputation
under Article 21 because one fundamental right cannot be
abrogated to advance another, is not sustainable. It is
because (i) the right to reputation is not just embodied in
Article 21 but also built in as a restriction placed in Article
19(2) on the freedom of speech in Article 19(1)(a); and (ii) the
right to reputation is no less important a right than the right
to freedom of speech.
iii. Article 19(2) enumerates certain grounds on which the
right to free speech and expression can be subjected to
reasonable restrictions and one such ground is defamation.51
Although “libel” and “slander” were included in the original
Constitution, yet the same were deleted by the First
Amendment, whereas defamation continues to be a part of the
Constitution. Therefore, it is fallacious to argue that
defamation under Article 19(2) covers only civil defamation
when at the time of the enactment of the Constitution,
Section 499 IPC was the only provision that defined
defamation and had acquired settled judicial meaning as it
had been on the statute book for more than 90 years.
iv. Sections 499 and 500 of IPC continue to serve a public
purpose by defining a public wrong so as to protect the larger
interests of the society by providing reasonable restrictions
under Article 19(2) of the Constitution. It is incorrect to
suggest that the purpose, logic and rationale of criminal
defamation no longer subsists in the modern age, and the law
having served its goal, it must be struck down as violative of
Article 14. Arguably, in the modern age, the need for the law
is even stronger than it was in the 19th century. The
constitutional validity of a statute would have to be
determined on the basis of its provisions and on the ambit of52
its operation as reasonably construed as has been held in
Shreya Singhal v. Union of India4
. Moreover, given the
presumption of constitutionality, it has also been held by this
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. The concept reasonable restriction conveys that
there should not be excessive or disproportionate restriction.
Merely because law of criminal defamation is misused or
abused would not make the provisions unconstitutional if
they are otherwise reasonable.
v. Section 499 IPC defines the offence of defamation with
specificity and particularity and enumerates ten broad
Exceptions when statements against a person will not be
considered defamatory, and by no stretch of imagination it
can be termed as vague. That apart, for the offence of
defamation as defined under Section 499 IPC, there are three
4
(2015) 5 SCC 153
essential ingredients which make it specific and further
Explanation 4 to Section 499 IPC also limits the scope of the
offence of defamation contained in the Section. It makes only
such imputation punishable which lowers a person’s
reputation in the estimation of others, and if the imputation
does not lower the moral or intellectual character or a
person’s character in respect of his caste or calling or his
credit, it would not be defamatory. The concepts like “in good
faith” or “for the public good” are the mainstay of the
Exceptions available to the accused, which, if proved to the
extent of preponderance of probability, enable him to avoid
conviction, and these facets make the provision reasonable
and definitely not vague. Truth ought not to be an absolute
defence because it can be misutilised to project a negative
image to harm the reputation of a person without any benefit
to the public at large.
vii. The argument that protection for “legitimate criticism” or
“fair comment” on a question of public interest is only
available in the civil law of defamation and is not covered by54
any of the Exceptions to Section 499 IPC is not tenable.
Exceptions 2, 3, 5, 6 and 9 of Section 499 IPC provide
protection akin to the defence of fair comment in the civil law
of defamation.
viii. Section 199(1) CrPC safeguards the freedom of speech
by placing the burden on the complainant to pursue the
criminal complaint without involving the State prosecution
machinery. This itself filters out many frivolous complaints
as the complainant should be willing to bear burden and pain
of pursuing the criminal complaint for defamation only when
he has a clear case. Under the aforesaid provision, the
cognizance of an offence, which pertains to defamation,
cannot be taken except upon a complaint made by “some
person aggrieved by the offence”. This Section carves out an
exception to the general rule of criminal jurisprudence that
any person can set the law in motion. Under Section 199
CrPC, a complaint can be filed only by “by some person
aggrieved”. The contention of the petitioners that “some
person aggrieved” in Section 199(1) CrPC is vague and opens
floodgate for frivolous litigation is misconceived and has no55
basis in law. The phrase “some person aggrieved” is neither
vague nor is it unreasonably wide.
17. Submissions of Mr. M.N. Krishnamani, Mr. Siddharth
Luthra and Mr. Satish Chandra Mishra, in person
i. The power to create an offence being an essential
legislative function, there is nothing inherently wrong with
Section 499 IPC. The contention that the word “defamation”
in Article 19(2) has to be read down not to include criminal
defamation in it so that it is confined to civil defamation alone
is not permissible, for the principle of reading down a
provision is inapplicable to constitutional interpretation. The
words in the Constitution are to be understood in their literal
dictionary meaning and in any case not to be narrowly
construed as suggested. The term “defamation” is neither
indefinite nor ambiguous to invite an interpretative process
for understanding its meaning.
ii. Misuse of a provision or its possibility of abuse is no
ground to declare Section 499 IPC as unconstitutional. If a
provision of law is misused or abused, it is for the legislature
to amend, modify or repeal it, if deemed necessary. Mere56
possibility of abuse of a provision cannot be a ground for
declaring a provision procedurally or substantively
unreasonable.
iii. The law relating to defamation was enacted regard being
had to the diversity in the society and it also, as on today,
acts as a reasonable restriction and fulfils the purpose behind
Section 44 IPC. The issue of free speech and right to
reputation and the arguments regarding the constitutional
validity of the provision must be considered in the context of
the social climate of a country. The social climate takes in its
sweep the concept of social stability.
iv. The term “harm” is not defined in the IPC and must be
given its ordinary dictionary meaning, but what is important
is that it must be illegally caused. There is no distinction in
the IPC between harm to body, mind, reputation or property.
When the legislature has treated defamation as an offence
regard being had to the social balance, there is no
justification to declare it ultra vires.
v. The mere fact that the offence under Section 499 IPC is
non-cognizable or that the complainant can only be “some57
person aggrieved” does not create an arbitrary distinction of it
being an offence of a private character as opposed to an offence
against society. There are numerous offences which are not
congnizable but that does not mean that the said category of
offences are private acts, for harm being caused to a person is
the subject of focus of offences under the Penal Code.
vi. Section 199 CrPC adds a restriction limiting filing of a
complaint by “some person aggrieved” and “a person aggrieved”
is to be determined by the Courts in each case according to the
fact situation. The words “some person aggrieved” and
Exception II has been the subject of much deliberation by the
Courts and it is not a vague concept. Section 199 CrPC
mandates that the Magistrate can take cognizance of the offence
only upon receiving a complaint by a person who is aggrieved.
This limitation on the power to take cognizance of defamation
serves the purpose of discouraging filing of frivolous complaints
which would otherwise clog the Magistrate’s Courts. The
“collection of persons” is not a vague concept. The said body
has to be an identifiable group in the sense that one could, with
certainty, say that a group of particular people has been58
defamed as distinguished from the rest of the community.
Establishment of identity of the collection of people is absolutely
necessary in relation to the defamatory imputations and hence,
it is reasonable.
vii. Article 19(1)(a) guarantees freedom of speech and
expression, and freedom of press is included therein. This
freedom is not absolute but it is subjected to reasonable
restrictions as provided in Article 19(2) of the Constitution. The
freedom of speech and expression as guaranteed by the
Constitution does not confer an absolute right to speak or
publish whatever one chooses and it is not an unrestricted or
unbridled licence that may give immunity and prevent
punishment for abuse of the freedom. The right has its own
natural limitation.
viii. Journalists are in no better position than any other
person. They have no greater freedom than others to make any
imputations or allegations sufficient to ruin the reputation of a
citizen. Even truth of an allegation does not permit a
justification under the First Explanation unless it is proved to
be in the public good. A news item has the potentiality of59
bringing dooms day for an individual. Editors have to take the
responsibility of everything they publish and to maintain the
integrity of published records. It can cause far reaching
consequences in an individual and country’s life. Section 7 of
the Press and Registration Books Act, 1867 makes the
declarations to be prima facie evidence for fastening the liability
in any civil or criminal proceedings on the Editor. The press
has great power in impressing minds of people and it is
essential that persons responsible for publishing anything in
newspapers should take good care before publishing anything
which tends to harm the reputation of a person. Reckless
defamatory comments are unacceptable.
18. Submissions of learned Amicus Curiae
Mr. K. Parasaran, Sr. Advocate
i. There has to be a harmonious interpretation of Article
19(1)(a) read with Articles 19(2) and 21. This has to be done
by adverting to Articles 13(3), 366(10), 372 (Explanations I
and II), and also Article 14, the Preamble, Part III and Part IV
of the Constitution. There is a need to interpret Article 19(2)60
by considering as to whether it includes: a) Defamation as an
offence with punishment of imprisonment and/or fine on
being proved guilty, or; b) Defamation as a civil wrong with
liability for damages for the injury caused to reputation, or; c)
both of the above. The word “defamation” in Article 19(2)
includes defamation as an offence as well as a civil wrong.
The above two cannot be considered in isolation while
interpreting Article 19(2).
ii. The question for determination is whether the word
“defamation” used in Article 19(2) has reference to the Indian
Penal Code (statutory law) as an indictment, or tort of the work
“defamation” after “contempt of court” (which includes criminal
contempt) and before the phrase “incitement to an offence”,
both being penal in nature. Applying the principle of ‘noscitur a
sociis’, the word “defamation” is not to be interpreted only as
civil defamation. Applying the principle of ‘nomen juris’ the
word “defamation” must necessarily refer only to IPC, since
there is no other statute in existence that defines “defamation”.61
iii. The Preamble to the Constitution opens with the word
‘Justice’. It is the concept of Dharma. The foundation of
administration of Justice after the advent of the Constitution
is the motto ‘yato dharmastato jayaha’. Judge-made law,
insofar as the right to life is concerned, is to protect the
inherent right to reputation as part of the right to life. No one
can be deprived of that right except according to the procedure
established by law. The word “law” in Article 21 has to
necessarily bear interpretation that it is procedure established
by plenary legislation only. Whenever any right conferred by
Part III is abridged or restricted or violated by “law”, as widely
defined in Article 13 for the purposes of that Article, are
rendered void. Right to reputation is an inherent right
guaranteed by Article 21. Duty not to commit defamation is
owed to the community at large, because the right to reputation
is a natural right. The personality and dignity of the individual
is integral to the right to life and liberty and fraternity assuring
dignity of an individual is part of the Preamble to the
Constitution. The right to life or personal liberty includes
dignity of individuals which is so precious a right that it is62
placed on a higher pedestal than all or any of the fundamental
rights conferred by Part III. The right to reputation is an
inherent right guaranteed by Article 21 and hence, the right to
freedom of speech and expression under Article 19(1)(a) has to
be balanced with the right under Article 21 and cannot prevail
over the right under Article 21.
iv. The test of reasonableness has been invariably applied
when deciding the constitutionality of a plenary legislation.
As Article 19(2) itself uses the words “existing laws” and
“defamation”, and as the offence of defamation is defined in
Section 499, it must be held to have been incorporated in the
Constitution at least to the extent it is defined in Section 499
(‘nomen juris’). It is, thus, not open to challenge as being an
unreasonable restriction for there is no other law that defined
“defamation”.
v. The test of reasonableness cannot be a principle in
abstraction. A general pattern cannot be conceived to be
made applicable to all cases because it will depend upon the
nature of right infringed or violated and the underlying63
purpose of the imposition of restrictions. The evil thought to
be remedied and the prevailing conditions of the time are to
be kept in view while judging proportionality of the restriction.
Being a part of the original Constitution, the penal provision
as to defamation having been approved by the constituent
power when Article 19(2) was enacted, it cannot now be held
to be unreasonable. If defamation as an offence is a
reasonable law for the purposes of Article 19(2), it has to be
equally a reasonable law for the purposes of Article 14. The
principle of a law being worn out by passage of time and the
principle of ‘Cessante Ratione Legis Cessat Ipsa Lex’ cannot
be applied to a constitutional provision like Article 19(2) or to
procedural laws. Section 500 IPC does not impose any
mandatory minimum punishment and when a penal law does
not mandate a minimum sentence but provides only for
simple imprisonment with discretion vested in the Court, the
provision will not be struck down as arbitrary or
unreasonable.64
vi. Right to life and liberty is an inherent right and natural
right and not a right conferred by the Constitution but
recognized and protected by it. Judge-made law is meant to
protect fundamental rights and not to impose restrictions on
the fundamental rights. The constitutional courts are
assigned the role of a “Sentinel on the qui vive”. In the said
bedrock, the right to life which includes right to reputation
has to be protected and respected and cannot be allowed to
succumb to the right to freedom and expression.
vii. The inherent right to life or personal liberty recognized
by Article 21, the fundamental right of freedom of speech
conferred by Article 19(1)(a) read with Article 19(2) and Article
194 dealing with the Powers, Privileges etc. of the Houses of
Legislature and of the Members and Committees thereof
(Article 105 also corresponds to this Article) were considered
and harmoniously interpreted and applied in Special
Reference No 1 of 19645
wherein this Court also observed
that if a citizen moves the High Court on the ground that his
5
(1965) 1 SCR 41365
fundamental right under Article 21 has been contravened, the
High Court would be entitled to examine his claim, and that
itself would introduce some limitation on the extent of the
powers claimed by the House. Thus, balancing of rights is a
constitutional warrant.
Mr. T.R. Andhyarujina, Sr. Advocate
i. Freedom of speech and expression in India is not
absolute but subject to various restrictions mentioned in the
Constitution itself. Article 19(1)(a) is subject to the restrictions
prescribed by Article 19(2) of the Constitution. The protection
given to criticism of public officials even if not true, as in the
case of New York Times v. Sullivan6
, is not protected by
Article 19(1)(a) as this Court has noted that there is a
difference between Article 19(1)(a) and the First Amendment
to the US Constitution
ii. A law of defamation protects reputation of a person.
Reputation is an integral and important part of the dignity of
the individual and when reputation is damaged, society as
6
29 LED 2d 822 (1971)66
well as the individual is the loser. Protection of reputation is
conducive to the public good. Therefore, freedom of
expression is not an absolute right.
iii. While the freedom of speech and expression is, no doubt,
extremely relevant and requires protection as a fundamental
right, at the same time, it is necessary that the reputation of
individuals requires to be protected from being unnecessarily
tarnished. Reputation is an element of personal security and
is protected as a fundamental right under Article 21 of the
Constitution and requires equal protection. The right to
freedom of expression under Article 19 is subject to the right
to reputation. It is to be noted that civil action for defamation
would not be a satisfactory remedy in many cases as the
author of the defamation may not be able to compensate the
person defamed.
iv. The prosecution of a person for defamation under
Sections 499 and 500 of IPC is not absolute. The crime is
subject to ten Exceptions in favour of the author of the
imputation. The most relevant is First Exception which67
protects the author if the imputation is true and made for the
public good. Even with the Exceptions in Section 499 IPC,
there remains the problem of whether criminal prosecution for
defamation under Section 499 and Section 500 IPC acts as a
“chilling effect” on the freedom of speech and expression or a
potential for harassment, particularly, of the press and media.
Fair comment on a matter of public interest is not actionable
in civil action for defamation. This right is one of the aspects
of the fundamental principles of freedom of expression and the
courts are zealous to preserve it unimpaired; and the said
principle has been stated in Salmon and Heuston on Law of
Torts, 25th Ed., p. 138.
v. In a prosecution for defamation under Section 499 IPC,
fair comment which is not covered by the Exceptions would
not be protected. The prospect of punishment may sometimes
act as a deterrent on the freedom of speech. Section 199(2)
CrPC may also give an unfair disadvantage to have a public
prosecutor in cases of a libel against a Minister or a public
servant. These factors need to be considered for safeguarding68
the freedom of speech. Section 499 IPC be read to provide
that imputation and criticism or fair comment even if not true
but made in good faith and in the public interest would not
invite criminal prosecution. Such and other qualifications
may be considered as necessary to retain criminal defamation
as a reasonable restriction on the freedom of speech and
expression. Hence, there may be a need to have a proper
balancing between the freedom of speech and the necessity of
criminal defamation.
19. We have studiedly put forth the submissions of the
learned counsel for the parties. They have referred to various
authorities and penetratingly highlighted on numerous
aspects to which we shall advert to at the appropriate stage.
Prior to that, we intend to, for the sake of clarity and also
keeping in view the gravity of the issue, dwell upon certain
aspects.
20. First, we shall expatiate on the concepts of “defamation”
and “reputation”. The understanding of the term “defamation”69
and appreciation of the fundamental concept of “reputation”
are absolutely necessitous to understand the controversy.
21. Meaning of the term “defamation”
i. Salmond & Heuston on the Law of Torts, 20th Edn.7
define a defamatory statement as under:-
"A defamatory statement is one which has a
tendency to injure the reputation of the person to
whom it refers; which tends, that is to say, to lower
him in the estimation of right thinking members of
society generally and in particular to cause him to
be regarded with feelings of hatred, contempt,
ridicule, fear, dislike, or disesteem. The statement is
judged by the standard of an ordinary, right
thinking member of society…”
ii. Halsburys Laws of England, Fourth Edition, Vol. 28,
defines ‘defamatory statement’ as under:-
“A defamatory statement is a statement which
tends to lower a person in the estimation of right
thinking members of the society generally or to
cause him to be shunned or avoided or to expose
him to hatred, contempt or ridicule, or to convey
an imputation on him disparaging or injurious to
him in his office, profession, calling trade or
business.”
7
Bata India Ltd. v. A.M. Turaz & Ors. 2013 (53) PTC 586; Pandey Surindra Nath Sinha v.
Bageshwari Pd.. AIR 1961 Pat. 16470
iii. The definition of the term has been given by Justice
Cave in the case of Scott v. Sampson8 as a “false statement
about a man to his discredit.”
iv. Defamation, according to Chambers Twentieth
Century Dictionary, means to take away or destroy the good
fame or reputation; to speak evil of; to charge falsely or to
asperse. According to Salmond:-
“The wrong of defamation, consists in the
publication of a false and defamatory statement
concerning another person without lawful
justification. The wrong has always been regarded
as one in which the Court should have the
advantage of the personal presence of the parties if
justice is to be done. Hence, not only does an
action of defamation not survive for or against the
estate of a deceased person, but a statement about
a deceased person is not actionable at the suit of
his relative”9
.
v. Winfield & Jolowics on Torts10 defines defamation
thus:-
8
(1882) QBD 491
9
Gatley’s Libel and Slander, 6th edition, 1960 also Odger’s Libel and Slander 6th Ed. 1929
10
(17th Edn. 2006)71
“Defamation is the publication of a statement
which tends to lower a person in the estimation of
right thinking members of society generally; or
which tends to make them shun or avoid that
person.
vi. In the book “The Law of Defamation”11, the term
defamation has been defined as below:-
“Defamation may be broadly defined as a false
statement of which the tendency is to disparage the
good name or reputation of another person.”
vii. In Parmiter v. Coupland12
, defamation has been
described as:-
‘A publication, without justification or lawful
excuse, which is calculated to injure the reputation
of another, by exposing him to hatred, contempt, or
ridicule.”
viii. The definition of defamation by Fraser was approved by
Mc Cardie J in Myroft v. Sleight13
. It says:-
11
Richard O’ Sullivan, QC and Roland Brown
12
(1840) 6 MLW 105
13
(1921) 37 TLR 64672
“a defamatory statement is a statement concerning
any person which exposes him to hatred, ridicule
or contempt or which causes him to be shunned or
avoided or which has a tendency to injure him in
his office, profession or trade.”
ix. Carter Ruck on Libel and Slander14 has carved out
some of the tests as under:
"(1) a statement concerning any person which
exposes him to hatred, ridicule, or contempt, or
which causes him to be shunned or avoided, or
which has a tendency to injure him in his office,
professional or trade.
(2) a false statement about a man to his discredit.
(3) would the words tend to lower the plaintiff in
the estimation of right thinking members of society
generally"
22. We have noted the aforesaid definitions, descriptions
and analytical perceptions only to understand how the
concept has been extensively dealt with regard being had to
its ingredients and expanse, and clearly show the solemnity of
‘fame’ and its sapient characteristics. Be it stated, Section
499 IPC defines fame and covers a quite range of things but
14
Manisha Koirala v. Shashi Lal Nair & Ors, 2003 (2) Bom CR 13673
the reference to the term ‘fame’ is to ostracise the saying that
“fame is a food that dead men eat”.
23. CONCEPT OF REPUTATION
Having dealt about “defamation”, we would like to refer
to the intrinsic facets of “reputation” and what constitutes
reputation. The allusions would clearly exposit the innate
universal value of “reputation” and how it is a cherished
constituent of life and not limited or restricted by time. The
description may be different, but the crucial base is the same.
Vision of the Ancients
i. In Bhagawad Gita, it has been said :-
अहहहिंसस सत्यमकक्रोधस्त्यसगग शसननन्तिरपपैशशुनमम्।
दयस à¤à¤ून्तितेष्वलक्रोलशुप्त्वहिं मसदरवहिं हह्रीरचसपलमम्॥१६- २॥
The English translation of the aforequoted shloka is:
“Non-violence in thought, word and deed,
truthfulness and geniality of speech, absence of
anger even on provocation, disclaiming doership in
respect of actions, quietude or composure of mind.
Abstaining from malicious gossip, compassion
towards all creatures, absence of attachment to the
objects of senses even during their contact with the
senses, mildness, a sense of shame in
transgressing against the scriptures or usage, and
abstaining from frivolous pursuits.”74
ii. In Subhashitratbhandagaram, it has been described:-
“Sa jeevti yasho yashya kirtiyashya sa jeevti,
Ayashokirtisanyukto jeevannipe mritoopamma”
Translated into English it is as follows:
“One who possesses fame alone does live. One
who has good praise does alone live. Who has no
fame and negative praise is equal to one who is
dead while alive.”
iii. The English translation of Surah 49 Aayaat 11 of the
Holy Quran reads as follows:-
“Let not some men among you laugh at others: it
may be that the (latter) are better than the (former):
nor defame nor be sarcastic to each other, nor call
each other by (offensive) nicknames, ill-seeming is
a name connoting wickedness, (to be used of one)
after he has believed: and those who do not desist
are (indeed) doing wrong.”
iv. Proverb 15 of the Holy Bible reads as under:-
“A soft answer turns away wrath,
but a harsh word stirs up anger.
The tongue of the wise dispenses
knowledge,
but the mouths of fools pour out
folly.
The eyes of the LORD are in every
place,
keeping watch on the evil and the good.75
A gentle tongue is a tree of life,
but perverseness in it breaks the spirit.”
Though the aforesaid sayings have different contexts, yet
they lay stress on the reputation, individual honour and also
the need of gentleness of behavior on the part of each one.
Thoughts of the creative writers and thinkers
24. William Shakespeare in Othello expressed his creative
thoughts on character by the following expression:-
“Good name in man and woman, my dear lord,
is the immediate jewel of their souls
Who steals my purse steals trash; ‘tis something,
nothing;
‘T was mine, ‘tis his, and has been slave to thousands;
But he that filches from me my good name
Robs me of that which not enriches him,
And makes me poor indeed,”
25. The said author in Richard II, while enhancing the
worth of individual reputation, achieved his creative heights,
and the result in the ultimate is the following passage:-
“The purest Treasure mortal times afford
Is spotless reputation; that away,
Men are but gilded loam or painted clay.
A jewel in a ten-times-barr’d-up chest
Is a bold spirit in a loyal breast.
Mine honour is my life, both grow in one;
Take honour from me and my life is done.”76
26. The famous Greek philosopher and thinker Socrates
taught:-
“Regard your good name as the richest jewel
you can possibly be possessed of – for credit is
like fire; when once you have kindled it you may
easily preserve it, but if you once extinguish it,
you will find it an arduous task to rekindle it
again. The way to gain a good reputation is to
endeavour to be what you desire to appear.”
27. The philosopher in Aristotle inspired him to speak:-
“Be studious to preserve your reputation; if that
be once lost, you are like a cancelled writing, of
no value, and at best you do but survive your
own funeral”.
28. While speaking about reputation, William Hazlitt had to
say:-
“A man’s reputation is not in his own keeping,
but lies at the mercy of the profligacy of others.
Calumny requires no proof. The throwing out of
malicious imputations against any character
leaves a stain, which no after-refutation can
wipe out. To create an unfavourable impression,
it is not necessary that certain things should be
true, but that they have been said. The
imagination is of so delicate a texture that even
words wound it.”
The International Covenants77
29. Various International Covenants have stressed on the
significance of reputation and honour in a person’s life. The
Universal Declaration on Human Rights, 1948 has explicit
provisions for both, the right to free speech and right to
reputation. Article 12 of the said Declaration provides that:-
“No one shall be subjected to arbitrary interference
with his privacy, family, home or correspondence,
nor to attacks upon his honour and reputation.
Everyone has the right to the protection of the law
against such interference or attacks.”
30. The International Covenant on Civil and Political
Rights (CICCPR) contains similar provisions. Article 19 of the
Covenant expressly subjects the right of expression to the
rights and reputation of others. It reads thus:-
“1. Everyone shall have the right to hold opinions
without interference.
2. Everyone shall have the right to freedom of
expression; this right shall include freedom to seek,
receive and impart information and ideas of all
kinds, regardless of frontiers, either orally, in
writing or imprint, in the form of art, or through
any other media of his choice.
3. The exercise of the rights provided for in paragraph
2 of this article carries with it special duties and
responsibilities. It may therefore be subject to78
certain restrictions, but these shall only be such as
are provided by law and are necessary:
(a) For respect of the rights or reputations of
others;
(b) For the protection of national security or of
public order (order public), or of public health
or morals”.
