Subramanian Swamy v. Union of India [2016 SC]

In this batch of writ petitions, we are required to dwell upon the constitutional validity of Sections 499 and 500 of  the Indian Penal Code and Sections 199(1) to 199(4) of the Code of Criminal Procedure.

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 Calcutta.

The position has further become clear in Ganga Bai v. Vijay Kumar wherein this Court has ruled thus:-

“There is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute, one may, at one’s peril, bring a suit of 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.”

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.

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” so that it only includes a criminal action if it gives rise to incitement to constitute an offence. The word “defamation” has its own independent identity and it stands alone

In Indian Express Newspapers, this Court 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.

In Secretary, Ministry of Information & Broadcasting, Govt. of India and others v. Cricket Association of Bengal and others, 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.

The significance of freedom of speech has been accentuated in Ramlila Maidan Incident, In re by observing that the freedom of speech is the bulwark of a democratic Government. This freedom is essential for proper 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.

In Chintaman Rao v. State of M.P., 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.

In Papnasam Labour Union v. Madura Coats Ltd. 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 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.

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.

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) of the Constitution, especially when the word “defamation” has been used in the Constitution.

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. The criminal offence emphasizes on the intention or harm.

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 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.

 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.

 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 thinks that the provision is unnecessary or unwarranted.

 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.

 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.

 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.

  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 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.