Supreme Court Upholds Law on Criminal Defamation

The freedom of speech and right to expression are fundamental rights, but these rights are not absolute, the court said.

New Delhi: The Supreme Court today upheld the law on criminal defamation, observing that the fundamental right to freedom of speech and expression is subject to reasonable restrictions and cannot be misused to tarnish or sully the reputation of another individual. It rejected the charge that the law had a chilling effect on right to free speech and criticism in a democracy.

A bench of Justices Dipak Misra and Prafulla C. Pant in its 268-page judgment said that a person’s reputation was an inextricable aspect of the right to life under Article 21 of the Constitution. In order to sustain and protect the reputation of an individual, the State has kept the provision under IPC section 499 alive as a part of law. In the name of freedom of speech and expression, the right of another cannot be jeopardised.

The bench disposed of petitions filed by BJP leader Subramanian Swamy, Congress leader Rahul Gandhi, Delhi Chief Minister Arvind Kejriwal, actor Vijaykanth and several others who drew the court’s attention to how IPC sections 499 and 500 are being misused to target political opponents. The majority of defamation complaints were filed in Tamil Nadu by Chief Minister Jayalalithaa and other ministers.

Writing the judgment, Justice Misra said the right to upholding one’s reputation is a constituent of Article 21 of the Constitution. It is an individual’s fundamental right, therefore balancing of fundamental rights is imperative. The freedom of speech and right to expression are also fundamental rights, but these rights are not absolute.

Pointing out that a balance between the two rights needed to be struck, the bench said a person’s “reputation” could not be allowed to be crucified at the altar of the other’s right of free speech. Therefore, the legislature had not thought it appropriate to abolish the criminality of defamation.

The petitioners pleaded for striking down sections 499 and 500 because the existence of defamation as a criminal offence had had a chilling effect on the right to freedom of speech and expression.

The bench said that though it could not be ignored that the right to freedom of speech and expression was a highly valued and cherished right, the Constitution conceives of reasonable restriction. In that context, criminal defamation was not a restriction on free speech that could be characterised as disproportionate. Right to free speech could not mean that citizens could defame each other. Protection of a person’s reputation was a fundamental right and a human right. Cumulatively, it served social interest, the court said.

Talking about free speech, the judges said the right to say what may displease or annoy others could not be throttled or garroted. They  said that there could never be any cavil over the fact that the right to freedom of speech and expression was a right that had to get ascendance in a democratic body polity, but at the same time it was not unlimited. Criticism was different than defamation, they added. One was bound to tolerate criticism, dissent and discordance but not expected to tolerate defamatory attack. However, in defamation cases, the complainant had to show that the accused had intended, known or had reason to believe that the comments made would harm the reputation of the complainant.

On section 199 of the IPC relating to the sanction for prosecution by government servants and filing complaints through the public prosecutor, the bench said the provision gave public servants protection for their official acts. There could not be defamatory attacks on them because of doing their jobs. In that sense, they constituted a different class, the court said.

It cautioned magistrates concerned and said they should be careful in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing summons, lest it would be an instrument in the hands of the private complaint as vendetta to harass others needlessly.

Since the bench declared the provisions to be constitutional, it said that it would be open to the petitioners to challenge the issue of summons before the high court within eight weeks either under Article 226 of the Constitution or section 482 of the CrPC (to quash the proceedings) and seek appropriate relief.

The interim stay of criminal defamation proceedings granted by this court remains in force for a period of eight weeks. However, it was made clear that if any of the petitioners had already approached the high court and been unsuccessful, they would have to face trial and put forth his defence in accordance with law.