31. Articles 8 and 10 of the European Convention for the
Protection of Human Rights and Fundamental Freedoms
(ECHR) provide:-
“Article 8. Right to respect for private and
family life
1. Everyone has the right to respect for his private
and family life, his home and his
correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except
such as is in accordance with the law and is
necessary in a democratic society in the
interests of national security, public safety or
the economic wellbeing of the country for the
prevention of disorder or crime, for the
protection of health or morals, or for the
protection of the rights and freedoms of others”
“Article 10. Freedom of expression79
1. Everyone has the right to freedom of expression.
This right shall include freedom to hold opinions
and to receive and impart information and ideas
without interference by public authority and
regardless of frontiers. This article shall not
prevent States from requiring the licensing of
broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries
with it duties and responsibilities, maybe subject
to such formalities, conditions, restrictions or
penalties as are prescribed by law and are
necessary in a democratic society, in the interests
of national security, territorial integrity or public
safety, for the prevention of disorder or crime, for
the protection of health or morals, for the
protection of the reputation or rights of others, for
preventing the disclosure of information received in
confidence, or for maintaining the authority and
impartiality of the judiciary.”
32. The reference to international covenants has a definitive
purpose. They reflect the purpose and concern and recognize
reputation as an inseparable right of an individual. They
juxtapose the right to freedom of speech and expression and
the right of reputation thereby accepting restrictions, albeit as
per law and necessity. That apart, they explicate that the
individual honour and reputation is of great value to human
existence being attached to dignity and all constitute an
inalienable part of a complete human being. To put it80
differently, sans these values, no person or individual can
conceive the idea of a real person, for absence of these
aspects in life makes a person a non-person and an individual
to be an entity only in existence perceived without
individuality.
Perception of the Courts in United Kingdom as regards
Reputation
33. Now, we shall closely cover the judicial perception of the
word “reputation” and for the said purpose, we shall first refer
to the view expressed by other Courts and thereafter return
home for the necessary survey.
34. Lord Denning explained the distinction between
character and reputation in Plato Films Ltd. v. Spiedel15 in
a succinct manner. We quote:-
“A man's "character," it is sometimes said, is what
he in fact is, whereas his "reputation" is what other
people think he is. If this be the sense in which you
are using the words, then a libel action is
concerned only with a man's reputation, that is,
with what people think of him: and it is for damage
to his reputation, that is, to his esteem in the eyes
of others, that he can sue, and not for damage to
15
(1961) 1 All. E.R. 87681
his own personality or disposition. That is why
Cave J. spoke of "reputation" rather than
"character."
The truth is that the word "character" is often
used, and quite properly used, in the same sense
as the word "reputation." Thus, when I say of a
man that "He has always "borne a good character,"
I mean that he has always been thought well of by
others: and when I want to know what his
"character" is, I write, not to him, but to others who
know something about him. In short, his
"character" is the esteem in which he is held by
others who know him and are in a position to judge
his worth. A man can sue for damage to his
character in this sense, even though he is little
known to the outside world. If it were said of
Robinson Crusoe that he murdered Man Friday, he
would have a cause of action, even though no one
had ever heard of him before. But a man's
"character," so understood, may become known to
others beyond his immediate circle. In so far as the
estimate spreads outwards from those who know
him and circulates among people generally in an
increasing range, it becomes his "reputation,"
which is entitled to the protection of the law just as
much as his character. But here I speak only of a
reputation which is built upon the estimate of
those who know him. No other reputation is of any
worth. The law can take no notice of a reputation
which has no foundation except the gossip and
rumour of busybodies who do not know the man.
Test it this way. Suppose an honourable man
becomes the victim of groundless rumour. He
should be entitled to damages without having this
wounding gossip dragged up against him. He can
call people who know him to give evidence of his
good character. On the other hand, suppose a
"notorious rogue" manages to conceal his82
dishonesty from the world at large. He should not
be entitled to damages on the basis that he is a
man of unblemished reputation. There must, ones
would think, be people who know him and can
come and speak to his bad character.”
35. In regard to the importance of protecting an individual’s
reputation Lord Nicholls of Birkenhead observed in Reynolds
v. Times Newspapers Ltd16:-
‘Reputation is an integral and important part of the
dignity of the individual. It also forms the basis of
many decisions in a democratic society which are
fundamental to its well-being: whom to employ or
work for, whom to promote, whom to do business
with or to vote for. Once besmirched by an
unfounded allegation in a national newspaper, a
reputation can be damaged forever, especially if
there is no opportunity to vindicate one’s
reputation. When this happens, society as well as
the individual is the loser. For it should not be
supposed that protection of reputation is a matter
of importance only to the affected individual and
his family. Protection of reputation is conducive to
the public good. It is in the public interest that the
reputation of public figures should not be debased
falsely. In the political field, in order to make an
informed choice, the electorate needs to be able to
identify the good as well as the bad. Consistently
with these considerations, human rights
conventions recognise that freedom of expression is
not an absolute right. Its exercise may be subject
to such restrictions as are prescribed by law and
16
[2001] 2 AC 127 at 20183
are necessary in a democratic society for the
protection of the reputations of others.”
36. While deliberating on possible balance between the right
to reputation and freedom of expression, in Campbell v. MGN
Ltd17, it has been stated:-
“Both reflect important civilized values, but, as
often happens, neither can be given effect in full
measure without restricting the other, How are
they to be reconciled in a particular case? There is
in my view no question of automatic priority. Nor
is there a presumption in favour of one rather than
the other. The question is rather the extent to
which it is necessary to qualify the one right in
order to protect the underlying value which is
protected by the other. And the extent of the
qualification must be proportionate to the need. …”
See : Sedley LJ in Doughlas v. Hellol Ltd. [2001]
QB 967
View of the Courts in United States
37. In Wisconsin v. Constantineau18 it has been observed
that:-
“Where a person’s good name, reputation, honor,
or integrity is at stake because of what the
government is doing to him, notice and an
17
(2004) UKHL 22 at para 55
18
400 U.S. 433 (1971)84
opportunity to be heard are essential. “Posting”
under the Wisconsin Act may to some be merely
the mark of illness, to others it is a stigma, an
official branding of a person. The label is a
degrading one. Under the Wisconsin Act, a resident
of Hartford is given no process at all. This appellee
was not afforded a chance to defend herself. She
may have been the victim of an official’s caprice.
Only when the whole proceedings leading to the
pinning of an unsavory label on a person are aired
can oppressive results be prevented.”
38. In Rosenblatt v. Baer19 Mr. Justice Stewart observed
that:-
“The right of a man to the protection of his own
reputation from unjustified invasion and wrongful
hurt reflects no more than our basic concept of the
essential dignity and worth of every human being
-- a concept at the root of any decent system of
ordered liberty.”
Outlook of the Courts in Canada
39. Hill v. Church of Scientology of Toronto20
“(ii) The Reputation of the Individual
19
383 U.S. 75 (1966)
20
[1995] 2 SCR 113085
107 The other value to be balanced in a
defamation action is the protection of the
reputation of the individual. Although much has
very properly been said and written about the
importance of freedom of expression, little has been
written of the importance of reputation. Yet, to
most people, their good reputation is to be
cherished above all. A good reputation is closely
related to the innate worthiness and dignity of the
individual. It is an attribute that must, just as
much as freedom of expression, be protected by
society's laws. In order to undertake the balancing
required by this case, something must be said
about the value of reputation.
108 Democracy has always recognized and
cherished the fundamental importance of an
individual. That importance must, in turn, be
based upon the good repute of a person. It is that
good repute which enhances an individual's sense
of worth and value. False allegations can so very
quickly and completely destroy a good reputation.
A reputation tarnished by libel can seldom regain
its former lustre. A democratic society, therefore,
has an interest in ensuring that its members can
enjoy and protect their good reputation so long as
it is merited.”
Opinion of the Courts in South Africa
40. In the approach of the South African Courts, “human
dignity” is one of the founding values of the South African
Constitution (Clause 1). The Constitution protects dignity86
(clause 7), privacy (clause 14) and freedom of expression
(clause 16). In Khumalo v. Holomisa21 the Court said:-
“27. In the context of the actio injuriarum, our
common law has separated the causes of action for
claims for injuries to reputation (fama) and
dignitas. Dignitas concerns the individual’s own
sense of self worth, but included in the concept are
a variety of personal rights including, for example,
privacy. In our new constitutional order, no sharp
line can be drawn between these injuries to
personality rights. The value of human dignity in
our Constitution is not only concerned with an
individual’s sense of self-worth, but constitutes an
affirmation of the worth of human beings in our
society. It includes the intrinsic worth of human
beings shared by all people as well as the
individual reputation of each person built upon his
or her own individual achievements. The value of
human dignity in our Constitution therefore values
both the personal sense of self-worth as well as the
public’s estimation of the worth or value of an
individual. It should also be noted that there is a
close link between human dignity and privacy in
our constitutional order. [a footnote here in the
judgment reads: “See National Coalition .. at para
30: “The present case illustrates how, in particular
circumstances, the rights of equality and dignity
are closely related, as are the rights of dignity and
privacy.”] The right to privacy, entrenched in
section 14 of the Constitution, recognises that
human beings have a right to a sphere of intimacy
and autonomy that should be protected from
invasion… This right serves to foster human
dignity. No sharp lines then can be drawn between
21
[2002] ZACC 12; 2002 (5) SA 40187
reputation, dignitas and privacy in giving effect to
the value of human dignity in our Constitution. …
28. The law of defamation seeks to protect the
legitimate interest individuals have in their
reputation. To this end, therefore, it is one of the
aspects of our law which supports the protection of
the value of human dignity. When considering the
constitutionality of the law of defamation,
therefore, we need to ask whether an appropriate
balance is struck between the protection of
freedom of expression on the one hand, and the
value of human dignity on the other.”
Perception of the European Court of Human Rights
41. In Lindon v. France22
, Judge Loucaides, in his
concurring opinion, held:-
“Accepting that respect for reputation is an
autonomous human right, which derives its source
from the Convention itself, leads inevitably to a
more effective protection of the reputation of
individuals vis-Ã -vis freedom of expression.”
42. In the said case, the Court has expressly recognised that
protection of reputation is a right which is covered by the
scope of the right to respect for one’s private life under Article
8 of the Convention. In course of deliberations reference has
22
(2008) 46 E.H.R.R. 3588
been made to Chauvy and Others v. France23
, Abeberry v.
France (dec.), no. 58729/00, 21 September 2004; and White
v. Sweden24
.
43. In Karakó v. Hungary25 the Court has opined that:-
“24. The Court reiterates that paragraph 2 of
Article 10 recognises that freedom of speech may
be restricted in order to protect reputation (see
paragraph 16 above). In other words, the
Convention itself announces that restrictions on
freedom of expression are to be determined within
the framework of Article 10 enshrining freedom of
speech.
25. The Court is therefore satisfied that the
inherent logic of Article 10, that is to say, the
special rule contained in its second paragraph,
precludes the possibility of conflict with Article 8.
In the Court’s view, the expression “the rights of
others” in the latter provision encompasses the
right to personal integrity and serves as a ground
for limitation of freedom of expression in so far as
the interference designed to protect private life is
proportionate.”
44. In Axel Springer AG v. Germany26 it has been ruled:-
23
(2005) 41 EHRR 29
24
[2007] EMLR 1
25
(2011) 52 E.H.R.R. 36
2689
“… [T]he right to protection of reputation is a right
which is protected by Article 8 of the Convention as
part of the right to respect for private life … In
order for Article 8 to come into play, however, an
attack on a person’s reputation must attain a
certain level of seriousness and in a manner
causing prejudice to personal enjoyment of the
right to respect for private life … The Court has
held, moreover, that Article 8 cannot be relied on in
order to complain of a loss of reputation which is
the foreseeable consequence of one’s own actions
such as, for example, the commission of a criminal
offence …
When examining the necessity of an interference in
a democratic society in the interests of the
“protection of the reputation or rights of others”,
the Court may be required to verify whether the
domestic authorities struck a fair balance when
protecting two values guaranteed by the
Convention which may come into conflict with each
other in certain cases, namely, on the one hand,
freedom of expression protected by Article 10 and,
on the other, the right to respect for private life
enshrined in Article 8.”
The perspective of this Court
45. In Board of Trustees of the Port of Bombay v.
Dilipkumar Raghavendranath Nadkarni and others27, the
Court has opined that expression “Life” does not merely
(2012) 55 E.H.R.R. 6
27
(1983) 1 SCC 12490
connote animal existence or a continued drudgery through
life. Further, it proceeded to state thus:-
“… The expression “life” has a much wider
meaning. Where therefore the outcome of a
departmental enquiry is likely to adversely affect
reputation or livelihood of a person, some of the
finer graces of human civilization which make life
worth living would be jeopardised and the same
can be put in jeopardy only by law which inheres
fair procedures. In this context one can recall the
famous words of Chapter II of Bhagwad-Gita:
“Sambhavitasya Cha Kirti Marnadati Richyate”
46. In Kiran Bedi v. Committee of Inquiry and another28
,
a three-Judge Bench, while dealing with the petition for
quashing of the inquiry report against the petitioner therein,
referred to Section 8-B of the Commissions of Inquiry Act,
1952 and opined that the importance has been attached with
regard to the matter of safeguarding the reputation of a
person being prejudicially affected in clause (b) of Section 8-B
of the Commissions of Inquiry Act. It is because reputation of
an individual is a very ancient concept. The Court referred to
the words of caution uttered by Lord Krishna to Arjun in
28
(1989) 1 SCC 49491
Bhagwad Gita with regard to dishonour or loss of reputation;
and proceeded to quote:-
“Akirtinchapi bhutani kathaishyanti
te-a-vyayam, Sambha-vitasya Chakirtir
maranadatirichyate. (2.34)
(Men will recount thy perpetual dishonour,
and to one highly esteemed, dishonour
exceedeth death.)”
Thereafter, the Court referred to Blackstone’s
Commentary of the Laws of England, Vol. I, 4th Edn., wherein
it has been stated that the right of personal security consists
in a person’s legal and uninterrupted enjoyment of his life, his
limbs, his body, his health and his reputation. Thereafter,
advertence was made to the statement made in Corpus Juris
Secundum, Vol. 77 at p. 268 which is to the following effect:-
“It is stated in the definition Person, 70 C.J.S. p.
688 note 66 that legally the term “person”
includes not only the physical body and
members, but also every bodily sense and
personal attribute, among which is the
reputation a man has acquired. Blackstone in
his Commentaries classifies and distinguishes
those rights which are annexed to the person,
jura personarum, and acquired rights in external
objects, jura rerum; and in the former he92
includes personal security, which consists in a
person’s legal and uninterrupted enjoyment of
his life, his limbs, his body, his health, and his
reputation. And he makes the corresponding
classification of remedies. The idea expressed is
that a man’s reputation is a part of himself, as
his body and limbs are, and reputation is a sort
of right to enjoy the good opinion of others, and
it is capable of growth and real existence, as an
arm or leg. Reputation is, therefore, a personal
right, and the right to reputation is put among
those absolute personal rights equal in dignity
and importance to security from violence.
According to Chancellor Kent as a part of the
rights of personal security, the preservation of
every person’s good name from the vile arts of
detraction is justly included. The laws of the
ancients, no less than those of modern nations,
made private reputation one of the objects of
their protection.
The right to the enjoyment of a good reputation
is a valuable privilege, of ancient origin, and
necessary to human society, as stated in Libel
and Slander Section 4, and this right is within
the constitutional guaranty of personal security
as stated in Constitutional Law Section 205, and
a person may not be deprived of this right
through falsehood and violence without liability
for the injury as stated in Libel and Slander
Section 4.
Detraction from a man’s reputation is an injury
to his personality, and thus an injury to
reputation is a personal injury, that is, an injury
to an absolute personal right”.93
Be it noted a passage from D.F. Marion v. Davis29, was
reproduced with approval:-
“The right to the enjoyment of a private
reputation, unassailed by malicious slander is of
ancient origin, and is necessary to human
society. A good reputation is an element of
personal security, and is protected by the
Constitution equally with the right to the
enjoyment of life, liberty, and property.”
47. In Gian Kaur v. State of Punjab30, this Court observed
that the right to reputation is a natural right. In Mehmood
Nayyar Azam v. State of Chhatisgarh and others31, while
discussing the glory of honourable life, the Court observed:-
“Albert Schweitzer, highlighting on the Glory of
Life, pronounced with conviction and humility, “the
reverence of life offers me my fundamental
principle on morality”. The aforesaid expression
may appear to be an individualistic expression of a
great personality, but, when it is understood in the
complete sense, it really denotes, in its conceptual
essentiality, and connotes, in its macrocosm, the
fundamental perception of a thinker about the
respect that life commands. The reverence of life is
29
55 ALR 171
30
(1996) 2 SCC 648
31
(2012) 8 SCC 194
insegregably associated with the dignity of a
human being who is basically divine, not servile.”
Elucidating further, the Court observed:-
“A human personality is endowed with potential
infinity and it blossoms when dignity is sustained.
The sustenance of such dignity has to be the
superlative concern of every sensitive soul. The
essence of dignity can never be treated as a
momentary spark of light or, for that matter, “a
brief candle”, or “a hollow bubble”. The spark of life
gets more resplendent when man is treated with
dignity sans humiliation, for every man is expected
to lead an honourable life which is a splendid gift
of “creative intelligence”. When a dent is created in
the reputation, humanism is paralysed….”
48. In Vishwanath Agrawal v. Saral Vishwanath
Agrawal32 this Court observed that reputation which is not
only the salt of life, but also the purest treasure and the most
precious perfume of life. It is a revenue generator for the
present as well as for the posterity. In Umesh Kumar v.
State of Andhra Pradesh and another33 the Court observed
that personal rights of a human being include the right of
reputation. A good reputation is an element of personal
32
(2012) 7 SCC 288
33
(2013) 10 SCC 59195
security and is protected by the Constitution equally with the
right to the enjoyment of life, liberty and property and as such
it has been held to be a necessary element in regard to right
to life of a citizen under Article 21 of the Constitution. The
International Covenant on Civil and Political Rights, 1966
recognises right to have opinions and right to freedom of
expression under Article 19 is subject to the right of
reputation of others.
49. In Kishore Samrite v. State of Uttar Pradesh and
others34, while dealing with the term “person” in the context
of reputation, the Court after referring to the authorities in
Kiran Bedi (supra) and Nilgiris Bar Association v. T.K.
Mahalingam and another35 held that:-
“The term “person” includes not only the physical
body and members but also every bodily sense and
personal attribute among which is the reputation a
man has acquired. Reputation can also be defined
to be good name, the credit, honour or character
which is derived from a favourable public opinion
or esteem, and character by report. The right to
enjoyment of a good reputation is a valuable
34
(2013) 2 SCC 398
35
(1998) 1 SCC 55096
privilege of ancient origin and necessary to human
society. “Reputation” is an element of personal
security and is protected by the Constitution
equally with the right to enjoyment of life, liberty
and property. Although “character” and
“reputation” are often used synonymously, but
these terms are distinguishable. “Character” is
what a man is and “reputation” is what he is
supposed to be in what people say he is.
“Character” depends on attributes possessed and
“reputation” on attributes which others believe one
to possess. The former signifies reality and the
latter merely what is accepted to be reality at
present. …”
50. In Om Prakash Chautala v. Kanwar Bhan and
others36 it has been held that reputation is fundamentally a
glorious amalgam and unification of virtues which makes a
man feel proud of his ancestry and satisfies him to bequeath
it as a part of inheritance on posterity. It is a nobility in itself
for which a conscientious man would never barter it with all
the tea of China or for that matter all the pearls of the sea.
The said virtue has both horizontal and vertical qualities.
When reputation is hurt, a man is half-dead. It is an honour
which deserves to be equally preserved by the downtrodden
and the privileged. The aroma of reputation is an excellence
36
(2014) 5 SCC 41797
which cannot be allowed to be sullied with the passage of
time. It is dear to life and on some occasions it is dearer than
life. And that is why it has become an inseparable facet of
Article 21 of the Constitution. No one would like to have his
reputation dented, and it is perceived as an honour rather
than popularity.
51. In State of Gujarat and another v. Hon’ble High
Court of Gujarat37, the court opined:-
“An honour which is a lost or life which is snuffed
out cannot be recompensed”
52. We have dwelled upon the view of this Court as regards
value of reputation and importance attached to it. We shall
be obliged, as we are, to advert to some passages from the
aforementioned authorities and also from other
pronouncements to understand the Court’s “accent” on
reputation as an internal and central facet of right to life as
projected under Article 21 of the Constitution at a later stage.
37
(1998) 7 SCC 39298
53. Having reconnoitered the assessment of the value of
reputation and scrutinised the conceptual meaning of the
term “reputation”, we are required to weigh in the scale of
freedom of speech and expression, especially under our
Constitution and the nature of the democratic polity the
country has.
Right of the Freedom of Speech and Expression
54. To appreciate the range and depth of the said right, it is
essential to understand the anatomy of Articles 19(1)(a) and
19(2) of the Constitution. Be it noted here that Article 19(2)
was amended by the 1st Amendment to the Constitution on
18th June, 1951 w.e.f. 26.01.1950. Article 19(1)(a) has
remained its original form. It reads as under:-
“19. (1) All citizens shall have the right –
(a)To freedom of speech and expression;
……………
55. Article 19(2) prior to the amendment was couched in the
following words:-99
“Nothing in sub-clause (a) of Cl.(1) shall affect the
operation of any existing law in so far as it relates
to, or prevents the state from making any law
relating to, libel, slander, defamation, contempt of
Court or any matter which offends against decency
or morality or which undermines the security of, or
tends to overthrow, the State.”
56. After the amendment, the new incarnation is as follows:-
“(2) Nothing in sub-clause (a) of clause (1) shall
affect the operation of any existing law, or prevent
the State from making any law, in so far as such
law imposes reasonable restrictions on the exercise
of the right conferred by the said sub-clause in the
interests of the security of the State, friendly
relations with foreign States, public order, decency
or morality; or in relation to contempt of Court,
defamation or incitement to an offence.”
57. Learned counsel appearing for some of the petitioners,
apart from addressing at length on the concept of reasonable
restriction have also made an effort, albeit an Everestian one,
pertaining to the meaning of the term “defamation” as used in
Article 19(2). In this regard, four aspects, namely, (i)
defamation, however extensively stretched, can only include a
civil action but not a criminal proceeding, (ii) even if
defamation is conceived of to include a criminal offence,100
regard being had to its placement in Article 19(2), it has to be
understood in association of the words, “incitement to an
offence”, for the principle of noscitur a sociis has to be made
applicable, then only the cherished and natural right of
freedom of speech and expression which has been recognized
under Article 19(1)(a) would be saved from peril, (iii) the
intention of clause (2) of Article 19 is to include a public law
remedy in respect of a grievance that has a collective impact
but not to take in its ambit an actionable claim under the
common law by an individual and (iv) defamation of a person
is mostly relatable to assault on reputation by another
individual and such an individual cavil cannot be thought of
being pedestalled as fundamental right and, therefore, the
criminal defamation cannot claim to have its source in the
word “defamation” used in Article 19(2) of the Constitution.
58. To appreciate the said facets of the submission, it is
necessary to appreciate ambit and purport of the word
“defamation”. To elaborate, whether the word “defamation”
includes both civil and criminal defamation. Only after we
answer the said question, we shall proceed to advert to the101
aspect of reasonable restriction on the right of freedom of
speech and expression as engrafted under Article 19(1)(a).
Mr. Rohtagi, learned Attorney General for India has
canvassed that to understand the ambit of the word
“defamation” in the context of the language employed in
Article 19(2), it is necessary to refer to the Constituent
Assembly debates. He has referred to certain aspects of the
debates and we think it appropriate to reproduce the relevant
parts:-
“The Honourable Dr. B.R. Ambedkar: Sir, this
article is to be read along with article 8.
Article 8 says –
“All laws in force immediately before the
commencement of this Constitution in the
territory of India, in so far as they are
inconsistent with the provision of this Part, shall,
to the extent of such inconsistency be void.”
And all that this article says is this, that all laws,
which relate to libels, slander, defamation or any
other matter which offends against decency or
morality or undermines the security of the State
shall not be affected by article 8. That is to say,
they shall continue to operate. If the words
“contempt of court” were not there, then to any
law relating to contempt of court article 8 would
apply, and it would stand abrogated. It is
prevent that kind of situation that the words
“contempt of court” are introduced, and there is,102
therefore, no difficulty in this amendment being
accepted.
Now with regard to the point made by Friend Mr.
Santhanam, it is quite true that so far as
fundamental rights are concerned, the word
“State” is used in a double sense, including the
Centre as well as the Provinces. But I think he
will bear in mind that notwithstanding this fact, a
State may make a law as well as the Centre may
make a law, some of the heads mentioned here
such as libel, slander, defamation, security of
State, etc., are matters placed in the Concurrent
list so that if there was any very great variation
among the laws made, relating to these subjects,
it will be open to the Centre to enter upon the
field and introduce such uniformity as the Centre
thinks it necessary for this purpose”.
“Mahaboob Ali Baig Sahib Bahadur…
Then, Sir, it is said by Dr. Ambedkar in his
introductory speech that fundamental rights are
not absolute. Of course, they are not; they are
always subject to the interests of the general
public and the safety of the State, but the
question is when a certain citizen oversteps the
limits so as to endanger the safety of the State,
who is to judge? According to me, Sir, and
according to well recognized canons, it is not the
executive or the legislature, but it is the
independent judiciary of the State that has to
judge whether a certain citizen has overstepped
the limits so as to endanger the safety of the
State. This distinction was recognized by the
framers of the American Constitution in that
famous Fourteenth Amendment which clearly
laid down that no Congress can make any law to
prejudice the freedom of speech, the freedom of
association and the freedom of the press. This103
was in 1791, and if the American citizen
transgressed the limits and endangered the
State, the judiciary would judge him and not the
legislature or the executive.”
The following speech from the Constituent
Assembly Debates of Shri. K. Hanumanthaiya
(Mysore) is extremely significant:
“The question next arises whether this limiting
authority should be the legislature or the court.
