lawweb.in http://www.lawweb.in/2016/05/latest-supreme-court-judgment-on.html?pfstyle=wp Latest Supreme court Judgment on Defamation 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 1/158
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lawweb.in http://www.lawweb.in/2016/05/latest-supreme-court-judgment-on.html?pfstyle=wp
Latest Supreme court Judgment on Defamation
We have referred to these authorities to highlightthat in matters of criminal defamation the heavy burden is onthe Magistracy to scrutinise the complaint from all aspects.The Magistrate has also to keep in view the languageemployed in Section 202 CrPC which stipulates about theresident of the accused at a place beyond the area in whichthe Magistrate exercises his jurisdiction. He must besatisfied 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 noteof submission of Mr. Bhambhani, learned senior counsel. It issubmitted by the learned senior counsel that Exception toSection 499 are required to be considered at the time of
summoning of the accused but as the same is not conceivedin the provision, it is unconstitutional. It is settled position oflaw that those who plead Exception must prove it. It hasbeen laid down in M.A. Rumugam (supra) that for thepurpose of bringing any case within the purview of the Eighthand the Ninth Exceptions appended to Section 499 IPC, it
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would be necessary for the person who pleads the Exceptionto prove it. He has to prove good faith for the purpose ofprotection of the interests of the person making it or anyother person or for the public good. The said propositionwould definitely apply to any Exception who wants to have thebenefit of the same. Therefore, the argument that if the saidException should be taken into consideration at the time ofthe issuing summons it would be contrary to establishedcriminal jurisprudence and, therefore, the stand that itcannot be taken into consideration makes the provisionunreasonable, is absolutely an unsustainable one and in away, a mercurial one. And we unhesitatingly repel the same. In view of the aforesaid analysis, we uphold theconstitutional validity of Sections 499 and 500 of the IndianPenal Code and Section 199 of the Code of CriminalProcedure. REPORTABLEIN THE SUPREME COURT OF INDIACRIMINAL ORIGINAL JURISDICTIONWRIT PETITION (CRIMINAL) NO. 184 OF 2014SUBRAMANIAN SWAMY …PETITIONER(S)VERSUSUNION OF INDIA,MINISTRY OF LAW & ORS. …RESPONDENT(S)WITHWRIT PETITION (CRIMINAL) NO. 8 OF 2015Dated;May 13, 2016Dipak Misra, J.
This batch of writ petitions preferred under Article 32 ofthe Constitution of India exposits cavil in its quintessentialconceptuality and percipient discord between venerated andexalted right of freedom of speech and expression of anindividual, 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 provisionsrelating to criminal law to reviver and uphold one’sreputation. The assertion by the Union of India and thecomplainants is that the reasonable restrictions are based on
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the paradigms and parameters of the Constitution that arestructured and pedestaled on the doctrine ofnon-absoluteness of any fundamental right, cultural andsocial ethos, need and feel of the time, for every right engulfsand incorporates duty to respect other’s right and ensuremutual compatibility and conviviality of the individuals basedon collective harmony and conceptual grace of eventual social4order; and the asseveration on the part of the petitioners isthat freedom of thought and expression cannot be scuttled orabridged on the threat of criminal prosecution and madeparaplegic on the mercurial stance of individual reputationand of societal harmony, for the said aspects are to be treatedas things of the past, a symbol of colonial era where the rulerruled over the subjects and vanquished concepts ofresistance; and, in any case, the individual grievancespertaining to reputation can be agitated in civil courts andthus, there is a remedy and viewed from a prismaticperspective, there is no justification to keep the provision ofdefamation in criminal law alive as it creates a concavity andunreasonable restriction in individual freedom and furtherprogressively mars voice of criticism and dissent which arenecessitous for the growth of genuine advancement and amatured democracy.2. The structural architecture of these writ petitions has ahistory, although not in any remote past, but, in the recenttimes. In this batch of writ petitions, we are required to dwellupon the constitutional validity of Sections 499 and 500 of5the Indian Penal Code, 1860 (for short, ‘IPC’) and Sections199(1) to 199(4) of the Code of Criminal Procedure, 1973 (forshort, “CrPC”). It is necessary to note here that when the WritPetition (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 notgone into the impact of Article 19(1)(a) read withclause (2) thereof on Sections 499 and 500 of the
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Indian Penal Code. That may have to await aproper case.”3. Dr. Swamy had also drawn our attention to theobservations made in N. Ravi and others v. Union of Indiaand others2, which are to the following effect:-“Strictly speaking on withdrawal of the complaints,the prayer about the validity of Section 499 hasalso become academic, but having regard to theimportance of the question, we are of the view, in1 (1994) 6 SCC 6322 (2007) 15 SCC 6316agreement with the learned counsel for thepetitioners, that the validity aspect deserves to beexamined. In this view, we issue rule, insofar asprayer (a) is concerned.”4. On the aforesaid plinth, a mansion of argument wassought 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 haveassisted with all the devotion and assiduousness at theircommand.5. We feel obliged to state at the beginning that we shallrefer to the provisions under challenge, record thesubmissions of the learned counsel for the parties, dwell uponthe concepts of ‘defamation’ and ‘reputation’, delve into theglorious idea of “freedom of speech and expression” andconception of “reasonable restrictions” under theconstitutional scheme and x-ray the perception of the Courtas regards reputation, and appreciate the essential anatomyof the provisions and thereafter record our conclusions.7Despite our commitment to the chronology, there is still roomfor deviation, may be at times being essential in view ofoverlapping of ideas and authorities.6. Sections 499 of the IPC provides for defamation andSection 500 IPC for punishment in respect of the said offence.The said provisions read as follows:-
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“Section 499. Defamation.— Whoever, by wordseither spoken or intended to be read, or by signs orby visible representations, makes or publishes anyimputation concerning any person intending toharm, or knowing or having reason to believe thatsuch imputation will harm, the reputation of suchperson, is said, except in the case hereinafterexpected to defame that person.Explanation 1.—It may amount to defamation toimpute anything to a deceased person, if theimputation would harm the reputation of thatperson if living, and is intended to be hurtful to thefeelings of his family or other near relatives.Explanation 2.—It may amount to defamation tomake an imputation concerning a company or anassociation or collection of persons as such.Explanation 3.—An imputation in the form of analternative or expressed ironically, may amount todefamation.Explanation 4.—No imputation is said to harm aperson’s reputation, unless that imputation8directly or indirectly, in the estimation of others,lowers the moral or intellectual character of thatperson, or lowers the character of that person inrespect of his caste or of his calling, or lowers thecredit of that person, or causes it to be believedthat the body of that person is in a loathsomestate, or in a state generally considered asdisgraceful.First Exception.—Imputation of truth which publicgood requires to be made or published – It is notdefamation to impute anything which is trueconcerning any person, if it be for the public goodthat the imputation should be made or published.Whether or not it is for the public good is aquestion of fact.Second Exception.—Public conduct of publicservants.—It is not defamation to express in goodfaith any opinion whatever respecting the conduct
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of a public servant in the discharge of his publicfunctions, or respecting his character, so far as hischaracter appears in that conduct, and no further.Third Exception.—Conduct of any person touchingany public question.—It is not defamation toexpress in good faith any opinion whateverrespecting the conduct of any person touching anypublic question, and respecting his character, sofar as his character appears in that conduct, andno further.Fourth Exception.—Publication of reports ofproceedings of Courts – It is not defamation topublish substantially true report of the proceedingsof a Court of Justice, or of the result of any suchproceedings.Explanation.—A Justice of the Peace or otherofficer holding an inquiry in open Court9preliminary to a trial in a Court of Justice, is aCourt within the meaning of the above section.Fifth Exception.—Merits of case decided in Court orconduct of witnesses and others concerned – It isnot defamation to express in good faith any opinionwhatever respecting the merits of any case, civil orcriminal, which has been decided by a Court ofJustice, or respecting the conduct of any person asa partly, witness or agent, in any such case, orrespecting the character of such person, as far ashis character appears in that conduct, and nofurther.Sixth Exception. —Merits of public performance – Itis not defamation to express in good faith anyopinion respecting the merits of any performancewhich its author has submitted to the judgment ofthe public, or respecting the character of theauthor so far as his character appears in suchperformance, and no further.Explanation.—A performance may be substitutedto the judgment of the public expressly or by actson the part of the author which imply suchsubmission to the judgment of the public.
