This article is written by Nishtha Garhwal, from Alliance School of Law, Bangalore. The article talks about how the provision of criminal defamation imposes a restriction on the Right to Freedom of Speech and Expression and how the constitutionality of this provision was challenged in the case of Subramanian Swamy v. Union of India.
Table of Contents
If we look at the past, a varied pattern while dealing with the cases of defamation had been followed by the Supreme Court. The blasphemy laws, obscenity law, and sedition laws of the colonial era have been upheld by the Supreme Court in the cases of Ramji Lal Modi v. State of Uttar Pradesh (1957), Ranjit D. Udeshi v. State of Maharashtra (1964), and Kedar Nath Singh v. State of Bihar (1962) respectively. The Apex Court had also upheld the pre-censorship of films in the case of K.A Abbas v. Union of India (1971).
In addition to this, in the case of Madhu Limaye v. Sub-Divisional Magistrate (1971), the wide powers of the police in order to curtail free association was also upheld by the Supreme Court of India. However, this has limited and restricted the scope of anti-terror laws by putting incitement to violence as a pre-condition in order to punish members of banned organizations.
With the challenge to the constitutionality of criminal defamation in the case Subramanian Swamy v. Union of India (2016), the Supreme Court had the opportunity to build a legacy of progressive and free speech rulings.
Section 499 of the Indian Penal Code, 1860 is about the offense of criminal defamation. The speech that is intended to harm any person’s reputation is criminalized by this provision. The provision is very wordy and also mentions the instances where the provision can be abused in order to silence critical reporting. There are about 125 defamation cases that have been filed against the Hindu by the Tamil Nadu government where such abuse of the provision of criminal defamation has happened.
The provision had been present in the Indian Penal Code, 1860 since the Code was first drafted and has completed around 155 years of being present in the statute books. Thus, it is very surprising that a constitutional challenge to this old provision took so long to materialize.
The Right to Freedom of Speech and Expression is guaranteed under the Constitution of India under Article 19(1)(a). However, the power to impose reasonable restrictions upon the freedom of speech and expression has been given to the state by virtue of Article 19(2) of the Constitution of India. These restrictions can be imposed in the interests of eight separate categories, for instance, public order and decency or morality.
Defamation is one among these eight categories where a reasonable restriction can be imposed on the right to freedom of speech and expression. Prima facie, it appears that since the framers of the Constitution have written defamation as one of the categories under Article 19(2), then criminal defamation is obviously a permissible restriction that can be imposed on the freedom of speech and expression. However, this does not necessarily hold true.
As per the Constitution of India, in the interests of one of the eight categories mentioned under Article 19(2), the state may not simply put restrictions on the speech but the restriction imposed must be reasonable.
The Apex Court has been able to develop rich jurisprudence over so many decades around the question of what restriction can be called a ‘reasonable restriction’. As per the Supreme Court, one of the key components of a reasonable restriction is that the restriction must be drawn narrowly. In simple words, it means that its laws must be framed by the state in such a way that they restrict speech only to the extent of what is necessary in order to achieve a legitimate goal. If a law goes beyond the necessary extent, it can be labeled as overbroad, and thus, it must be invalidated. This ensures that the state is careful while imposing restrictions that curtail the liberties of the individuals as the state will be held liable to hold its strict account. It also provides protection against the chilling effect of vague and wordy legislation on the Right to Freedom of Speech and Expression that prompts self-censorship by the people so as to remain on the right side.
Burden of criminal law
A striking feature of the law of defamation in India is that it exists in two forms. It falls under civil as well as a criminal offense. The provision of defamation under both Criminal and Civil law seeks to address the issue of damage to reputation. If it is viewed under Civil law, the offender is ordered to compensate the victim, and if it is viewed under Criminal law, the guilty person is said to commit a wrong against the state and is, therefore, punished by imprisonment. But here, the question arises of how this duality in the law of defamation can be explained.
Medieval England was a place where the tormentor was challenged to a duel in response to an insult from them. This was the most acceptable way of responding to an insult. The authorities had the headache of frequent duels. Later, the remedy of criminal defamation was introduced into the law in order to maintain public order. The linking of defamation with the need that the crime must be a wrong against the state or community at large in some way is because of the notion of public order. Therefore, a crime cannot be an offense against a private individual.
When the draft of the proposed Indian Penal Code was being discussed by the British Indian Law Commissioners back in 1838, they acknowledged the history of England. However, they made a decision to introduce criminal defamation into the Indian Penal Code without requiring any nexus with public order. Thus, in the Indian Penal Code, criminal defamation looked like a public remedy against a private wrong. This is something very peculiar as, without the underlying objective of public order that provided justification to the criminalization of the offense of criminal defamation, the purpose of criminal defamation is completely lost. If the objective is to redress a person for any damage that is inflicted to their reputation, there is civil defamation which requires the offender to compensate the victims. Thus, it can be said that criminal defamation is something unnecessary and excessive. It is not just superfluid but it is much worse than civil defamation.