That is a very much debated question. Very many
people, very conscientiously too, think that the
legislature or the executive should not have
anything to do with laying down the limitations
for the operation of these fundamental rights,
and that it must be entrusted to courts which are
free from political influences, which are
independent and which can take an impartial
view. That is the view taken by a good number of
people and thinkers. Sir, I for one, though I
appreciate the sincerity with which this argument
is advanced, fail to see how it can work in actual
practice. Courts can, after all, interpret the law
as it is. Law once made may not hold good in its
true character for all time to come. Society
changes; Government change; the temper and
psychology of the people change from decade to
decade if not from year to year. The law must be
such as to automatically adjust itself to the
changing conditions. Courts cannot, in the very
nature of things, do legislative work; they can
only interpret. Therefore, in order to see that the
law automatically adjusts to the conditions that
come into being in times to come, this power of
limiting the operation of the fundamental rights
is given to the legislature. After all, the legislature
does not consist of people who come without the
sufferance of the people. The legislature consists
of real representatives of the people as laid down104
in this Constitution. If, at a particular time the
legislature thinks that these rights ought to be
regulated in a certain manner and in a particular
method, there is nothing wrong in it, nothing
despotic about it, nothing derogatory to these
fundamental rights. I am indeed glad that this
right of regulating the exercise of fundamental
rights is given to the legislature instead of to the
courts.”
59. In this regard, excerpts from speech from Prof. K.T.
Shah are also noteworthy:-
“… my purpose in bringing forward this
amendment is to point out that, if all the
freedoms enumerated in this article are to be in
accordance with only the provisions of this
article, or are to be guaranteed subject to the
provisions of this article only, then they would
amount more to a negation of freedom than the
promise or assurance of freedom, because in
everyone of these clauses the exceptions are
much more emphasised than the positive
provision. In fact, what is given by one right
hand seems to be taken away by three or four or
five left hands; and therefore the article is
rendered negatory in any opinion.
I am sure that was not the intention or meaning
of the draftsmen who put in the other articles
also. I suggest therefore that instead of making it
subject to the provisions of this article, we
should make it subject to the provisions of this
Constitution. That is to say, in this Constitution
this article will remain. Therefore if you want to
insist upon these exceptions, the exceptions will
also remain. But the spirit of the Constitution,105
the ideal under which this Constitution is based,
will also come in, which I humbly submit, would
not be the case, if you emphasise only this
article. If you say merely subject to the
provisions of this article, then you very clearly
emphasise and make it necessary to read only
this article by itself, which is more restrictive
than necessary. …
… The freedoms are curtly enumerated in 5, 6 or
7 items in one sub-clause of the article. The
exceptions are all separately mentioned in
separate sub-clauses. And their scope is so
widened that I do not know what cannot be
included as exception to these freedoms rather
than the rule. In fact, the freedoms guaranteed
or assured by this article become so elusive that
one would find it necessary to have a microscope
to discover where these freedoms are, whenever
it suits the State or the authorities running it to
deny them. I would, therefore, repeat that you
should bring in the provisions of the whole
Constitution, including its Preamble and
including all other articles and chapters where
the spirit of the Constitution should be more
easily and fully gathered than merely in this
article, which, in my judgment, runs counter to
the spirit of the Constitution. …
I also suggest that it would not be enough to
enumerate these freedoms, and say the citizen
shall have them. I would like to add the words
also that by this Constitution these freedoms are
guaranteed. That is to say, any exception which
is made, unless justified by the spirit of the
Constitution, the Constitution as a whole and
every part of it included, would be a violation of
the freedoms guaranteed hereby.”106
Relying on the said debates, it is urged by Mr. Rohatgi
that the founding fathers had no intention to confer a
restricted meaning on the term “defamation”.
60. After this debate, Article 19(2) came in its original shape.
Thereafter, the First Amendment to the Constitution, passed
in June, 1951 which empowered the State to impose
“reasonable restrictions” on the freedom of speech and
expression “in the interests of the security of the State38
,
friendly relations with foreign States, public order, decency or
morality, or in relation to contempt of court, defamation, or
incitement to an offence”. The words “libel” and “slander” were
dropped. “Incitement to an offence” was added as a response
to the rulings in State of Bihar v. Shailabala Devi39 and
Brij Bhushan v. State of Delhi40. The restrictions were
qualified by prefixing the word “reasonable”. The 16th
38
Replacing the words “tends to overthrow the State”.
39
AIR 1952 SC 329
40
1952 SCR 654 : AIR 1950 SC 129107
Amendment to the Constitution in 1963 added the power to
impose restrictions on the freedom of speech and expression
in the interests of “sovereignty and integrity of India”.
61. We may state with profit that the debates of the
Constituent Assembly can be taken aid of for the purpose of
understanding the intention of the framers of the
Constitution. In S.R. Chaudhuri v. State of Punjab and
others41 a three-Judge Bench has observed that
Constitutional provisions are required to be understood and
interpreted with an object-oriented approach. A Constitution
must not be construed in a narrow and pedantic sense. The
words used may be general in terms but, their full import and
true meaning, has to be appreciated considering the true
context in which the same are used and the purpose which
they seek to achieve. While so observing, the Court proceeded
to state that it is a settled position that debates in the
Constituent Assembly may be relied upon as an aid to
interpret a constitutional provision because it is the function
41
(2001) 7 SCC 126108
of the court to find out the intention of the framers of the
Constitution. It was also highlighted that the Constitution is
not just a document in solemn form, but a living framework
for the Government of the people exhibiting a sufficient degree
of cohesion and its successful working depends upon the
democratic spirit underlying it being respected in letter and in
spirit. In Special Reference No. 1 of 2002, In re (Gujarat
Assembly Election matter)42, the issue of relying on the
Constituent Assembly Debates again came up for
consideration. Khare, J. (as His Lordship then was) referred to
His Holiness Kesavananda Bharati Sripadagalvaru v.
State of Kerala and another43 and held:-
“Constituent Assembly Debates although not
conclusive, yet show the intention of the framers of
the Constitution in enacting provisions of the
Constitution and the Constituent Assembly Debates
can throw light in ascertaining the intention behind
such provisions.”
42
(2002) 8 SCC 237
43
(1973) 4 SCC 225109
62. Recently, in Manoj Narula v. Union of India44 the
majority in the context of understanding the purpose of
Article 75 of the Constitution referred to the Constituent
Assembly debates.
63. We have referred to the aforesaid aspect only to highlight
the intention of the founding fathers and also how
contextually the word “defamation” should be understood. At
this stage, we may state that in the course of hearing, an
endeavour was made even to the extent of stating that the
word “defamation” may not even call for a civil action in the
absence of a codified law. In this regard, we may usefully refer
to M.C. Setalvad’s Hamlyn Lectures (Twelfth Series) “The
Common Law of India” wherein India’s first Attorney General
expressed that:-
“an important branch of law which has remained
uncodified in India is the law relating to civil
wrongs.
Some of the most important rights of a person
which the law protects from injury are rights to the
security of his person, his domestic relations and
his property and reputation… (page 108)
44
(2014) 9 SCC 1110
One of the outstanding fact of English legal history
for the last three centuries is the development of
the law of torts from small beginnings to its present
dimensions as a separate branch of law. The
action for damages as a remedy for violations of
rights and duties has been fashioned by lawyers,
judges and juries of England as an instrument for
making people adhere to standards of reasonable
behavior and respect the rights and interest of one
another. A body of rules has grown and is
constantly growing in response to new concepts of
right and duty and new needs and conditions of
advancing civilization. The principles which form
the foundation of the law of torts are usually
expressed by saying the injuria sine damno is
actionable but damnum sine (or absque) injuria is
not. …”(page 109)
64. The common law of England was the prevalent law being
adopted before the Constitution came into force and it is
declared as a law in force under Article 372 of the
Constitution of India by a larger Bench decision in
Superintendent and Remembrancer of Legal Affairs v.
Corporation of Calcutta45
.
65. The position has further become clear in Ganga Bai v.
Vijay Kumar46 wherein this Court has ruled thus:-
45
AIR 1967 SC 997 = 1967 (2) SCR 170
46
(1974) 2 SCC 393 111
“There is an inherent right in every person to bring
a suit of a civil nature and unless the suit is barred
by statue one may, at one’s peril, bring a suit one’s
choice. It is no answer to a suit, howsoever
frivolous the claim, that the law confers no such
right to sue. A suit for its maintainability requires
no authority of law and it is enough that no statute
bars the suit.”
66. We have referred to this aspect only to clarify the position
that it is beyond any trace of doubt that civil action for which
there is no codified law in India, a common law right can be
taken recourse to under Section 9 of the Code of Civil
Procedure, 1908, unless there is specific statutory bar in that
regard.
67. The other aspect that is being highlighted in the context
of Article 19(2)(a) is that defamation even is conceived of to
include a criminal offence, it must have the potentiality to
“incite to cause an offence”. To elaborate, the submission is
the words “incite to cause an offence” should be read to give
attributes and characteristics of criminality to the word
“defamation”. It must have the potentiality to lead to breach of
peace and public order. It has been urged that the intention of
clause (2) of Article 19 is to include a public law remedy in112
respect of a grievance that has a collective impact but not as
an actionable claim under the common law by an individual
and, therefore, the word “defamation” has to be understood in
that context, as the associate words are “incitement to an
offence” would so warrant. Mr. Rao, learned senior counsel,
astutely canvassed that unless the word “defamation” is
understood in this manner applying the principle of noscitur a
sociis, the cherished and natural right of freedom of speech
and expression which has been recognized under Article 19(1)
(a) would be absolutely at peril. Mr. Narsimha, learned ASG
would contend that the said rule of construction would not be
applicable to understand the meaning of the term
“defamation”. Be it noted, while construing the provision of
Article 19(2), it is the duty of the Court to keep in view the
exalted spirit, essential aspects, the value and philosophy of
the Constitution. There is no doubt that the principle of
noscitur a sociis can be taken recourse to in order to
understand and interpret the Constitution but while applying
the principle, one has to keep in mind the contours and scope
of applicability of the said principle. In State of Bombay v.113
Hospital Mazdoor Sabha 47, it has been held that it must be
borne in mind that noscitur a sociis is merely a rule of
construction and it cannot prevail in cases where it is clear
that wider words have been deliberately used in order to make
the scope of the defined word correspondingly wider. It is only
where the intention of the legislature in associating wider
words with words of narrower significance is doubtful, or
otherwise not clear that the said rule of construction can be
usefully applied. It can also be applied where the meaning of
the words of wider import is doubtful; but, where the object of
the legislature in using wider words is clear and free of
ambiguity, the rule of construction in question cannot be
pressed into service.
68. In Bank of India v. Vijay Transport and others48, the
Court was dealing with the contention that a literal
interpretation is not always the only interpretation of a
provision in a statute and the court has to look at the setting
47
AIR 1960 SC 610 = (1960) 2 SCR 866
48
1988 Supp SCC 47 = AIR 1988 SC 151114
in which the words are used and the circumstances in which
the law came to be passed to decide whether there is
something implicit behind the words actually used which
would control the literal meaning of the words used. For the
said purpose, reliance was placed on R.L. Arora v. State of
Uttar Pradesh49. Dealing with the said aspect, the Court has
observed thus:-
“… It may be that in interpreting the words of the
provision of a statute, the setting in which such
words are placed may be taken into consideration,
but that does not mean that even though the words
which are to be interpreted convey a clear meaning,
still a different interpretation or meaning should be
given to them because of the setting. In other
words, while the setting of the words may
sometimes be necessary for the interpretation of
the words of the statute, but that has not been
ruled by this Court to be the only and the surest
method of interpretation. …”
69. The Constitution Bench, in Godfrey Phillips India Ltd.
and another v. State of U.P. and others50, while expressing
its opinion on the aforesaid rule of construction, opined:-
49
(1964) 6 SCR 784 = AIR 1964 SC 1230
50
(2005) 2 SCC 515115
“81. We are aware that the maxim of noscitur a
sociis may be a treacherous one unless the
“societas” to which the “socii” belong, are known.
The risk may be present when there is no other
factor except contiguity to suggest the “societas”.
But where there is, as here, a term of wide
denotation which is not free from ambiguity, the
addition of the words such as “including” is
sufficiently indicative of the societas. As we have
said, the word “includes” in the present context
indicates a commonality or shared features or
attributes of the including word with the included.
x x x x
83. Hence on an application of general principles of
interpretation, we would hold that the word
“luxuries” in Entry 62 of List II means the activity
of enjoyment of or indulgence in that which is
costly or which is generally recognised as being
beyond the necessary requirements of an average
member of society and not articles of luxury.”
70. At this juncture, we may note that in Ahmedabad Pvt.
Primary Teachers’ Assn. v. Administrative Officer and
others51, it has been stated that noscitur a sociis is a legitimate
rule of construction to construe the words in an Act of the
Parliament with reference to the words found in immediate
connection with them. In this regard, we may refer to a
51
(2004) 1 SCC 755116
passage from Justice G.P. Singh, Principles of Statutory
Interpretation52 where the learned author has referred to the
lucid explanation given by Gajendragadkar, J. We think it
appropriate to reproduce the passage:-
“It is a rule wider than the rule of ejusdem generis;
rather the latter rule is only an application of the
former. The rule has been lucidly explained by
GAJENDRAGADKAR, J. in the following words:
“This rule, according to MAXWELL53, means that
when two or more words which are susceptible of
analogous meaning are coupled together, they are
understood to be used in their cognate sense. They
take as it were their colour from each other, that is,
the more general is restricted to a sense analogous
to a less general.”
Learned author on further discussion has expressed the
view that meaning of a word is to be judged from the company
it keeps, i.e., reference to words found in immediate
connection with them. It applies when two or more words are
susceptible of analogous meanings are coupled together, to be
read and understood in their cognate sense.54
Noscitur a
52
13th Edn. 2012 p. 509
53
Maxwell: Interpretation of Statutes, 11th Edition, p. 321
54117
soccis is merely a rule of construction and cannot prevail
where it is clear that wider and diverse etymology is
intentionally and deliberately used in the provision. It is only
when and where the intention of the legislature in associating
wider words with words of narrowest significance is doubtful
or otherwise not clear, that the rule of noscitur a soccis is
useful.
71. The core issue is whether the said doctrine of noscitur a
soccis should be applied to the expression “incitement of an
offence” used in Article 19(2) of the Constitution so that it gets
associated with the term “defamation”. The term “defamation”
as used is absolutely clear and unambiguous. The meaning
is beyond doubt. The said term was there at the time of
commencement of the Constitution. If the word “defamation”
is associated or is interpreted to take colour from the terms
“incitement to an offence”, it would unnecessarily make it a
restricted one which even the founding fathers did not intend
to do. Keeping in view the aid that one may take from the
Constituent Assembly Debates and regard being had to the
Principles of Statutory Interpretations by G.P. Singh, Eighth Edition, p. 379118
clarity of expression, we are of the considered opinion that
there is no warrant to apply the principle of noscitur a sociis
to give a restricted meaning to the term “defamation” that it
only includes a criminal action if it gives rise to incitement to
constitute an offence. The word “incitement” has to be
understood in the context of freedom of speech and
expression and reasonable restriction. The word “incitement”
in criminal jurisprudence has a different meaning. It is
difficult to accede to the submission that defamation can only
get criminality if it incites to make an offence. The word
“defamation” has its own independent identity and it stands
alone and the law relating to defamation has to be understood
as it stood at the time when the Constitution came into force.
72. The submission is that Sections 499 and 500 of IPC are
not confined to defamation of the State or its components but
include defamation of any private person by another private
person totally unconnected with the State. In essence, the
proponement is that the defamation of an individual by
another individual can be a civil wrong but it cannot be made
a crime in the name of fundamental right as protection of119
private rights qua private individuals cannot be conferred the
status of fundamental rights. If, argued the learned counsel,
such a pedestal is given, it would be outside the purview of
Part III of the Constitution and run counter to Articles 14, 19
and 21 of the Constitution. It is urged that defamation of a
private person by another person is unconnected with the
fundamental right conferred in public interest by Article 19(1)
(a); and a fundamental right is enforceable against the State
but cannot be invoked to serve a private interest of an
individual. Elucidating the same, it has been propounded
that defamation of a private person by another person cannot
be regarded as a ‘crime’ under the constitutional framework
and hence, what is permissible is the civil wrong and the
remedy under the civil law. Section 499 IPC, which stipulates
defamation of a private person by another individual, has no
nexus with the fundamental right conferred under Article
19(1)(a) of the Constitution, for Article 19(2) is meant to
include the public interest and not that of an individual and,
therefore, the said constitutional provision cannot be the
source of criminal defamation. This argument is built up on120
two grounds: (i) the common thread that runs through the
various grounds engrafted under Article 19(2) is relatable to
the protection of the interest of the State and the public in
general and the word “defamation” has to be understood in
the said context, and (ii) the principle of noscitur a sociis,
when applied, “defamation” remotely cannot assume the
character of public interest or interest of the crime inasmuch
a crime remotely has nothing to do with the same.
73. We have already stated about the doctrine of noscitur a
sociis with regard to ‘incitement of an offence’. Mr. Rao,
learned senior counsel, has emphasized on public interest
relying on the said principle and in that context has
commended us to the decisions in K. Bhagirathi G. Shenoy
and others v. K.P. Ballakuraya and another55
, Reserve
Bank of India v. Peerless General Finance and
Investment Co. Ltd. and others56
. In Peerless General
55
(1999) 4 SCC 135
56
(1987) 1 SCC 424121
Finance and Investment Co. Ltd. (supra), Chinnappa
Reddy, J. speaking for the Court, has observed that:-
“Interpretation must depend on the text and the
context. They are the bases of interpretation. One
may well say if the text is the texture, context is
what gives the colour. Neither can be ignored. Both
are important. That interpretation is best which
makes the textual interpretation match the
contextual.”
74. In K. Bhagirathi (supra), it has been held that:-
“It is not a sound principle in interpretation of
statutes to lay emphasis on one word disjuncted
from its preceding and succeeding words. A word
in a statutory provision is to be read in collocation
with its companion words. The pristine principle
based on the maxim noscitur a sociis (meaning of a
word should be known from its accompanying or
associating words) has much relevance in
understanding the import of words in a statutory
provision.”
75. The decision in Peerless General Finance and
Investment Co. Ltd. (supra) relates to the principles to be
adopted for understanding the statute. In K. Bhagirathi
(supra), the Court has referred to the principle having regard to
the statutory context. We have already referred to the decision
in Hospital Mazdoor Sabha (supra) wherein it has been ruled122
that the principle of noscitur a sociis is merely a rule of
construction and it cannot be allowed to prevail in a case
where it is clear that wider words have been deliberately used
in order to make the scope of the defined word correspondingly
wider. The term “defamation” as used in Article 19(2) should
not be narrowly construed. The conferment of a narrow
meaning on the word would defeat the very purpose that the
founding fathers intended to convey and further we do not find
any justifiable reason to constrict the application. The word
“defamation” as used in Article 19(2) has to be conferred an
independent meaning, for it is incomprehensible to reason
that it should be read with the other words and expressions,
namely, “security of the State”, “friendly relations with foreign
States”, “public order, decency or morality”. The submission is
based on the premise that “defamation” is meant to serve
private interest of an individual and not the larger public
interest. Both the aspects of the said submission are
interconnected and interrelated. Defamation has been regarded
as a crime in the IPC which is a pre-constitutional law. It is
urged that such kind of legal right is unconnected with the123
fundamental right conceived of under Article 19(1)(a) of the
Constitution. Additionally, it is canvassed that reputation
which has been held to be a facet of Article 21 in Dilipkumar
Raghavendranath Nadkarni (supra), Mehmood Nayyar
Azam (supra), and Umesh Kumar (supra), is against the
backdrop where the State has affected the dignity and
reputation of an individual. This aspect of the submission
needs apposite understanding. Individuals constitute the
collective. Law is enacted to protect the societal interest. The
law relating to defamation protects the reputation of each
individual in the perception of the public at large. It matters to
an individual in the eyes of the society. Protection of individual
right is imperative for social stability in a body polity and that
is why the State makes laws relating to crimes. A crime affects
the society. It causes harm and creates a dent in social
harmony. When we talk of society, it is not an abstract idea or
a thought in abstraction. There is a link and connect between
individual rights and the society; and this connection gives rise
to community interest at large. It is a concrete and visible124
phenomenon. Therefore, when harm is caused to an individual,
the society as a whole is affected and the danger is perceived.
76. In this context, it is necessary to understand the basic
concept of crime. In Halsbury’s, 4th Edition, “Principles of
Criminal Liability” it has been described thus:-
“There is no satisfactory definition of crime which
will embrace the many acts and omissions which
are criminal, and which will at the same time
exclude all those acts and omissions which are
not. Ordinarily a crime is a wrong which affects
the security or well-being of the public generally
so that the public has an interest in its
suppression. A crime is frequently a moral wrong
in that it amounts to conduct which is inimical to
the general moral sense of the community. It is,
however, possible to instance many crimes which
exhibit neither of the foregoing characteristics.
An act may be made criminal by Parliament
simply because it is criminal process, rather than
civil, which offers the more effective means of
controlling the conduct in question.”
77. In Kenny’s Outlines of Criminal law, 19th Edition, 1966
by J.W. Cecil Turner, it has been stated that:-
“There is indeed no fundamental or inherent
difference between a crime and a tort. Any conduct
which harms an individual to some extent harms
society, since society is made up of individuals;
and therefore although it is true to say of crime125
that is an offence against society, this does not
distinguish crime from tort. The difference is one
of degree only, and the early history of the common
law shows how words which now suggest a real
distinction began rather as symbols of emotion
than as terms of scientific classification.”
And, again :-
“So long as crimes continue (as would seem
inevitable) to be created by government policy the
nature of crime will elude true definition.
Nevertheless it is a broadly accurate description to
say that nearly every instance of crime presents all
of the three following characteristics: (1) that it is a
harm, brought about by human conduct, which
the sovereign power in the State desires to prevent;
(2) that among the measures of prevention selected
is the threat of punishment; (3) that legal
proceedings of a special kind are employed to
decide whether the person accused did in fact
cause the harm, and is, according to law, to be
held legally punishable for doing so.”
78. Stephen defines a Crime thus:-
“a crime is an unlawful act or default which is
an offence against the public, rendering the
person guilty of such act or default liable to legal
punishment. The process by which such person
is punished for the unlawful act or default is
carried on in the name of the Crown; although
any private person, in the absence of statutory
provision to the contrary, may commence a
criminal prosecution. Criminal proceedings were
formerly called pleas of the crown, because the126
King, in whom centres the majesty of the whole
community, is supposed by the law to be the
person injured by every infraction of the public
rights belonging to that community. Wherefore
he is, in all cases, the proper prosecutor for
every public offence”.57
79. Blackstone, while discussing the general nature of
crime, has defined crime thus:-
“A crime, or misdemeanour, is an act committed
or omitted, in violation of a public law, either
forbidding or commanding it. This general
definition comprehends both crimes and
misdemeanours; which, properly speaking, are
mere synonyms terms: though, in common
usage, the word ‘crimes’ is made to denote such
offences as are of a deeper and more atrocious
dye; while smaller faults, and omissions of less
consequence, are comprised under the gentler
name of ‘misdemeanours’ only.”58
80. The distinction of public wrongs from private, of crimes
and misdemeanours from civil injuries, seems principally to
consist in this: that private wrongs or civil injuries are an
infringement or privation of the civil rights which belongs to
individuals, considered merely as individuals; public wrongs
57
Stephen’s : New Commentaries on the Laws of England, Ed 17, Vol.4, Chap I, p.1-2.
58
Blackstone’s : Commentaries on the Laws of England; Edited by Wayne Morrison, Vol. 4, p.5127
or crimes and misdemeanours are a breach and violation of
the public rights and duties due to the whole community in
its social aggregate capacity.59 In all cases the crime includes
injury; every public offence is also a private wrong, and
somewhat more. It affects the individual, and it likewise
affects the community.60
81. The constituents of crime in general has been
enumerated in Halsbury’s Laws of England as “a person is not
to be convicted of a crime unless he has, by voluntary
conduct, brought about those elements which by common law
or statute constitute that crime. In general a person does not
incur criminal liability unless he intended to bring about, or
recklessly brought about, those elements which constitute
the crime. The foregoing concepts are traditionally expressed
in maxim “actus non facit reum nisi mens sit rea”
61
.
59
Ibid. p. 5
60
Ibid . p. 6
61
Halsbury’s Laws of England : Edition 4, Vol.2 , Para 4, p.12128
Enforcement of a right and seeking remedy are two distinct
facets. It should not be confused.
82. The concept of crime is essentially concerned with social
order. It is well known that man’s interests are best protected
as a member of the community. Everyone owes certain duties
to his fellow-men and at the same time has certain rights and
privileges which he expects others to ensure for him. This
sense of mutual respect and trust for the rights of others
regulates the conduct of the members of society inter-se.
Although most people believe in the principle of ‘live and let
live’, yet there are a few who, for some reason or the other,
deviate from this normal behavioural pattern and associate
themselves with anti-social elements. This obviously imposes
an obligation on the State to maintain normalcy in the
society. This arduous task of protecting the law abiding
citizens and punishing the law breakers vests with the State
which performs it through the instrumentality of law. It is for
this reason that Salmond has defined law as a ‘rule of action’
regulating the conduct of individuals in society. The conducts129
which are prohibited by the law in force at a given time and
place are known as wrongful acts or crimes, whereas those
which are permissible under the law are treated as lawful.
The wrongdoer committing crime is punished for his guilt
under the law of crime.62
83. Mr. Rohtagi has referred to the Blackstone’s definition
crimes and laid emphasis on the statement of Antony Duff
who has lucidly observed that “we should interpret a ‘public’
wrong, not as a wrong that injures the public, but as one that
properly concerns the public i.e. the polity as a whole”. In this
regard, he has drawn our attention to a passage from Duff
and Marshall which state that public wrongs are wrongs
which village the shared values that normatively define the
political community in which fellow citizens are participants.
