LAW FOR ALL : constitutional validity of Sections 499 and 500 of the Indian Penal Code and Section 199 of the Code of Criminal Procedure. we uphold the constitutional validity of Sections 499 and 500 of the Indian Penal Code and Section 199 of the Code of Criminal Procedure. 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 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 (1998) 5 SCC 749 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.

Sunday, March 14, 2021

constitutional validity of Sections 499 and 500 of the Indian Penal Code and Section 199 of the Code of Criminal Procedure. we uphold the constitutional validity of Sections 499 and 500 of the Indian Penal Code and Section 199 of the Code of Criminal Procedure. 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 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 (1998) 5 SCC 749 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.

constitutional validity of Sections 499 and 500 of the Indian Penal Code and Section 199 of the Code of Criminal Procedure.

we uphold the constitutional validity of Sections 499 and 500 of the Indian Penal Code and Section 199 of the Code of Criminal Procedure.

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

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 (1998) 5 SCC 749 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.

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

Signature Not Verified

Digitally signed by

CHETAN KUMAR

Date: 2016.05.16

11:54:08 IST

Reason:

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

JUDGMENT

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 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 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."

(1994) 6 SCC 632

3. Dr. Swamy had also drawn our attention to the observations

made in N. Ravi and others v. Union of India and others 2, 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 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. Despite our

(2007) 15 SCC 631

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 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 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 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 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;

(b) of the State Government, in the case of any other

public servant employed in connection with the affairs of

the State;

(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 10 th

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 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 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 held to be a

facet of Article 21 is basically vis-‘-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 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.

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 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.

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 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 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 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 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 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 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 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.

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 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 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.

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 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 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

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

2005 (6) SCC 1

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 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.

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 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 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.

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 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 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 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-‘-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 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 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 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 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 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 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 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 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 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. 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 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 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

(2015) 5 SCC 1

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 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 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 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 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 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 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) by considering as to whether it includes: a)

Defamation as an offence with punishment of imprisonment and/or

fine on being proved guilty, or; b) Defamation as a civil wrong with

liability for damages for the injury caused to reputation, or; c) both of

the above. The word "defamation" in Article 19(2) includes defamation

as an offence as well as a civil wrong. The above two cannot be

considered in isolation while interpreting Article 19(2).

ii. The question for determination is whether the word "defamation"

used in Article 19(2) has reference to the Indian Penal Code (statutory

law) as an indictment, or tort of the work "defamation" after "contempt of

court" (which includes criminal contempt) and before the phrase

"incitement to an offence", both being penal in nature. Applying the

principle of ‘noscitur a sociis’, the word "defamation" is not to be

interpreted only as civil defamation. Applying the principle of ‘nomen

juris’ the word "defamation" must necessarily refer only to IPC, since

there is no other statute in existence that defines "defamation".

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

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 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.

vi. Right to life and liberty is an inherent right and natural right and

not a right conferred by the Constitution but recognized and protected

by it. Judge-made law is meant to protect fundamental rights and not

to impose restrictions on the fundamental rights. The constitutional

courts are assigned the role of a "Sentinel on the qui vive". In the said

bedrock, the right to life which includes right to reputation has to be

protected and respected and cannot be allowed to succumb to the

right to freedom and expression.

vii. The inherent right to life or personal liberty recognized by

Article 21, the fundamental right of freedom of speech conferred by

Article 19(1)(a) read with Article 19(2) and Article 194 dealing with the

Powers, Privileges etc. of the Houses of Legislature and of the

Members and Committees thereof (Article 105 also corresponds to this

Article) were considered and harmoniously interpreted and applied in

Special Reference No 1 of 19645 wherein this Court also observed

that if a citizen moves the High Court on the ground that his

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 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.

(1965) 1 SCR 413

29 LED 2d 822 (1971)

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 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 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" 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."

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."

Bata India Ltd. v. A.M. Turaz & Ors. 2013 (53) PTC 586; Pandey Surindra Nath Sinha v.

Bageshwari Pd.. AIR

1961 Pat. 164

(1882) QBD 491

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:-

"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."