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Seventh Exception.—Censure passed in good faithby person having lawful authority over another – Itis not defamation in a person having over anotherany authority, either conferred by law or arisingout of a lawful contract made with mat other, topass in good faith any censure on the conduct ofthat other in matters to which such lawfulauthority relates.Eighth Exception.—Accusation preferred in goodfaith to authorised person – It is not defamation toprefer in good faith an accusation against anyperson to any of those who have lawful authority10over that person with respect to the subject-matterof accusation.Ninth Exception.—Imputation made in good faithby person for protection of his or other's interests –It is not defamation to make an imputation on thecharacter of another provided that the imputationbe made in good faith for the protection of theinterests of the person making it, or of any otherperson, or for the public good.Tenth Exception.—Caution intended for good ofperson to whom conveyed or for public good – It isnot defamation to convey a caution, in good faith,to one person against another, provided that suchcaution be intended for the good of the person towhom it is conveyed, or of some person in whomthat person is interested, or for the public good.Section 500. Punishment for defamation.—Whoever defames another shall be punished withsimple imprisonment for a term which may extendto two years, or with fine, or with both.”Section 199 CrPC provides for prosecution fordefamation. It is apposite to reproduce the said provision inentirety. It is as follows:-“199. Prosecution for defamation.—(1) No Court shall take cognizance of an offencepunishable under Chapter XXI of the Indian PenalCode (45 of 1860) except upon a complaint made by
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some person aggrieved by the offence:Provided that where such person is under the ageof eighteen years, or is an idiot or a lunatic, or is11from sickness or infirmity unable to make acomplaint, or is a woman who, according to thelocal customs and manners, ought not to becompelled to appear in public, some other personmay, with the leave of the Court, make acomplaint on his or her behalf.(2) Notwithstanding anything contained in this Code,when any offence falling under Chapter XXI of theIndian Penal Code (45 of 1860) is alleged to havebeen committed against a person who, at the time ofsuch commission, is the President of India, theVice-President of India, the Government of a State,the Administrator of a Union territory or a Ministerof the Union or of a State or of a Union territory, orany other public servant employed in connectionwith the affairs of the Union or of a State in respectof his conduct in the discharge of his publicfunctions a Court of Session may take cognizance ofsuch offence, without the case being committed toit, upon a complaint in writing made by the PublicProsecutor.(3) Every complaint referred to in sub-section (2)shall set forth the facts which constitute the offencealleged, the nature of such offence and such otherparticulars as are reasonably sufficient to givenotice to the accused of the offence alleged to havebeen committed by him.(4) No complaint under sub-section (2) shall bemade by the Public Prosecutor except with theprevious sanction—(a) of the State Government, in the case of aperson who is or has been the Governor of thatState or a Minister of that Government;12(b) of the State Government, in the case of anyother public servant employed in connection withthe affairs of the State;(c) of the Central Government, in any other case.
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(5) No Court of Session shall take cognizance of anoffence under sub-section (2) unless the complaintis made within six months from the date on whichthe offence is alleged to have been committed.(6) Nothing in this section shall affect the right ofthe person against whom the offence is alleged tohave been committed, to make a complaint in respectof that offence before a Magistrate havingjurisdiction or the power of such Magistrate totake cognizance of the offence upon such complaint.”It may be stated that the aforesaid provision came intoexistence in the present incarnation after introduction ofSection 199(2) to (5) by the Code of Criminal Procedure(Amendment) Act, 1955 on 10th August, 1955.7. The constitutionality of the aforesaid provisions havebeen challenged on many a score and from many an angle bydifferent counsel appearing for the writ petitioners who belongto different walks of life. First, we shall record thesubmissions in their essential facets of the learned counselfor the petitioners, the contentions advanced by the learned13Attorney General and the Additional Solicitor General indefence of the provisions and thereafter the arguments putforth by the learned Amicus Curiae. We may immediatelystate that the effort would be to record the submissions infullest, may be sans elaborations and individualisticallycrafted and sculptured nuances during the oral hearings.8. Submissions of Mr. P.P. Rao and Ms. MahalakshmiPavanii. The right to uninhibited freedom of speech conferred byArticle 19(1)(a) is basic and vital for the sustenance ofparliamentary democracy, which is a part of the basicstructure of the Constitution. The “reasonable restrictions”are those which are meant to prevent the expression of athought which is intrinsically dangerous to public interestand would not include anything else. The enabling power inArticle 19(2) to impose reasonable restrictions on the rightconferred by Article 19(1)(a) is intended to safeguard theinterests of the State and the general public and not of anyindividual, and, therefore, Article 19(2) cannot be regarded as
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the source of authority for Section 499 of IPC which makes14defamation of any person an offence. That apart, Article19(2), being an exception to Article 19(1)(a), needs to beconstrued narrowly and it cannot constrict the liberalinterpretation warranted to be placed on Article 19 (1)(a) ofthe Constitution. The schematic intendment in clause (2) ofArticle 19 is founded on the fundamental tenet of interests ofthe State and the public in general and hence, regard beinghad to the nature of fundamental rights and scope ofreasonable restrictions to be imposed thereon, the exceptionhas to be understood applying the principle of noscitur asociis and excluding criminal defamation.ii. It is to be borne in mind that defamation of an individualby another individual is a civil wrong or tort, pure and simplefor which the common law remedy is an action for damages.It has to be kept in mind that fundamental rights areconferred in the public interest and defamation of any personby another person is unconnected with the fundamental rightconferred in the public interest by Article 19(1)(a) and,therefore, Section 499 is outside the scope of Article 19(2) ofthe Constitution. Right to one’s reputation which has been15held to be a facet of Article 21 is basically vis-à-vis the State,and hence, Article 19(2) cannot be invoked to serve theprivate interest of an individual. That apart, crime means anoffence 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 treatedas a “crime”, for it does not subserve any public interest.iii. Section 499 of IPC ex facie infringes free speech and it isa serious inhibition on the fundamental right conferred byArticle 19(1)(a) and hence, cannot be regarded as a reasonablerestriction in a democratic republic. A restriction that goesbeyond the requirement of public interest cannot beconsidered as a reasonable restriction and would be arbitrary.Additionally, when the provision even goes to the extent ofspeaking of truth as an offence punishable withimprisonment, it deserves to be declared unconstitutional, forit defeats the cherished value as enshrined under Article51-A(b) which is associated with the national struggle offreedom. The added requirement of the accused having to
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prove that the statement made by him was for the public good16is unwarranted and travels beyond the limits ofreasonableness because the words “public good” are quitevague as they do not provide any objective standard or normor guidance as a consequence the provisions do not meet thetest of reasonable restriction and eventually they have thechilling effect on the freedom of speech.iv. “Reasonableness” is not a static concept, and it may varyfrom time to time. What is considered reasonable at one pointof time may become arbitrary and unreasonable at asubsequent point of time. The colonial law has becomeunreasonable and arbitrary in independent India which is asovereign, democratic republic and it is a well known conceptthat provisions once held to be reasonable, becomeunreasonable with the passage of time.v. The Explanations and Exceptions appended to the mainprovision contained in Section 499 IPC, in case theconstitutionality of the said Section is upheld, are to beinterpreted with contextual purpose regard being had to thebroad canvas they occupy and the sea change that has takenplace in the society. 17vi. The words like “company”, “association” or “collection ofpersons as such” as used in Explanation 2 should excludeeach other because different words used in the Section mustbe given different meanings and it is appropriate that they arenot given meanings by which an indefinite multitude canlaunch criminal cases in the name of class action or commonright to reputation.vii. Section 199(2) CrPC provides a different procedure forcertain category of person and Court of Session to be theCourt of first instance, and thereby it creates two kinds ofprocedures, one having the advantage over the other. Thisclassification is impermissible as it affects the equality clause.That apart, it also uses the State machinery by launching ofthe prosecution through the Public Prosecutor, which enablesthe State to take a different route to curb the right of freedomof speech and expression.9. Contentions advanced by Dr. Rajeev Dhawani. Free Speech which is guaranteed by Article 19(1)(a) and
