In the Supreme Court of India Criminal original jurisdiction Case No. Writ petition (Criminal) No. 184 of 2014 Petitioner Subramanian Swamy Respondent Union of India, Ministry if Law & ors. Date of Judgement Decided on Jan 21, 2014 Bench Justice Dipak Misra CJI and Justice Prafulla C. Pant
The petitioners are several politicians charged with criminal defamation under Sec 499 of IPC. They filed this Writ Petition before the Supreme Court of India alleging that the Sec 499 and Sec 500 of IPC and Sec 199(1) and Sec 199(4) of CrPC are liable to be held as unconstitutional. The petitioners contended that the freedom of speech and expression which is basic and vital for a parliamentary democracy is being violated by Sec 499 and Sec 500 of IPC. And that Art 19(2) cannot be regarded as a source of authority for Sec 499 since the provision of Constitution is aimed to safeguard the interests of the State and the general public and not of any individual. The Petitioners also challenged the issue of summons against them by contending that the exceptions under Sec 499 should be considered at the stage of issuance of summons itself.
It was also contended that Sec 199(2) CrPC creates two kinds of procedures, one having the advantage over the other. On the other hand the respondents contended that freedom of speech and expression under Art 19(1)a is not an ulyimate right and the right to reputation is also an important facet of right to life and individual dignity. And that availability of the provision for Civil Action cannot be a ground for invalidating any provisions for criminal action. The injury to reputation cannot be adequately compensated by money. The Court after analysing in detail the concept of reputation, the freedom of speech and expression, various international covenants, position of law in foreign countries and the judgments of various Indian Courts upheld the Constitutional validity of Sec 499 and Sec 500 of IPC and Sec 199 of CrPC.
The Writ Petition was filed by several of the politicians like Subramanian Swamy, Rahul Gandhi and Arvind Kejiriwal who had been charged with criminal defamation as provided under Sec 499, 500 of IPC. This petition dealt with the constitutional validity of Sec 499 and 500 of Indian Penal Code, 1860 and Sections 199(1) and 199(4) of the Code of Criminal Procedure, 1973. Sec 499 of the IPC provides for defamation and Sec 500 for punishment in respect of the said offence. Sec 499 says that 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 to defame that person. The section also gives 10 exceptions upon which the act would not be deemed to be defamatory. Sec 500 states that whoever defames another shall be punished with simple imprisonment for a term which may extend to two years.
Section 199 of CrPC provides for prosecution for defamation. Sec 199(1) says that Court shall take cognizance of an offence punishable under Chapter XXI of the Indian Penal Code only when a complaint is made by the aggrieved person. This provision does not operate in the case of persons under 18 years of age, an idiot, a lunatic, a person unable to make a complaint from sickness or infirmity or a woman ought not to be compelled to appear in public. Sec 199(2) satate that when an offence under Chapter XXI of IPC is alleged to have been committed against a person who is the President, Vice President or Administrator of a Union Territory etc a Court of Session may take cognizance of such offence without the case being committed to it upon a complaint made by the Public Prosecutor. Sec 199(4) says about complaint made by the Public Prosecutor.
The constitutionality of these provisions was challenged in the instant Writ Petition.
The issues raised in this case are:
- Whether Sec 499 of CrPC is violative of freedom of speech and expression under Art 19(a) of the Constitution.
- Whether Sec 199(1) and 199(4) is violative of Art 19(a) of the Constitution.
Arguments in favour of the Petitioners
The arguments advanced in favor of the petitioners are as follows:
1. The right to uninhibited freedom of speech under Art 19(1)a is vital for the sustenance of parliamentary democracy. Sec 499 of IPC ex facie infringes free speech and is a serious inhibition on the fundamental right under Art 19(1)(a).
2. The power under Art 19(2) to impose reasonable restrictions is intended to safeguard the interest of the State and not of any individual. And so Art 19(2) cannot be regarded as a source of authority for Sec 499 IPC.
3. A restriction that goes beyond the requirement of public interest cannot be considered as a reasonable restriction and would be arbitrary.
4. Art 19(2) is an exception to Art 19 and so it needs to be construed narrowly and not liberally.
5. Defamation of an individual is a civil wrong, for which the common law remedy is an action for damages.
6. Defamation of any person is unconnected with fundamental right under Art 19(1)a and so Sec 499 is outside the scope of Art 19(2)
7. Right to one’s reputation which is a facet of Art 12 is basically applicable against State and hence Art 19 (2) cannot be invoked.
8. Crime is an offence against the society of which the state is the custodian, defamation of any person by private person cannot be treated as a “crime” for it does not subserve any public interest.
9. The provision even goes to the extent of speaking of truth as an offence punishable with imprisonment and thus defeats the cherished value as enshrined under Art 51-A(b) which is associated with the national struggle of freedom.
10. The requirement of the accused having to prove that the statement made by him was for public good is unwarranted and unreasonable because the words “public good” are quite vague.
11. The procedural provisions Sec 199 of CrPC do not pass the test of reasonableness as envisaged under Art 19(2) of the Constitution.
12. The classification under Sec 199(2) CrPC is impermissible as it provides a different procedure for certain category of person and Court of Session to be the Court of first instance, and thereby creates two kinds of procedure and effects the equality clause.
Arguments in favour of Respondents
The arguments advanced in favour of the respondents are as follows;
1. Art 19(1)(a) is not an unbridled right to free speech or defamatory speech since Art 19(2) is an integral part of right to free speech.