The impact of such wrongs are shared by both the victims and
fellow citizens and in this sense, such wrongs, concern the
public at large- the polis, the state and fellow citizens. It is
because of the “public” element that it is the State rather than
62
Criminology and Penology by Dr. N.V Pranjape, 15th Edition, 2012 p. 1130
the victim who is principally in-charge of the legal process. It
is the police who investigates the case, it is the State that
brings the charges and whether charges are brought, how far
the case proceeds is up to the prosecution – it is not for the
victim to decide the course of the case. On the other hand, in
the civil process it is the affected private individual who is
primarily in-charge of the legal process and it is for such
individual to take the case to its logical conclusion or to drop it
if he so chooses – there is no duty on him to bring the case at
all.
84. In this context, reference to certain authorities that
deliberated the conception of crime in the societal context
would be apt. In State of Maharashtra v. Sujay Mangesh
Poyarekar63, this Court has held that every crime is
considered as an offence against the society as a whole and
not only against an individual even though it is an individual
who is the ultimate sufferer. It is, therefore, the duty of the
State to take appropriate steps when an offence has been
63
(2008) 9 SCC 475131
committed. Yet again, in Mohd. Shahabuddin v. State of
Bihar and others64, it has been observed that every criminal
act is an offence against the society. The crime is a wrong
done more to the society than to an individual. It involves a
serious invasion of rights and liberties of some other person
or persons. In Vinay Devanna Nayak v. Ryot Sewa
Sahakari Bank Ltd.65
, the Court, while deliberating on the
issue of compromise in a criminal case, has noted that it is no
doubt true that every crime is considered to be an offence
against the society as a whole and not only against an
individual even though an individual might have suffered
thereby. It is, therefore, the duty of the State to take
appropriate action against the offender. It is equally the duty
of a court of law administrating criminal justice to punish a
criminal. The stress is on the duty of the State in taking
action against the violator of law.
64
(2010) 4 SCC 653
65
(2008) 2 SCC 305132
85. In R. Sai Bharathi v. J. Jayalalitha and others66
,
while opining about crime, it has been observed as under:-
“56. Crime is applied to those acts, which are
against social order and are worthy of serious
condemnation. Garafalo, an eminent criminologist,
defined “crime” in terms of immoral and anti-social
acts. He says that:-
“crime is an immoral and harmful act that is
regarded as criminal by public opinion because it
is an injury to so much of the moral sense as is
possessed by a community — a measure which
is indispensable for the adaptation of the
individual to society”.
The authors of the Indian Penal Code stated that:
“… We cannot admit that a Penal Code is by any
means to be considered as a body of ethics, that
the legislature ought to punish acts merely
because those acts are immoral, or that,
because an act is not punished at all, it follows
that the legislature considers that act as
innocent. Many things which are not punishable
are morally worse than many things which are
punishable. The man who treats a generous
benefactor with gross ingratitude and insolence
deserves more severe reprehension than the
man who aims a blow in passion, or breaks a
window in a frolic; yet we have punishment for
assault and mischief, and none for ingratitude.
The rich man who refuses a mouthful of rice to
save a fellow creature from death may be a far
worse man than the starving wretch who
66
(2004) 2 SCC 9 133
snatches and devours the rice; yet we punish
the latter for theft, and we do not punish the
former for hard-heartedness.””
86. In T.K. Gopal alias Gopi v. State of Karnataka67
,
deliberating on the definition of crime, the Court ruled that
crime can be defined as an act that subjects the doer to
legal punishment. It may also be defined as commission of
an act specifically forbidden by law; it may be an offence
against morality or social order”. In Kartar Singh v. State
of Punjab68
, this Court observed that:-
“446. What is a crime in a given society at a
particular time has a wide connotation as the
concept of crime keeps on changing with change in
political, economic and social set-up of the
country. Various legislations dealing with economic
offences or offences dealing with violation of
industrial activity or breach of taxing provision are
ample proof of it. The Constitution-makers foresaw
the eventuality, therefore they conferred such
powers both on Central and State Legislatures to
make laws in this regard. Such right includes
power to define a crime and provide for its
punishment. Use of the expression, “including all
matters included in the Indian Penal Code at the
67
(2000) 6 SCC 168
68
(1994) 3 SCC 569134
commencement of the Constitution” is unequivocal
indication of comprehensive nature of this entry. It
further empowers the legislature to make laws not
only in respect of matters covered by the Indian
Penal Code but any other matter which could
reasonably and justifiably be considered to be
criminal in nature.”
87. In Harpreet Kaur (Mrs) v. State of Maharashtra and
another69
, the Court, though in a different context, opined
that crime is a revolt against the whole society and an attack
on the civilisation of the day. In their essential quality, the
activities which affect ‘law and order’ and those which disturb
‘public order’ may not be different but in their potentiality and
effect upon even tempo of the society and public tranquility
there is a vast difference. In State of Karnataka v. Appa
Balu Ingale and others70 it has been observed that criminal
law primarily concerns with social protection, prescribes rules
of behavior to be observed by all persons and punishes them
for deviance, transgression or omission.
69
(1992) 2 SCC 177
70
1995 Supp. (4) SCC 469135
88. From the aforesaid discussion, it is plain as day that the
contention that the criminal offence meant to subserve the
right of inter se private individuals but not any public or
collective interest in totality is sans substance. In this regard,
we may take note of the submission put forth by Mr.
Narsimha, learned Additional Solicitor General, that Articles
17, 23 and 24 which deal with abolition of untouchability and
prohibit trafficking in human beings and forced labour and
child labour respectively are rights conferred on the citizens
and they can be regarded as recognition of horizontal rights
under the Constitution. He has referred to certain legislations
to highlight that they regulate rights of individuals inter se.
Mr. Narsimha has drawn immense inspiration from Vishaka
and others v. State of Rajasthan and others71 where the
Court has framed guidelines to protect the rights of individuals
at their work place. It ultimately resulted in passing of the
Sexual Harassment of Women at Workplace (Prevention,
prohibition and Redressal) Act, 2013 which empowered
71
(1997) 6 SCC 241136
individuals to protect their fundamental right to dignity against
other citizens. Similarly, legislations like the Child Labour
(Prohibition & Regulation) Act, 1986, the Scheduled Castes
and the Scheduled Tribes (Prevention of Atrocities) Act, 1989,
Protection of Civil Rights Act, 1955, Press Council Act, 1978,
the Noise Pollution (Regulation and Control) Rules, 2000 under
the Environment (Protection) Act, 1986 regulate the
fundamental rights of citizens vis-Ã -vis other citizens.
89. We have referred to this facet only to show that the
submission so astutely canvassed by the learned counsel for
the petitioners that treating defamation as a criminal offence
can have no public interest and thereby it does not serve any
social interest or collective value is sans substratum. We may
hasten to clarify that creation of an offence may be for some
different reason declared unconstitutional but it cannot be
stated that the legislature cannot have a law to constitute an
act or omission done by a person against the other as a crime.
It depends on the legislative wisdom. Needless to say, such
wisdom has to be in accord with constitutional wisdom and
pass the test of constitutional challenge. If the law enacted is137
inconsistent with the constitutional provisions, it is the duty
of the Court to test the law on the touchstone of Constitution.
90. It is submitted by Mr. Rao, learned senior counsel, that
the object of Part III of the Constitution is to provide protection
against the State action and, therefore, the criminal
defamation which is basically a dispute between two private
individuals cannot become a facet of the term criminal
defamation as used in Article 19(2) of the Constitution, for
there cannot be a constitutional protection for such an action.
For the said purpose, he has placed reliance on the authority
in State of West Bengal v. Subodh Gopal Bose and
others72. On a perusal of the said decision, we find that it has
been rendered in a quite different context and not with regard
to an individual act becoming an offence in the criminal law
and hence, the said decision is remotely not applicable to such
a situation. Therefore, we conclude and hold that the restricted
meaning sought to be given to the term “defamation” is
unacceptable and insupportable.
72
AIR 1954 SC 92 : [1954] SCR 587138
Sanctity and significance of Freedom of Speech and
Expression in a democracy
91. Freedom of speech and expression in a spirited
democracy is a highly treasured value. Authors, philosophers
and thinkers have considered it as a prized asset to the
individuality and overall progression of a thinking society, as
it permits argument, allows dissent to have a respectable
place, and honours contrary stances. There are proponents
who have set it on a higher pedestal than life and not
hesitated to barter death for it. Some have condemned
compelled silence to ruthless treatment. William Dougles has
denounced regulation of free speech like regulating diseased
cattle and impure butter. The Court has in many an authority
having realized its precious nature and seemly glorified
sanctity has put it in a meticulously structured pyramid.
Freedom of speech is treated as the thought of the freest who
has not mortgaged his ideas, may be wild, to the artificially
cultivated social norms; and transgression thereof is not
perceived as a folly. Needless to emphasise, freedom of speech139
has to be allowed specious castle, but the question is should
it be so specious or regarded as so righteous that it would
make reputation of another individual or a group or a
collection of persons absolutely ephemeral, so as to hold that
criminal prosecution on account of defamation negates and
violates right to free speech and expression of opinion.
Keeping in view what we have stated hereinabove, we are
required to see how the constitutional conception has been
understood by the Court where democracy and rule of law
prevail.
92. Bury in his work History of Freedom of Thought (1913)
has observed that freedom of expression is
“a supreme condition of mental and moral progress” [p.239]. In
the words of American Supreme Court, it is “absolutely
indispensible for the preservation of a free society in which
government is based upon the consent of an informed citizenry
and is dedicated to the protection of the rights of all, even the
most despised minorities” (See Speiser v. Randall73). In
73
(1958) 257 US 513 (530)140
Yates v. U.S.
74 the court held that “the only kind of security
system that can preserve a free Government – one that leaves
the way wide open for people to favor discuss, advocate, or
incite causes and doctrines however obnoxious and antagonistic
such views may be to the rest of us.” In Stromberg v.
California75 the Court remarked “The maintenance of the
opportunity for free political discussion to the end that
government may be responsive to the will of the people and that
changes may be obtained by lawful means… is a fundamental
principle of our constitutional system.” In Palko v.
Connecticut76 the right to freedom of speech and expression
has been described as the “touchstone of individual liberty” and
“the indispensable condition of nearly every form of freedom.”
93. Apart from the aforesaid decisions, we may refer to
the dissenting opinion of Holmes J. in Abrams v. United
States77
, thus:-
74
(1958) 354 US 298 (344)
75
(1931) 283 US 359 (369)
76
(1937) 302 US 319
77141
“… But when men have realised that time has
upset many fighting faiths, they may come to
believe even more than they believe the very
foundations of their own conduct that the
ultimate good desired is better reached by free
trade in ideas—that the best test of truth is the
power of the thought to get itself accepted in the
competition of the market; and that truth is the
only ground upon which their wishes safely can
be carried out. That at any rate, is the theory of
our Constitution.”
94. In the concurring judgment Brandeis, J. in
Whitney v. California78, stated that:-
“Those who won our independence believed that
the final end of the State was to make men free
to develop their faculties, and that in its
Government the deliberative forces should
prevail over the arbitrary. They valued liberty
both as an end and as a means. They believed
liberty to be the secret of happiness and courage
to be the secret of liberty. They believed that
freedom to think as you will and to speak as you
think are means indispensable to the discovery
and spread of political truth; that without free
speech and assembly discussion would be futile;
that with them, discussion affords ordinarily
adequate protection against the dissemination of
noxious doctrine; that the greatest menace to
freedom is an inert people; that public
discussion is a political duty; and that this
should be a fundamental principle of the
American Government. They recognised the risks
250 US 616 :63 L Ed 1173 (1919)
78
71 L Ed 1095 : 274 US 357 (1927)142
to which all human institutions are subject. But
they knew that order cannot be secured merely
through fear of punishment for its infraction;
that it is hazardous to discourage thought, hope
and imagination; that fear breeds repression;
that repression breeds hate; that hate menaces
stable Government; that the path of safety lies in
the opportunity to discuss freely supposed
grievances and proposed remedies; and that the
fitting remedy for evil counsels is good ones.
Believing in the power of reason as applied
through public discussion, they eschewed
silence coerced by law—the argument of force in
its worst form. Recognising the occasional
tyrannies of governing majorities, they amended
the Constitution so that free speech and
assembly should be guaranteed.
Fear of serious injury cannot alone justify
suppression of free speech and assembly. Men
feared witches and burnt women. It is the
function of speech to free men from the bondage
of irrational fears. To justify suppression of free
speech there must be reasonable ground to fear
that serious evil will result if free speech is
practiced. There must be reasonable ground to
believe that the danger apprehended is imminent.
There must be reasonable ground to believe that
the evil to be prevented is a serious one. Every
denunciation of existing law tends in some
measure to increase the probability that there
will be violation of it. Condonation of a breach
enhances the probability. Expressions of approval
add to the probability. Propagation of the
criminal state of mind by teaching syndicalism
increases it. Advocacy of law-breaking heightens
it still further. But even advocacy of violation,
however reprehensible morally, is not a
justification for denying free speech where the
advocacy falls short of incitement and there is143
nothing to indicate that the advocacy would be
immediately acted on. The wide difference
between advocacy and incitement, between
preparation and attempt, between assembling
and conspiracy, must be borne in mind. In order
to support a finding of clear and present danger it
must be shown either that immediate serious
violence was to be expected or was advocated, or
that the past conduct furnished reason to believe
that such advocacy was then contemplated.”
(Emphasis supplied)
95. Be it stated, the dissenting opinion of Holmes, J.
and the concurring opinion of Brandeis have been quoted in
Shreya Singhal (supra). We have only referred to these
decisions as immense emphasis has been laid on the freedom
of speech and expression and in a way propositions have been
propounded that it can have no boundary in a growing
democracy if democracy is expected to thrive. In Shreya
Singhal (supra), the Court has drawn a difference between
the US First Amendment and Article 19(1)(a) read with Article
19(2). The Court has drawn four differences. We need not
advert to the same. However, the Court has also opined that
American judgments have great persuasive value on the
content of freedom of speech and expression and the tests
laid down for its infringement but it is only when it comes to144
subserving the general public interest that there is the world
of difference. In the said judgment, a passage has been
quoted from Kameshwar Prasad v. State of Bihar79
wherein it has been held that the resultant flexibility of the
restrictions that could be validly imposed renders the
American decisions inapplicable to and without much use for
resolving the questions arising under Article 19(1)(a) or (b) of
our Constitution wherein the grounds on which limitations
might be placed on the guaranteed right are set out with
definiteness and precision. The Court has also referred to a
passage from Indian Express Newspapers (Bombay)
Private Ltd. and others v. Union of India and others80
wherein the Court has opined that while examining
constitutionality of a law which is alleged to contravene
Article 19(1)(a) of the Constitution, the Court cannot, no
doubt, be solely guided by the decisions of the Supreme Court
of the United States of America. But in order to understand
79
1962 Supp. (3) SCR 369 : AIR 1962 SC 1166
80
(1985) 1 SCC 641145
the basic principles of freedom of speech and expression and
the need for that freedom in a democratic country, the Court
may take them into consideration. We will be referring to
Shreya Singhal (supra) in detail at a later stage as the
learned counsel for the petitioners have submitted with
immense vigour that the principles stated in Shreya Singhal
(supra) would squarely apply to the concept of defamation
and application of the said principles would make Section 499
IPC unconstitutional.
96. In Romesh Thappar v. State of Madras81 the
majority opined that freedom of speech and of the press lay at
the foundation of all democratic organisations, for without
free political discussion no public education, so essential for
the proper functioning of the processes of popular
Government, is possible. A freedom of such amplitude might
involve risks of abuse. But the Framers of the Constitution
may well have reflected with Madison who was ‘the leading
spirit in the preparation of the First Amendment of the
81
1950 SCR 594 : AIR 1950 SC 124146
Federal Constitution’, that ‘it is better to leave a few of its
noxious branches to their luxuriant growth, than, by pruning
them away, to injure the vigour of those yielding the proper
fruits’ (Near v. Minnesota82, L Ed p. 1368.).
97. In Express Newspaper (Private) Ltd. and
another v. Union of India and others83 the Court referred
to the decision in Romesh Thappar (supra), noted a few
decisions of the Court which involved with the interpretation
of Article 19(1)(a) that they only lay down that the freedom of
speech and expression includes freedom of propagation of
ideas by which freedom is ensured; emphasized on liberty of
the press as it is an essential part of the right to freedom of
speech and expression and further stated that liberty of the
press consists in allowing no previous restraint upon
publication. Thereafter the Court referred to number of
authorities of the United States of America and culled out the
principles from the American decisions to the effect that in
82
283 U.S. 607, at 717-8
83
AIR 1958 SC 578 : 1959 SCR 12147
the United States of America (a) the freedom of speech
comprehends the freedom of press and the freedom of speech
and press are fundamental personal rights of the citizens; (b)
that the freedom of the press rests on the assumption that
the widest possible dissemination of information from diverse
and antagonistic sources is essential to the welfare of the
public; (c) that such freedom is the foundation of free
Government of a free people; (d) that the purpose of such a
guarantee is to prevent public authorities from assuming
guardianship of the public mind, and (e) that freedom of press
involves freedom of employment or non-employment of
necessary means of exercising this right or in other words,
freedom from restriction in respect of employment in the
editorial force and eventually ruled thus:-
“This is the concept of the freedom of speech and
expression as it obtains in the United States of
America and the necessary corollary thereof is that
no measure can be enacted which would have the
effect of imposing a pre-censorship, curtailing the
circulation or restricting the choice of employment
or un-employment in the editorial force. Such a
measure would certainly tend to infringe the
freedom of speech and expression and would,148
therefore, be liable to be struck down as
unconstitutional.”
98. In All India Bank Employees' Association v.
National Industrial Tribunal (Bank Disputes), Bombay
and others84
it has been held that “freedom of speech”
means freedom to speak so as to be heard by others, and,
therefore, to convey one's ideas to others. Similarly the very
idea of freedom of expression necessarily connotes that what
one has a right to express may be communicated to others;
and that includes right to freedom of circulation of ideas.
99. In Sakal Papers (P) Ltd. v. Union of India85 it has
been held that it must be borne in mind that the Constitution
must be interpreted in a broad way and not in a narrow and
pedantic sense. Certain rights have been enshrined in our
Constitution as fundamental and, therefore, while considering
the nature and content of those rights the Court must not be
too astute to interpret the language of the Constitution in so
84
(1962) 3 SCR 269 : AIR 1962 SC 171
85
(1962) 3 SCR 842 = AIR 1962 SC 305149
literal a sense as to whittle them down. On the other hand,
the Court must interpret the Constitution in a manner which
would enable the citizen to enjoy the rights guaranteed by it
in the fullest measure subject, of course, to permissible
restrictions. The Court further observed that the right to
freedom of speech and expression carries with it the right to
publish and circulate one's ideas, opinions and views with
complete freedom and by resorting to any available means of
publication, subject again to such restrictions as could be
legitimately imposed under clause (2) of Article 19. Be it
stated here that in Indian Express Newspapers (supra), this
Court referring to earlier decisions had accepted that freedom
of speech and expression includes within its scope freedom of
press, for the said freedom promises freedom of propagation
of ideas which freedom is assured by the freedom of
circulation. Liberty of the press has been treated as
inseparable and essential for the right to freedom of speech
and expression.150
100. The Court in Bennett Coleman & Co. and others
v. Union of India and others86 referring to Sakal Papers
case opined that in the said case the Court has held that
freedom of speech would not be restricted for the purpose of
regulating the commercial aspects of activities of the
newspapers. Similarly, it referred to the authorities in Indian
Express Newspapers (supra) and stated that if a law were to
single out the press for laying down prohibitive burdens on it,
that would restrict circulation and eventually violate Article
19(1)(a) and would fall outside the protection afforded by
Article 19(2). Elaborating the idea further, the majority ruled:-
“The faith of a citizen is that political wisdom and
virtue will sustain themselves in the free market of
ideas so long as the channels of communication
are left open. The faith in the popular Government
rests on the old dictum, “let the people have the
truth and the freedom to discuss it and all will go
well.” The liberty of the press remains an “Art of
the Covenant” in every democracy. Steel will yield
products of steel. Newsprint will manifest whatever
is thought of by man. The newspapers give ideas”.
86
(1972) 2 SCC 788151
101. In the said case, the Court referred to William
Blackstone’s commentaries:-
“Every free man has an undoubted right to lay what
sentiments he pleases before the public; to forbid this
is to destroy the freedom of the press; but if he
publishes what is improper, mischievous or illegal, he
must take the consequence of his own temerity.”
102. Mathew, J., while otherwise dissenting, accepted
the protection of freedom of speech in the following words:-
“…. Free expression is necessary (1) for individual
fulfilment, (2) for attainment of truth, (3) for
participation by members of the society in political
or social decision-making, and (4) for maintaining
the balance between stability and change in
society. In the traditional theory, freedom of
expression is not only an individual good, but a
social good. It is the best process for advancing
knowledge and discovering truth. The theory
contemplates more than a process of individual
judgment. It asserts that the process is also the
best method to reach a general or social judgment.
In a democracy the theory is that all men are
entitled to participate in the process of formulating
common decisions. [See Thomas I. Emerson:
Toward a General Theory of First Amendment]. The
crucial point is not that freedom of expression is
politically useful but that it is indispensable to the
operation of a democratic system. In a democracy
the basic premise is that the people are both the
governors and the governed. In order that governed
may form intelligent and wise judgment it is
necessary that they must be appraised of all the152
aspects of a question on which a decision has to be
taken so that they might arrive at the truth”.
We have reproduced the said passage to appreciate the
height to which the freedom of speech and expression has
been elevated by this Court regard being to the democratic
and constitutional goals.
103. In Indian Express Newspapers (supra), a
three-Judge Bench was again concerned with the importance
of freedom of press in a democratic society. Venkataramiah,
J. speaking for the Court opined that freedom of press is the
heart and soul and political intercourse and it has assumed
the role of public educator making formal and non-formal
education possible in a large scale particularly in the
developing world. The Court further observed that the
purpose of the press is to advance the public interest by
publishing facts and opinions without which a democratic
electorate cannot make responsible judgments. In this
backdrop, it was emphatically stated it is the primary duty of
the courts to uphold the said freedom and invalidate all laws153
or administrative actions which interfere with it, contrary to
the constitutional mandate.
104. In Secretary, Ministry of Information &
Broadcasting, Govt. of India and others v. Cricket
Association of Bengal and others87
, it has been ruled that
the freedom of speech and expression includes right to acquire
information and to disseminate it; and freedom of speech and
expression is necessary, for self-expression which is an
important means of free conscience and self-fulfilment. The
Court further observed that it enables people to contribute to
debates on social and moral issues and it is the best way to
find a truest model of anything, since it is only through it that
the widest possible range of ideas can circulate. Emphasis has
been laid on freedom of the press and freedom to communicate
or circulate one’s opinion without interference.
105. The Court in Union of India and others v. Motion
Picture Association and others88 explaining the significance
87
(1995) 2 SCC 161
88
(1999) 6 SCC 150154
of free speech has observed that free speech is the foundation
of a democratic society and a free exchange of ideas,
dissemination of information without restraints, dissemination
of knowledge, airing of differing viewpoints, debating and
forming one’s own views and expressing them, are the basic
indicia of a free society. It has been further stated that
freedom alone makes it possible for people to formulate their
own views and opinions on a proper basis and to exercise their
social, economic and political rights in a free society in an
informed manner and, therefore, restraints on this right have
been jealously watched by the courts. Article 19(2) spells out
the various grounds on which this right to free speech and
expression can be restrained. Reddi J. in his concurring
opinion in People’s Union for Civil Liberties (PUCL) and
another v. Union of India and another89
, has explained the
nature of freedom of speech and expression by elucidating that
just as the equality clause and guarantee of life and liberty,
has been very broadly construed by this Court freedom of
89
(2003) 4 SCC 399155
speech and expression has been variously described as a
“basic human right”, “a natural right” and the like. The
learned Judge has observed that the importance our
Constitution-makers wanted to attach to this freedom is
evident from the fact that reasonable restrictions on that right
could be placed by law only on the limited grounds specified in
Article 19(2), not to speak of inherent limitations of the right.
106. In Union of India v. Naveen Jindal and
another90, the Court has laid down that freedom of
expression is a cornerstone of functioning of the democracy
and there is a constitutional commitment to free speech. In
Government of Andhra Pradesh and others v. P. Laxmi
Devi91
, it has been ruled that freedom and liberty is essential
for progress, both economic and social and without freedom
to speak, freedom to write, freedom to think, freedom to
experiment, freedom to criticise (including criticism of the
Government) and freedom to dissent there can be no
90
(2004) 2 SCC 510
91
(2008) 4 SCC 720156
progress. In S. Khushboo v. Kanniammal and another92
, it
has been laid down that even though the constitutional
freedom of speech and expression is not absolute and can be
subjected to reasonable restrictions on grounds such as
`decency and morality' among others, stress must be laid on
the need to tolerate unpopular views in the socio-cultural
space. The framers of our Constitution recognised the
importance of safeguarding this right since the free flow of
opinions and ideas is essential to sustain the collective life of
the citizenry. While an informed citizenry is a pre-condition
for meaningful governance in the political sense, it is the duty
of everyone to promote a culture of open dialogue when it
comes to societal attitudes.
107. The significance of freedom of speech has been
accentuated in Ramlila Maidan Incident, In re93 by
observing that the freedom of speech is the bulwark of a
democratic Government. This freedom is essential for proper
92
(2010) 5 SCC 600
93
(2012) 5 SCC 1 157
functioning of the democratic process. The freedom of speech
and expression is regarded as the first condition of liberty. It
occupies a preferred position in the hierarchy of liberties,
giving succour and protection to all other liberties. It has been
truly said that it is the mother of all other liberties. Freedom
of speech plays a crucial role in the formation of public
opinion on social, political and economic matters. It has been
described as a “basic human right”, “a natural right” and the
like.