Gatley’s Libel and Slander, 6th edition, 1960 also Odger’s Libel and Slander 6th Ed. 19

(17th Edn. 2006)

Richard O’ Sullivan, QC and Roland Brown

(1840) 6 MLW 105

viii. The definition of defamation by Fraser was approved by Mc

Cardie J in Myroft v. Sleight13. It says:-

"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 sapien

characteristics. Be it stated, Section 499 IPC defines fame and covers

a quite range of things but 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

(1921) 37 TLR 646

Manisha Koirala v. Shashi Lal Nair & Ors, 2003 (2) Bom CR 136

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 :-

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."

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.

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."

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

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 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

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 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 his

own personality or disposition. That is why Cave J. spoke of

"reputation" rather than "character."

(1961) 1 All. E.R. 876

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 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:-

[2001] 2 AC 127 at 201

‘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 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

(2004) UKHL 22 at para 55

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 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

107 The other value to be balanced in a defamation action

is the protection of the reputation of the individual.

400 U.S. 433 (1971)

383 U.S. 75 (1966)

[1995] 2 SCR 1130

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 (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

[2002] ZACC 12; 2002 (5) SA 401

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 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-‘-vis freedom of expression."

(2008) 46 E.H.R.R. 35

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 been made to Chauvy and

Others v. France23, Abeberry v. France (dec.), no. 58729/00, 21

September 2004; and White v. Sweden24.

43. In Karaks 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:-

(2005) 41 EHRR 29

[2007] EMLR 1

(2011) 52 E.H.R.R. 36

(2012) 55 E.H.R.R. 6

"... [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 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

(1983) 1 SCC 124

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

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

(1989) 1 SCC 494

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 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".

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 insegregably

associated with the dignity of a human being who is

basically divine, not servile."

Elucidating further, the Court observed:-

55 ALR 171

(1996) 2 SCC 648

(2012) 8 SCC 1

"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 Agrawal 32 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 another 33 the

Court observed that personal rights of a human being include the

right of reputation. 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 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.

(2012) 7 SCC 288

(2013) 10 SCC 591

49. In Kishore Samrite v. State of Uttar Pradesh and others 34,

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 another 35 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 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 others 36 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

(2013) 2 SCC 398

(1998) 1 SCC 550

(2014) 5 SCC 417

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 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.

53. Having reconnoitered the assessment of the value of reputation

(1998) 7 SCC 392

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 18 th 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:-

"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, 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 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, 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 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 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, 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."

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 Devi 39 and

Brij Bhushan v. State of Delhi40. The restrictions were qualified by

prefixing the word "reasonable". The 16th 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".

Replacing the words "tends to overthrow the State".

AIR 1952 SC 329

1952 SCR 654 : AIR 1950 SC 129

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 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

(2001) 7 SCC 126

(2002) 8 SCC 237

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."

62. Recently, in Manoj Narula v. Union of India 44 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

(1973) 4 SCC 225

(2014) 9 SCC 1

person, his domestic relations and his property and

reputation... (page 108)

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:-

"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."

AIR 1967 SC 997 = 1967 (2) SCR 170

(1974) 2 SCC 393

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 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. 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 others 48, the Court

AIR 1960 SC 610 = (1960) 2 SCR 866

1988 Supp SCC 47 = AIR 1988 SC 151

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 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:-

"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

(1964) 6 SCR 784 = AIR 1964 SC 1230

(2005) 2 SCC 515

"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 others 51, 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 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 MAXWELL 53,

(2004) 1 SCC 755

13th Edn. 2012 p. 509

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 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

Maxwell: Interpretation of Statutes, 11th Edition, p. 321

Principles of Statutory Interpretations by G.P. Singh, Eighth Edition, p. 379

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 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 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 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 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

(1999) 4 SCC 135

(1987) 1 SCC 424

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 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 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 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, 19 th 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 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 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:

Stephen’s : New Commentaries on the Laws of England, Ed 17, Vol.4, Chap I, p.1-2.

Blackstone’s : Commentaries on the Laws of England; Edited by Wayne Morrison, Vol. 4, p.5

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 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.

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

Ibid. p. 5

Ibid . p. 6

Halsbury’s Laws of England : Edition 4, Vol.2 , Para 4, p.12

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 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

Criminology and Penology by Dr. N.V Pranjape, 15th Edition, 2012 p. 1

100

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 largethe polis, the state and fellow citizens. It is because of the "public"

element that it is the State rather than 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

(2008) 9 SCC 475

101

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 committed.

