Criminal Defamation: SC upholds constitutionality of IPC, CrPC provisions [Read judgment]

In a batch of petitions filed by different individuals including Subramanian Swamy, Rahul Gandhi and Arvind Kejriwal, the Supreme Court today upheld the constitutional validity of provisions relating to criminal defamation..The judgment was delivered by a Bench comprising Justices Dipak Misra and PC Pant..The bench held that the IPC and CrPC provisions relating to criminal defamation are only reasonable restrictions contemplated by Article 19 (2). It said that though the freedom of speech and expression is sacrosanct, there can be reasonable restrictions in the interest of the society and State. It stated,.“Notwithstanding the expansive ambit of freedom of speech and expression, it is not absolute. The concept of social interest has to be borne in mind when considering reasonableness of a restriction”..Swamy had appeared in-person while a host of Senior Advocates represented the various petitioners. These senior counsel include the likes of KK Venugopal, PP Rao, Rajeev Dhavan, Arvind Datar, Abhishek Manu Singhvi, Anup Bhambani, Siddharth Luthra, V Giri, Sanjay Hegde, HS Phoolka and K Radhakrishnan..Attorney General Mukul Rohatgi and Additional Solicitor General PS Narasimha had represented the Central government. Jayalalithaa was represented by L Nageswara Rao, who has now been elevated to the Bench..Senior Advocates K Parasaran and TR Andhyarujina served as Amicus Curiae..The challenge was first made by BJP leader Subramanian Swamy. Subsequently, Rahul Gandhi and Arvind Kejriwal had also joined the fray..The Provisions.Section 499 of the IPC defines the offence of “defamation” while Section 500 prescribes the punishment. Section 199(2) of the CrPC empowers a Sessions Court to take cognizance of an offence of defamation against a public servant..Section 499 of IPC- 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 cases hereinafter expected, to defame that person..Section 500 of IPC- 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 (2) of CrPC – Prosecution for defamation.“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 Governor 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.”.Swamy’s petition: The Beginning.Swamy, in his petition, had attacked the vires of Sections 499 and 500, as well as Section 199 (2) of the Code of Criminal Procedure..Swamy had contended that these provisions were brought into force by British jurist Macaulay to bring Indians in conformity with the Victorian mores. Over time, these provisions had become a “tool of harassment”..“In brief it is the Petitioner’s argument that the law is violative of the fundamental rights guaranteed under the Constitution of India and is not saved by any exception in as much as it has degenerated into a tool of harassment; and certainly in the case of “defamations” made for a societal interest (like prevention of corruption), the social value of free speech and expression must outweigh the social interest in the right to reputation, which is only a personal right…”.Attacking the definition of “defamation” Swamy had submitted that,.“The law presumes the alleged statements to be defamatory unless proved otherwise by the Accused. Therefore, the burden of proof is on the Accused from the very beginning of the case..….The lawmakers while drafting the exceptions to Defamation have chiefly categorized them into four broad heads: (I) Truth (II) Good faith (III) Public good (IV) Privilege.None of the above exceptions shift the burden of proof on the Complainant.”.Swamy had also sought for quashing of the defamation proceedings filed against him by AIADMK supremo Jayalalithaa in Chennai..Swamy’s petition was admitted on October 30, 2014. Six months later, on April 7, 2015, the Court case remarked that the challenge might have tremendous repercussions and had appointed TR Andhyarujina and K Parasaran as amicus..Other petitions.After Swamy filed the petitions, a number of people made similar challenges including Rahul Gandhi, Delhi CM Arvind Kejriwal, Greenpeace activist Priya Pillai, and senior journalist Rajdeep Sardesai..Centre’s arguments.Attorney General Mukul Rohatgi had sought a reference of the case to a Constitution Bench. This was turned down by the 2-judge Bench which proceeded to hear the case..Rohatgi had argued then before the Bench that scrapping of the provisions would lead to anarchy in the country..“Does the freedom of speech and expression necessarily mean that one can say anything about anybody? Can any orderly society have this kind of behavioural norms? “If yes, then you will have nothing but the anarchy”, he had submitted..He had submitted that the laws were within the ambit of reasonable restrictions prescribed by Article 19(2)..He had also argued that comparisons with other jurisdictions were not appropriate since trial in defamation cases take ten to twenty years to be completed in India unlike in other western countries..The Judgment.The court dealt at length with the concepts of defamation, reputation and the right to freedom of speech and expressions.‘Reputation’ as a constituent of Article 21.Regarding reputation, the court relying on precedents including Kiran Bedi v. Committee of Inquiry and another held that reputation is one of the “basic constituents” under Article 21..“….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 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.”.Regarding Right to freedom of speech and expression.The Court has waxed eloquent about the sacrosanct nature of freedom of speech and expression. However, it has proceeded to hold that the right under 19(1)(a) is can be restricted under Article 19(2). It has then held that criminal defamation provisions fall within such reasonable restrictions since it protects the individual’s right of reputation which is an “inherent component of Article 21..“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..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.”.‘Reputation’ cannot be sullied for freedom of speech.The Court held that there should be a balance between two competing right and made it clear that reputation cannot be sullied because another individual can have his/her freedom..“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.”.Criminal defamation envisaged by Article 19(2).The Court also turned down the contention by the petitioners that the word “defamation” occurring in Article 19(2) would not include “criminal defamation”..“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..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 205 the Constitution, especially when the word “defamation” has been used in the Constitution.”.Criminal defamation not a restriction on free speech.The final conclusion was that criminal defamation serves “social interest” and does not restrict free speech..“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.”.Read the judgment: