By Harpreet Kaur, Advocate

The Supreme Court of India dismissed challenges to the constitutionality of the criminal offence of defamation, holding that it is a reasonable restriction on the right to freedom of expression.

Facts

Numerous petitions were filed under Article 32 of the Constitution of India challenging the constitutional validity of the offense of criminal defamation as provided for in Sections 499 and 500 of the Indian Penal Code and Sections 199(1) to 199(4) of the Indian Code of Criminal Procedure, 1973. The Bench comprising of Justices Dipak Misra and PC.Pant while deciding Writ Petition (Criminal) No. 184 OF 2014held that the right to Life under Article 21 includes right to reputation. The Bench has dismissed the Petitions filed by Subramanian Swamy, Rahul Gandhi and Aravind Kejriwal challenging the law relating to Criminal Defamation in India.

Observations

Firstly, the Bench considered various definitions of defamation, one of which is of  Halsburys Laws of England, Fourth Edition, Vol. 28, it  defines ‘defamatory statement’ as: “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.”

While speaking about reputation, it observed that 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. In  Vishwanath  Agrawal  v.  Saral  Vishwanath Agrawal (2012) 7 SCC 288, 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 Gian Kaur v. State of Punjab (1996) 2 SCC 648, this Court observed that the right to reputation is a natural right.”

The Bench also considered various International Covenants, such as UDHR, ICCPR, European Convention for the Protection of Human Rights and Fundamental Freedoms, etc and thereafter considered Perception of the Courts in United Kingdom, U.S., Canada etc. as regards Reputation and observed: “While deliberating on possible balance between the right to reputation and freedom of expression, in Campbell v. MGN Ltd, (2004) UKHL 22 at para 55, 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. …”

Bench further observed that: “The concept of crime is essentially concerned with social order. It is well known that man’s interests are best protected as a member of the community. Everyone owes certain duties to his fellow-men and at the same time has certain rights and privileges which he expects others to ensure for him. This sense of mutual respect and trust for the rights of others regulates the conduct of the members of society inter-se. Although most people believe in the principle of ‘live and let live’, yet there are a few who, for some reason or the other, deviate from this normal behavioural pattern and associate themselves with anti-social elements. This obviously imposes an obligation on the State to maintain normalcy in the society. This arduous task of protecting the law abiding citizens and punishing the law breakers vests with the State which performs it through the instrumentality of law. It is for this reason that Salmond has defined law as a ‘rule of action’ regulating the conduct of individuals in society. The conducts 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.”

 With respect to interpretation of Constitution, it observed, In S.R. Chaudhuri v. State of Punjab and others (2001) 7 SCC 126, 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.

In Sakal Papers (P) Ltd. v. Union of India AIR 1962 SC 171, it has been held that it must be borne in mind that the Constitution must be interpreted in a broad way and not in a narrow and pedantic sense. Certain rights have been enshrined in our Constitution as fundamental and, therefore, while considering the nature and content of those rights the Court must not be too astute to interpret the language of the Constitution in so 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.”

 As regards Article 19, it observed that “In Union of  India  v.  Naveen  Jindal  and another (2004) 2 SCC 510, the Court has laid down that freedom of expression is a cornerstone of functioning of the democracy and there is a constitutional commitment to free speech. In Government of Andhra Pradesh and others v. P. Laxmi Devi (2008) 4 SCC 720, 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….. The significance of freedom of speech has been accentuated in Ramlila Maidan Incident, In re (2012) 5 SCC 1, by observing that the freedom of 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.”

 However, it noted that “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 to imposition of reasonable restrictions.”

 It further observed that “In S. Khushboo v. Kanniammal and another (2010) 5 SCC 600, 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.”

 Regarding Section 199 CrPC, it observed that 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 (2001) 6 SCC 30, 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.”

 Decision

  • To constitute the offence (of defamation), there has to be imputation and it must have made in the manner as provided in the provision with the intention of causing harm or having reason to believe that such imputation will harm the reputation of the person about whom it is made. Causing harm to the reputation of a person is the basis on which the offence is founded and mens rea is a condition precedent to constitute the said offence. The complainant has to show that the accused had intended or known or had reason to believe that the imputation made by him would harm the reputation of the complainant.
  • The 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 punishment for harm caused to the reputation of a person, that is, the complainant.
  • Reasonableness and proportionality of a restriction is examined from the stand point of the interest of the general public and not from the point of view of the person upon whom the restrictions are imposed. Applying this standard, the Court judged the criminal defamation laws to be proportionate. It rejected the contention that defamation is fundamentally a notion of the majority meant to cripple the freedom of speech and expression as too broad a proposition to be treated as a guiding principle to adjudge the reasonableness of a restriction.

Lastly, Supreme Court held that “In view of the aforesaid analysis, we uphold the constitutional validity of Sections 499 and 500 of the Indian Penal Code and Section 199 of the Code of Criminal Procedure. During the pendency of the Writ Petitions, this Court had directed stay of further proceedings before the trial court. As we declare the provisions to be constitutional, we observe that it will be open to the petitioners to challenge the issue of summons before the High Court either under Article 226 of the Constitution of India or Section 482 CrPC, as advised and seek appropriate relief and for the said purpose, we grant eight weeks time to the petitioners. The interim protection granted by this Court shall remain in force for a period of eight weeks. However, it is made clear that, if any of the petitioners has already approached the High Court and also become unsuccessful before this Court, he shall face trial and put forth his defence in accordance with law.”

NOTE: This case note has been prepared from the copy of the judgment available at http://supremecourtofindia.nic.in/FileServer/2016-05-13_1463126071.pdf

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