Yet again, in Mohd. Shahabuddin v. State of Bihar and others 64, 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.

85. In R. Sai Bharathi v. J. Jayalalitha and others 66, while

opining about crime, it has been observed as under:-

(2010) 4 SCC 653

(2008) 2 SCC 305

(2004) 2 SCC 9

102

"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 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

(2000) 6 SCC 168

103

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

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

(1994) 3 SCC 569

(1992) 2 SCC 177

1995 Supp. (4) SCC 469

104

primarily concerns with social protection, prescribes rules of behavior

to be observed by all persons and punishes them for deviance,

transgression or omission.

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 others 71 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 individuals to protect their

fundamental right to dignity against other citizens. Similarly,

legislations like the Child Labour (Prohibition & Regulation) Act, 1986,

(1997) 6 SCC 241

105

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-‘-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 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

106

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.

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

AIR 1954 SC 92 : [1954] SCR 587

107

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 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.

108

Randall73). In 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:-

"... 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

(1958) 257 US 513 (530)

(1958) 354 US 298 (344)

(1931) 283 US 359 (369)

(1937) 302 US 319

250 US 616 :63 L Ed 1173 (1919)

109

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 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

71 L Ed 1095 : 274 US 357 (1927)

110

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 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

111

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 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 others 80 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 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

1962 Supp. (3) SCR 369 : AIR 1962 SC 1166

(1985) 1 SCC 641

112

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 Madras 81 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 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.

1950 SCR 594 : AIR 1950 SC 124

283 U.S. 607, at 717-8

113

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 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

AIR 1958 SC 578 : 1959 SCR 12

114

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, 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

(1962) 3 SCR 269 : AIR 1962 SC 171

(1962) 3 SCR 842 = AIR 1962 SC 305

115

language of the Constitution in so 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.

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

(1972) 2 SCC 788

116

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".

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

117

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 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 or administrative actions which interfere with it,

118

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 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

(1995) 2 SCC 161

(1999) 6 SCC 150

119

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 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

(2003) 4 SCC 399

(2004) 2 SCC 510

120

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 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

(2008) 4 SCC 720

(2010) 5 SCC 600

(2012) 5 SCC 1

121

speech is the bulwark of a democratic Government. This freedom is

essential for proper functioning of the democratic process. The

freedom of speech and expression is regarded as the first condition of

liberty. It occupies a preferred position in the hierarchy of liberties,

giving succour and protection to all other liberties. It has been truly

said that it is the mother of all other liberties. Freedom of speech plays

a crucial role in the formation of public opinion on social, political and

economic matters. It has been described as a "basic human right", "a

natural right" and the like.

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.

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

(2012) 10 SCC 603

122

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:-

"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

(2014) 9 SCC 485

(2015) 6 SCC 1

123

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 Communications Pvt. Ltd. v. Lokvidayan Sanghatana

and others97 and S. Rangarajan v. P. Jagjivan Ram and others 98.

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

(1988) 3 SCC 410

(1989) 2 SCC 574

124

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 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 the authorities of this Court in the context

of Section 292 IPC which included Ranjit D. Udeshi v. State of

125

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 Hoon 106 and

Aveek Sarkar v. State of W.B.107 and observed that factum of

obscenity has to be judged by applying the contemporary 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

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

126

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 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

127

contrary to a "fictional character" being spoken of by another character

or through any other mode of narrative. Liberty of freedom in that

sphere is fundamentally different than the arena of defamation.

Therefore, the decisions rendered in the said context are to be

guardedly studied, appreciated and applied. It may be immediately

added here that the freedom in the said sphere is not totally without

any limit or boundary. We have only adverted to the said aspect to note

that what could legally be permissible in the arena of fiction may not

have that allowance in reality. Also, we may state in quite promptitude

that we have adverted to this concept only to have the completeness

with regard to precious value of freedom of speech and expression and

the limitations perceived and stipulated thereon.

115. Be that as it may, the aforesaid authorities clearly lay down

that freedom of speech and expression is a highly treasured value

under the Constitution and voice of dissent or disagreement has to be

respected and regarded and not to be scuttled as unpalatable

criticism. Emphasis has been laid on the fact that dissonant and

discordant expressions are to be treated as view-points with objectivity

and such expression of views and ideas being necessary for growth of

democracy are to be zealously protected. Notwithstanding, the

expansive and sweeping and ambit of freedom of speech, as all rights,

right to freedom of speech and expression is not absolute. It is subject

128

to imposition of reasonable restrictions.