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made subject to certain limitations in Article 19(2) is essential18to a democracy, for democracy is fundamentally based on freedebate and open discussion, and a citizen has the right toexercise his right to free speech in a democracy by discerningthe information and eventually making a choice and, if it iscurtailed by taking recourse to colonial laws of defamation,the cherished value under the Constitution would be in periland, therefore, the provisions pertaining to criminal actionwhich create a dent in free speech are unconstitutional.ii. Free speech encapsulates the right to circulate one’sindependent view and not to join in a chorus or sing the samesong. It includes the right of propagation of ideas, and thefreedom of speech and expression cannot brook restrictionand definitely not criminal prosecution which is an anathemato free speech. Free speech has priority over other rights andwhenever and wherever conflict emerges between the freedomof speech and other interest, the right of freedom ofexpression can neither be suppressed nor curtailed unlesssuch freedom endangers community interest and that apartthe said danger should have immediate and proximate nexuswith expression. 19iii. Reasonable restriction is founded on the principle ofreasonableness which is an essential facet of constitutionallaw and one of the structural principles of the constitution isthat if the restriction invades and infringes the fundamentalright in an excessive manner, such a restriction cannot betreated to have passed the test of reasonableness. Thelanguage employed in Sections 499 and 500 IPC is clearlydemonstrative of infringement in excess and hence, theprovisions cannot be granted the protection of Article 19(2) ofthe Constitution. Freedom of expression is quintessential tothe sustenance of democracy which requires debate,transparency and criticism and dissemination of informationand the prosecution in criminal law pertaining to defamationstrikes at the very root of democracy, for it disallows thepeople to have their intelligent judgment. The intent of thecriminal law relating to defamation cannot be the lone test toadjudge the constitutionality of the provisions and it isabsolutely imperative to apply the “effect doctrine” for thepurpose of understanding its impact on the right of freedom
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of speech and expression, and if it, in the ultimate20eventuality, affects the sacrosanct right of freedom, it is ultravires. The basic concept of “effect doctrine” would not comein the category of exercise of power, that is, use or abuse ofpower but in the compartment of direct effect and inevitableresult of law that abridges the fundamental right.iv. Reasonable restriction cannot assume anydisproportionate characteristic in the name ofreasonableness, for the concept of reasonableness, as aconstitutional vehicle, conceives of the doctrine ofproportionality. The Constitution requires the legislature tomaintain a balance between the eventual adverse effects andthe purpose it intends to achieve and as the provisions underassail do not meet the test of proportionality or leastrestrictive measure, they do not withstand the litmus test aspostulated under Article 19(2) of the Constitution.v. The provisions under assail being pre-constitutional,statutory provisions are to be examined with deeper scrutinyand, therefore, when the freedom of speech is treated as amonumental socially progressive value in a democratic set up21at the international level, the restrictive provisions deserve tobe declared as unconstitutional as they create anunacceptable remora in the growth of an individual. Thatapart, societal perception having undergone a great change,the constitutional right has to be given a pietistic position andanalysed in these parameters, the colonial law meant to invitepeople to litigate should be allowed a timely extinction.vi. Section 199(2) to (4) CrPC protects civil servants andcreates a separate class and said classification has norationale and this distinction has no basis to withstand theconstitutional scrutiny. Differential treatment granted tothem is an unacceptable discrimination and for the saidreason, provisions contained in Section 199(2) to (4) CrPC areliable to be struck down.vii. Section 499 IPC read in conjunction with Explanation IVprovides a storehouse of criteria for judging reputation and itallows a greater width and discretion without any guidanceand hence, the provision is arbitrary and unreasonable. Thereis no justification to enable a company or association or22
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collection of persons to have the benefit of defamation in thecriminal law. Similarly, there is no justification for anycriminal defamation to save reputation of dead persons andfor allowing his legal heirs to prosecute on the ground that itis intended to be hurtful to the feelings of his family and othernear relatives.viii. The provision relating to defamation under Section 499IPC does not recognize truth as an absolute defence butqualifies that if anything is imputed which is even trueconcerning any person, it has to be for the “public good”. If atruthful statement is made and truth being the first basiccharacter of justice, to restrict the principle of truth only topublic good is nothing but an irrational restriction on the freespeech. The concept of “good faith” has been made intrinsicto certain Exceptions and that really scuttles the freedom ofspeech and freedom of thought and expression and thereby itinvites the discomfort to Article 19(1)(a). The words “goodfaith” and “public good” have to meet the test ofreasonableness and proportionality which would include23honest opinion with due care and attention and the conceptof reasonable restriction has to be narrowed to the sphere ofmala fide and reckless disregard. When the concept ofdefamation is put in the compartment of criminal offence byattributing a collective colour to it, it stifles the dissentingvoices and does not tolerate any criticism that affects thefoundation of popular and vibrant democracy which is a basicfeature of the Constitution. Quite apart from that, theconcepts of information, ideas, criticisms and disclosures arenot only the need of the hour but also have imperatives; andin such a climate, to retain defamation as a criminal offencewill tantamount to allow a hollowness to remain which willeventually have a chilling effect on the freedom of speech andexpression that shall lead to a frozen democracy.10. Arguments of Mr. Datar, learned Senior Counseli. Freedom of thought and expression includes a dissentbecause disagreement or expression of a contrary opinion hassignificant constitutional value which is engrafted under24Article 19(1)(a) and also is an acceptable pillar for a free andharmonious society.ii. Control of free speech by the majority is not an
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acceptable principle and, therefore, the provision pertainingto defamation is fundamentally a notion of the majority toarrest and cripple freedom of thought and expression whichmakes the provision unconstitutional. Criminal prosecutionas envisaged under Section 499 Cr.P.C. cannot be based onthe principle of the State to take appropriate steps when anoffence of this nature is committed, for an offence of thisnature is really not an offence against the State, because itdoes not encompass the ultimate facet of criminalprosecution which is meant for “protection of the society as awhole”.iii. Reputation at its best can be equated with an element ofpersonal security or a significant part of one’s life andunification of virtues which makes the person proud toprotect such private interest but that cannot be regarded as ajustification to whittle down freedom of speech and25expression which subserves the public interest. The languagein which Section 499 IPC is couched does not incorporate theseriousness test which has the potentiality of provokingbreach of peace by instigating people as a consequence of thepublic interest is endangered but, on the contrary, itsubserves only the private interest and as it caters toindividual revenge or acrimony which in the ultimateeventuate, makes imposed silence to rule over eloquent freespeech.iv. Though reputation has been treated to be a facet ofArticle 21 of the Constitution, yet the scheme of the saidArticle is quite different and a distinction is required to bedrawn for protection of reputation under Article 21 andenabling the private complainant to move the criminal courtfor his sense of self-worth. The individual reputation can verywell be agitated in a civil court. But fear of a complainantwho on the slightest pretext, can file criminal prosecution,that too, on the base of subjective notion, the fundamentalvalue of freedom of speech and expression gets paralysed and26the resultant effect is that Sections 499 and 500 IPC causeunnecessary discomfort to Article 19(1)(a) and also to Article14 of the Constitution.v. The purpose of criminal prosecution is not concerned
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with repairing individual injury, especially, reputation orvindicating or protecting the reputation of an individual. Thepurpose of such law has to be the ultimate protection of thesociety. Quintessentially, the provision cannot cater toindividual whims and notions about one’s reputation, for it isdone at the cost of freedom of speech in the society which isimpermissible. The restriction as engrafted under Article 19(2)has to be justified on the bedrock of necessity of the collectiveinterest. The nature of Exceptions carved out and the mannerin which they are engrafted really act as obstruction and arean impediment to the freedom of speech and expression andsuch hindrances are inconceivable when appreciated andtested on the parameters of international democratic valuesthat have become paramount as a globally accepteddemocratic culture. 2711. Arguments on behalf of Mr. Aruneshwar Guptai. Defamation is injury or damage to reputation which is ametaphysical property. Criminal prosecution was entertainedin defamation cases because of the erroneous doctrine of‘malice in law or intended imputation or presumption by lawof the existence of malice’, when the said doctrine has beenkept out of criminal jurisprudence, the enactments based onthe said doctrine cannot be allowed to survive. Once there isno presumption of malice by law, the thought, idea andconcept of ‘per se malicious or per se defamatory’, and thebasis and foundation of defamation becomes non-existent andis eroded and the criminal content in defamation in Article19(2) has to be severed from the civil content in it.ii. The reputation of every person does not have anyspecific identifiable existence for it is perceived differently, atdifferent times, by different persons associated, related,concerned for affected by it, who, in turn, are acting with theirmulti-dimensional personality for multiple reasons and28prejudices and as such, they are bereft of any social impact orcriminal element in it.iii. On a reading of Sections 499 & 500 IPC and Section 199CrPC, it is manifest that there is presumption of facts as amatter of law and that alone makes the provision arbitraryand once the foundation is unreasonable and arbitrary, theprovisions deserve to be declared ultra vires Articles 14, 19