108. The observations in Sahara India Real Estate
Corporation Ltd. and others v. Securities and Exchange
Board of India and another94 being extremely significant in
the present context are extracted below:-
“Freedom of expression which includes freedom of
the press has a capacious content and is not
restricted to expression of thoughts and ideas
which are accepted and acceptable but also to
those which offend or shock any section of the
population. It also includes the right to receive
information and ideas of all kinds from different
sources. In essence, the freedom of expression
embodies the right to know. However, under our
Constitution no right in Part III is absolute.
94
(2012) 10 SCC 603158
Freedom of expression is not an absolute value
under our Constitution. It must not be forgotten
that no single value, no matter exalted, can bear
the full burden of upholding a democratic system
of government.”
[Emphasis added]
109. In State of Karnataka and another v.
Associated Management of English Medium Primary and
Secondary Schools and others95
, while dealing with the
freedom under Article 19(1)(a), the Constitution Bench
opined:-
“36. The word ‘freedom’ in Article 19 of the
Constitution means absence of control by the State
and Article 19(1) provides that the State will not
impose controls on the citizen in the matters
mentioned in sub-clauses (a), (b), (c), (d), (e) and (g)
of Article 19(1) except those specified in clauses (2)
to (6) of Article 19 of the Constitution. In all
matters specified in clause (1) of Article 19, the
citizen has therefore the liberty to choose, subject
only to restrictions in clauses (2) to (6) of Article
19.”
110. The Court referred to the famous essay ‘on liberty’
by John Stuart Mill and reproduced a passage from A
Grammer of Politics by Harold J. Laski and then ruled that:-
95
(2014) 9 SCC 485159
“Freedom or choice in the matter of speech and
expression is absolutely necessary for an individual
to develop his personality in his own way and this
is one reason, if not the only reason, why under
Article 19(1)(a) of the Constitution every citizen has
been guaranteed the right to freedom of speech and
expression.”
111. Recently in Devidas Ramachandra Tuljapurkar
v. State of Mahrashtra and others96 the court relying upon
various judgments has ruled that:-
“…There can be no doubt that there has been an
elevation of the concept in a different way, but it
cannot form the foundation or base to sustain the
argument of Mr Subramanium that the freedom
has to be given absolute and uncurtailed expanse
without any boundaries of exceptions. We accept
the proposition that there should not be a narrow
or condensed interpretation of freedom of speech
and expression, but that does not mean that there
cannot be any limit.”
112. While discussing about importance of freedom of
speech and expression which includes freedom to express, we
feel it necessary to dwell upon the liberty or freedom to
express one’s ideas through various medium like writing,
printing or making films, etc. Dr. Dhawan, learned senior
counsel, has commended us to the authorities in Odyssey
96
(2015) 6 SCC 1160
Communications Pvt. Ltd. v. Lokvidayan Sanghatana and
others97 and S. Rangarajan v. P. Jagjivan Ram and
others98. In Odyssey Communications Pvt. Ltd. (supra), a
public interest litigation was filed before the High Court for
restraining the authorities from telecasting a serial film
Honi-Anhoni on the plea that it had the potential to spread
false or blind beliefs and superstition amongst the members of
the public. The High Court by an interim order had restrained
the authorities from telecasting the film. This Court allowed
the appeal and observed that right of a citizen to exhibit films
on the Doordarshan subject to the terms and conditions to be
imposed by the Doordarshan is a part of the fundamental right
of freedom of expression guaranteed under Article 19(1)(a) and
can be curtailed only under circumstances enshrined in
Article 19(2) and by no other measure. In S. Rangarajan
(supra) the Court was required to consider whether the High
Court was justified in revoking the ‘U Certificate’ issued to a
97
(1988) 3 SCC 410
98
(1989) 2 SCC 574161
Tamil film ‘Ore Oru Gramathile’ for public viewing. The
principal point that was argued before this Court was based
on right to freedom of speech and expression under Article
19(1)(a). The Court after referring to earlier decisions opined
thus:-
“The High Court, however, was of opinion that
public reaction to the film, which seeks to change
the system of reservation is bound to be volatile.
The High Court has also stated that people of
Tamil Nadu who have suffered for centuries will
not allow themselves to be deprived of the
benefits extended to them on a particular basis.
It seems to us that the reasoning of the High
Court runs afoul of the democratic principles to
which we have pledged ourselves in the
Constitution. In democracy it is not necessary
that everyone should sing the same song.
Freedom of expression is the rule and it is
generally taken for granted. Everyone has a
fundamental right to form his own opinion on
any issue of general concern. He can form and
inform by any legitimate means.”
113. Recently, in Devidas Ramachandra Tuljapurkar
(supra) a two-Judge Bench was dealing with the issue of
obscenity in a poem in a different context. Various judgments
of the United States of America, the United Kingdom and
European Courts were referred to. There was also reference to162
the authorities of this Court in the context of Section 292 IPC
which included Ranjit D. Udeshi v. State of
Maharashtra99
, Chandrakant Kalyandas Kakodkar v.
State of Maharashtra100
, K.A. Abbas v. Union of India101
,
Raj Kapoor v. State102
, Samaresh Bose v. Amal Mitra103
,
Directorate General of Doordarshan v. Anand
Patwardhan104
, Ajay Goswami v. Union of India105
, Bobby
Art International v. Om Pal Singh Hoon106 and Aveek
Sarkar v. State of W.B.107 and observed that factum of
obscenity has to be judged by applying the contemporary
99
AIR 1965 SC 881 : (1965) 1 SCR 65
100
(1969) 2 SCC 687
101
(1970) 2 SCC 780
102
(1980) 1 SCC 43
103
(1985) 4 SCC 289
104
(2006) 8 SCC 433
105
(2007) 1 SCC 143
106
(1996) 4 SCC 1
107
(2014) 4 SCC 257163
community standards test. However, the Court held that
when name of Mahatma Gandhi is used as a symbol speaking
or using obscene words, the concept of ‘degree’ comes in. We
think it appropriate to reproduce the said passage:-
“When the name of Mahatma Gandhi is alluded
or used as a symbol, speaking or using obscene
words, the concept of “degree” comes in. To
elaborate, the “contemporary community
standards test” becomes applicable with more
vigour, in a greater degree and in an accentuated
manner. What can otherwise pass of the
contemporary community standards test for use
of the same language, it would not be so, if the
name of Mahatma Gandhi is used as a symbol or
allusion or surrealistic voice to put words or to
show him doing such acts which are obscene.
While so concluding, we leave it to the poet to
put his defence at the trial explaining the
manner in which he has used the words and in
what context. We only opine that view of the
High Court pertaining to the framing of charge
under Section 292 IPC cannot be flawed.”
114. We have referred to a series of judgments on
freedom of speech and then referred to Devidas Ramchandra
Tuljapurkar (supra) which dealt with Section 292 IPC solely
for the purpose that test in respect of that offence is different.
That apart, constitutional validity of Section 292 has been
upheld in Ranjit D. Udeshi (supra). It is to be noted that all164
the cases, barring Odyssey Communication Pvt. Ltd. (supra)
and Bobby Art International (supra) [Bandit Queen case], all
others are in the fictional realm. We are disposed to think
that the right of expression with regard to fictional characters
through any medium relating to creation of a fiction would be
somewhat dissimilar for it may not have reference to an
individual or a personality. Right of expression in such cases
is different, and be guided by provisions of any enactment
subject to constitutional scrutiny. The right of freedom of
expression in a poem, play or a novel pertaining to fictional
characters stand on a different footing than defamation as the
latter directly concerns the living or the legal heirs of the dead
and most importantly, having a known identity. A person in
reality is defamed contrary to a “fictional character” being
spoken of by another character or through any other mode of
narrative. Liberty of freedom in that sphere is fundamentally
different than the arena of defamation. Therefore, the decisions
rendered in the said context are to be guardedly studied,
appreciated and applied. It may be immediately added here
that the freedom in the said sphere is not totally without any165
limit or boundary. We have only adverted to the said aspect to
note that what could legally be permissible in the arena of
fiction may not have that allowance in reality. Also, we may
state in quite promptitude that we have adverted to this
concept only to have the completeness with regard to precious
value of freedom of speech and expression and the limitations
perceived and stipulated thereon.
115. Be that as it may, the aforesaid authorities clearly
lay down that freedom of speech and expression is a highly
treasured value under the Constitution and voice of dissent or
disagreement has to be respected and regarded and not to be
scuttled as unpalatable criticism. Emphasis has been laid on
the fact that dissonant and discordant expressions are to be
treated as view-points with objectivity and such expression of
views and ideas being necessary for growth of democracy are
to be zealously protected. Notwithstanding, the expansive and
sweeping and ambit of freedom of speech, as all rights, right
to freedom of speech and expression is not absolute. It is
subject to imposition of reasonable restrictions. 166
Reasonable Restrictions
116. To appreciate the compass and content of
reasonable restriction, we have to analyse nature of
reasonable restrictions. Article 19(2) envisages “reasonable
restriction”. The said issue many a time has been deliberated
by this Court. The concept of reasonable restriction has been
weighed in numerous scales keeping in view the strength of
the right and the effort to scuttle such a right. In Chintaman
Rao v. State of M.P.108, this Court, opined as under:-
“The phrase "reasonable restriction" connotes
that the limitation imposed on a person in
enjoyment of the right should not be arbitrary or
of an excessive nature, beyond what is required
in the interests of the public. The word
"reasonable" implies intelligent care and
deliberation, that is, the choice of a course which
reason dictates. Legislation which arbitrarily or
excessively invades the right cannot be said to
contain the quality of reasonableness and unless
it strikes a proper balance between the freedom
guaranteed in article 19 (1) (g) and the social
control permitted by clause (6) of article 19, it
must be held to be wanting in that quality.”
108
AIR 1951 SC 118167
117. In State of Madras v. V.G. Row109
, the Court has
ruled that the test of reasonableness, wherever prescribed,
should be applied to each individual statute impugned and no
abstract standard, or general pattern of reasonableness can
be laid down as applicable to all cases. The nature of the right
alleged to have been infringed, the underlying purpose of the
restrictions imposed, the extent and urgency of the evil
sought to be remedied thereby, the disproportion of the
imposition, the prevailing conditions at the time, should all
enter into the judicial verdict.
118. In Bennett Coleman & Co. (supra) while dealing
with the concept of reasonable restriction, this Court has held
that the law which lays excessive and prohibitive burden
which would restrict the circulation of a newspaper will not be
saved by Article 19(2), for the freedom of a newspaper to
publish any number of pages or to circulate it to any number
of persons is an integral part of the freedom of speech and
expression and said freedom is violated by placing restraints
109
AIR 1952 SC 196168
upon it or by placing restraints upon something which is an
essential part of that freedom.
119. In Maneka Gandhi v. Union of India and
another110 Bhagwati, J. referred to the authority in R.C.
Cooper v. Union of India111 and the principles stated in
Bennett Coleman & Co. (supra) and opined that:-
“It may be recalled that the test formulated in R.C.
Cooper case (supra) merely refers to “direct
operation” or ‘direct consequence and effect’ of the
State action on the fundamental right of the
petitioner and does not use the word “inevitable” in
this connection. But there can be no doubt, on a
reading of the relevant observations of Shah, J.,
that such was the test really intended to be laid
down by the Court in that case. If the test were
merely of direct or indirect effect, it would be an
open-ended concept and in the absence of
operational criteria for judging “directness”, it
would give the Court an unquantitiable discretion
to decide whether in a given case a consequence or
effect is direct or not. Some other concept-vehicle
would be needed to quantify the extent of
directness or indirectness in order to apply the test.
And that is supplied by the criterion of “inevitable”
consequence or effect adumbrated in the Express
Newspapers case. This criterion helps to quantify
the extent of directness necessary to constitute
infringement of a fundamental right. Now, if the
110
(1978) 1 SCC 248 : AIR 1978 SC 597
111
(1970) 2 SCC 298169
effect of State action on fundamental right is direct
and inevitable, then a fortiori it must be presumed
to have been intended by the authority taking the
action and hence this doctrine of direct and
inevitable effect has been described by some jurists
as the doctrine of intended and real effect. …”
120. In M/s Laxmi Khandsari and others v. State of
U.P. and others112 the Court has observed that imposition of
reasonable restrictions and its extent would depend upon the
object which they seek to serve. The Court has observed that
it is difficult to lay down any hard and fast rule of universal
application but in imposing such restrictions the State must
adopt an objective standard amounting to a social control by
restricting the rights of the citizens where the necessities of
the situation demand and in adopting the social control one of
the primary considerations which should weigh with the court
is that as the directive principles contained in the Constitution
aim at the establishment of an egalitarian society so as to
bring about a welfare State within the framework of the
Constitution. That apart, restrictions may be partial, complete,
112
(1981) 2 SCC 600 170
permanent or temporary but they must bear a close nexus
with the object in the interest of which they are imposed.
Another important consideration is that the restrictions must
be in public interest and are imposed by striking a just
balance between deprivation of right and danger or evil sought
to be avoided.
121. In Ramlila Maidan Incident, In re (supra), this
Court opined that a restriction imposed in any form has to be
reasonable and to that extent, it must stand the scrutiny of
judicial review. It cannot be arbitrary or excessive. It must
possess a direct and proximate nexus with the object sought
to be achieved. Whenever and wherever any restriction is
imposed upon the right to freedom of speech and expression,
it must be within the framework of the prescribed law, as
subscribed by Article 19(2) of the Constitution. Thereafter, it
has been laid down that associating police as a
prerequirement to hold such meetings, dharnas and protests,
on such large scale, would not infringe the fundamental
rights enshrined under Articles 19(1)(a) and 19(1)(b) of the
Constitution as this would squarely fall within the regulatory171
mechanism of reasonable restrictions, contemplated under
Articles 19(2) and 19(3). Furthermore, it would help in
ensuring due social order and would also not impinge upon
the rights of the others, as contemplated under Article 21 of
the Constitution of India. Emphasis was laid on the
constitutional duties that all citizens are expected to
discharge.
122. In Sahara India Real Estate Corporation Ltd.
(supra), this Court reiterated the principle of social interest in
the context of Article 19(2) as a facet of reasonable restriction.
In Dwarka Prasad Laxmi Narain v. State of U.P.113, while
deliberating upon “reasonable restriction” observed that it
connotes that the limitation imposed upon a person in
enjoyment of a right should not be arbitrary or of an excessive
nature beyond what is required in the interest of the public.
It was also observed that to achieve quality of reasonableness
a proper balance between the freedom guaranteed under
113
AIR 1954 SC 224172
Article 19(1)(g) and the social control permitted by clause (6)
of Article 19 has to be struck.
123. In Bishambhar Dayal Chandra Mohan and
others v. State of Uttar Pradesh and others114
, this Court
ruled that the expression “reasonable restriction” signifies that
the limitation imposed on a person in enjoyment of the right
should not be arbitrary or of an excessive nature, beyond what
is required in the interests of the public. The test of
reasonableness, wherever prescribed, should be applied to
each individual statute impugned, and no abstract standard,
or general pattern of reasonableness can be laid down as
applicable in all cases. In State of Bihar v. K.K. Misra115
, the
Court, after referring to Dr. N.B. Khare v. The State of
Delhi116 and V.G. Row (supra), ruled that it is not possible to
formulate an effective test which would enable the court to
pronounce any particular restriction to be reasonable or
114
(1982) 1 SCC 39
115
(1969) 3 SCC 377
116
[1952] S.C.R. 597173
unreasonable per se. All the attendant circumstances must be
taken into consideration and one cannot dissociate the actual
contents of the restrictions from the manner of their imposition
or the mode of putting them into practice.
124. In Papnasam Labour Union v. Madura Coats
Ltd. and another117 the Court on the base of earlier
authorities summed up that when the constitutionality of a
statutory provision is challenged on the ground of
reasonableness of the restriction, the Court should evaluate
whether the restriction is excessive in nature, existence of the
reasonable nexus between restriction imposed and the object
sought to be achieved, quality of reasonableness, felt need of
the society and the complex issues facing the people which
the legislature intends to solve, protection of social welfare
prevailing within the social values, its consistency and accord
with Article 14 of the Constitution. Additionally, the Court
also observed that in judging the reasonableness of the
restriction imposed by clause (6) of Article 19, the Court has
117
(1995) 1 SCC 501174
to bear in mind the Directive Principles of State Policy and
any restriction so imposed which has the effect of promoting
or effectuating a directive principle can be presumed to be a
reasonable restriction in public interest.
125. The principles as regards reasonable restriction as
has been stated by this Court from time to time are that the
restriction should not be excessive and in public interest. The
legislation should not invade the rights and should not smack
of arbitrariness. The test of reasonableness cannot be
determined by laying down any abstract standard or general
pattern. It would depend upon the nature of the right which
has been infringed or sought to be infringed. The ultimate
“impact”, that is, effect on the right has to be determined.
The “impact doctrine” or the principle of “inevitable effect” or
“inevitable consequence” stands in contradistinction to abuse
or misuse of a legislation or a statutory provision depending
upon the circumstances of the case. The prevailing conditions
of the time and the principles of proportionality of restraint
are to be kept in mind by the court while adjudging the175
constitutionality of a provision regard being had to the nature
of the right. The nature of social control which includes
public interest has a role. The conception of social interest
has to be borne in mind while considering reasonableness of
the restriction imposed on a right. The social interest
principle would include the felt needs of the society. As the
submissions would show, the stress is given on the right to
freedom of speech and expression in the context of individual
growth, progress of democracy, conceptual respect for a voice
of dissent, tolerance for discordant note and acceptance of
different voices. Right to say what may displease or annoy
others cannot be throttled or garroted. There can never be
any cavil over the fact that the right to freedom of speech and
expression is a right that has to get ascendance in a
democratic body polity, but at the same time the limit has to
be proportionate and not unlimited. It is urged that the
defamation has been described as an offence under Section
499 IPC that protects individual’s perception of his own
reputation which cannot be elevated to have the status of
public interest. The argument is that to give a remedy by176
taking recourse to criminal jurisprudence to curb the
constitutional right, that is, right to freedom of speech and
expression, is neither permissible nor justified. The provision
possibly could have met the constitutional requirement has it
been associated with law and order or breach of peace but the
same is not the position. It is also canvassed that in the
colonial era the defamation was conceived of to keep social
peace and social order but with the changing climate of
growing democracy, it is not permissible to keep alive such a
restriction.
126. The principles being stated, the attempt at present
is to scrutinize whether criminalization of defamation in the
manner as it has been done under S. 499 IPC withstands the
said test. The submission of the respondents is that right to
life as has been understood by this Court while interpreting
Article 21 of the Constitution covers a wide and varied
spectrum. Right to life includes the right to life with human
dignity and all that goes along with it, namely, the bare
necessities of life such as nutrition, clothing and shelter and177
facilities for reading, writing and expressing oneself in diverse
forums, freely moving about and mixing and commingling with
fellow human beings and, therefore, it is a precious human
right which forms the arc of all other rights [See : Francis
Coralie Mullin v. Administrator, Union Territory of Delhi
and others118]. It has also been laid down in the said decision
that the right to life has to be interpreted in a broad and
expansive spirit so as to invest it with significance and vitality
which may endure for years to come and enhance dignity of an
individual and worth of a human being. In Chameli Singh
and others v. State of U.P. and another119, the Court has
emphasized on social and economic justice which includes the
right to shelter as an inseparable component of meaningful
right to life. The respect for life, property has been regarded as
essential requirement of any civilized society in Siddharam
Satlingappa Mhetre v. State of Maharashtra120
.
118
(1981) 1 SCC 608
119
(1996) 2 SCC 549
120
(2011) 1 SCC 694178
Deprivation of life, according to Krishna Iyer, J. in Babu Singh
and others v. State of U.P.121 has been regarded as a matter
of grave concern. Personal liberty, as used in Article 21, is
treated as a composition of rights relatable to various spheres
of life to confer the meaning to the said right. Thus perceived,
the right to life under Article 21 is equally expansive and it, in
its connotative sense, carries a collection or bouquet of rights.
In the case at hand, the emphasis is on right to reputation
which has been treated as an inherent facet of Article 21. In
Haridas Das v. Usha Rani Banik and others122, it has been
stated that a good name is better than good riches. In a
different context, the majority in S.P. Mittal v. Union of India
and others123, has opined that man, as a rational being,
endowed with a sense of freedom and responsibility, does not
remain satisfied with any material existence. He has the urge
to indulge in creative activities and effort is to realize the value
121
(1978) 1 SCC 579
122
(2007) 14 SCC 1
123
(1983) 1 SCC 51 : AIR 1983 SC 1179
of life in them. The said decision lays down that the value of
life is incomprehensible without dignity.
127. In Charu Khurana and others v. Union of India
and others124, it has been ruled that dignity is the
quintessential quality of a personality, for it is a highly
cherished value. Thus perceived, right to honour, dignity and
reputation are the basic constituents of right under
Article 21. Submission of the learned counsel for the
petitioners is that reputation as an aspect of Article 21 is
always available against the highhanded action of the State.
To state that such right can be impinged and remains
unprotected inter se private disputes pertaining to reputation
would not be correct. Neither this right be overridden and
blotched notwithstanding malice, vile and venal attack to
tarnish and destroy the reputation of another by stating that
curbs and puts unreasonable restriction on the freedom of
speech and expression. There is no gainsaying that
individual rights form the fundamental fulcrum of collective
124
(2015) 1 SCC 192180
harmony and interest of a society. There can be no denial of
the fact that the right to freedom of speech and expression is
absolutely sacrosanct. Simultaneously, right to life as is
understood in the expansive horizon of Article 21 has its own
significance. We cannot forget the rhetoric utterance of
Patrick Henry:-
“Is life so dear, or peace so sweet, as to be
purchased at the price of chains and slavery?
Forbid it, Almighty God! I know not what course
others may take, but as for me, give me liberty,
or give me death!”125
128. In this context, we also think it apt to quote a
passage from Edmund Burke:-
“Men are qualified for civil liberty, in exact
proportion to their disposition to put moral
chains upon their own appetites; in proportion
as their love to justice is above their rapacity; in
proportion as their soundness and sobriety of
understanding is above their vanity and
presumption; in proportion as they are more
disposed to listen to the counsel of the wise and
good, in preference to the flattery of knaves.
Society cannot exist unless a controlling power
upon will and appetite be placed somewhere and
the less of it there is within, the more there must
be without. It is ordained in the eternal
125
Patrick Henry, Speech in House of Burgesses on 23.3.1775 (Virginia)181
constitution of things that men of intemperate
minds cannot be free. Their passions forge their
fetters126.”
129. The thoughts of the aforesaid two thinkers, as we
understand, are not contrary to each other. They relate to
different situations and conceptually two different ideas; one
speaks of an attitude of compromising liberty by accepting
chains and slavery to save life and remain in peace than to
death, and the other view relates to “qualified civil liberty” and
needed control for existence of the society. Contexts are not
different and reflect one idea. Rhetorics may have its own
place when there is disproportionate restriction but
acceptable restraint subserves the social interest. In the case
at hand, it is to be seen whether right to freedom and speech
and expression can 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. To put differently, in the
name of freedom of speech and expression, should one be
126
Alfred Howard, The Beauties of Burke (T. Davison, London) 109182
allowed to mar the other’s reputation as is understood within
the ambit of defamation as defined in criminal law.
Balancing of Fundamental Rights
130. To appreciate what we have posed hereinabove, it is
necessary to dwell upon balancing the fundamental rights. It
has been argued by the learned counsel for the petitioners
that the right conferred under Article 19(1)(a) has to be kept
at a different pedestal than the individual reputation which
has been recognized as an aspect of Article 21 of the
Constitution. In fact the submission is that right to freedom of
speech and expression which includes freedom of press
should be given higher status and the individual’s right to
have his/her reputation should yield to the said right. In this
regard a passage from Sakal Papers (P) Ltd. (supra) has
been commended us. It says:-
“……Freedom of speech can be restricted only in the
interests of the security of the State, friendly
relations with foreign State, public order, decency or
morality or in relation to contempt of court,
defamation or incitement to an offence. It cannot,
like the freedom to carry on business, be curtailed in
the interest of the general public. If a law directly
affecting it is challenged, it is no answer that the183
restrictions enacted by it are justifiable under
clauses (3) to (6). For, the scheme of Article 19 is to
enumerate different freedoms separately and then to
specify the extent of restrictions to which they may
be subjected and the objects for securing which this
could be done. A citizen is entitled to enjoy each and
every one of the freedoms together and clause (1)
does not prefer one freedom to another. That is the
plain meaning of this clause. It follows from this that
the State cannot make a law which directly restricts
one freedom even for securing the better enjoyment
of another freedom.”
[Emphasis supplied]
131. Having bestowed our anxious consideration on the
said passage, we are disposed to think that the above passage
is of no assistance to the petitioners, for the issue herein is
sustenance and balancing of the separate rights, one under
Article 19(1)(a) and the other, under Article 21. Hence, the
concept of equipose and counterweighing fundamental rights
of one with other person. It is not a case of mere better
enjoyment of another freedom. In Acharya Maharajshri
Narendra Prasadji Anandprasadji Maharaj and others
v. The State of Gujarat and others127, it has been observed
that a particular fundamental right cannot exist in isolation
127
(1975) 1 SCC 11184
in a watertight compartment. One fundamental right of a
person may have to co-exist in harmony with the exercise of
another fundamental right by others and also with reasonable
and valid exercise of power by the State in the light of the
Directive Principles in the interests of social welfare as a
whole. The Court's duty is to strike a balance between
competing claims of different interests. In Delhi Transport
Corporation v. D.T.C. Mazdoor Congress and others128 the
Court has ruled that Articles relating to fundamental rights
are all parts of an integrated scheme in the Constitution and
their waters must mix to constitute that grand flow of
unimpeded and impartial justice; social, economic and
political, and of equality of status and opportunity which
imply absence of unreasonable or unfair discrimination
between individuals or groups or classes. In St. Stephen’s
College v. University of Delhi129 this Court while
emphasizing the need for balancing the fundamental rights
128
1991 Supp (1) SCC 600
129
(1992) 1 SCC 558185
observed that it is necessary to mediate between Article 29(2)
and Article 30(1), between letter and spirit of these articles,
between traditions of the past and the convenience of the
present, between society’s need for stability and its need for
change.”