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."

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

108

AIR 1951 SC 118

109

AIR 1952 SC 196

129

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 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 another 110

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

110

(1978) 1 SCC 248 : AIR 1978 SC 597

111

(1970) 2 SCC 298

130

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 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

112

(1981) 2 SCC 600

131

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, 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 mechanism of reasonable

restrictions, contemplated under Articles 19(2) and 19(3).

132

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 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 others 114, 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

113

AIR 1954 SC 224

114

(1982) 1 SCC 39

133

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

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

115

(1969) 3 SCC 377

116

[1952] S.C.R. 597

117

(1995) 1 SCC 501

134

the complex issues facing the people which the legislature intends to

solve, protection of social welfare prevailing within the social values,

its consistency and accord with Article 14 of the Constitution.

Additionally, the Court also observed that in judging the

reasonableness of the restriction imposed by clause (6) of Article 19,

the Court has to bear in mind the Directive Principles of State Policy

and any restriction so imposed which has the effect of promoting or

effectuating a directive principle can be presumed to be a reasonable

restriction in public interest.

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

135

adjudging the 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 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.

136

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 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

118

(1981) 1 SCC 608

137

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. 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

119

(1996) 2 SCC 549

120

(2011) 1 SCC 694

121

(1978) 1 SCC 579

122

(2007) 14 SCC 1

123

(1983) 1 SCC 51 : AIR 1983 SC 1

138

remain satisfied with any material existence. He has the urge to indulge

in creative activities and effort is to realize the value of life in them. The

said decision lays down that the value of life is incomprehensible

without dignity.

127. In Charu Khurana and others v. Union of India and

others124, it has been ruled that dignity is the quintessential quality of

a personality, for it is a highly cherished value. Thus perceived, right

to honour, dignity and reputation are the basic constituents of right

under Article 21. Submission of the learned counsel for the

petitioners is that reputation as an aspect of Article 21 is always

available against the highhanded action of the State. To state that

such right can be impinged and remains unprotected inter se private

disputes pertaining to reputation would not be correct. Neither this

right be overridden and blotched notwithstanding malice, vile and

venal attack to tarnish and destroy the reputation of another by

stating that curbs and puts unreasonable restriction on the freedom of

speech and expression. There is no gainsaying that individual rights

form the fundamental fulcrum of collective 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

124

(2015) 1 SCC 192

139

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

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

125

Patrick Henry, Speech in House of Burgesses on 23.3.1775 (Virginia)

126

Alfred Howard, The Beauties of Burke (T. Davison, London) 109

140

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 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

141

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 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 in a

watertight compartment. One fundamental right of a person may have

to co-exist in harmony with the exercise of another fundamental right

127

(1975) 1 SCC 11

142

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 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

128

1991 Supp (1) SCC 600

129

(1992) 1 SCC 558

130

(1998) 8 SCC 296

143

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 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

131

(1998) 4 SCC 1

132

144

the protection of fundamental rights have to be balanced against the

rights of citizens and 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".

136. In Maneka Gandhi (supra), it has been held:-

"5. ... It is indeed difficult to see on what principle we can

(2011) 8 SCC 1

145

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 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

146

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 ilan 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:-

"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

133

(2014) 9 SCC 737

147

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 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,

148

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 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

134

(2005) 5 SCC 733

135

AIR 2001 Del 455 : (2001) 93 DLT 28 (DB)

136

AIR 1993 Ker 1

149

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) 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

150

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 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

137

94 L Ed 925 : 339 US 382 (1950)

151

relating to reasonable restrictions and public order. The Court has

reproduced a passage from S. 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:-

"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

152

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 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

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

153

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

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

154

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 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

141

AIR 1957 SC 620

155

forms of insults to 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 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