As compared to the civil remedies for defamation, the speech is restricted to a far greater extent by criminal penalties for defamation. The criminal penalties put a lot of burdens upon the accused which include the threat of arrest at any point in time and the probability of eventual imprisonment. Any number of cases can be filed against the accused in case of criminal defamation and the accused is asked to be necessarily present at the place of the hearing. In case, the accused persons have a good defense for defamation, they are not permitted to bring up this defense before the commencement of the trial. Therefore, even in most frivolous cases, the accused has to undergo the long pre-trial stage and face the legal process which can be dragged on for months or years. These things are an open invitation to harassment and therefore, have a deep and pervasive chilling effect upon the would-do speakers and deter them from saying something critical.
Therefore, keeping in mind all the above reasoning, a disproportionate restriction is put on the Right to Freedom of Speech and Expression if the defamation cases that can be placed under Civil law are dealt with under Criminal law. And, this fails the requirement of reasonableness under Article 19(2) of the Constitution of India.
Subramanian Swamy v. Union of India case
In 2014, corruption charges were made by Dr. Subramanian Swamy against Ms. Jayalathitha. Defamatory cases were filed by the State Government of Tamil Nadu against Dr. Subramanian Swamy in response to these allegations. Later, the constitutional validity of the offense of criminal defamation was challenged by Dr. Subramanian Swamy along with some other prominent politicians.
This is one of the landmark cases as far as criminal defamation is concerned. This was also the first case in which the Supreme Court conducted a hearing on a frontal challenge to the constitutionality of one of the oldest and most strict laws that restrict speech, that is, criminal defamation. The challenges to the constitutional validity of the offense of criminal defamation under the Indian legal system were dismissed by the Supreme Court in this case.
The various Petitioners involved in this case included some notable politicians like Subramanian Swamy, Rahul Gandhi, Arvind Kejriwal on whom the charge of criminal defamation was put. Under Article 32 of the Constitution of India, several petitions were filed through which the constitutional validity of criminal defamation as an offense which is mentioned under Section 499 and Section 500 of the Indian Penal Code, 1860 and Section 199(1) to Section 199 (4) of the Indian Code of Criminal Procedure, 1973 was challenged.
The Petitioners challenged the constitutionality of the offense of criminal defamation on the ground that it hampered their Right to Freedom of Expression guaranteed under Article 19(1)(a) of the Constitution of India. The criminal proceedings against the Petitioners had stayed pending the constitutional proceedings.
Arguments of the Petitioner
It was argued by the counsel for the Petitioner that the concept given under Article 19(2) of the Constitution of India is something very broad and restrictions can be imposed upon it. However, the careful narrow construction of these restrictions must take place. The principle of noscitur a sociis (that is, in order to understand and determine the meaning of an unclear or ambiguous term mentioned under the statute, the words with which it is associated in the context must be considered) has to be applied in order to understand the exception.
The counsel for the Petitioner contended that defamation is a civil wrong, that is, in personam. Therefore, it falls outside the scope of the Fundamental Rights which are conferred in the interests of the public at large. Under Article 21 of the Constitution of India, an individual’s right to reputation is a private right and thus, when a private person makes a defamatory statement, it cannot be regarded as a criminal act as it does not promote any public interest. Therefore, it would be unconstitutional to include defamation as a criminal offense that protects the rights in rem. Hence, Section 499 of the Indian Penal Code, 1860 would fall outside the scope of Article 19(2) of the Constitution of India.
It was also pointed out by the counsel for the Petitioner that since Section 499 of the Indian Penal Code,1860 goes beyond the general public’s interests, it falls outside the scope of the reasonable restrictions under Article 19(2) of the Constitution of India. Thus, it contended that if a law deprives a person of their Right to speak the truth, it should be struck down as being unconstitutional. The requirement of proving that a defamatory statement was made for public good also stands out of the limits of reasonableness.
Arguments of the Respondent
It was argued by the Attorney General, the counsel for the Respondents, that the restrictions under Article 19(2) of the Constitution of India should not be read in isolation but must be read with context. Article 19(1)(a) of the Constitution of India is not a standalone and absolute right and thus, restrictions can be imposed upon this right.
The counsel for the Respondents disregarded the inefficient distinction between private and public wrong made by the counsel of the Petitioner by linking the public wrong with the injury caused to the public as a whole. It was argued by the counsel for the Respondent that harm to the reputation can not always be compensated in terms of money and keeping this in mind, it further contended that the Right to Reputation cannot be separated from the Right to Dignity that falls under the purview of Article 21. The Right to Reputation also dissects the Right to Freedom of Speech and Expression from the Right to Offend.