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and 21 of the Constitution.12. Submissions of Mr. Anup J. Bhambhanii. The restrictions imposed under Article 19(2) on thefundamental right to free speech and expression as containedin Article 19(1)(a) should be reasonable in substance as wellas in procedure. The procedural provisions applicable tocomplaints alleging criminal defamation under Sections 499and 500 IPC do not pass the test of reasonableness asenvisaged under Article 19(2) of the Constitution. That apart,in the absence of any definition of the crime of defamation ina precise manner, it is hit by the principle of “void forvagueness”, for the Constitution of India does not permit to29include all categories of situations for constituting offencewithout making it clear what is prohibited and what ispermitted.ii. The procedural safeguards can only stand the test ofreasonableness if the Exceptions to Section 499 IPC are takeninto consideration at the time of summoning of the accusedand if it is ensured that all material facts are brought onrecord at that stage. But on a plain reading of the provisionthat is not permissible and hence, the provision is ultra viresas the procedure enshrined affects the basic marrow of thefundamental right pertaining to freedom of speech andexpression.iii. Section 199(1) CrPC which is intended to be a restrictionon who may file a criminal complaint under Section 499/500IPC has to be narrowly construed so as to confer a meaning tothe words “person aggrieved” that would not in its width,include a person other than the victim, for that indirectlywould affect the procedural safeguard which eventuallyaffects the substantive right. 30iv. The essential ingredients of the offence under Section499 IPC which include making or publishing any imputationconcerning any person and that the said imputation musthave been made with an intention to harm or having reasonto believe that the imputation will harm the reputation of aperson should not be allowed to have a free play to permitmultiple points of territorial jurisdiction for the prosecution ofa single offensive matter as that would place an unreasonable
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fetter on the exercise of right of free speech and expression ofa person by oppressive litigation.13. Arguments of Mr. Sanjay R. Hegdei. The architecture of the Section as envisioned by itsdraftsmen criminalises speech that harms reputation andthen provides Exceptions to such speech in certain specificcircumstances. The concept of defamation as a crimeremained unchallenged even during the drafting of theconstitutional guarantees of free speech. In fact, theParliament further re-affirmed its intent, when the FirstConstitutional Amendment Act was passed, primarily to31overcome judgments of this Court that provided expansivedefinitions of the fundamental rights of free speech andproperty. With the passage of time, the manner oftransmission of speech has changed with the coming ofmodern means of communication and the same is not underthe speaker’s control. The provisions when judged on thetouchstone of Articles 14 and 19(2) do not meet the testinasmuch 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 takecognizance of such offence, without the case being committedto it upon a complaint in writing made by the PublicProsecutor”, when any offence falling under Chapter XXI ofthe IPC is alleged to have been committed against “any otherpublic servant employed in connection with the affairs of theUnion or of a State in respect of his conduct in the dischargeof his public functions”, if appositely appreciated deprives the32accused of an appeal to the Court of Session and brings inthe State machinery to prosecute a grievance which would beotherwise personal to the concerned public servant.iii. In terms of the press, criminal defamation has a chillingeffect which leads to suppress a permissible campaign. Thethreat of prosecution alone is enough to suppress the truthbeing published, and also the investigating journalism whichis necessary in a democracy.iv. If the Court is not inclined to strike down Section 499IPC, at least in relation to criminal complaints arising out of
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media report where the members of the media are prosecuted,a procedure akin to the decision in Jacob Mathew v. Stateof Punjab and another3 should be adopted. To elaborate, asimilar mechanism may be devised for media professional,either through statutory bodies like the Press Council of Indiaor non-statutory bodies like the News Broadcasting StandardsAuthority which may be given the power to recommend3 2005 (6) SCC 133prosecutions in cases of grossly negligent or maliciousreporting made with ulterior motives.PROPONEMENTS IN OPPUGNATION14. Submissions of Mr. Mukul Rohatgi, learned AttorneyGeneral for Indiai. Article 19(2) must be read as a part of the freedom ofspeech and expression as envisaged under Article 19(1)(a), forthe freedom of speech as a right cannot be understood inisolation. The freedom of speech is a robust right butnonetheless, not unrestricted or heedless. Even though theCourts have often drawn the difference between free speechunder the U.S. Constitution and that under the IndianConstitution, yet even in the United States, where free speechis regarded as the most robust, it is not absolute. Therestrictions have not been left to the courts to carve out buthave been exhaustively set out in Article 19(2). It is for thelegislature to determine the restrictions to impose and thecourts have been entrusted with the task of determining thereasonableness and in the present case, the right to free34speech under Article 19(1)(a) is itself conditioned/qualified bythe 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 isnothing to suggest its exclusion. Article 19(2) has to beperceived as an integral part of the right to free speech asArticle 19(1)(a) is not a standalone right and, therefore, itcannot be said that there is an unbridled right to free, muchless defamatory speech.ii. The submission that defamation being only protective of
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individual cases between two individuals or a group ofindividuals and no State action is involved, cannot be elevatedto the status of a fundamental right, is without muchsubstance inasmuch as Article 19(2) represents varied socialcommunity interest. That apart, contextual meaning of theterm “defamation”; and if the grounds of exception underArticle 19(2) are analysed, each of them represent a publicinterest and so does defamation, for its principal object is topreserve reputation as a shared value of the collective. 35iii. The stand that criminal defamation under Section 499IPC smothers the freedom of speech and expression or is athreat to every dissent and puts private wrong at the level ofpublic wrong, is totally incorrect. The legal theorists andthinkers have made a subtle distinction between private andpublic wrong and it has been clearly stated that public wrongaffects not only the victim but injures the public andultimately concerns the polity as a whole and tested on thatcount, criminalization of defamation or damage to reputationis meant to subserve basic harmony in polity.iv. Right to reputation is an insegregable part of Article 21of the Constitution. A person’s reputation is an inseparableelement of an individual’s personality and it cannot beallowed to be tarnished in the name of right to freedom ofspeech and expression because right to free speech does notmean right to offend. Reputation of a person is neithermetaphysical nor a property in terms of mundane assets butan integral part of his sublime frame and a dent in it is arupture of a person’s dignity, negates and infringesfundamental values of citizenry right. Thus viewed, the right36enshrined under Article 19(1)(a) cannot allowed to brush awaythe right engrafted under Article 21, but there has to bebalancing of rights.v. In many a country, criminal defamation does not infringethe freedom of speech. The submission that protection ofreputation can be sufficiently achieved by taking recourse tocivil law cannot be a ground to declare Section 499/500 IPCas unconstitutional. It is to be borne in mind that thecriminal law and the civil law operate in different spheres andaspects and in societal connotations have differentperceptions. Monetary damage in civil law cannot be said to
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be the only panacea; and permitting an individual to initiatecriminal action as provided under the law against the personmaking a defamatory remark does not affect theconstitutional right to freedom of speech and in no caseushers in anarchy. That apart, mitigation of a grievance byan individual can be provided under a valid law and theremedy under the civil law and criminal law being different,both are constitutionally permissible and hence, theprovisions pertaining to defamation under the IPC do not37cause any kind of discomfort to any of the provisions of theConstitution. In addition to this, it can be said that civilremedy for defamation is not always adequate. The value offreedom of speech cannot be allowed to have the comatosingeffect on individual dignity, which is also an integral partunder Article 21 of the Constitution.vi. It is a misconception that injury to reputation canadequately be compensated in monetary terms. Reputationwhich encapsules self-respect, honour and dignity can neverbe compensated in terms of money. Even if reputation isthought of as a form of property, it cannot be construed solelyas property. Property is not a part of individual personalityand dignity, whereas reputation is, and, therefore, the standthat the damage caused to a person’s reputation should becompensated by money and that the same is realizable by wayof obtaining a decree from the civil court is not justified andregard being had to that, criminal defamation isconstitutionally permissible.38vii. The State is under an obligation to protect humandignity of every individual. Simultaneously, freedom of speechhas its constitutional sanctity; and in such a situation,balancing of rights is imperative and, therefore, the Courtshould not declare the law relating to criminal defamation asunconstitutional on the ground of freedom of speech andexpression as it is neither an absolute right nor can it conferallowance to the people to cause harm to the reputation ofothers. The apprehension of abuse of law, or for that matter,abuse of a provision of law would not invalidate thelegislation. Possibility of abuse, as is well settled, does notoffend Article 14 of the Constitution. A distinction has to be