142

(1996) 1 SCC 130

156

also opined that the expression used in Section 66-A having not been

defined and further the provision having not used the expression that

definitions in IPC will apply to the Information Technology Act, 2000,

it was vague. The decision in Shreya Singhal (supra) is placed

reliance upon to highlight that a restriction has to be narrowly tailored

but criminal defamation is not a narrowly tailored concept. We have

early opined that the word "defamation" is in existence from the very

beginning of the Constitution. Defamation as an offence is admittedly

a pre-constitutional law which was in existence when the Constitution

came into force. To interpret that the word "defamation" occurring in

Article 19(2) would not include "criminal defamation" or it should have

a tendency to cause public disorder or incite for an offence, would not

be in consonance with the principle of interpretation pertaining to the

Constitution. It may be noted 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

157

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 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

158

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 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:-

‘Liberti, igaliti, fraterniti’, or ‘Liberty, equality, fraternity’. The

term "fraternity" has an animating effect in the constitutional

spectrum. The Preamble states that it is a constitutional duty to

promote fraternity assuring the dignity of the individual. Be it

159

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.

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

160

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

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

143

. Morris B Abram, ‘Liberty, Fraternity and Equality - One or Two Alone are not

Enough’ (1967) 16

Journal of Public Law 3, 8.

161

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 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 others 144, 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

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

144

AIR 1993 SC 477 : 1992 Supp. (3) SCC 217

145

Id. para 514.

146

(2002) 1 SCC 428

162

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 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

147

Indian Medical Association V. Union Of India, Civil Appeal No. 8170 Of 2009 & Writ Pet

ition (Civil) Nos. 320

Of 2009 & 192 Of 2010.

148

Id.

149

1994 Supp. (1) SCC 191

150

Id.

163

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 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

164

excellence in all spheres of individual and collective activity. In this

regard, a passage 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 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

151

(2005) 6 SCC 537

165

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 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

166

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.

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

167

complainant. The 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 another 152, 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 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

152

(2010) 6 SCC 243

168

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 widely. He has commended us to a passage from State of

Jammu and Kashmir v. Triloki Nath Khosa and others 153 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

153

(1974) 1 SCC 19

169

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 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.

154

(1986) 1 SCC 118

170

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 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".

168. In M. Veerappa v. Evelyn Sequeira and others155, a

155

171

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

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)".

(1988) 1 SCC 556

156

ILR 44 Mad 357

157

AIR 1960 MP 200

158

ILR 26 Bom 597

172

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 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

173

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, 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.

159

AIR 1965 SC 1451 : 1965 (2) SCR 823

174

Chokkappa160, the Court dealt with the applicability of 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 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

160

(1972) 2 SCC 680

175

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 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

161

(2012) 5 SCC 661

176

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 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 others 163 to highlight that

162

(1970) 1 SCC 590

163

(1969) 2 SCC 166

177

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 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..."

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

178

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 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

164

(2002) 3 SCC 343

179

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. State of Punjab and another 165 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

165

AIR 1966 SC 97

180

necessary and, in a way, immaterial, to consider whether he has

strictly proved the truth of the allegations made by him.

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 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

166

1971 (1) SCC 885

167

(1961) 3 SCR 486

181

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.

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

168

Wason v. Walter, (1868) 4 QB 73

169

1963 Supp (1) SCR 479

182

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 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

170

(1969) 1 SCC 37

171

(1999) 3 SCC 134

183

the subject-matter of accusation. In the said case the report of the

Treasury Officer clearly indicated that pursuant to the 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 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

172

(1981) 3 SCC 208

184

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.

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

173

(2009) 1 SCC 101

185

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 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

186

unreasonable, for they are neither vague nor excessive nor arbitrary.

There can be no doubt that Court can strike down a provision, if it is

excessive, unreasonable or disproportionate, but the Court cannot

strike down if it thinks that the provision is unnecessary or

unwarranted. 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 rights on the one hand

and the restrictions imposed on the other. Emphasis is on recognition

174

(2001) 2 SCC 386

175

2016 (4) SCALE 478

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

constitutional right which many laws do, such limitation

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 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

176

(1982) 2 SCC 33

188

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 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

177

AIR 1958 SC 731

178

(1998) 8 SCC 227

179

Proportionality : Constitutional Rights and Their Limitation by Aharon Barak, Cambri

dge

University Press, 2012

189

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 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 maintenance of

180

(1996) 5 SCC 216

190

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 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

191

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 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

192

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 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

193

jurisdiction or the power of such Magistrate to take cognizance of the

offence upon such complaint.

