Subramanian Swamy Vs Union of India, Min. of Law& Ors.

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) NO.184 OF 2014

SUBRAMANIAN SWAMY …PETITIONER(S)

VERSUS

UNION OF INDIA, MINISTRY OF LAW & ORS. …RESPONDENT(S)

WITH

WRIT PETITION (CRIMINAL) NO. 8 OF 2015

WRIT PETITION (CRIMINAL) NO. 19 OF 2015

WRIT PETITION (CRIMINAL) NO. 56 OF 2015

WRIT PETITION (CRIMINAL) NO. 64 OF 2015

WRIT PETITION (CRIMINAL) NO. 62 OF 2015

WRIT PETITION (CRIMINAL) NO. 63 OF 2015

WRIT PETITION (CRIMINAL) NO. 67 OF 2015

WRIT PETITION (CRIMINAL) NO. 79 OF 2015

WRIT PETITION (CRIMINAL) NO. 73 OF 2015

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WRIT PETITION (CRIMINAL) NO. 82 OF 2015

WRIT PETITION (CRIMINAL) NO. 77 OF 2015

WRIT PETITION (CRIMINAL) NO. 91 OF 2015

WRIT PETITION (CRIMINAL) NO. 98 OF 2015

WRIT PETITION (CRIMINAL) NO. 106 OF 2015

WRIT PETITION (CRIMINAL) NO. 96 OF 2015

WRIT PETITION (CRIMINAL) NO. 110 OF 2015

WRIT PETITION (CRIMINAL) NO. 121 OF 2015

WRIT PETITION (CRIMINAL) NO. 120 OF 2015

WRIT PETITION (CRIMINAL) NO. 117 OF 2015

WRIT PETITION (CRIMINAL) NO. 118 OF 2015

WRIT PETITION (CRIMINAL) NO. 116 OF 2015

WRIT PETITION (CRIMINAL) NO. 119 OF 2015

TRANSFER PETITION (CRIMINAL) NOS. 102-105 OF 2015

TRANSFER PETITION (CRIMINAL) NOS. 94-101 OF 2015

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J U D G M E N T

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 social

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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 of

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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 631

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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.

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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 imputation

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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 Court

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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 authority

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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 is

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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;

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(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 learned

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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 makes

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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 been

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held to be a facet of Article 21 is basically vis-à-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 good

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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.

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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 essential

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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.

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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 ultimate

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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 up

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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 or

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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 include

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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 under

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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 and

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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 and

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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.

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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 and

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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 to

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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.

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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 to

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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 the

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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 1

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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 free

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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.

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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 right

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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 not

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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.

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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 reasonable

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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 Assembly

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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 of

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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-à-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 free

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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 of

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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 deals

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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 is

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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 mean

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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 are

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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. This

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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 that

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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 to

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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.

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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 of

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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 1

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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 by

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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 no

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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. Mere

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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 “some

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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 been

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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 of

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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)

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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 merely the tort

of defamation, as it appears 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”.

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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 is

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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 underlying

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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.

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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 of speech 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 413

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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)

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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 which

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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 safeguarding

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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”

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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. 164

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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)

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“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 646

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“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 136

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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 भभून्तितेष्वलक्रोलशुप्त्वहिं 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.”

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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.

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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.”

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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 Covenants

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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 to

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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 expression

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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 it

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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. 876

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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 his

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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 201

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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)

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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 1130

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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 dignity

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(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 401

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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-à-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. 35

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88

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 26

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89

“… [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 124

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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 494

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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 he

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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”.

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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 1

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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 591

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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 550

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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 417

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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 392

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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:-

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“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,

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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 the

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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,

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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. This

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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 down

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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,

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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.”

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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 129

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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 126

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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 225

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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 1

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110

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

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“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 in

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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.

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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 151

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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 515

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“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 755

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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 54

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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. 379

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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 of

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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 on

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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 424

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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 ruled

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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 the

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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 visible

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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 crime

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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 the

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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.5

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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.12

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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 conducts

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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. 1

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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 475

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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 305

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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

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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 569

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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 469

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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 241

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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-à-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 is

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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 587

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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 speech

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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)

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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 77

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“… 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)

Page 142

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 is

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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 to

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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 641

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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 124

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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 12

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147

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,

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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 305

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149

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.

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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 788

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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 the

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152

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 laws

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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 150

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154

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 399

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155

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 720

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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

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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 603

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158

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 485

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159

“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 1

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160

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 574

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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 to

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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 257

Page 163

163

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 all

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164

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 or 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 any

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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 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.

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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 118

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167

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 196

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168

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 298

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169

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

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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 regulatory

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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 224

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172

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. 597

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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 501

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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 the

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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 by

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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 and

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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 694

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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 1

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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 can this right be overridden

and blotched notwithstanding malice, vile and venal attack to

tarnish and destroy the reputation of another by stating that

the same curbs and puts unreasonable restriction on the

freedom of speech and expression. There is no gainsaying

that individual rights form the fundamental fulcrum of

124

(2015) 1 SCC 192

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180

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. 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)

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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) 109

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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 the

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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 11

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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 558

Page 185

185

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 296

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186

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 1

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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”.

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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 part

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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:-

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“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 737

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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,

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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) 136

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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 1

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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 pass

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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)

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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:-

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“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

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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 judgment

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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 of

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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 620

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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 130

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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 earlier 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 noted

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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 to

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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) of

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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. The

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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.

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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.

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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, a

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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.

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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 191

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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.

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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 passage

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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 537

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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 fundamental

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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.

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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. The

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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 243

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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 used

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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 19

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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 118

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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”.

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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 357 157

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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 597

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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,

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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 823 160

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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 680

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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 661

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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 590

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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 166

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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...”

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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 343

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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.

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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 97

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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 486

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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 73

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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 37

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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 134

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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 208

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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 101

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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 examples

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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 thinks

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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 478

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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 of

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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 227

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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, 2012

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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 216

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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 the

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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 Indian

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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 other

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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.

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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 30

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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 552

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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 380

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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 no

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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 in

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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 548

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“… 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 public

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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 and

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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 380

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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 to 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 the

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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 a

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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 whose

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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

190

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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 499

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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 749

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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.

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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 miscellaneous

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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