Andhyarujina, K Parasaran made Amicus in criminal defamation challenge of “tremendous repercussions”

Barely days after Section 66A of the Information Technology Act, 2000 was struck down as unconstitutional, two highly contentious provisions of the Indian Penal Code (IPC) are now under the scanner of the Supreme Court..A Division Bench comprising Justice Dipak Misra and Justice Prafulla Chandra Pant today appointed two Senior Advocates, TR Andhyarujina and K Parasaran to assist the court in deciding the Constitutionality of Sections 499 and 500 of the IPC. These provisions lay down the law of criminal defamation..Other Senior Advocates also appeared in the case today including Rakesh Dwivedi (for the State of Tamil Nadu) and V Giri and V Shekhar (for complainants). Interestingly, the Centre was not represented in the case but Additional Solicitor General PS Narasimha (ASG), who was present in the court for another case, assumed the responsibility and made submissions on behalf of the Union government..By way of background, the Article 32 petition was filed by BJP leader Subramanian Swamy challenging the Constitutional vires of criminal provisions pertaining to defamation in the IPC and the Code of Criminal Procedure (CrPC). Swamy has contended that the provisions violate the fundamental right to freedom of speech and expression under Article 19 (1) (a) of the Constitution..The petition attacks the vires of Sections 499 and 500 of the IPC which define the offence of “defamation” and prescribe the punishment for the same. The petition also challenges Section 199 (2) of the CrPC that empowers the Sessions Court to take cognizance of an offence of defamation against a public servant. Swamy has also sought for quashing of the defamation proceedings filed against him by AIADMK supremo Jayalalithaa in Chennai..The Court had admitted the case on October 30, 2014 and issued notice to Central government, State of Tamil Nadu and Jayalalithaa..When the matter was taken up as item 11 in Court room 5 today, Swamy submitted that the Centre has not yet filed its reply. Minutes later, ASG Narasimha rushed into the court only to realise that he was one case too early. Narasimha, however, volunteered on behalf of the Union government and made some pertinent submissions. He said that,.“Article 19(2) is as dynamic as Article 19(1) (a). Looking at 19 (2) as “restrictions” must change. We must also construe 19(2) as safeguards for further enhancement of rights under 19(1) (a).”.The discussion then veered towards whether the words “defamation or incitement to an offence” used in Article 19(2) should be read disjunctively and as two separate compartments so that laws for preventing defamation can only have civil sanctions and not criminal..“This case might have tremendous repercussions. We want to appoint two amicus”, said Justice Dipak Misra..The Court then said that it will take up the case half an hour later. Subsequently, when the case was called for the second time, the Court sought the assistance of Senior Advocates TR Andhyarujina and K Parasaran. Since, Andhyarujina was present in the Supreme Court, he was called in for the hearing. He proceeded to opine that from a prima facie reading, the words “defamation or incitement to an offence” used in Article 19(2) might have to be construed as two separate compartments..The Court proceeded to record the following in its order..“Mr. Andhyarujina, learned senior counsel submitted that there has to be a debate with regard to the conceptual meaning of the term ‘defamation’ used in Article 19(2) of the Constitution and the definition of ‘defamation’ in Section 499 of the Indian Penal Code….. Learned senior counsel would contend that the terms ‘defamation’ or ‘incitement’ has to be read disjunctively. According to him, “incitement to an offence” would stand on a different compartment altogether and the ‘defamation’ has to be construed in a different compartment and, therefore, ‘incitement to an offence’ would have criminal capability whereas ‘defamation’ as per Article 19(2), when properly understood and appreciated, would give rise to civil liability.”.K Parasaran also appeared before the Court at a later stage and submitted that,.“the first part of Article 19(2) i.e. “nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law” would stand disjunctively from the rest of the Article and Sections 499 and 500 of the Indian Penal Code being the existing law, are saved under the Constitution. It is his submission that the freedom of speech and expression possibly has to be controlled one not to include the concept of defamation as defined under Section 499 IPC…It is canvassed by him that as the existing law is protected, it is to be seen whether apart from freedom of speech and expression, other Articles in Part III of the Constitution are violated.”.The Court granted the respondents four weeks’ time to file counter affidavits and listed the case for July 8..Read the full order below.