2. The right to free speech under Art 19(1)(a) is itself conditioned/qualified by restrictions contained in Art 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.
3. Contextual meaning of the term “defamation”; and the grounds of exceptions under Art 19(2) represent a public interest as its principal object is to preserve reputation as a shared value of the collective.
4. The stand that Sec 499 puts private wrong at the level of public wrong is totally incorrect, as defamation or damage to reputation is an act that is meant to subserve basic harmony in polity.
5. An injury to reputation cannot be adequately compensated in monetary terms and the stand that the same can be remedied through by way of obtaining a decree from the civil court is not justified.
6. There has to be a balancing of rights enshrined under Art 19(1)(a) and Art 21 since a person’s reputation is an element of individuals personality under Art 21 and it cannot be allowed to be tarnished in the name of right to freedom of speech. Moreover the right to speech and expression does not mean right to offend.
7. Protection of reputation can be achieved by taking recourse to civil law cannot be a ground to declare Sec 499 as unconstitutional. Remedy under Civil law and Criminal law for defamation are difference and hence do not constitute any discomfort to any of the provisions of the Constitution.
8. The value of freedom of speech cannot be allowed to have the cromatosing effect on individual dignity, which is also an integral part under Art 21.
9. The provision have stood the test of time after the commencement of the Constitution and the concept of “reputation” has not been diluted but has become an essential constituent of Art 21.
10. The ten exceptions provide reasonable safeguard to the provision and so it can never be said that the provision suffers from lack of guidance thereby inviting the frown of Art 14 of the Constitution.
11. The argument that the word “defamation” in Art 19(2) must be read by applying the rule of noscitur a sociis is not correct as the word “defamation” is clearly not susceptible to analogous meaning with the other grounds mentioned therein.
The Court in the judgment makes an analysis of the concept and definition of the term ‘defamation’ and ‘reputation’. And then the Court examined various International Covenants that stress the significance of reputation and honour in a person’s life including the Universal Declaration on Human Rights, 1948, European Convention for the Protection of Human Rights and Fundamental Rights and Fundamental Freedoms and the International Covenant on Civil and Political Rights. The Court also makes note of the law relating to reputation, freedom of speech and defamation in foreign countries for instance in U.K the Court is of the opinion that ‘freedom of speech may be subject to such restrictions as are prescribed by law and are necessary in a democratic society for the protection of the reputation of others.
Thereafter the Court came into the Indian perspective of reputation and freedom of speech, and then refers to the case Board of Trustees of the Port of Bombay v. Dilipkumar Raghvendranath Nadkarni and others. In this case the Court has opined that expression of “Life” does not merely connote animal existence or a continued drudgery through life, it has a much wider meaning and that ‘reputation’ of a person is the finer graces of human civilization which make life worth living and the same can be jeopardized only by law which inheres fair procedures. In Umesh Kumar v. State of Andhra Pradesh and another, the Court observed that personal rights of human beings include the right of reputation.
Another issue considered by this Court was whether the said doctrine of noscitur a soccis should be applied to the expression “incitement of an offence” used in Art 19(2) so that it gets associated with the term “defamation”. The Court was of the considered opinion that there is no warrant to apply the principle 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 the incitement to constitute an offence. And it is difficult to accede to the submission that defamation can only get criminality if it incites to make an offence.
The Court also opined that Sec 499 which stipulates defamation of a private person by another individual, has no nexus with Art 19(1) (a) of the constitution, for Art 19(2) involves the public interest and not that of an individual and therefore the provision cannot be the source of criminal defamation.
The Court also took note of the significance of freedom of speech and expression in a democratic country quoting the judgment of the Court in various cases including the case of Indian Express Newspapers, Romesh Thappar and Union of India v. Naveen Jindal and Another. The Court also examined in detail the concept of reasonable restriction, the extend to which such restriction can be applied and the grounds of such restrictions and referred to cases including Dr. N.B Khare v. The State of Delhi and V.G Row. However the Court also stated that the right is subject to limits which are proportionate and not unlimited.
The Court repelled the contention that the exceptions under Sec 499 are required to be considered at the time of summoning the accused and not conceiving the same in provision would make it unconstitutional. It was stated that it is settled position of law that those who plead an exception must prove it and with regard to taking into consideration the exceptions at the time of issuing the summons would be contrary to established criminal jurisprudence.
In view of the aforesaid analysis, the Court upheld the constitutional validity of Sec 499 and 500 of the Indian Penal Code and Section 199 of the Code of Criminal Procedure. The Court also held that it will be open to the petitioners to challenge the summons issued against them before the High Court under Art 226 or under Sec 482 of CrPC.
The most important function of any democratic Government is to maintain the balance between various rights enjoyed by the public. If such a balance is not arrived then the entire system of the country will go into chaos. This instant case presents a similar situation, the two conflicting rights being freedom of speech and expression and right to reputation. The Court through this judgment has very aptly striked a balance between these two rights.
The Court has carefully examined the scope and significance of both the rights, and then realized the need for balancing the two rights. This judgment very efficiently describes the importance of freedom of speech and expression but at the same time states that the same freedom is not devoid of any limit and that this freedom cannot be exercised by any individual to harm the reputation of another. Thus it can be said that this judgment will provide a good precedent for any conflicts that arise in exercise of rights and freedom enjoyed by the public.