The Attorney General hinged over the debates of the Constituent Assembly and argued that since there existed no other legal provision, thus, in order to provide constitutional protection to Section 499 under the Indian Penal Code,1860, the express provision of restrictions under Article 19(2) of the Indian Constitution was made. Thus, if these restrictions under Article 19(2) are read in isolation and not along with Section 499 of Indian Penal Code,1860, the whole purpose of placing reasonable restrictions would be defeated.
As far as the distinction between the establishment of personal rights and the rights of society at large under Article 14, Article 19, and Article 21 of the Indian Constitution is concerned, such a distinction would be misleading. Even the Court in its various precedents has established Article 14, 19, and 21 to be one, and thus, this makes the arguments of the Petitioner indefensible.
In addition to this, Section 199(1) of the Criminal Procedure Code, 1973 provides protection to the Freedom of Speech and Expression. This Section puts a burden on the Petitioner to pursue the criminal complaint without involving the state prosecution machinery. Therefore, this provision deters anyone from filing a frivolous petition that would otherwise overburden the Magistrate’s courts.
Case outcome and judgment
The challenges to the constitutionality of the offense of criminal defamation were dismissed by the Apex Court and the Court said that the restrictions that were imposed on the Right to Freedom of Expression by the criminalization of the offense of defamation were reasonable and just in nature. The Court also said that there exists a constitutional duty to respect the dignity of other people.
Therefore, the constitutionality of the criminal offense of defamation under Section 499 and Section 500 of the Indian Penal Code, 1860 was upheld by the Supreme Court. The Court relied on the judgments given by other countries on this issue and said that the Right to Reputation falls under the Right to Life given under Article 21 of the Constitution of India.
The judgment of the case was delivered by Justice Dipak Misra and Justice Prafulla C. Pant also agreed with this. If we deeply study the judgment, it starts with the analysis of the meaning of the terms ‘defamation’ and ‘reputation’ as well as their interaction with the Right to Freedom of Speech and Expression guaranteed under the Constitution of India.
The Court, after conducting the review of various authorities, found that both these terms were clear and unambiguous. In addition to this, the Court said that ‘Reputation’ as a concept is something which is a part of the protection of ‘Dignity’ that is included under Article 21, that is, the Right to Life and Personal Liberty.
Restriction on Right to Freedom of Speech and Expression
The Court took this opportunity and emphasized the sanctity as well as the significance of the Right to Freedom of Speech and Expression in a democracy and at the same time, it was pointed out by the Court that this right was subject to reasonable restrictions. However, such restrictions should not be too much, yet they must serve the public interest. The legislation which imposes such restrictions should not be arbitrary such that they intrude upon the rights of the people.
Therefore, there shall be a balance between the Right to Freedom of Speech and Expression and the restrictions imposed on this right. Such a balance can be achieved by weighing the importance to society of the Freedom of Speech and Expression against the societal importance to the public interest that is sought to be protected.
Protection of reputation under Article 21
The Court noted that the criminal law has been chosen by the State as one of the things that would protect reputation. Keeping in mind that reputation is protected under Article 21, the Court said that it cannot subscribe to the view that the offense of criminal defamation hinders the Right to Freedom of Speech and Expression. It was emphasized by the Court that the law on criminal defamation is very clear and thus, this law can be distinguished from the other laws that had been struck down in the past as they were infringing the Right to Freedom of Speech.
Duty of every citizen to protect the dignity of fellow citizens
The Court took the liberty to further emphasize the significance of the concepts of constitutional fraternity and fundamental duty. As per these concepts, there is a constitutional duty as well as an expectation from every citizen of the country to respect the dignity of their fellow citizens. Since this is a duty that is imposed by the Constitution on each and every citizen of the country, it would not be sound to conclude that the existence of defamation as an offense under the law hinders the Right to the Freedom of Speech and Expression. The Court also addressed the question of whether the concept of ‘reasonableness’ was violated by the provisions of criminal defamation whether substantively or procedurally. The Court also examined whether these provisions of criminal defamation are vague, arbitrary, or disproportionate.
The Court, after examining the four explanations that are included under Section 499 of the Indian Penal Code, 1860 concluded that these provisions are not vague or unambiguous. It was noted by the Court that imputation can be treated as defamation only if it lowers the character of a person or their credit in the estimation of others either directly or indirectly. The Court in this case observed that truth can be taken as a defense in case of defamation only if the defamatory statement was made for the good of the public at large. Therefore, the Court gave its view that if a defamatory statement is not made for serving the public good but only to malign a person, the statement should not be constitutionally protected.