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. Jagadeesan 181

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 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

181

(2001) 6 SCC 30

194

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 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

182

(2000) 7 SCC 552

183

195

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

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

(1979) 1 SCC 380

196

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 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 no manner determines the

matter of constitutionality."

197

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&K 187 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:-

"... 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

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

198

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 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

199

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 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 independence and not

189

(2014) 10 SCC 380

200

act as a machine. The other ground of attack is that when a complaint

is filed in a Court of Session, right or appeal is curtailed. The said

submission suffers from a basic fallacy. Filing of a complaint before

the Court of Session has three safeguards, namely, (i), it is filed by the

public prosecutor; (ii) obtaining of sanction from the appropriate

Government is necessary, and (iii) the Court of Session is a superior

court than the Magistrate to deal with a case where a public servant is

defamed. In our considered opinion, when sufficient protection is given

and the right to appeal to the High Court is not curtailed as the CrPC

protects it, the submission does not really commend acceptation. In

view of the aforesaid, we do not perceive any justification to declare

the provisions ultra vires.

194. On behalf of petitionerFoundation 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 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

201

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 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

202

(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 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

203

process, as has been held in Rajindra Nath Mahato v. T. Ganguly,

Dy. Superintendent and another190, is a matter of judicial

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 means to wreak

personal vengeance. In Pepsi Foods Ltd. and another v. Special

Judicial Magistrate and others192 a two-Judge Bench has held that

190

(1972) 1 SCC 450

191

1993 Supp. (1) SCC 499

192

204

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 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

(1998) 5 SCC 749

205

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.

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

206

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 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

Non-Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

CRLMP NO. 15311 OF 2015

WRIT PETITION (CRIMINAL) NO. 80 OF 2015

VARUNA BHANDARI GUGNANI & ORS. ...PETITIONERS

VERSUS

UNION OF INDIA & ORS. ...RESPONDENTS

ORDER

This Criminal Miscellaneous Petition was filed on behalf of the

petitioners after the judgment was reserved in the Writ Petition. The

CrlMP has been filed for withdrawal of Writ Petition (Criminal) No. 80

of 2015. Keeping in view the assertions made in the petition, the same

208

is allowed and the Writ Petition (Criminal) No. 80 of 2015 is dismissed

as withdrawn. No costs.

.......................................J.

[Dipak Misra]

......................................J.

[Prafulla C. Pant]

New Delhi

May 13, 2016

209

ITEM NO.1A & 1B COURT NO.4 SECTION X/

(For Judgment) SECTION XVIA

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Writ Petition (Criminal) No.184/2014

SUBRAMANIAN SWAMY Petitioner(s)

VERSUS

UNION OF INDIA, MIN. OF LAW & ORS. Respondent(s)

WITH W.P.(Crl.) No.8/2015

W.P.(Crl.) No.19/2015

W.P.(Crl.) No.56/2015

W.P.(Crl.) No.64/2015

W.P.(Crl.) No.62/2015

W.P.(Crl.) No.63/2015

W.P.(Crl.) No.67/2015

W.P.(Crl.) No.79/2015

W.P.(Crl.) No.73/2015

W.P.(Crl.) No.82/2015

W.P.(Crl.) No.80/2015

W.P.(Crl.) No.77/2015

W.P.(Crl.) No.91/2015

W.P.(Crl.) No.98/2015

W.P.(Crl.) No.117/2015

W.P.(Crl.) No.118/2015

W.P.(Crl.) No.106/2015

W.P.(Crl.) No.121/2015

W.P.(Crl.) No.116/2015

W.P.(Crl.) No.119/2015

W.P.(Crl.) No.96/2015

W.P.(Crl.) No.110/2015

W.P.(Crl.) No.120/2015

T.P.(Crl.) Nos.102-105/2015

T.P.(Crl.) Nos.94-101/2015

Date: 13/05/2016 These petitions were called on for pronouncement

of Judgment today today.

Mr. K. Parasaran, Sr. Adv. (A.C.)

Mrs. Prabha Swami, A.C.

Ms. Aditi Dani, Adv.

Mr. Nikhil Swami, Adv.

Mr. Vineet Pandey, Adv.

Ms. V.E. Gayathri, Adv.

210

For Petitioner(s)

Petitioner-in-person

Mr. G.S. Mani, Adv.