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drawn between the provision in a statute and vulnerability ofthe action taken under such a provision.viii. The provisions have stood the test of time after theConstitution has come into existence and the conceptingrained in the term “reputation” has not been diluted but,on the contrary, has become an essential constituent ofArticle 21. That apart, the ten Exceptions provide reasonable39safeguards to the provision and, therefore, it can never besaid that the provision suffers from lack of guidance therebyinviting the frown of Article 14 of the Constitution.ix. The words “some person aggrieved” used in Section199(1) CrPC deserve a strict construction so as to preventmisuse of the law of criminal defamation. It should be theduty of the court taking cognizance to ensure that thecomplainant is the person aggrieved. The court may refer toearlier authorities and clarify the concept of “some personaggrieved” and explain the words in the present context.Similarly, the grievance that the provisions give room for filingof multiple complaints at various places is not correct as theconcept of territorial jurisdiction is controlled by CrPC.15. Submissions by Mr. P.S. Narsimha, learnedAdditional Solicitor Generali. The submission that the word “defamation” occurring inArticle 19(2) is confined only to civil defamation and notcriminal defamation cannot be countenanced on the basis ofour constitutional history. The Constitutional debates amplyclarify the position that when the Constituent Assembly40debated about the inclusion of defamation as a ground forimposing restrictions on the freedom of speech andexpression, the statutory provision for defamation, i.e., Section499 of IPC was already an existing law. The wisdom of thefounding fathers is quite demonstrable inasmuch as at thetime of drafting of the Constitution, the only statutory law ondefamation was Section 499 of IPC providing for criminaldefamation and, therefore, it stands to reason that the framersalways contemplated criminal defamation to fall within theambit of the word “defamation” occurring in Article 19(2).ii. The argument that the word “defamation” occurring inArticle 19(2) must be read in the light of the other groundsmentioned therein by applying the rule of noscitur a sociis is
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not correct, for the said rule has a very limited application.The word “defamation” is clearly not susceptible to analogousmeaning with the other grounds mentioned therein. The word“defamation”, in fact, has a distinct meaning as compared tothe other grounds and it does not stand to reason that theword “defamation” will take colour from terms like “security of41the State”, “friendly relations with a foreign state”, “publicorder”, “decency and morality” and the like thereby restrictingand narrowing the ambit of the word “defamation” in Article19(2). Defamation of an individual or collection of personsserves public interest which is the basic parameter ofrestrictions under Article 19(2) and, therefore, it can never beperceived as individual interest in a narrow compartment.iii. The contention that the fundamental rights are mattersbetween the State and the citizens and not between privateindividuals per se is untenable because it has been alreadyrecognized that it is the duty of the State is to protect thefundamental rights of citizens inter se other citizens andmany a legislation do so project. In fact, the State is indeedobligated to enact laws to regulate fundamental rights ofindividuals vis-à-vis other individuals.iv. The stand of direct effect test or, to put it differently,“direct and inevitable impact test” is concerned withincidentally creating a dent in the freedom of speech andexpression but has no nexus with the content of the free42speech per se. A distinction has to be drawn between theexternal constraints on free speech and the direct assault onthe free speech. The “subject matter test” can have direct andinevitable impact on the right, but the “regulation test by law”has a different connotation.v. The object of guaranteeing constitutional protection tofreedom of speech and expression is to advance public debateand discourse. However, speech laden with harmful intent orknowledge of causing harm or made with reckless disregard isnot entitled to the protection of Article 19(1)(a) since it doesnot serve any of the purposes mentioned above. Such speechhas no social value except in cases where it is a truthfulstatement meant for the public good or where it is made ingood faith, in which case it is protected by the Exceptions in
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Section 499 IPC and is not criminalized.vi. The Preamble to the Constitution plays an importantrole in interpreting the freedoms mentioned in Article 19. Theideals mentioned in the Preamble cannot be divorced from thepurpose and objective of conferring the rights. The freedom of43speech and expression under Article 19(1)(a) must take colourfrom the goals set out in the Preamble and must be read inthe light of the principles mentioned therein. The Preambleseeks to promote “Fraternity assuring the dignity of theindividual and the unity and integrity of the Nation”. In itswidest meaning and amplitude, fraternity is understood as acommon feeling of brotherhood. While justice, liberty andequality have been made justiciable rights under theConstitution, the idea of fraternity has been used to interpretrights, especially horizontal application of rights. ThePreamble consciously chooses to assure the dignity of theindividual, in the context of fraternity, before it establishesthe link between fraternity and unity and integrity of India.The rights enshrined in Part III have to be exercised byindividuals against the backdrop of the ideal of fraternity, andviewed in this light, Article 19(2) incorporates the vision offraternity. Hence, the restriction imposed by the statutoryprovision satisfies the content of constitutional fraternity.The fraternal ideal finds resonance also in Part IVA of theConstitution. Article 51-A of the Constitution, which deals44with the fundamental duties of a citizen, makes it a duty “topromote harmony and the spirit of common brotherhoodamongst all the people of India transcending religious,linguistic and regional or sectional diversities; to renouncepractices derogatory to the dignity of women”. In fact, thisCourt has held that Part IVA could be used as aninterpretative tool while assessing the constitutional validityof laws, especially in the context of restrictions imposed onrights. Judged on the anvil of the aforesaid constitutionalnorms, the provisions pertaining to criminal defamationwithstand scrutiny. The principal objective of the law ofdefamation, civil or criminal, is to protect the reputation anddignity of the individual against scurrilous and viciousattacks. Section 44 of IPC defines injury as “any harmwhatever illegally caused to any person, in body, mind,
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reputation or property.” The said section demonstrates thatthe harm caused to the mind and reputation of a person,protected by the right to dignity, is also treated as injury inthe eyes of law, along with the harm caused to body andproperty. From the Preamble to the provisions in Part III, it is45clear that the aim of the Constitution has been to protect andenhance human dignity. Reputation in general, and dignityin particular, are enablers of rights which make the exerciseof other rights guaranteed in the Constitution moremeaningful. Dignity of a person is an affirmation of his/herconstitutional identity and the individual reputation isconstitutionally protected as a normative value of dignity.Laws relating to initiation of civil as well as criminal actionare, therefore, permissible and withstand assail on theirconstitutionality.vii. The international human right treaties explicitly providefor the right to reputation as well as right to free speech andexpression. The Universal Declaration on Human Rights,1948 in Article 12 clearly stipulates that no one shall besubjected to attack on his honour and reputation.Scrutinising on this score, it cannot be said that reputationshould be allowed backseat whereas freedom of speech andexpression should become absolutely paramount. Thoughcertain countries have kept the remedy under common lawand have decriminalized defamation, yet it does not mean46that 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 freedomof speech and expression are seemly balanced.viii. The criminal law of defamation is neither vague norambiguous. That apart, the content restrictions in civil lawand criminal law are not identical. Section 499 IPC read withthe Exceptions incorporates all the three classical elements ofa crime while penalizing certain forms of speech andexpression. The provision criminalizes only that speech whichis accompanied by malicious intention to harm or withknowledge that harm will be caused or with recklessdisregard. The requirement of guilty intention, knowledge orproof of recklessness (absence of good faith) that form the