At last, the Court said that the provision of criminal defamation under the Indian Penal Code, 1860 is not disproportionate. In addition to this, the Court said that whether a restriction that is imposed on the Freedom of Speech and Expression is reasonable and proportional is not determined from the viewpoint of the person upon whom such restrictions are imposed. But, this is determined by examining the standpoint of the interest of the public at large. Applying this, the Court held that the provisions of criminal defamation are not arbitrary or vague. The Court rejected the contention made in the case that defamation is a fundamental notion of the majority in order to crush the Freedom of Speech and Expression of others.
The Court pitched over to Dr. B.R Ambedkar’s speech for addressing the issue of exaggeration of the term ‘defamation’ by virtue of the restrictions under Article 19(2) of the Indian Constitution and it pointed out that the drafters while drafting Article 19(2) of the Indian Constitution and imposing restrictions on the Freedom of Speech and Expression had the intention of leaving it to the courts to decide as to what would fall under a reasonable restriction and thus, did not specifically defined the terms like ‘defamation’ and ‘public order’.
In the history of the Supreme Court, lies the most powerful and most strong argument against the constitutionality of criminal defamation. A judgment was delivered by the Apex Court in 1994 in the case of R. Rajagopal v. State of Tamil Nadu (1994) in which it was recognized by the Court that the provision of civil defamation under the Indian legal system poses an unreasonable restriction on the Right to Freedom of Speech and Expression. Under this provision, the burden of proving the ‘truth’ of the defamatory statement is on the maker of such a statement. There is no space for letting off of honest mistakes or for mistakes that had been made despite taking all due care by the person.
In a popular case of the United States of America, New York Times v. Sullivan (1964), it was asserted by the Supreme Court that free speech requires ‘breathing space’ in order to survive. In simple words, it means that there must be freedom to make mistakes. The Court held that as far a speech about public officials is concerned, it would not be ample to show that a statement was defamatory and false. It is also required to prove that the speaker was aware of the fact that the statement was false and despite that he acted with reckless disregard as to its truth or falsity.
A strange and peculiar regime set by the judgment delivered by the Supreme Court of India in the Rajagopal case. Along the lines of the law in America as well as other liberal jurisdictions, civil defamation was placed under strict and speech-protective standards. If we look at Section 499 of the Indian Penal Code,1860, it reveals that the provision of criminal defamation is much worse than civil defamation which was held unreasonable and inconsistent with the Rajagopal case.
As per Section 499 of the Indian Penal Code,1860, it must be proved by the accused that the defamatory statement was made in ‘public interest’ in addition to proving the truthfulness of the statement. Now, the public interest is a very compendious term and thus, it becomes very difficult for the speaker to know on which side of the line their speech would fall before making that speech. This has a chilling effect even on legitimate speech as it prompts the speaker to do self-censorship. This was also the concern of the Court in the Rajagopal case and this led the Court to make modifications to the civil law of defamation.
In order to neutralize the chilling effect on the Right to Freedom of Speech and Expression produced by the provision of criminal defamation, many jurisdictions have either struck down criminal defamation as unconstitutional or have introduced enough safeguards to the Freedom of Speech on the lines of the Sullivan case in America. However, Section 499 of IPC is precise and clear and it admits no creative judicial modifications. Thus, in one view, criminal defamation can be regarded as an unreasonable restriction on the Right to Freedom of Speech and Expression.
Section 499 of the Indian Penal Code,1860 defines criminal defamation and the punishment for the same is prescribed under Section 500 of the Indian Penal Code, 1860. In simple terms, defamation can be defined as any speech or words that are intended to harm the reputation of a person in the eyes of others. This could be either written words or spoken works. In addition to this, visible representations also fall under the purview of defamation. However, the provision of criminal defamation includes some exceptions like imputation of truth that was required for the good of the public at large, a person’s conduct that touches any public question or expressing opinions on a public performance.
The case of Subramanian Swamy v. Union of India placed two challenges before the Apex Court. First, the Court had to determine whether the provision of criminal defamation is a superfluid restriction on the Freedom of Speech and Expression, and secondly, the Court had to determine whether Section 499 and Section 500 of the Indian Penal Code, 1860 were ambiguously and arbitrarily drafted.
However, the Supreme Court in the Subramanian case held that these Sections are not superfluid restrictions on the Right to Freedom of Speech and Expression. The Court noted that whatever affects an individual, in turn, affects society as a whole. Thus, it said that defamation must be considered a public wrong.
Since the protection of the reputation is a human as well as a fundamental right, the Court held that criminal defamation does not impose an unreasonable restriction on the Right to Freedom of Speech and Expression. Further, the Court held that Section 499 and Section 500 of the Indian Penal Code, 1860 are not arbitrarily framed.
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