132. In Mr ‘X’ v. Hospital ‘Z’130 this Court stated that,
where there is a clash of two Fundamental Rights, the right to
privacy as part of right to life and Ms ‘Y’s right to lead a
healthy life which is her Fundamental Right under Article 21,
the right which would advance the public morality or public
interest, would alone be enforced through the process of
court, for the reason that moral considerations cannot be
kept at bay and the Judges are not expected to sit as mute
structures of clay in the hall known as the courtroom, but
have to be sensitive, “in the sense that they must keep their
fingers firmly upon the pulse of the accepted morality of the
day”. (See: Allen: Legal Duties). That apart, we would also add
130
(1998) 8 SCC 296186
that there has to be emphasis on advancement of public or
social interest.
133. In Post Graduate Institute of Medical
Education & Research, Chandigarh v. Faculty
Association and others131 while emphasizing the need to
balance the fundamental rights, this Court held that:-
“… It is to be appreciated that Article 15(4) is an
enabling provision like Article 16(4) and the
reservation under either provision should not
exceed legitimate limits. In making reservations
for the backward classes, the State cannot
ignore the fundamental rights of the rest of the
citizens. The special provision under Article 15(4)
[sic 16(4)] must therefore strike a balance
between several relevant considerations and
proceed objectively”.
134. In Ram Jethmalani and others v. Union of
India and others132 it has been held that the rights of
citizens, to effectively seek the protection of fundamental
rights have to be balanced against the rights of citizens and
131
(1998) 4 SCC 1
132
(2011) 8 SCC 1187
persons under Article 21. The latter cannot be sacrificed on
the anvil of fervid desire to find instantaneous solutions to
systemic problems through defamation speech, for it would
lead to dangerous circumstances and anarchy may become
the order of the day.
135. In Sahara India Real Estate Corporation Ltd.
(supra) while describing the role of this Court in balancing the
fundamental rights, the Constitution Bench observed that the
Supreme Court is not only the sentinel of the fundamental
rights but also a balancing wheel between the rights, subject
to social control. The larger Bench further observed that:-
“Freedom of expression is not an absolute value
under our Constitution. It must not be forgotten
that no single value, no matter exalted, can bear
the full burden of upholding a democratic
system of government. Underlying our
constitutional system are a number of important
values, all of which help to guarantee our
liberties, but in ways which sometimes conflict.
Under our Constitution, probably, no values are
absolute. All important values, therefore, must
be qualified and balanced against other
important, and often competing, values. This
process of definition, qualification and balancing
is as much required with respect to the value of
freedom of expression as it is for other values”.188
136. In Maneka Gandhi (supra), it has been held:-
“5. … It is indeed difficult to see on what
principle we can refuse to give its plain natural
meaning to the expression ‘personal liberty’ as
used in Article 21 and read it in a narrow and
restricted sense so as to exclude those attributes
of personal liberty which are specifically dealt
with in Article 19. We do not think that this
would be a correct way of interpreting the
provisions of the Constitution conferring
fundamental rights. The attempt of the Court
should be to expand the reach and ambit of the
fundamental rights rather than attenuate their
meaning and content by a process of judicial
construction. The wavelength for comprehending
the scope and ambit of the fundamental rights
has been set by this Court in R.C. Cooper case
(supra) and our approach in the interpretation of
the fundamental rights must now be in tune
with this wavelength. We may point out even at
the cost of repetition that this Court has said in
so many terms in R.C. Cooper case (supra) that
each freedom has different dimensions and there
may be overlapping between different
fundamental rights and therefore it is not a valid
argument to say that the expression ‘personal
liberty’ in Article 21 must be so interpreted as to
avoid overlapping between that article and
Article 19(1).”
137. Krishna Iyer, J., in his concurring opinion, has
observed thus:-
“96. ……. the law is now settled, as I apprehend
it, that no article in Part III is an island but part189
of a continent, and the conspectus of the whole
part gives the direction and correction needed for
interpretation of these basic provisions. Man is
not dissectible into separate limbs and, likewise,
cardinal rights in an organic constitution, which
make man human have a synthesis. The
proposition is indubitable that Article 21 does
not, in a given situation, exclude Article 19 if
both rights are breached.
97. We may switch to Article 19 very briefly and
travel along another street for a while. Is freedom
of extra-territorial travel to assure which is the
primary office of an Indian passport, a facet of
the freedom of speech and expression, of
profession or vocation under Article 19? My total
consensus with Shri Justice Bhagwati jettisons
from this judgment the profusion of precedents
and the mosaic of many points and confines me
to some fundamentals confusion on which, with
all the clarity on details, may mar the conclusion.
It is a salutary thought that the summit Court
should not interpret constitutional rights
enshrined in Part III to choke its life-breath or
chill its élan vital by processes of legalism,
overruling the enduring values burning in the
bosoms of those who won our independence and
drew up our founding document. We must also
remember that when this Court lays down the
law, not ad hoc tunes but essential notes, not
temporary tumult but transcendental truth, must
guide the judicial process in translating into
authoritative notation and mood music of the
Constitution.”
138. Beg, J. has stated that:-190
“Articles dealing with different fundamental
rights contained in Part III of the Constitution do
not represent entirely separate streams of rights
which do not mingle at many points. They are all
parts of an integrated scheme in the
Constitution. Their waters must mix to
constitute that grand flow of unimpeded and
impartial Justice (social, economic and political),
…..”
139. In Mohd. Arif alias Ashfaq v. Registrar,
Supreme Court of India and others133, wherein the majority
in the Constitution Bench has observed that the fundamental
right to life among all fundamental rights is the most precious
to all human beings. The aforementioned authorities clearly
state that balancing of fundamental rights is a constitutional
necessity. It is the duty of the Court to strike a balance so
that the values are sustained. The submission is that
continuance of criminal defamation under Section 499 IPC is
constitutionally inconceivable as it creates a serious dent in
the right to freedom of speech and expression. It is urged
that to have defamation as a component of criminal law is an
anathema to the idea of free speech which is recognized under
133
(2014) 9 SCC 737191
the Constitution and, therefore, criminalization of defamation
in any form is an unreasonable restriction. We have already
held that reputation is an inextricable aspect of right to life
under Article 21 of the Constitution and the State in order to
sustain and protect the said reputation of an individual has
kept the provision under Section 499 IPC alive as a part of
law. The seminal point is permissibility of criminal defamation
as a reasonable restriction as understood under Article 19(2)
of the Constitution. To elucidate, the submission is that
criminal defamation, a pre-Constitution law is totally alien to
the concept of free speech. As stated earlier, the right to
reputation is a constituent of Article 21 of the Constitution. It
is an individual’s fundamental right and, therefore, balancing
of fundamental right is imperative. The Court has spoken
about synthesis and overlapping of fundamental rights, and
thus, sometimes conflicts between two rights and competing
values. In the name of freedom of speech and expression, the
right of another cannot be jeopardized. In this regard,192
reproduction of a passage from Noise Pollution (V), In re134
would be apposite. It reads as follows:-
“… Undoubtedly, the freedom of speech and
right to expression are fundamental rights but
the rights are not absolute. Nobody can claim a
fundamental right to create noise by amplifying
the sound of his speech with the help of
loudspeakers. While one has a right to speech,
others have a right to listen or decline to listen.
Nobody can be compelled to listen and nobody
can claim that he has a right to make his voice
trespass into the ears or mind of others. Nobody
can indulge in aural aggression. If anyone
increases his volume of speech and that too with
the assistance of artificial devices so as to
compulsorily expose unwilling persons to hear a
noise raised to unpleasant or obnoxious levels,
then the person speaking is violating the right of
others to a peaceful, comfortable and
pollution-free life guaranteed by Article 21.
Article 19(1)(a) cannot be pressed into service for
defeating the fundamental right guaranteed by
Article 21. We need not further dwell on this
aspect. Two decisions in this regard delivered by
the High Courts have been brought to our notice
wherein the right to live in an atmosphere free
from noise pollution has been upheld as the one
guaranteed by Article 21 of the Constitution.
These decisions are Free Legal Aid Cell Shri
Sugan Chand Aggarwal v. Govt. of NCT of Delhi135
and P.A. Jacob v. Supdt. of Police136. We have
134
(2005) 5 SCC 733
135
AIR 2001 Del 455 : (2001) 93 DLT 28 (DB)
136193
carefully gone through the reasoning adopted in
the two decisions and the principle of law laid
down therein, in particular, the exposition of
Article 21 of the Constitution. We find ourselves
in entire agreement therewith.”
140. We are in respectful agreement with the aforesaid
enunciation of law. Reputation being an inherent component
of Article 21, we do not think it should be allowed to be
sullied solely because another individual can have its
freedom. It is not a restriction that has an inevitable
consequence which impairs circulation of thought and ideas.
In fact, it is control regard being had to another person’s right
to go to Court and state that he has been wronged and
abused. He can take recourse to a procedure recognized and
accepted in law to retrieve and redeem his reputation.
Therefore, the balance between the two rights needs to be
struck. “Reputation” of one cannot be allowed to be crucified
at the altar of the other’s right of free speech. The legislature
in its wisdom has not thought it appropriate to abolish
criminality of defamation in the obtaining social climate. In
this context, the pronouncement in Shreya Singhal (supra)
AIR 1993 Ker 1194
becomes significant, more so, as has been heavily relied upon
by the learned counsel for the petitioners. In the said case,
constitutional validity of Section 66-A and ancillary thereto
Section 69-A of the Information Technology Act, 2000 was
challenged on the ground that they infringe the fundamental
right to free speech and expression and are not saved by any
of the eight subjects covered in Article 19(2). The two-Judge
Bench has expressed the view that both U.S. and India permit
freedom of speech and expression as well as freedom of the
press. So far as abridgement and reasonable restrictions are
concerned, both the U.S. Supreme Court and this Court have
held that a restriction in order to be reasonable must be
narrowly tailored or narrowly interpreted so as to abridge or
restrict only what is absolutely necessary. The Court has
observed that only when it comes to the eight subject matters
in Article 19(2) that there is vast difference. The Court has
further observed thus:-
“… In the US, if there is a compelling necessity
to achieve an important governmental or societal
goal, a law abridging freedom of speech may
pass muster. But in India, such law cannot pass195
muster if it is in the interest of the general
public. Such law has to be covered by one of the
eight subject-matters set out under Article 19(2).
If it does not, and is outside the pale of Article
19(2), Indian courts will strike down such law.”
141. The Court has referred to the decisions rendered in
Kameshwar Prasad (supra) and Indian Express
Newspapers (Bombay) (P) Ltd. (supra) to understand the
great persuasive value of the American judgments. There has
been a reference to the observations of Jackson, J. in
American Communications Assn. v. Douds137 which are to
the following effect:-
“… Thought control is a copyright of
totalitarianism, and we have no claim to it. It is
not the function of our Government to keep the
citizen from falling into error; it is the function of
the citizen to keep the Government from falling
into error. We could justify any censorship only
when the censors are better shielded against
error than the censored.”
142. There has been reference to many other
pronouncements relating to reasonable restrictions and
public order. The Court has reproduced a passage from S.
137
94 L Ed 925 : 339 US 382 (1950) 196
Rangarajan (supra) and thereafter adverted to the
pronouncement in Shailabala Devi (supra) and opined that:-
“Viewed at, either by the standpoint of the clear
and present danger test or the tendency to
create public disorder, Section 66-A would not
pass muster as it has no element of any
tendency to create public disorder which ought
to be an essential ingredient of the offence which
it creates.”
143. It is interesting to note that the Court referred to
“defamation” as defined in Section 499 IPC and stated thus:-
“It will be noticed that for something to be
defamatory, injury to reputation is a basic
ingredient. Section 66-A does not concern itself
with injury to reputation. Something may be
grossly offensive and may annoy or be
inconvenient to somebody without at all affecting
his reputation. It is clear, therefore, that the
section is not aimed at defamatory statements at
all.”
144. The aforesaid paragraph makes it absolutely clear
that the Court has observed that Section 66-A did not
concern itself with injury to reputation. Thereafter, the Court
proceeded to analyse the provision under challenge from the
point of vagueness. It is apposite to quote:-197
“90. That the content of the right under Article
19(1)(a) remains the same whatever the means of
communication including internet
communication is clearly established by Reno
case138 and by Ministry of Information &
Broadcasting, Govt. of India v. Cricket Assn. of
Bengal (supra), SCC at para 78 already referred
to. It is thus clear that not only are the
expressions used in Section 66-A expressions of
inexactitude but they are also over broad and
would fall foul of the repeated injunctions of this
Court that restrictions on the freedom of speech
must be couched in the narrowest possible
terms. For example, see, Kedar Nath Singh v.
State of Bihar139, SCR at pp. 808-09. In point of
fact, judgments of the Constitution Bench of this
Court have struck down sections which are
similar in nature. A prime example is the section
struck down in the first Ram Manohar Lohia
case140, namely, Section 3 of the U.P. Special
Powers Act, where the persons who “instigated”
expressly or by implication any person or class
of persons not to pay or to defer payment of any
liability were punishable. This Court specifically
held that under the section a wide net was cast
to catch a variety of acts of instigation ranging
from friendly advice to systematic propaganda. It
was held that in its wide amplitude, the section
takes in the innocent as well as the guilty, bona
fide and mala fide advice and whether the person
be a legal adviser, a friend or a well-wisher of the
person instigated, he cannot escape the
138
Reno v. American Civil Liberties Union, 521 US 844 : 138 L Ed 2d 874 (1997)
139
1962 Supp (2) SCR 769 : AIR 1962 SC 955
140
Supt., Central Prison v. Ram Manohar Lohia, (1960) 2 SCR 821 : AIR 1960 SC 633 198
tentacles of the section. The Court held that it
was not possible to predicate with some kind of
precision the different categories of instigation
falling within or without the field of
constitutional prohibitions. It further held that
the section must be declared unconstitutional as
the offence made out would depend upon factors
which are uncertain.
x x x x x
94. These two Constitution Bench decisions bind
us and would apply directly on Section 66-A. We,
therefore, hold that the section is
unconstitutional also on the ground that it takes
within its sweep protected speech and speech
that is innocent in nature and is liable therefore
to be used in such a way as to have a chilling
effect on free speech and would, therefore, have
to be struck down on the ground of
overbreadth.”
145. We have referred to the aforesaid authority in
extenso as it has been commended to us to pyramid the
submission that it lays the foundation stone for striking down
Sections 499 and 500 IPC because existence of defamation as
a criminal offence has a chilling effect on the right to freedom
of speech and expression. As we understand the decision, the
two-Judge Bench has neither directly nor indirectly laid down
such a foundation. The analysis throughout the judgment199
clearly pertains to the vagueness and to an act which would
make an offence dependent on uncertain factors billowed in
inexcactitude and wide amplitude. The Court has ruled that
Section 66-A also suffers from vice of procedural
unreasonableness. The judgment drew distinction and
observed defamation was different. Thus, the canvas is
different. Once we have held that reputation of an individual
is a basic element of Article 21 of the Constitution and
balancing of fundamental rights is a constitutional necessity
and further the legislature in its wisdom has kept the penal
provision alive, it is extremely difficult to subscribe to the view
that criminal defamation has a chilling effect on the freedom
of speech and expression.
146. We have been diligently commended to the
following passage from S. Rangarajan (supra):-
“The problem of defining the area of freedom of
expression when it appears to conflict with the
various social interests enumerated under
Article 19(2) may briefly be touched upon here.
There does indeed have to be a compromise
between the interest of freedom of expression
and special interests. But we cannot simply
balance the two interests as if they are of equal
weight. Our commitment of freedom of200
expression demands that it cannot be
suppressed unless the situations created by
allowing the freedom are pressing and the
community interest is endangered. The
anticipated danger should not be remote,
conjectural or far-fetched. It should have
proximate and direct nexus with the expression.
The expression of thought should be intrinsically
dangerous to the public interest. In other words,
the expression should be inseparably locked up
with the action contemplated like the equivalent
of a “spark in a power keg”.
147. The said paragraph has also been reproduced in
Shreya Singhal (supra) while dealing with the principle of
“tendency to affect”. In the said context, the two-Judge Bench
in Shreya Singhal (supra) had analysed how Sections 124A
and 295A IPC were treated to be constitutional by this Court
in Ramji Lal Modi v. State of U.P.141 and Kedar Nath
Singh (supra). We think it appropriate for the sake of
completeness to reproduce the analysis made in Shreya
Singhal (supra) :-
“43. In Ramji Lal Modi v. State of U.P. (supra),
SCR at p. 867, this Court upheld Section 295-A
of the Penal Code only because it was read down
to mean that aggravated forms of insults to
141
AIR 1957 SC 620201
religion must have a tendency to disrupt public
order. Similarly, in Kedar Nath Singh v. State of
Bihar (supra) Section 124-A of the Penal Code,
1860 was upheld by construing it narrowly and
stating that the offence would only be complete if
the words complained of have a tendency of
creating public disorder by violence. It was
added that merely creating disaffection or
creating feelings of enmity in certain people was
not good enough or else it would violate the
fundamental right of free speech under Article
19(1)(a). Again, in Ramesh Yeshwant Prabhoo v.
Prabhakar Kashinath Kunte142, Section 123(3-A)
of the Representation of the People Act was
upheld only if the enmity or hatred that was
spoken about in the section would tend to create
immediate public disorder and not otherwise.”
148. The two-Judge Bench in paragraph 44 has reached
the following conclusion:-
“Viewed at, either by the standpoint of the clear
and present danger test or the tendency to
create public disorder, Section 66-A would not
pass muster as it has no element of any
tendency to create public disorder which ought
to be an essential ingredient of the offence which
it creates.”
149. The analysis therein would show that tendency to
create public disorder is not evincible in the language
employed in Section 66-A. Section 66-A dealt with
142
(1996) 1 SCC 130202
punishment for certain obscene messages through
communication service, etc. A new offence had been created
and the boundary of the forbidding area was not clearly
marked as has been held in Kedar Nath Singh (supra). The
Court also opined that the expression used in Section 66-A
having not been defined and further the provision having not
used the expression that definitions in IPC will apply to the
Information Technology Act, 2000, it was vague. The decision
in Shreya Singhal (supra) is placed reliance upon to
highlight that a restriction has to be narrowly tailored but
criminal defamation is not a narrowly tailored concept. We
have early opined that the word “defamation” is in existence
from the very beginning of the Constitution. Defamation as an
offence is admittedly a pre-constitutional law which was in
existence when the Constitution came into force. To interpret
that the word “defamation” occurring in Article 19(2) would
not include “criminal defamation” or it should have a
tendency to cause public disorder or incite for an offence,
would not be in consonance with the principle of
interpretation pertaining to the Constitution. It may be noted203
here that the decisions rendered in Ramji Lal Modi (supra)
and Kedar Nath Singh (supra) where constitutional validity
of Sections 124A and 295A IPC had been upheld subject to
certain limitations. But inspiration cannot be drawn from
the said authorities that to argue that they convey that
defamation which would include criminal defamation must
incorporate public order or intention of creating public
disorder. The said decisions relate to a different sphere. The
concept of defamation remains in a different area regard being
had to the nature of the offence and also the safeguards
provided therein which we shall advert to at a later stage. The
passage which we have reproduced from S. Rangarajan
(supra), which has also been referred to in Shreya Singhal
(supra), has to be understood in the context in which it is
stated having regard to the facts of the case. The said decision
was rendered in the backdrop that the Tamil film ‘Ore Oru
Gramathile’ which was given “U-Certificate” was revoked by
the High Court observing that the certificate given to the
movie was bound to invoke reactions which are bound to be
volatile. This Court observed that all that film seems to204
suggest is that existing method of reservation on the basis of
caste is bad and reservation on the basis of economic
background is better and also the film deprecated the
exploitation of people on caste considerations. In that context,
the Court observed, as has been stated earlier, in a
democracy it is not necessary that everyone should sing the
same song; freedom of expression is the rule, and it is
generally taken for granted. Criticism and commentary on
policies, enactments or opinions do not remotely constitute
defamation. Disapproval is not defamation. The argument
ignores the scope and ambit of the contours of what is
criminal defamation. Bearing in mind the factual scenario,
the Court has discussed about balancing of freedom of
expression and “special interest”. The Court was not
concerned with balancing of Article 19(1)(a) and the facet of
Article 21 of the Constitution. Therefore, in the ultimate
conclusion, we come to hold that applying the doctrine of
balancing of fundamental rights, existence of defamation as a
criminal offence is not beyond the boundary of Article 19(2) of205
the Constitution, especially when the word “defamation” has
been used in the Constitution.
Appreciation in the backdrop of constitutional fraternity
and fundamental duty
150. Permissibility of criminal defamation can be tested
on the touchstone of constitutional fraternity and
fundamental duty. It is submitted by Mr. Narsimha, learned
Additional Solicitor General that right to reputation being an
inseparable component of Article 21 deserves to be protected
in view of Preambular concept. Learned Additional Solicitor
General has referred to the Preamble to the Constitution
which provides for “… to promote among them all Fraternity
assuring the dignity of the individual…”
151. The term “fraternity” has a significant place in
the history of constitutional law. It has, in fact, come into
prominence after French Revolution. The motto of
Republican France echoes:- ‘Liberté, égalité, fraternité’, or
‘Liberty, equality, fraternity’. The term “fraternity” has
an animating effect in the constitutional spectrum. The206
Preamble states that it is a constitutional duty to promote
fraternity assuring the dignity of the individual. Be it
stated that fraternity is a perambulatory promise. Dr. B.R.
Ambedkar in the Constituent Assembly spoke:-
“The principles of liberty, equality and
fraternity are not to be treated as separate
entities but in a trinity. They form the union
and trinity in the sense that to divorce one
from the other is to defeat the very purpose of
democracy ... Without fraternity, liberty and
equality would not become natural course of
things. Courts, as sentinel on the qui vive,
therefore must strike a balance between the
changing needs of the society for peaceful
transformation with orders and protection of
the rights of the citizens.”
152. In the Preamble to the Constitution of India, fraternity
has been laid down as one of the objectives. Dr. B.R.
Ambedkar inserted the same in the Draft Constitution stating
“the need for fraternal concord and goodwill in India was
never greater than now, and that this particular aim of the
new Constitution should be emphasized by special mention in
the Preamble.” Fraternity, as a constitutional concept, is
umbilically connected with justice, equality and liberty. 207
153. American scholarship tends to be in agreement
with this precept. Morris Abram expresses this in even
more emphatic terms when he treats it as essential to
achieving liberty and equality, and vice versa. According
to him:-
“In America, we have learned that the
elements of the plea are interdependent: that
liberty of itself may not bring about fraternity
and equality . . . Permit me to observe that the
converse is also true: merely by possessing
fraternity and equality man will not thereby
automatically achieve liberty.’143
154. Fraternity as a concept is characteristically
different from the other constitutional goals. It, as a
constitutional concept, has a keen bond of sorority with
other concepts. And hence, it must be understood in 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 recognised as a
143
. Morris B Abram, ‘Liberty, Fraternity and Equality - One or Two Alone are not Enough’
(1967) 16 Journal of Public Law 3, 8.208
constitutional norm and a precept. It is a constitutional
virtue that is required to be sustained and nourished.
155. It is a constitutional value which is to be cultivated
by the people themselves as a part of their social behavior.
There are two schools of thought; one canvassing individual
liberalization and the other advocating for protection of an
individual as a member of the collective. The individual
should have all the rights under the Constitution but
simultaneously he has the responsibility to live upto the
constitutional values like essential brotherhood – the
fraternity – that strengthens the societal interest. Fraternity
means brotherhood and common interest. Right to censure
and criticize does not conflict with the constitutional objective
to promote fraternity. Brotherliness does not abrogate and
rescind the concept of criticism. In fact, brothers can and
should be critical. Fault finding and disagreement is required
even when it leads to an individual disquiet or group
disquietude. Enemies Enigmas Oneginese on the part of
some does not create a dent in the idea of fraternity but, a209
significant one, liberty to have a discordant note does not
confer a right to defame the others. The dignity of an
individual is extremely important. In Indra Sawhney and
others v. Union of India and others144, the Court has
deliberated upon as to how reservation connects equality and
fraternity with social, economic and political justice as it can
hamper fraternity and liberty if perpetuated for too long.
Jeevan Reddy, J. has opined that “Fraternity assuring the
dignity of the individual has a special relevance in the
Indian context . ...” Sawant, J., in a separate but
concurring opinion, stated:-
“Inequality ill-favours fraternity, and unity
remains a dream without fraternity. The goal
enumerated in the preamble of the
Constitution, of fraternity assuring the dignity
of the individual and the unity and integrity of
the nation must, therefore, remain
unattainable so long as the equality of
opportunity is not ensured to all.’145
144
AIR 1993 SC 477 : 1992 Supp. (3) SCC 217
145
Id. para 514.210
156. This principle was reiterated in the case of AIIMS
Students’ Union v. AIIMS and others146 where reservation
for post graduate students was held unconstitutional as it
went against the objective of attaining fraternity. In Indian
Medical Association v. Union of India147 exemptions
granted to a private non-aided educational institution to only
admit wards of army personnel was challenged. Among the
various tests to determine the constitutionality the Court
focused on fraternity by stating “in the absence of substantive
equality or equality of means to access resources, various
social groups could never achieve the requisite dignity
necessary for the promotion of fraternity.”148
157. In Raghunathrao Ganpatrao v. Union of India149
where the 26th Amendment to the Constitution which
146
(2002) 1 SCC 428
147
Indian Medical Association V. Union Of India, Civil Appeal No. 8170 Of 2009 & Writ Petition
(Civil) Nos. 320 Of 2009 & 192 Of 2010.
148
Id.