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bedrock of various provisions of IPC is also incorporated inSection 499. Moreover, harm to reputation and mind istreated as injury along with the injury to body and propertyunder Section 44 of IPC. Therefore, the same standardsapplicable to the injury caused to body and property are47applicable to the injury caused to the mind and reputationunder Section 499 which makes the axis of provision certain,definite and unambiguous. That apart, each of the Exceptionsmarks the contours of the section amply clear and providesan adequate warning of the conduct which may fall within theprescribed area. It excludes from its purview speech thatadvances public good and demarcates what is acceptedspeech and what is proscribed speech. Hence, it cannot besaid that the said Section is vague and that it leads touncertainty. First Exception to Section 499 which does notmake truth an absolute defense has a very relevant purpose.In fact, this Exception is meant to ensure that the defense isavailable only in cases where the expression of truth resultsin ‘public good’. Thus, the right to privacy is respected, andwill give way only in case the truthful disclosure, albeitprivate, is meant for public good.ix. There is an intelligible differentia between the complaintof the individual alleging defamation of himself and that of anofficial in the context of his governmental functions. This48intelligible differentia has a rational nexus to the object thatthe Parliament has sought to achieve, i.e., there must becredibility in the functioning of the Government and that itmust protect its functioning through its officers dischargingtheir duty from malicious disrepute. There is no justificationto assume that the Government grants sanction underSection 199(4) without due application of mind. In fact, it is asafety valve to protect a citizen against a government officialfiling complaints on behalf of the Government. A publicprosecutor is a responsible officer and this Court has held ina number of cases that he acts independently and withresponsibility. The fact that the prosecution is by the publicprosecutor goes to show that the proceedings will beconducted with objectivity and without any personal bias.16. Submissions by Dr. Abhishek Manu Singhvi:i. It is fallacious to argue that fundamental rights are
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fetters only on State action and that Article 19(2) is intendedto safeguard the interests of the State and the general publicand not of any individual. The exception to this fetter is that49the State can make laws under Article 19(2) which arereasonable 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 orsovereignty of the State, for example, are just as much Stateaction as a law making defamation of a person a criminaloffence. Therefore, it cannot be said that Article 19(2) isintended to safeguard only the interests of the State and thatof the general public and not of any individual. The argumentthat the law of criminal defamation protects the interests onlyof an individual and not the public in general is incorrectinasmuch as defamation cannot be understood except withreference to the general public. The law of criminaldefamation protects reputation which is the estimation of aperson in the eyes of the general public. That apart, thecriminal law of defamation is necessary in the interests ofsocial stability.ii. Articles 14 and 19 have now been read to be a part ofArticle 21 and, therefore, any interpretation of freedom ofspeech under Article19(1)(a) which defeats the right to50reputation under Article 21 is untenable. The freedom ofspeech and expression under Article 19(1)(a) is not absolutebut is subject to constrictions under Article19 (2). Restrictionsunder Article 19(2) have been imposed in the larger interestsof the community to strike a proper balance between theliberty guaranteed and the social interests specified underArticle19(2). One’s right must be exercised so as not to comein direct conflict with the right of another citizen. Theargument of the petitioners that the criminal law ofdefamation cannot be justified by the right to reputationunder Article 21 because one fundamental right cannot beabrogated to advance another, is not sustainable. It isbecause (i) the right to reputation is not just embodied inArticle 21 but also built in as a restriction placed in Article19(2) on the freedom of speech in Article 19(1)(a); and (ii) theright to reputation is no less important a right than the right
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to freedom of speech.iii. Article 19(2) enumerates certain grounds on which theright to free speech and expression can be subjected toreasonable restrictions and one such ground is defamation.51Although “libel” and “slander” were included in the originalConstitution, yet the same were deleted by the FirstAmendment, whereas defamation continues to be a part of theConstitution. Therefore, it is fallacious to argue thatdefamation under Article 19(2) covers only civil defamationwhen at the time of the enactment of the Constitution,Section 499 IPC was the only provision that defineddefamation and had acquired settled judicial meaning as ithad been on the statute book for more than 90 years.iv. Sections 499 and 500 of IPC continue to serve a publicpurpose by defining a public wrong so as to protect the largerinterests of the society by providing reasonable restrictionsunder Article 19(2) of the Constitution. It is incorrect tosuggest that the purpose, logic and rationale of criminaldefamation no longer subsists in the modern age, and the lawhaving served its goal, it must be struck down as violative ofArticle 14. Arguably, in the modern age, the need for the lawis even stronger than it was in the 19th century. Theconstitutional validity of a statute would have to bedetermined on the basis of its provisions and on the ambit of52its operation as reasonably construed as has been held inShreya Singhal v. Union of India4. Moreover, given thepresumption of constitutionality, it has also been held by thisCourt that in judging the reasonableness of restrictions, theCourt is fully entitled to take into consideration matters ofcommon report, history of the times and matters of commonknowledge and the circumstances existing at the time oflegislation. The concept reasonable restriction conveys thatthere should not be excessive or disproportionate restriction.Merely because law of criminal defamation is misused orabused would not make the provisions unconstitutional ifthey are otherwise reasonable.v. Section 499 IPC defines the offence of defamation withspecificity and particularity and enumerates ten broadExceptions when statements against a person will not be
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considered defamatory, and by no stretch of imagination itcan be termed as vague. That apart, for the offence ofdefamation as defined under Section 499 IPC, there are three4 (2015) 5 SCC 153essential ingredients which make it specific and furtherExplanation 4 to Section 499 IPC also limits the scope of theoffence of defamation contained in the Section. It makes onlysuch imputation punishable which lowers a person’sreputation in the estimation of others, and if the imputationdoes not lower the moral or intellectual character or aperson’s character in respect of his caste or calling or hiscredit, it would not be defamatory. The concepts like “in goodfaith” or “for the public good” are the mainstay of theExceptions available to the accused, which, if proved to theextent of preponderance of probability, enable him to avoidconviction, and these facets make the provision reasonableand definitely not vague. Truth ought not to be an absolutedefence because it can be misutilised to project a negativeimage to harm the reputation of a person without any benefitto the public at large.vii. The argument that protection for “legitimate criticism” or“fair comment” on a question of public interest is onlyavailable in the civil law of defamation and is not covered by54any of the Exceptions to Section 499 IPC is not tenable.Exceptions 2, 3, 5, 6 and 9 of Section 499 IPC provideprotection akin to the defence of fair comment in the civil lawof defamation.viii. Section 199(1) CrPC safeguards the freedom of speechby placing the burden on the complainant to pursue thecriminal complaint without involving the State prosecutionmachinery. This itself filters out many frivolous complaintsas the complainant should be willing to bear burden and painof pursuing the criminal complaint for defamation only whenhe has a clear case. Under the aforesaid provision, thecognizance of an offence, which pertains to defamation,cannot be taken except upon a complaint made by “someperson aggrieved by the offence”. This Section carves out anexception to the general rule of criminal jurisprudence that
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any person can set the law in motion. Under Section 199CrPC, a complaint can be filed only by “by some personaggrieved”. The contention of the petitioners that “someperson aggrieved” in Section 199(1) CrPC is vague and opensfloodgate for frivolous litigation is misconceived and has no55basis in law. The phrase “some person aggrieved” is neithervague nor is it unreasonably wide.17. Submissions of Mr. M.N. Krishnamani, Mr. SiddharthLuthra and Mr. Satish Chandra Mishra, in personi. The power to create an offence being an essentiallegislative function, there is nothing inherently wrong withSection 499 IPC. The contention that the word “defamation”in Article 19(2) has to be read down not to include criminaldefamation in it so that it is confined to civil defamation aloneis not permissible, for the principle of reading down aprovision is inapplicable to constitutional interpretation. Thewords in the Constitution are to be understood in their literaldictionary meaning and in any case not to be narrowlyconstrued as suggested. The term “defamation” is neitherindefinite nor ambiguous to invite an interpretative processfor understanding its meaning.ii. Misuse of a provision or its possibility of abuse is noground to declare Section 499 IPC as unconstitutional. If aprovision of law is misused or abused, it is for the legislatureto amend, modify or repeal it, if deemed necessary. Mere56possibility of abuse of a provision cannot be a ground fordeclaring a provision procedurally or substantivelyunreasonable.iii. The law relating to defamation was enacted regard beinghad to the diversity in the society and it also, as on today,acts as a reasonable restriction and fulfils the purpose behindSection 44 IPC. The issue of free speech and right toreputation and the arguments regarding the constitutionalvalidity of the provision must be considered in the context ofthe social climate of a country. The social climate takes in itssweep the concept of social stability.iv. The term “harm” is not defined in the IPC and must begiven its ordinary dictionary meaning, but what is importantis that it must be illegally caused. There is no distinction inthe IPC between harm to body, mind, reputation or property.