Mr. A.A. Rockia Raj, Adv.

Mr. M. M. Kashyap, AOR

Mr. Vijay Kant, Adv.

Ms. Pratibha Jain, AOR

Mr. Chirag M. Shroff, AOR

Ms. Bina Gupta, AOR

Mr. Gautam Narayan, AOR

Mr. Kapil Sibal, Sr. Adv.

Mr. H.P. Raval, Sr. Adv.

Ms. Mahalakshmi Pavani, Sr. Adv.

Mr. Santosh Krishnan, AOR

Ms. Shiva Vijaya Kumar, Adv.

Mr. K.C. Mittal, Adv.

Ms. Tarunum Cheema, Adv.

M/s. Karanjawala & Co.

Mr. Nikhil Goel, AOR

Mr. Sachin Patil, AOR

Ms. Ruchi Kohli, AOR

Mr. Sanjay R. Hegde, Sr. Adv.

Mr. P.T. Perumal, Adv.

Mr. L. Siva Kumar, Adv.

Mr. Ram Sankar, Adv.

Mr. K.E. Langovan, Adv.

Mr. K. Mayilsamy, Adv.

Mr. G. Ananda Selvan, Adv.

Mr. Y. Lokesh, Adv.

Mr. V. Vasantha Kumar, Adv.

Mr. M. Rajaram, Adv.

Mr. R. V. Kameshwaran, AOR

Mr. Abhinav Mukerji, AOR

Mr. Bihu Sharma, Adv.

Mr. Siddharth Garg, Adv.

Ms. Purnima Krishna, Adv.

Mr. Vivek Agarwal, Adv.

211

Mr. Lalit Kumar, AOR

Mr. Mohit Paul, AOR

Mr. Anil Kumar Mishra-I, AOR

Mr. Snehasish Mukherjee, AOR

Mr. Aruneshwar Gupta, AOR

Mr. Abhijit Sengupta, AOR

For Respondent(s)

Mr. P. N. Puri, AOR

Mr. Subramonium Prasad, Sr. Adv.

Mr. M. Yogesh Kanna, AOR

Mr. Jayant Patel, Adv.

Mr. Gaurav Agrawal, AOR

Mr. Tarun Gupta, AOR

Mr. K.V. Jagdishvaran, Adv.

Ms. G. Indira, AOR

Mr. D. S. Mahra, AOR

Mr. Mansoor Ali, AOR

Mr. Vinay P. Tripathi, Adv.

Ms. Supriya Juneja, AOR

Mr. Merusagar Samantaray, AOR

Mr. Mahaling Pandarge, Adv.

Mr. Nishant Ramakantrao Katneshwarkar, AOR

Mr. Sella Kumar, Adv.

M/s. Corporate Law Group

Mr. Manoj Gorkela, Adv.

Ms. Priya Sharma, Adv.

Mr. Nagesh Gajghate, Adv.

Ms. Shashi Kiran, AOR

Mr. Balbir Singh Gupta, AOR

Mr. R. Gopalakrishnan, AOR

Ms. Binu Tamta, AOR

212

Mr. Renjith B., AOR

Mrs. Lakshmi N. Kaimal, Adv.

Mr. TSR Kumar, Adv.

Mr. Anas Muhammed Shanad R., Adv.

Mr. Arun Poomulli, Adv.

Mr. Guntur Prabhakar, AOR

Petitioner-in-person

Mr. Gopal Singh, AOR

Mr. Manish Kumar, Adv.

Mr. Shivam Singh, Adv.

Mr. Aditya Raina, Adv.

Mr. Shreyas Jain, Adv.

Hon’ble Mr. Justice Dipak Misra pronounced the

judgment of the Bench comprising His Lordship and Hon’ble

Mr. Justice Prafulla C. Pant.

The petitions are disposed of in terms of the signed

reportable judgment.

Crl.M.P. No.15311/2015 in Writ Petition (Crl.) No.80/2015

Hon’ble Mr. Justice Dipak Misra pronounced the order

of the Bench comprising His Lordship and Hon’ble Mr. Justice

Prafulla C. Pant.

The writ petition petition is dismissed in terms of

the signed non-reportable order.

(Chetan Kumar) (H.S. Parasher)

Court Master Court Master

(Signed reportable judgment and non-reportable order is

placed on the file)

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