149
1994 Supp. (1) SCC 191211
abolished the privileges given to former rulers of India was in
question, the Court held it to be a positive step towards
achieving the objective of fraternity. The Court adverted to the
statements of Dr. B.R. Ambedkar during the Constitution
Assembly debates and stated that:-
“In a country such as India, with several
disruptive forces, such as religion, caste and
language, the idea of fraternity is imperative to
ensure the unity of the nation through a shared
feeling of common brotherhood.”150
158. The concept of fraternity under the Constitution
expects every citizen to respect the dignity of the other.
Mutual respect is the fulcrum of fraternity that assures
dignity. It does not mean that there cannot be dissent or
difference or discordance or a different voice. It does not
convey that all should join the chorus or sing the same song.
Indubitably not. One has a right to freedom of speech and
expression. One is also required to maintain the
constitutional value which is embedded in the idea of
fraternity that assures the dignity of the individual. One is
150
Id.212
obliged under the Constitution to promote the idea of
fraternity. It is a constitutional obligation.
159. In the context of constitutional fraternity,
fundamental duties engrafted under Article 51-A of the
Constitution gain significance. Sub-articles (e) and (j) of
Article 51-A of the Constitution read as follows:-
“Article 51-A.(e) to promote harmony and the
spirit of common brotherhood amongst all the
people of India transcending religious, linguistic
and regional or sectional diversities; to renounce
practices derogatory to the dignity of women;
X x x x x
(j) to strive towards excellence in all spheres of
individual and collective activity so that the
nation constantly rises to higher levels of
endeavour and achievement;”
160. The prismatic perception of sub-article (e) would
reflect that it is the duty of every citizen of India to promote
harmony and the concept of common brotherhood amongst
all the people despite many diversities. It is also the duty of
every citizen to strive towards excellence in all spheres of
individual and collective activity. In this regard, a passage213
from AIIMS Students’ Union (supra) would be apt to refer. It
reads as follows:-
“… Fundamental duties, though not enforceable
by a writ of the court, yet provide a valuable
guide and aid to interpretation of constitutional
and legal issues. In case of doubt or choice,
peoples wish as manifested through Article 51A,
can serve as a guide not only for resolving the
issue but also for constructing or moulding the
relief to be given by the courts. Constitutional
enactment of fundamental duties, if it has to
have any meaning, must be used by courts as a
tool to tab, even a taboo, on State action drifting
away from constitutional values.”
161. In P.A. Inamdar and others v. State of
Maharashtra and others151 it has been observed that:-
“Fundamental duties recognized by Article
51A include, amongst others, (i) to develop the
scientific temper, humanism and the spirit of
inquiry and reform; and (ii) to strive towards
excellence in all spheres of individual and
collective activity so that the nation constantly
rises to higher levels of endeavour and
achievement. None can be achieved or ensured
except by means of education. It is well accepted
by the thinkers, philosophers and academicians
that if JUSTICE, LIBERTY, EQUALITY and
FRATERNITY, including social, economic and
political justice, the golden goals set out in the
151
(2005) 6 SCC 537214
Preamble to the Constitution of India are to be
achieved, the Indian polity has to be educated
and educated with excellence. Education is a
national wealth which must be distributed
equally and widely, as far as possible, in the
interest of creating an egalitarian society, to
enable the country to rise high and face global
competition…”
162. In Ramlila Maidan Incident, In re (supra), the
Court had opined that:-
“… a common thread runs through Parts III, IV
and IVA of the Constitution of India. One Part
enumerates the fundamental rights, the second
declares the fundamental principles of
governance and the third lays down
the fundamental duties of the citizens. While
interpreting any of these provisions, it shall
always be advisable to examine the scope and
impact of such interpretation on all the three
constitutional aspects emerging from these
parts.”
163. We have referred to two concepts, namely,
constitutional fraternity and the fundamental duty, as
they constitute core constitutional values. Respect for the
dignity of another is a constitutional norm. It would not
amount to an overstatement if it is said that constitutional
fraternity and the intrinsic value inhered in fundamental215
duty proclaim the constitutional assurance of mutual
respect and concern for each other's dignity. The
individual interest of each individual serves the collective
interest and correspondingly the collective interest
enhances the individual excellence. Action against the
State is different than an action taken by one citizen
against the other. The constitutional value helps in
structuring the individual as well as the community
interest. Individual interest is strongly established when
constitutional values are respected. The Preamble
balances different and divergent rights. Keeping in view
the constitutional value, the legislature has not repealed
Section 499 and kept the same alive as a criminal offence.
The studied analysis from various spectrums, it is difficult
to come to a conclusion that the existence of criminal
defamation is absolutely obnoxious to freedom of speech
and expression. As a prescription, it neither invites the
frown of any of the Articles of the Constitution nor its very
existence can be regarded as an unreasonable restriction. 216
Anatomy of the provision and its field of operation
164. Having dealt with this facet, now we shall focus on
whether Section 499 of IPC either in the substantive sense or
procedurally violates the concept of reasonable restriction.
We have to examine whether it is vague or arbitrary or
disproportionate.
165. For the aforesaid purpose, it is imperative to
analyse in detail what constitutes the offence of “defamation”
as provided under Section 499 of IPC. To constitute the
offence, there has to be imputation and it must have made in
the manner as provided in the provision with the intention of
causing harm or having reason to believe that such
imputation will harm the reputation of the person about
whom it is made. Causing harm to the reputation of a person
is the basis on which the offence is founded and mens rea is a
condition precedent to constitute the said offence. The
complainant has to show that the accused had intended or
known or had reason to believe that the imputation made by
him would harm the reputation of the complainant. The217
criminal offence emphasizes on the intention or harm.
Section 44 of IPC defines “injury”. It denotes any harm
whatever illegally caused to any person, in body, mind,
reputation or property. Thus, the word “injury” encapsulates
harm caused to the reputation of any person. It also takes
into account the harm caused to a person’s body and mind.
Section 499 provides for harm caused to the reputation of a
person, that is, the complainant. In Jeffrey J. Diermeier
and another v. State of West Bengal and another152, a
two-Judge Bench deliberated on the aspect as to what
constitutes defamation under Section 499 of IPC and in that
context, it held that there must be an imputation and such
imputation must have been made with the intention of
harming or knowing or having reason to believe that it will
harm the reputation of the person about whom it is made. In
essence, the offence of defamation is the harm caused to the
reputation of a person. It would be sufficient to show that the
accused intended or knew or had reason to believe that the
152
(2010) 6 SCC 243218
imputation made by him would harm the reputation of the
complainant, irrespective of whether the complainant actually
suffered directly or indirectly from the imputation alleged.
166. Having dwelt upon the ingredients, it is necessary
to appreciate the Explanations appropriately. There are four
Explanations to the main provision and an Explanation has
been appended to the Fourth Exception. Explanation 4 needs
to be explained first. It is because the said Explanation
provides the expanse and the inherent control wherein what
imputation has been regarded as harm to a person’s
reputation and that an imputation can only be treated as
harm of a person’s reputation if it 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. It is submitted by Dr. Dhawan,
learned senior counsel, that Explanation 4 has many a
distinction and covers a number of criteria which can be used219
widely. He has commended us to a passage from State of
Jammu and Kashmir v. Triloki Nath Khosa and others153
solely for the purpose that the Explanation 4 engulfs
micro-distinctions which is impermissible. To appreciate
manifold submissions urged by the learned counsel for the
petitioners, it is seemly to refer to how these Explanations
have been understood by the Court. We are conscious that we
are dealing with the constitutional validity of the provision
and the decisions relate to interpretation. But the purpose is
to appreciate how the Explanations have been understood by
this Court.
167. Explanation 1 stipulates that an imputation would
amount to defamation if it is done to a deceased person if the
imputation would harm the reputation of that person if he is
living and is intended to be harmful to the feelings of his
family or other near relatives. It is submitted by the learned
counsel for the petitioners that the width of the Explanation is
absolutely excessive as it enables the family members to
153
(1974) 1 SCC 19220
prosecute a criminal action whereas they are debarred to
initiate civil action for damages. According to the learned
counsel for the petitioners, Explanation 1 is anomalous and
creates a piquant situation which can effortlessly be called
unreasonable, for when a civil suit cannot be entertained or
allowed to be prosecuted by the legal heirs or the legal
representatives, how could they prosecute criminal offence by
filing a complaint. On a first blush, the aforesaid submission
looks quite attractive, but on a keener scrutiny, it loses its
significance. In Melepurath Sankuni Ezhuthassan v.
Thekittil Geopalankutty Nair154, a suit for damages was
dismissed by the trial court but on an appeal being preferred,
the same was allowed. In second appeal, the High Court
reversed the decree of the appellate court and dismissed the
cross objections of the respondent therein. The appellant
preferred an appeal by special leave before this Court and
during the pendency before this Court, he died. His surviving
legal heirs came to be brought on record to prosecute the
154
(1986) 1 SCC 118221
appeal. The issue that arose before this Court was whether
the appeal should abate. The Court posed the question
whether in a defamation action, the right to sue survives if
the plaintiff dies. The Court referred to the Common Law
principle and the maxim action personalis moritur cum
persona (a personal action dies with the person) and
thereafter referred to Section 306 of the Indian Succession
Act, 1925 as to which causes of action survive and which
shall abate. The Court in that context opined thus:-
“Where a suit for defamation is dismissed and
the plaintiff has filed an appeal, what the
appellant-plaintiff is seeking to enforce in the
appeal is his right to sue for damages for
defamation and as this right does not survive his
death, his legal representative has no right to be
brought on the record of the appeal in his place
and stead if the appellant dies during the
pendency of the appeal. The position, however, is
different where a suit for defamation has
resulted in a decree in favour of the plaintiff
because in such a case the cause of action has
merged in the decree and the decretal debt forms
part of his estate and the appeal from the decree
by the defendant becomes a question of benefit
or detriment to the estate of the plaintiff
respondent which his legal representative is
entitled to uphold and defend and is, therefore,
entitled to be substituted in place of the
deceased respondent plaintiff”.222
168. In M. Veerappa v. Evelyn Sequeira and
others155, a two-Judge Bench distinguished the authority in
Melepurath Sankuni Ezhuthassan (supra) as there was a
subsisting decree and came to hold thus:-
“The maxim “actio personalis cum moritur
persona” has been applied not only to those
cases where a plaintiff dies during the pendency
of a suit filed by him for damages for personal
injuries sustained by him but also to cases
where a plaintiff dies during the pendency of an
appeal to the appellate court, be it the first
appellate court or the second appellate court
against the dismissal of the suit by the trial
court and/or the first appellate court as the case
may be. This is on the footing that by reason of
the dismissal of the suit by the trial court or the
first appellate court as the case may be, the
plaintiff stands relegated to his original position
before the trial court.
And again:-
“The maxim of actio personalis cum moritur
persona has been held inapplicable only in those
cases where the injury caused to the deceased
person has tangibly affected his estate or has
caused an accretion to the estate of the
wrong-doer vide Rustomji Dorabji v. W.H. Nurse156
and Ratanlal v. Baboolal157 as well as in those
155
(1988) 1 SCC 556
156
ILR 44 Mad 357
157223
cases where a suit for damages for defamation,
assault or other personal injuries sustained by
the plaintiff had resulted in a decree in favour of
the plaintiff because in such a case the cause of
action becomes merged in the decree and the
decretal debt forms part of the plaintiff’s estate
and the appeal from the decree by the defendant
becomes a question of benefit or detriment to the
estate of the plaintiff which his legal
representatives are entitled to uphold and defend
(vide Gopal v. Ramchandra158 and Melepurath
Sankunni v. Thekittil)”.
169. The aforesaid enunciation of law makes it clear how
and when the civil action is not maintainable by the legal
heirs. The prosecution, as envisaged in Explanation 1, lays
two postulates, that is, (i) the imputation to a deceased
person is of such a nature that would have harmed the
reputation of that person if he was living and (ii) the said
imputation must be intended to be hurtful to the feelings of
the family or other near relatives. Unless the twin tests are
satisfied, the complaint would not be entertained under
Section 199 of CrPC. The said Explanation protects the
reputation of the family or relatives. The entitlement to
AIR 1960 MP 200
158
ILR 26 Bom 597224
damages for personal injury is in a different sphere whereas a
criminal complaint to be filed by the family members or other
relatives under twin tests being satisfied is in a distinct
compartment. It is more rigorous. The principle of grant of
compensation and the principle of protection of reputation of
family or near relative cannot be equated. Therefore, we do
not find any extra mileage is given to the legal heirs of a
deceased person when they have been made eligible to initiate
a criminal action by taking recourse to file a criminal
complaint.
170. Explanation 2 deals with imputation concerning a
company or an association or collection of persons as such.
Explanation 3 says that an imputation in the form of an
alternative or expressed ironically may amount to defamation.
Section 11 of IPC defines “person” to mean a company or an
association or collection of persons as such or body of
persons, whether incorporated or not. The inclusive nature
of the definition indicates that juridical persons can come
within its ambit. The submission advanced on behalf of the
petitioners is that collection of persons or, for that matter,225
association, is absolutely vague. More than five decades
back, the Court, in Sahib Singh Mehra v. State of Uttar
Pradesh159 while being called upon to decide whether public
prosecutor would constitute a class or come within the
definition of “collection of persons” referred to Explanation 2
to Section 499 of IPC, and held that collection of persons
must be identifiable in the sense that one could, with
certainty, say that this group of particular people has been
defamed, as distinguished from the rest of the community.
The Court, in the facts of the case, held that the prosecuting
staff of Aligarh or, as a matter of fact, the prosecuting staff in
the State of Uttar Pradesh, was certainly such an identifiable
group or collection of persons, and there was nothing
indefinite about it. Thus, in the said authority, emphasis is
laid on the concept of identifiability and definitiveness as
regards collection of persons.
171. In G. Narasimhan, G. Kasturi and K. Gopalan v.
T.V. Chokkappa160, the Court dealt with the applicability of
159
AIR 1965 SC 1451 : 1965 (2) SCR 823
160226
the said Explanation as regards “association” or “collection of
persons” and ruled that a collection of persons must be an
identifiable body so that it is possible to say with definiteness
that a group of particular persons, as distinguished from the
rest of the community, was defamed. Therefore, in a case
where Explanation 2 is resorted to, the identity of the
company or the association or the collection of persons must
be established so as to be relatable to the defamatory words
or imputations. Where a writing weighs against mankind in
general, or against a particular order of men, e.g., men of
gown, it is no libel. It must descend to particulars and
individuals to make it a libel. Thus, the accentuation is on
‘particulars’. In S. Khushboo (supra), it has been ruled that
though the Explanation is wide yet in order to demonstrate
the offence of defamation, such a collection of persons must
be an identifiable body so that it is possible to say with
precision that a group of particular persons, as distinguished
from the rest of the community, stood defamed. In case the
identity of the collection of persons is not established so as to
(1972) 2 SCC 680227
be relatable to the defamatory words or imputations, the
complaint is not maintainable. It has been further opined
that in case a class is mentioned, if such a class is indefinite,
the complaint cannot be entertained and furthermore, if it is
not possible to ascertain the composition of such a class, the
criminal prosecution cannot proceed.
172. The aforesaid enunciation of law clearly lays stress
on determinate and definite body. It also lays accent on
identifiable body and identity of the collection of persons. It
also significantly states about the test of precision so that the
collection of persons have a distinction. Thus, it is fallacious
to contend that it is totally vague and can, by its
inclusiveness, cover an indefinite multitude. The Court has
to understand the concept and appositely apply the same.
There is no ambiguity. Be it noted that a three-Judge Bench,
though in a different context, in Aneeta Hada v. Godfather
Travels & Tours (P) Ltd161 has ruled that a company has its
161
(2012) 5 SCC 661228
own reputation. Be that as it may, it cannot be said that the
persons covered under the Explanation are gloriously vague.
Exceptions and understanding of the same
173. Having dealt with the four Explanations, presently,
we may analyse the Exceptions and note certain authorities
with regard to the Exceptions. It is solely for the purpose of
appreciating how the Court has appreciated and applied
them. The First Exception stipulates that it is not defamation
to impute anything which is true concerning any person, if it
be for the public good that the imputation should be made or
published. “Public good” has to be treated to be a fact. In
Chaman Lal v. State of Punjab162
, the Court has held that
in order to come within the First Exception to Section 499 of
the Indian Penal Code it has to be established that what has
been imputed concerning the respondent is true and the
publication of the imputation is for the public good. The onus
of proving these two ingredients, namely, truth of the
162
(1970) 1 SCC 590229
imputation and the publication of the imputation for the
public good, is on the accused.
174. It is submitted by Dr. Dhawan, learned senior
counsel for the petitioners that if the imputation is not true,
the matter would be different. But as the Exception postulates
that imputation even if true, if it is not to further public good
then it will not be defamation, is absolutely irrational and
does not stand to reason. It is urged that truth is the basic
foundation of justice, but this Exception does not recognize
truth as a defence and, therefore, it deserves to be struck
down.
175. It has been canvassed by Mr. Rao, learned senior
counsel, that the term “public good” is a vague concept and to
bolster the said submission, he has placed reliance upon
Harakchand Ratanchand Banthia & others v Union of
India and others163 to highlight that in the said case, it has
been held that “public interest” do not provide any objective
standard or norm. The context in which the said decision
163
(1969) 2 SCC 166230
was rendered has to be appreciated. In the said case, the
Court was dealing with the constitutional validity of the Gold
Control Act, 1968. Section 27 of the said Act related to
licensing of dealers. It was contended that the conditions
imposed by sub-section (6) of the Act for grant or renewal of
licences were uncertain, vague, unintelligible and
consequently wide and unfettered power was conferred upon
the statutory authorities in the matter of grant or renewal of
licence. The Court expressed the view that the contention
was well founded. Further analyzing, the Court expressed
that:-
“… The expression “anticipated demand” is a
vague expression which is not capable of
objective assessment and is bound to lead to a
great deal of uncertainty. Similarly the expression
“suitability of the applicant” in Section 27(6)(e)
and “public interest” in Section 27(6)(g) do not
provide any objective standard or norm or
guidance. For these reasons it must be held that
clauses (a),(d),(e) and (g) of Section 27(6) impose
unreasonable restrictions on the fundamental
right of the petitioner to carry on business and
are constitutionally invalid...”231
176. As we perceive, the factual score and the provision
under challenge was totally different. It has been stated in
the backdrop of the power conferred on an administrative
authority for the purpose of renewal of licence, and in that
context, the Court opined that the criterion of “public
interest” did not provide objective standard. The Court, on
analysis of the provision from a manifold angle, opined that
the provision proposed unreasonable restriction. The context
and the conferment of power makes a gulf of difference and,
therefore, the said authority has to be considered on its own
facts. It cannot be ruled that it lays down as a principle that
“public interest” is always without any norm or guidance or
has no objective interest. Ergo, the said decision is
distinguishable.
177. In Arundhati Roy, In re164, this Court, referring to
Second Exception, observed that even a person claiming the
benefit of Second Exception to Section 499 of the Indian Penal
Code, is required to show that the opinion expressed by him
164
(2002) 3 SCC 343232
was in good faith which related to the conduct of a public
servant in the discharge of his public functions or respecting
his character so far as his character appears in that conduct.
Third Exception states about conduct of any person touching
any public question and stipulates that it is not defamation to
express in good faith any opinion whatever respecting the
conduct of any person touching any public question and
respecting his character, so far as his character appears in
that conduct. The said Exception uses the words “good faith”
and particularizes conduct of any person relating to any
public question and the Exception, as is perceptible, gives
stress on good faith. Third Exception comes into play when
some defamatory remark is made in good faith as held in
Sahib Singh Mehra (supra). The Court has clarified that if
defamatory remarks are made after due care and attention, it
will be regarded as made in good faith. In the said case, the
Court also adverted to Ninth Exception which gives protection
to imputation made in good faith for the protection of the
interest of the person making it or of any other person or for
the public good. A three-Judge Bench in Harbhajan Singh v.233
State of Punjab and another165 has opined that where the
accused invokes Ninth Exception to Section 499 IPC, good
faith and public good are both to be satisfied and the failure
of the appellant to prove good faith would exclude the
application of Ninth Exception in favour of the accused even if
requirement of public good is satisfied. The Court has referred
to Section 52 IPC which defines “good faith” that requires the
element of honesty. It is necessary to note here that the
three-Judge Bench has drawn a distinction between the First
Exception and the Ninth Exception to opine that the proof of
truth which is one of the ingredients of the First Exception is
not an ingredient of the Ninth Exception and what the Ninth
Exception requires an accused person to prove is that he
made the statement in good faith. Proceeding further, the
Court has stated that in dealing with the claim of the accused
under the Ninth Exception, it is not necessary and, in a way,
immaterial, to consider whether he has strictly proved the
truth of the allegations made by him.
165
AIR 1966 SC 97234
178. In Sukra Mahto v. Basdeo Kumar Mahto and
another166 the Court has opined that the ingredients of Ninth
Exception are first that the imputation must be made in good
faith; secondly, the imputation must be protection of the
interest of the person making it or of any other person or for
the public good. The Court further opined that good faith and
public good are questions of fact and emphasis has been laid
on making enquiry in good faith and due care and attention
for making the imputation. In Jatish Chandra Ghosh v.
Hari Sadhan Mukherjee167 , the Constitution Bench dealt
with appellant’s claim of absolute privilege as a Member of the
West Bengal Legislative Assembly which was not accepted by
the High Court of Judicature at Calcutta. The appellant
therein was facing a prosecution under Section 500 IPC. The
larger Bench referred to Section 499 IPC and observed that:-
“In this connection, it is also relevant to note
that we are concerned in this case with a
criminal prosecution for defamation. The law of
166
1971 (1) SCC 885
167
(1961) 3 SCR 486235
defamation has been dealt with in Sections 499
and 500 of the Indian Penal Code. Section 499
contains a number of exceptions. Those specified
exceptions lay down what is not defamation. The
fourth exception says that it is not defamation to
publish a substantially true report of the
proceedings of a court of justice, but does not
make any such concession in respect of
proceedings of a House of Legislature or
Parliament. The question naturally arises how
far the rule in Wason case168 can be applied to
criminal prosecutions in India, but as this
aspect of the controversy was not canvassed at
the Bar, we need not say anything about it, as it
is not necessary for the decision of this case.”
179. After so stating, the Court further opined that the
proceedings did not deserve to be quashed as there was no
such absolute privilege in the facts of the case. Being of this
view, the Court opined that the accused appellant must take
his trial and enter upon his defence such as he may have. We
have referred to the said decision only to highlight that the
Court has clarified publishing of substantial true report of
proceedings of a Court of Justice.
168
Wason v. Walter, (1868) 4 QB 73236
180. Fifth Exception stipulates that it is not defamation
to express in good faith any opinion whatever respecting the
merits of any case, civil or criminal which has been decided
by a Court of Justice, or respecting the conduct of any person
as a party, witness or agent. The further stipulation is that
the said opinion must relate to the character of said person,
as far as his character appears in that conduct. In Kanwal
Lal v. State of Punjab169 the Court, while dealing with the
Eighth Exception, has opined that in order to establish a
defence under this Exception the accused would have to prove
that the person to whom the complaint was made had lawful
authority over the person complained against, in respect of
the subject-matter of the accusation.
181. Again in M.C. Verghese v. T.J. Poonan170, it has
been ruled that a person making libellous statements in his
complaint filed in Court is not absolutely protected in a
criminal proceeding for defamation, for under the Eighth
169
1963 Supp (1) SCR 479
170
(1969) 1 SCC 37237
Exception and the illustration to Section 499 the statements
are privileged only when they are made in good faith. There is,
therefore, authority for the proposition that in determining
the criminality of an act under the Indian Penal Code the
Courts will not extend the scope of special exceptions by
resorting to the rule peculiar to English common law that the
husband and wife are regarded as one. In Chaman Lal
(supra) this Court has opined that the Eighth Exception to
Section 499 of the Indian Penal Code indicates that
accusation in good faith against the person to any of those
who have lawful authority over that person is not defamation.
In Rajendra Kumar Sitaram Pande v. Uttam171, it has been
observed that Exception 8 to Section 499 IPC clearly indicates
that it is not a defamation to prefer in good faith an
accusation against any person to any of those who have
lawful authority over that person with regard to the
subject-matter of accusation. In the said case the report of
the Treasury Officer clearly indicated that pursuant to the
171
(1999) 3 SCC 134238
report made by the accused persons against the complainant,
a departmental enquiry had been initiated and the
complainant was found to be guilty. Under such
circumstances the fact that the accused persons had made a
report to the superior officer of the complainant alleging that
he had abused the Treasury Officer in a drunken state which
was the gravamen of the complaint, would be covered by
Exception 8 to Section 499 of the Indian Penal Code.
182. In Chaman Lal (supra) the Court has opined that
good faith requires care and caution and prudence in the
background of context and circumstances. The position of the
persons making the imputation will regulate the standard of
care and caution. In Sukra Mahto (supra), emphasis has
been laid on protection of the interest of the person making it
or of any other person or for the public good. Reference has
been made to Harbhajan Singh case (supra) to stress on
due care and attention. In Sewakram Sobhani v. R.K.
Karanjia172
, it has been observed that the ingredients of the
172
(1981) 3 SCC 208239
Ninth Exception are that (1) the imputation must be made in
good faith, and (2) the imputation must be for the protection
of the interests of the person making it or of any other person
or for the public good, and the imputation made must be in
good faith for the public good. In M.A. Rumugam v. Kittu173
,
it has been held that for the purpose of bringing the case
within the purview of the Eighth and the Ninth Exception
appended to Section 499 of the Penal Code, it would be
necessary for the accused to prove good faith for the
protection of the interests of the person making it or of any
other person or for the public good. This Court, in Jeffrey J.