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When the legislature has treated defamation as an offenceregard being had to the social balance, there is nojustification to declare it ultra vires.v. The mere fact that the offence under Section 499 IPC isnon-cognizable or that the complainant can only be “some57person aggrieved” does not create an arbitrary distinction of itbeing an offence of a private character as opposed to an offenceagainst society. There are numerous offences which are notcongnizable but that does not mean that the said category ofoffences are private acts, for harm being caused to a person isthe subject of focus of offences under the Penal Code.vi. Section 199 CrPC adds a restriction limiting filing of acomplaint by “some person aggrieved” and “a person aggrieved”is to be determined by the Courts in each case according to thefact situation. The words “some person aggrieved” andException II has been the subject of much deliberation by theCourts and it is not a vague concept. Section 199 CrPCmandates that the Magistrate can take cognizance of the offenceonly upon receiving a complaint by a person who is aggrieved.This limitation on the power to take cognizance of defamationserves the purpose of discouraging filing of frivolous complaintswhich would otherwise clog the Magistrate’s Courts. The“collection of persons” is not a vague concept. The said bodyhas to be an identifiable group in the sense that one could, withcertainty, say that a group of particular people has been58defamed as distinguished from the rest of the community.Establishment of identity of the collection of people is absolutelynecessary in relation to the defamatory imputations and hence,it is reasonable.vii. Article 19(1)(a) guarantees freedom of speech andexpression, and freedom of press is included therein. Thisfreedom is not absolute but it is subjected to reasonablerestrictions as provided in Article 19(2) of the Constitution. Thefreedom of speech and expression as guaranteed by theConstitution does not confer an absolute right to speak orpublish whatever one chooses and it is not an unrestricted orunbridled licence that may give immunity and preventpunishment for abuse of the freedom. The right has its ownnatural limitation.
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viii. Journalists are in no better position than any otherperson. They have no greater freedom than others to make anyimputations or allegations sufficient to ruin the reputation of acitizen. Even truth of an allegation does not permit ajustification under the First Explanation unless it is proved tobe in the public good. A news item has the potentiality of59bringing dooms day for an individual. Editors have to take theresponsibility of everything they publish and to maintain theintegrity of published records. It can cause far reachingconsequences in an individual and country’s life. Section 7 ofthe Press and Registration Books Act, 1867 makes thedeclarations to be prima facie evidence for fastening the liabilityin any civil or criminal proceedings on the Editor. The presshas great power in impressing minds of people and it isessential that persons responsible for publishing anything innewspapers should take good care before publishing anythingwhich tends to harm the reputation of a person. Recklessdefamatory comments are unacceptable.18. Submissions of learned Amicus CuriaeMr. K. Parasaran, Sr. Advocatei. There has to be a harmonious interpretation of Article19(1)(a) read with Articles 19(2) and 21. This has to be doneby adverting to Articles 13(3), 366(10), 372 (Explanations Iand II), and also Article 14, the Preamble, Part III and Part IVof the Constitution. There is a need to interpret Article 19(2)60by considering as to whether it includes: a) Defamation as anoffence with punishment of imprisonment and/or fine onbeing proved guilty, or; b) Defamation as a civil wrong withliability 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 whileinterpreting Article 19(2).ii. The question for determination is whether the word“defamation” used in Article 19(2) has reference to the IndianPenal Code (statutory law) as an indictment, or tort of the work“defamation” after “contempt of court” (which includes criminalcontempt) and before the phrase “incitement to an offence”,both being penal in nature. Applying the principle of ‘noscitur asociis’, the word “defamation” is not to be interpreted only as
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civil defamation. Applying the principle of ‘nomen juris’ theword “defamation” must necessarily refer only to IPC, sincethere is no other statute in existence that defines “defamation”.61iii. The Preamble to the Constitution opens with the word‘Justice’. It is the concept of Dharma. The foundation ofadministration of Justice after the advent of the Constitutionis the motto ‘yato dharmastato jayaha’. Judge-made law,insofar as the right to life is concerned, is to protect theinherent right to reputation as part of the right to life. No onecan be deprived of that right except according to the procedureestablished by law. The word “law” in Article 21 has tonecessarily bear interpretation that it is procedure establishedby plenary legislation only. Whenever any right conferred byPart III is abridged or restricted or violated by “law”, as widelydefined in Article 13 for the purposes of that Article, arerendered void. Right to reputation is an inherent rightguaranteed by Article 21. Duty not to commit defamation isowed to the community at large, because the right to reputationis a natural right. The personality and dignity of the individualis integral to the right to life and liberty and fraternity assuringdignity of an individual is part of the Preamble to theConstitution. The right to life or personal liberty includesdignity of individuals which is so precious a right that it is62placed on a higher pedestal than all or any of the fundamentalrights conferred by Part III. The right to reputation is aninherent right guaranteed by Article 21 and hence, the right tofreedom of speech and expression under Article 19(1)(a) has tobe balanced with the right under Article 21 and cannot prevailover the right under Article 21.iv. The test of reasonableness has been invariably appliedwhen 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 inSection 499, it must be held to have been incorporated in theConstitution at least to the extent it is defined in Section 499(‘nomen juris’). It is, thus, not open to challenge as being anunreasonable restriction for there is no other law that defined“defamation”.v. The test of reasonableness cannot be a principle in
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abstraction. A general pattern cannot be conceived to bemade applicable to all cases because it will depend upon thenature of right infringed or violated and the underlying63purpose of the imposition of restrictions. The evil thought tobe remedied and the prevailing conditions of the time are tobe kept in view while judging proportionality of the restriction.Being a part of the original Constitution, the penal provisionas to defamation having been approved by the constituentpower when Article 19(2) was enacted, it cannot now be heldto be unreasonable. If defamation as an offence is areasonable law for the purposes of Article 19(2), it has to beequally a reasonable law for the purposes of Article 14. Theprinciple of a law being worn out by passage of time and theprinciple of ‘Cessante Ratione Legis Cessat Ipsa Lex’ cannotbe applied to a constitutional provision like Article 19(2) or toprocedural laws. Section 500 IPC does not impose anymandatory minimum punishment and when a penal law doesnot mandate a minimum sentence but provides only forsimple imprisonment with discretion vested in the Court, theprovision will not be struck down as arbitrary orunreasonable.64vi. Right to life and liberty is an inherent right and naturalright and not a right conferred by the Constitution butrecognized and protected by it. Judge-made law is meant toprotect fundamental rights and not to impose restrictions onthe fundamental rights. The constitutional courts areassigned the role of a “Sentinel on the qui vive”. In the saidbedrock, the right to life which includes right to reputationhas to be protected and respected and cannot be allowed tosuccumb to the right to freedom and expression.vii. The inherent right to life or personal liberty recognizedby Article 21, the fundamental right of freedom of speechconferred by Article 19(1)(a) read with Article 19(2) and Article194 dealing with the Powers, Privileges etc. of the Houses ofLegislature and of the Members and Committees thereof(Article 105 also corresponds to this Article) were consideredand harmoniously interpreted and applied in SpecialReference No 1 of 19645 wherein this Court also observedthat if a citizen moves the High Court on the ground that his