Diermeier (supra), has observed thus:-
“37. It is trite that where to the charge of
defamation under Section 500 IPC the accused
invokes the aid of Tenth Exception to Section
499 IPC, “good faith” and “public good” have
both to be established by him. The mere plea
that the accused believed that what he had
stated was in “good faith” is not sufficient to
accept his defence and he must justify the same
by adducing evidence. However, he is not
required to discharge that burden by leading
evidence to prove his case beyond a reasonable
doubt.
173
(2009) 1 SCC 101240
38. It is well settled that the degree and the
character of proof which an accused is expected
to furnish in support of his plea cannot be
equated with the degree of proof expected from
the prosecution in a criminal trial. The moment
the accused succeeds in proving a
preponderance of probability, onus which lies on
him in this behalf stands discharged. Therefore,
it is neither feasible nor possible to lay down a
rigid test for deciding whether an accused
person acted in “good faith” and for “public good”
under the said Exception.”
183. The detailed discussion made hereinabove do
clearly reveal that neither the main provision nor the
Explanation nor the Exceptions remotely indicate any
vagueness. It is submitted that the Exceptions make the
offence more rigorous and thereby making the concept of
criminal defamation extremely unreasonable. The criticism
advanced pertain to truth being not a defence, and
unnecessary stress on ‘public good’. The counter argument is
that if a truthful statement is not made for any kind of public
good but only to malign a person, it is a correct principle in
law that the statement or writing can amount to defamation.
Dr. Singhvi, learned senior counsel for some of the
respondents has given certain examples. The examples241
pertain to an imputation that a person is an alcoholic; an
imputation that two family members are involved in
consensual incest; an imputation that a person is impotent; a
statement is made in pubic that a particular person suffers
from AIDS; an imputation that a person is a victim of rape;
and an imputation that the child of a married couple is not
fathered by the husband but born out of an affair with
another man. We have set out the examples cited by the
learned senior counsel only to show that there can be
occasions or situations where truth may not be sole defence.
And that is why the provision has given emphasis on public
good. Needless to say, what is public good is a question of
fact depending on the facts and circumstances of the case.
184. From the analysis we have made it is clear as day
that the provision along with Explanations and Exceptions
cannot be called unreasonable, for they are neither vague nor
excessive nor arbitrary. There can be no doubt that Court
can strike down a provision, if it is excessive, unreasonable or
disproportionate, but the Court cannot strike down if it thinks242
that the provision is unnecessary or unwarranted. Be it
noted that it has also been argued that the provision is
defeated by doctrine of proportionality. It has been argued
that existence of criminal defamation on the statute book and
the manner in which the provision is engrafted suffers from
disproportionality because it has room for such restriction
which is disproportionate. In Om Kumar v. Union of
India174, the Court has observed that while regulating the
exercise of fundamental rights it is to be seen whether the
legislature while exercising its choice has infringed the right
excessively. Recently, the Constitution Bench in Modern
Dental College & Research Centre and others v. State of
Madhya Pradesh and others175, explaining the doctrine of
proportionality has emphasized that when the Court is called
upon to decide whether a statutory provision or a rule
amounts to unreasonable restriction, the exercise that is
required to be undertaken is the balancing of fundamental
174
(2001) 2 SCC 386
175
2016 (4) SCALE 478243
rights on the one hand and the restrictions imposed on the
other. Emphasis is on recognition of affirmative constitutional
rights along with its limitations. Limitations, save certain
interests and especially public or social interests. Social
interest takes in its sweep to confer protection to rights of the
others to have social harmony founded on social values. To
treat a restriction constitutionally permissible it is necessary
to scrutinize whether the restriction or imposition of
limitation is excessive or not. The proportionality doctrine
recognizes balancing of competing rights and the said
hypothesis gains validity if it subserves the purpose it is
meant for.
185. Needless to emphasise that when a law limits a
constitutional right which many laws do, such limitation is
constitutional if it is proportional. The law imposing
restriction is proportional if it is meant to achieve a proper
purpose, and if the measures taken to achieve such a purpose
are rationally connected to the purpose, and such measures
are necessary. Such limitations should not be arbitrary or of244
an excessive nature beyond what is required in the interest of
the public. Reasonableness is judged with reference to the
objective which the legislation seeks to achieve, and must not
be in excess of that objective (see : P.P. Enterprises v. Union
of India176). Further, the reasonableness is examined in an
objective manner form the stand point of the interest of the
general public and not from the point of view of the person
upon whom the restrictions are imposed or abstract
considerations (see : Mohd Hanif Quareshi. V. State of
Bihar177). The judgment refers to and approves guidelines
propounded in MRF Ltd. v. Inspector, Kerala Govt.178 for
examining reasonableness of a statutory provision. In the
said decision the Constitution Bench while discussing about
the doctrine of proportionality has observed:-
“54. Modern theory of constitutional rights
draws a fundamental distinction between the
scope of the constitutional rights, and the extent
176
(1982) 2 SCC 33
177
AIR 1958 SC 731
178
(1998) 8 SCC 227245
of its protection. Insofar as the scope of
constitutional rights is concerned, it marks the
outer boundaries of the said rights and defines
its contents. The extent of its protection
prescribes the limitations on the exercises of the
rights within its scope. In that sense, it defines
the justification for limitations that can be
imposed on such a right.
55. It is now almost accepted that there are no
absolute constitutional rights 14 and all such
rights are related. As per the analysis of Aharon
Barak179, two key elements in developing the
modern constitutional theory of recognising
positive constitutional rights along with its
limitations are the notions of democracy and the
rule of law. Thus, the requirement of proportional
limitations of constitutional rights by a
sub-constitutional law, i.e. the statute, is derived
from an interpretation of the notion of democracy
itself. Insofar as Indian Constitution is
concerned, democracy is treated as the basic
feature of the Constitution and is specifically
accorded a constitutional status that is
recognised in the Preamble of the Constitution
itself. It is also unerringly accepted that this
notion of democracy includes human rights
which is the corner stone of Indian democracy.
Once we accept the aforesaid theory (and there
cannot be any denial thereof), as a fortiori, it has
also to be accepted that democracy is based on a
balance between constitutional rights and the
public interests. In fact, such a provision in
Article 19 itself on the one hand guarantees some
certain freedoms in clause (1) of Article 19 and at
the same time empowers the State to impose
179
Proportionality : Constitutional Rights and Their Limitation by Aharon Barak,
Cambridge University Press, 2012246
reasonable restrictions on those freedoms in
public interest. This notion accepts the modern
constitutional theory that the constitutional
rights are related. …”
186. One cannot be unmindful that right to freedom of
speech and expression is a highly valued and cherished right
but the Constitution conceives of reasonable restriction. In
that context criminal defamation which is in existence in the
form of Sections 499 and 500 IPC is not a restriction on free
speech that can be characterized as disproportionate. Right
to free speech cannot mean that a citizen can defame the
other. Protection of reputation is a fundamental right. It is
also a human right. Cumulatively it serves the social interest.
Thus, we are unable to accept that provisions relating to
criminal defamation are not saved by doctrine of
proportionality because it determines a limit which is not
impermissible within the criterion of reasonable restriction. It
has been held in D.C. Saxena (Dr) v. Hon’ble The Chief
Justice of India180, though in a different context, that if
180
(1996) 5 SCC 216247
maintenance of democracy is the foundation for free speech,
society equally is entitled to regulate freedom of speech or
expression by democratic action. The reason is obvious, viz.,
that society accepts free speech and expression and also puts
limits on the right of the majority. 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 place and
the forum in which the citizen exercises his freedom of speech
and expression. The Court had further observed that the
State has legitimate interest, therefore, to regulate the
freedom of speech and expression which liberty represents the
limits of the duty of restraint on speech or expression not to
utter defamatory or libellous speech or expression. There is a
correlative duty not to interfere with the liberty of others.
Each is entitled to dignity of person and of reputation. Nobody
has a right to denigrate others’ right to person or reputation.
187. The submission of Mr. Datar, learned senior
counsel is that defamation is fundamentally a notion of the248
majority meant to cripple the freedom of speech and
expression. It is too broad a proposition to be treated as a
guiding principle to adjudge reasonable restriction. There is a
distinction between social interest and a notion of the
majority. The legislature has exercised its legislative wisdom
and it is inappropriate to say that it expresses the notion of
the majority. It has kept the criminal defamation on the
statute book as in the existing social climate it subserves the
collective interest because reputation of each is ultimately
inhered in the reputation of all. The submission that
imposition of silence will rule over eloquence of free speech is
a stretched concept inasmuch as the said proposition is
basically founded on the theory of absoluteness of the
fundamental right of freedom of speech and expression which
the Constitution does not countenance.
188. Now, we shall advert to Section 199 of CrPC, which
provides for prosecution for defamation. Sub-section (1) of
the said section stipulates that no court shall take cognizance
of an offence punishable under Chapter XXI of the Indian249
Penal Code (45 of 1860) except upon a complaint made by
some person aggrieved by, the offence; provided that where
such person is under the age of eighteen years, or is an idiot
or a lunatic, or is from sickness or infirmity unable to make a
complaint, or is a woman who, according to the local customs
and manners, ought not to be compelled to appear in public,
some other person may, with the leave of the court, make a
complaint on his or her behalf. Sub-section (2) states that
when any offence is alleged against a person who is the
President of India, the Vice-President of India, the Government
of a State, the Administrator of a Union territory or a Minister
of the Union or of a State or of a Union territory, or any other
public servant employed in connection with the affairs of the
Union or of a State in respect of his conduct in the discharge
of his public functions, a Court of Session may take
cognizance of such offence, without the case being committed
to it, upon a complaint in writing made by the Public
Prosecutor. Sub-section 3 states that every complaint referred
to in sub-section (2) shall set forth the facts which constitute
the offence alleged, the nature of such offence and such other250
particulars as are reasonably sufficient to give notice to the
accused of the offence alleged to have been committed by him.
Sub-section mandates that no complaint under sub-section (2)
shall be made by the Public Prosecutor except with the
previous sanction of the State Government, in the case of a
person who is or has been the Governor of that State or a
Minister of that Government or any other public servant
employed in connection with the affairs of the State and of the
Central Government, in any other case. Sub-section 5 bars
Court of Session from taking cognizance of an offence under
sub-section (2) unless the complaint is made within six months
from the date on which the offence is alleged to have been
committed. Sub-section (6) states that nothing in this section
shall affect the right of the person against whom the offence is
alleged to have been committed, to make a complaint in respect
of that offence before a Magistrate having jurisdiction or the
power of such Magistrate to take cognizance of the offence
upon such complaint.251
189. The said provision is criticized on the ground that
“some person aggrieved” is on a broader spectrum and that is
why, it allows all kinds of persons to take recourse to
defamation. As far as the concept of “some person aggrieved” is
concerned, we have referred to plethora of decisions in course of
our deliberations to show how this Court has determined the
concept of “some person aggrieved”. While dealing with various
Explanations, it has been clarified about definite identity of the
body of persons or collection of persons. In fact, it can be stated
that the “person aggrieved” is to be determined by the courts in
each case according to the fact situation. It will require
ascertainment on due deliberation of the facts. In John
Thomas v. Dr. K. Jagadeesan181 while dealing with “person
aggrieved”, the Court opined that the test is whether the
complainant has reason to feel hurt on account of publication
is a matter to be determined by the court depending upon the
facts of each case. In S. Khushboo (supra), while dealing
with “person aggrieved”, a three-Judge Bench has opined that
181
(2001) 6 SCC 30252
the respondents therein were not “person aggrieved” within
the meaning of Section 199(1) CrPC as there was no specific
legal injury caused to any of the complainants since the
appellant’s remarks were not directed at any individual or
readily identifiable group of people. The Court placed reliance
on M.S. Jayaraj v. Commr. of Excise182 and G.
Narasimhan (supra) and observed that if a Magistrate were
to take cognizance of the offence of defamation on a complaint
filed by one who is not a “aggrieved person”, the trial and
conviction of an accused in such a case by the Magistrate
would be void and illegal. Thus, it is seen that the words
“some person aggrieved” are determined by the courts
depending upon the facts of the case. Therefore, the
submission that it can include any and everyone as a “person
aggrieved” is too spacious a submission to be accepted.
190. It has also been commented upon that by giving a
benefit to public servant employed in connection with the
affairs of the Union or of a State in respect of his conduct in
182
(2000) 7 SCC 552253
the discharge of public functions to file the case through
public prosecutor, apart from saving his right under
sub-section (6) of Section 199 CrPC, the provision becomes
discriminatory. In this regard, it is urged that a public servant
is treated differently than the other persons and the
classification invites the frown of Article 14 of the
Constitution and there is no base for such classification.
Thus, the attack is on the base of Article 14 of the
Constitution. In Special Courts Bill, 1978, In re183
Chandrachud, CJ, speaking for the majority of the
Constitution Bench after referring to series of judgments of
this Court, culled out certain principles. We may refer to a
few of them:-
“(1) x x x x x
(2) The State, in the exercise of its governmental
power, has of necessity to make laws operating
differently on different groups or classes of
persons within its territory to attain particular
ends in giving effect to its policies, and it must
possess for that purpose large powers of
183
(1979) 1 SCC 380254
distinguishing and classifying persons or things
to be subjected to such laws.
(3) The constitutional command to the State to
afford equal protection of its laws sets a goal not
attainable by the invention and application of a
precise formula. Therefore, classification need not
be constituted by an exact or scientific exclusion
or inclusion of persons or things. The courts
should not insist on delusive exactness or apply
doctrinaire tests for determining the validity of
classification in any given case. Classification is
justified if it is not palpably arbitrary.
(4) The principle underlying the guarantee of
Article 14 is not that the same rules of law
should be applicable to all persons within the
Indian territory or that the same remedies should
be made available to them irrespective of
differences of circumstances. It only means that
all persons similarly circumstanced shall be
treated alike both in privileges conferred and
liabilities imposed. Equal laws would have to be
applied to all in the same situation, and there
should be no discrimination between one person
and another if as regards the subject-matter of
the legislation their position is substantially the
same.
(5) By the process of classification, the State has
the power of determining who should be regarded
as a class for purposes of legislation and in
relation to a law enacted on a particular subject.
This power, no doubt, in some degree is likely to
produce some inequality; but if a law deals with
the liberties of a number of well-defined classes,
it is not open to the charge of denial of equal
protection on the ground that it has no255
application to other persons. Classification thus
means segregation in classes which have a
systematic relation, usually found in common
properties and characteristics. It postulates a
rational basis and does not mean herding
together of certain persons and classes
arbitrarily.
(6) x x x x x
(7) The classification must not be arbitrary but
must be rational, that is to say, it must not only
be based on some qualities or characteristics
which are to be found in all the persons grouped
together and not in others who are left out but
those qualities or characteristics must have a
reasonable relation to the object of the
legislation. In order to pass the test, two
conditions must be fulfilled, namely, (1) that the
classification must be founded on an intelligible
differentia which distinguishes those that are
grouped together from others, and (2) that
differentia must have a rational relation to the
object sought to be achieved by the Act.
(8) x x x x x
(9) x x x x x
(10) x x x x x
(11) Classification necessarily implies the
making of a distinction or discrimination
between persons classified and those who are
not members of that class. It is the essence of a
classification that upon the class are cast duties
and burdens different from those resting upon
the general public. Indeed, the very idea of
classification is that of inequality, so that it goes
without saying that the mere fact of inequality in256
no manner determines the matter of
constitutionality.”
191. Recently, in Yogendra Kumar Jaiswal & others
v. State of Bihar and others184, the Court, after referring to
Ram Krishna Dalmia v. S.R. Tendolkar185
, Satyawati
Sharma v. Union of India186
, Rehman Shagoo v. State of
J&K187 and C.I. Emden v. State of U.P.188 in the context of
challenge to the constitutional validity of the Orissa Special
Courts Act, 2006 and the Bihar Special Courts Act, 2009,
repelled the contention that there was no justification for trial
of offence under Section 13(1)(e) and the rest of the offences
enumerated in Section 13 in different Act and ultimately
opined:-
184
(2016) 3 SCC 183
185
AIR 1958 SC 538
186
(2008) 5 SCC 287
187
AIR 1960 SC 1
188
AIR 1960 SC 548257
“… Section 13(1)(e) targets the persons who have
disproportionate assets to their known sources of
income. This conceptually is a period offence, for
it is not incident-specific as such. It does not
require proof of corruption in specific acts, but
has reference to assets accumulated and known
sources of income in a particular period. The test
applicable and proof required is different. That
apart, in the context of the present Orissa Act it
is associated with high public office or with
political office which are occupied by people who
control the essential dynamics of power which
can be a useful weapon to amass wealth adopting
illegal means. In such a situation, the argument
that they being put in a different class and tried
in a separate Special Court solely because the
alleged offence, if nothing else, is a self-defeating
one. The submission that there is a
sub-classification does not remotely touch the
boundaries of Article 14; and certainly does not
encroach thereon to invite the wrath of the
equality clause.”
192. Be it stated that learned counsel for the petitioners
stated that there can be no cavil about the President of India,
the Vice-President of India, the Governor of a State, the
Administrator of a Union territory but about others whose
names find mention in the provision there is no justification
to put them in a different class to enable them to file a case
through the public prosecutor in the Court of Session. A
studied scrutiny of the provision makes it clear that a public258
servant is entitled to file a complaint through public
prosecutor in respect of his conduct in discharge of public
functions. Public function stands on a different footing than
the private activities of a public servant. The provision gives
them protection for their official acts. There cannot be
defamatory attacks on them because of discharge of their due
functions. In that sense, they constitute a different class. Be
it clarified here that criticism is different than defamation.
One is bound to tolerate criticism, dissent and discordance
but not expected to tolerate defamatory attack.
193. Sub-section (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. The provision relating to engagement of public
prosecutor in defamation cases in respect of the said
authorities is seriously criticized on the ground that it allows
unnecessary room to the authorities mentioned therein and259
the public servants to utilize the Public Prosecutor to espouse
their cause for vengeance. Once it is held that the public
servants constitute a different class in respect of the conduct
pertaining to their discharge of duties and functions, the
engagement of Public Prosecutor cannot be found fault with.
It is ordinarily expected that the Public Prosecutor has a duty
to scan the materials on the basis of which a complaint for
defamation is to be filed. He has a duty towards the Court.
This Court in Bairam Muralidhar v. State of Andhra
Pradesh189 while deliberating on Section 321 CrPC has
opined that the Public Prosecutor cannot act like the post
office on behalf of the State Government. He is required to act
in good faith, peruse the materials on record and form an
independent opinion. It further observed that he cannot
remain oblivious to his lawful obligations under the Code and
is required to constantly remember his duty to the court as
well as his duty to the collective. While filing cases under
Sections 499 and 500 IPC, he is expected to maintain that
189
(2014) 10 SCC 380260
independence and not act as a machine. The other ground of
attack is that when a complaint is filed in a Court of Session,
right or appeal is curtailed. The said submission suffers from
a basic fallacy. Filing of a complaint before the Court of
Session has three safeguards, namely, (i), it is filed by the
public prosecutor; (ii) obtaining of sanction from the
appropriate Government is necessary, and (iii) the Court of
Session is a superior court than the Magistrate to deal with a
case where a public servant is defamed. In our considered
opinion, when sufficient protection is given and the right to
appeal to the High Court is not curtailed as the CrPC protects
it, the submission does not really commend acceptation. In
view of the aforesaid, we do not perceive any justification to
declare the provisions ultra vires.
194. On behalf of petitioner―Foundation of Media
Professionals, Mr. Bhambhani, learned senior counsel has
submitted that the operation of the Press and Registration of
Books Act, 1867 (for short “1867 Act”) must necessitate a
Magistrate to accord due consideration of the provision of the261
1867 Act before summoning the accused. Attention has been
drawn to the Sections 3, 5, 6 and 8 of the 1867 Act and it is
submitted that only person recognized under the said Act as
editor, publisher, printer and owner could be summoned in
the proceeding under Section 499 Indian Penal Code (IPC),
apart from the author or person who has made the offending
statements. The submission of the petitioner, Mr.
Bhambhani, learned senior counsel is that in all the
proceedings under Section 499 of IPC against a newspaper
the accused must be confined to those who are identifiable to
be responsible under Section 5 of the 1867 Act. In our
considered opinion that the said aspects can be highlighted
by an aggrieved person either in a challenge for quashing of
the complaint or during the trial. There is no necessity to
deal with the said facet while deliberating upon the
constitutional validity of the provisions.
195. In the course of hearing, it has been argued that
the multiple complaints are filed at multiple places and there
is abuse of the process of the court. In the absence of any
specific provisions to determine the place of proceedings in a262
case of defamation, it shall be governed by the provisions of
Chapter XIII of the CrPC - Jurisdiction of the Criminal Courts
in Inquiries and Trials. A case is ordinarily tried where the
Offence is committed (Section 177). The expression used in
Section 177 is “shall ordinarily be inquired and tried” by a
court within whose jurisdiction it was committed. Whereas
“shall” brings a mandatory requirement, the word “ordinarily”
brings a situational variation which results in an
interpretation that the case may be tried as per the further
provisions of the Chapter. In case the place of committing the
offence is uncertain, the case may also be tried where the
offence was partly committed or continues to be committed
(Section 178). The case may also be tried where the
consequence of the act ensues (Section 179). The other
provisions in the chapter also deal with regard to certain
specific circumstances. Section 186 CrPC gives the High
Court powers to determine the issue if two or more courts
take cognizance of the same offence. If cases are filed in two
or more courts in different jurisdictions, then the Jurisdiction
to determine the case lies with the High Court under whose263
jurisdiction the first complaint was filed. Upon the decision of
the High Court regarding the place of trial, the proceedings in
all other places shall be discontinued. Thus, it is again left to
the facts and circumstances of each case to determine the
right forum for the trial of case of defamation. Thus, CrPC
governs the territorial jurisdiction and needless to say, if there
is abuse of the said jurisdiction, the person grieved by the
issue of summons can take appropriate steps in accordance
with law. But that cannot be a reason for declaring the
provision unconstitutional.
196. Another aspect requires to be addressed pertains to
issue of summons. Section 199 CrPC envisages filing of a
complaint in court. In case of criminal defamation neither
any FIR can be filed nor can any direction be issued under
Section 156(3) CrPC. The offence has its own gravity and
hence, the responsibility of the Magistrate is more. In a way,
it is immense at the time of issue of process. Issue of process,
as has been held in Rajindra Nath Mahato v. T. Ganguly,
Dy. Superintendent and another190, is a matter of judicial
190264
determination and before issuing a process, the Magistrate
has to examine the complainant. In Punjab National Bank
and others v. Surendra Prasad Sinha191 it has been held
that judicial process should not be an instrument of
oppression or needless harassment. The Court, though in a
different context, has observed that there lies responsibility
and duty on the Magistracy to find whether the concerned
accused should be legally responsible for the offence charged
for. Only on satisfying that the law casts liability or creates
offence against the juristic person or the persons impleaded
then only process would be issued. At that stage the court
would be circumspect and judicious in exercising discretion
and should take all the relevant facts and circumstances into
consideration before issuing process lest it would be an
instrument in the hands of the private complaint as vendetta
to harass the persons needlessly. Vindication of majesty of
justice and maintenance of law and order in the society are
the prime objects of criminal justice but it would not be the
(1972) 1 SCC 450
191
1993 Supp. (1) SCC 499265
means to wreak personal vengeance. In Pepsi Foods Ltd.
and another v. Special Judicial Magistrate and others192
a two-Judge Bench has held that summoning of an accused
in a criminal case is a serious matter and criminal law cannot
be set into motion as a matter of course.
197. We have referred to these authorities to highlight
that in matters of criminal defamation the heavy burden is on
the Magistracy to scrutinise the complaint from all aspects.
The Magistrate has also to keep in view the language
employed in Section 202 CrPC which stipulates about the
resident of the accused at a place beyond the area in which
the Magistrate exercises his jurisdiction. He must be
satisfied that ingredients of Section 499 CrPC are satisfied.
Application of mind in the case of complaint is imperative.
198. We will be failing in our duty if we do not take note
of submission of Mr. Bhambhani, learned senior counsel. It is
submitted by the learned senior counsel that Exception to
Section 499 are required to be considered at the time of
192
(1998) 5 SCC 749266
summoning of the accused but as the same is not conceived
in the provision, it is unconstitutional. It is settled position of
law that those who plead Exception must prove it. It has
been laid down in M.A. Rumugam (supra) that for the
purpose of bringing any case within the purview of the Eighth
and the Ninth Exceptions appended to Section 499 IPC, it
would be necessary for the person who pleads the Exception
to prove it. He has to prove good faith for the purpose of
protection of the interests of the person making it or any
other person or for the public good. The said proposition
would definitely apply to any Exception who wants to have the
benefit of the same. Therefore, the argument that if the said
Exception should be taken into consideration at the time of
the issuing summons it would be contrary to established
criminal jurisprudence and, therefore, the stand that it
cannot be taken into consideration makes the provision
unreasonable, is absolutely an unsustainable one and in a
way, a mercurial one. And we unhesitatingly repel the same.267
199. In view of the aforesaid analysis, we uphold the
constitutional validity of Sections 499 and 500 of the Indian
Penal Code and Section 199 of the Code of Criminal
Procedure. During the pendency of the Writ Petitions, this
Court had directed stay of further proceedings before the trial
court. As we declare the provisions to be constitutional, we
observe that it will be open to the petitioners to challenge the
issue of summons before the High Court either under Article
226 of the Constitution of India or Section 482 CrPC, as
advised and seek appropriate relief and for the said purpose,
we grant eight weeks time to the petitioners. The interim
protection granted by this Court shall remain in force for a
period of eight weeks. However, it is made clear that, if any of
the petitioners has already approached the High Court and
also become unsuccessful before this Court, he shall face trial
and put forth his defence in accordance with law.
200. The Writ Petitions and the Transfer Petitions are
disposed of accordingly. All pending criminal miscellaneous268
petitions also stand disposed of. There shall be no order as to
costs.
.......................................J.
[Dipak Misra]
………………….................J.
[Prafulla C. Pant]
New Delhi
May 13, 2016
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