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5(1965) 1 SCR 41365fundamental right under Article 21 has been contravened, theHigh Court would be entitled to examine his claim, and thatitself would introduce some limitation on the extent of thepowers claimed by the House. Thus, balancing of rights is aconstitutional warrant. Mr. T.R. Andhyarujina, Sr. Advocatei. Freedom of speech and expression in India is notabsolute but subject to various restrictions mentioned in theConstitution itself. Article 19(1)(a) is subject to the restrictionsprescribed by Article 19(2) of the Constitution. The protectiongiven to criticism of public officials even if not true, as in thecase of New York Times v. Sullivan6, is not protected byArticle 19(1)(a) as this Court has noted that there is adifference between Article 19(1)(a) and the First Amendmentto the US Constitutionii. A law of defamation protects reputation of a person.Reputation is an integral and important part of the dignity ofthe individual and when reputation is damaged, society as6 29 LED 2d 822 (1971)66well as the individual is the loser. Protection of reputation isconducive to the public good. Therefore, freedom ofexpression is not an absolute right.iii. While the freedom of speech and expression is, no doubt,extremely relevant and requires protection as a fundamentalright, at the same time, it is necessary that the reputation ofindividuals requires to be protected from being unnecessarilytarnished. Reputation is an element of personal security andis protected as a fundamental right under Article 21 of theConstitution and requires equal protection. The right tofreedom of expression under Article 19 is subject to the rightto reputation. It is to be noted that civil action for defamationwould not be a satisfactory remedy in many cases as theauthor of the defamation may not be able to compensate theperson defamed.iv. The prosecution of a person for defamation under
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Sections 499 and 500 of IPC is not absolute. The crime issubject to ten Exceptions in favour of the author of theimputation. The most relevant is First Exception which67protects the author if the imputation is true and made for thepublic good. Even with the Exceptions in Section 499 IPC,there remains the problem of whether criminal prosecution fordefamation under Section 499 and Section 500 IPC acts as a“chilling effect” on the freedom of speech and expression or apotential for harassment, particularly, of the press and media.Fair comment on a matter of public interest is not actionablein civil action for defamation. This right is one of the aspectsof the fundamental principles of freedom of expression and thecourts are zealous to preserve it unimpaired; and the saidprinciple has been stated in Salmon and Heuston on Law ofTorts, 25th Ed., p. 138.v. In a prosecution for defamation under Section 499 IPC,fair comment which is not covered by the Exceptions wouldnot be protected. The prospect of punishment may sometimesact as a deterrent on the freedom of speech. Section 199(2)CrPC may also give an unfair disadvantage to have a publicprosecutor in cases of a libel against a Minister or a publicservant. These factors need to be considered for safeguarding68the freedom of speech. Section 499 IPC be read to providethat imputation and criticism or fair comment even if not truebut made in good faith and in the public interest would notinvite criminal prosecution. Such and other qualificationsmay be considered as necessary to retain criminal defamationas a reasonable restriction on the freedom of speech andexpression. Hence, there may be a need to have a properbalancing between the freedom of speech and the necessity ofcriminal defamation.19. We have studiedly put forth the submissions of thelearned counsel for the parties. They have referred to variousauthorities and penetratingly highlighted on numerousaspects to which we shall advert to at the appropriate stage.Prior to that, we intend to, for the sake of clarity and alsokeeping in view the gravity of the issue, dwell upon certainaspects.20. First, we shall expatiate on the concepts of “defamation”and “reputation”. The understanding of the term “defamation”69
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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.7define a defamatory statement as under:-"A defamatory statement is one which has atendency to injure the reputation of the person towhom it refers; which tends, that is to say, to lowerhim in the estimation of right thinking members ofsociety generally and in particular to cause him tobe regarded with feelings of hatred, contempt,ridicule, fear, dislike, or disesteem. The statement isjudged by the standard of an ordinary, rightthinking member of society…”ii. Halsburys Laws of England, Fourth Edition, Vol. 28,defines ‘defamatory statement’ as under:-“A defamatory statement is a statement whichtends to lower a person in the estimation of rightthinking members of the society generally or tocause him to be shunned or avoided or to exposehim to hatred, contempt or ridicule, or to conveyan imputation on him disparaging or injurious tohim in his office, profession, calling trade orbusiness.”7Bata India Ltd. v. A.M. Turaz & Ors. 2013 (53) PTC 586; Pandey Surindra Nath Sinha v.Bageshwari Pd.. AIR 1961 Pat. 16470iii. The definition of the term has been given by JusticeCave in the case of Scott v. Sampson8 as a “false statementabout a man to his discredit.”iv. Defamation, according to Chambers TwentiethCentury Dictionary, means to take away or destroy the goodfame or reputation; to speak evil of; to charge falsely or toasperse. According to Salmond:-“The wrong of defamation, consists in thepublication of a false and defamatory statementconcerning another person without lawfuljustification. The wrong has always been regardedas one in which the Court should have the
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advantage of the personal presence of the parties ifjustice is to be done. Hence, not only does anaction of defamation not survive for or against theestate of a deceased person, but a statement abouta deceased person is not actionable at the suit ofhis relative”9.v. Winfield & Jolowics on Torts10 defines defamationthus:-8 (1882) QBD 4919 Gatley’s Libel and Slander, 6th edition, 1960 also Odger’s Libel and Slander 6th Ed. 192910 (17th Edn. 2006)71“Defamation is the publication of a statementwhich tends to lower a person in the estimation ofright thinking members of society generally; orwhich tends to make them shun or avoid thatperson.vi. In the book “The Law of Defamation”11, the termdefamation has been defined as below:-“Defamation may be broadly defined as a falsestatement of which the tendency is to disparage thegood name or reputation of another person.”vii. In Parmiter v. Coupland12, defamation has beendescribed as:-‘A publication, without justification or lawfulexcuse, which is calculated to injure the reputationof another, by exposing him to hatred, contempt, orridicule.”viii. The definition of defamation by Fraser was approved byMc Cardie J in Myroft v. Sleight13. It says:-11 Richard O’ Sullivan, QC and Roland Brown12 (1840) 6 MLW 10513
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(1921) 37 TLR 64672“a defamatory statement is a statement concerningany person which exposes him to hatred, ridiculeor contempt or which causes him to be shunned oravoided or which has a tendency to injure him inhis office, profession or trade.”ix. Carter Ruck on Libel and Slander14 has carved outsome of the tests as under:"(1) a statement concerning any person whichexposes him to hatred, ridicule, or contempt, orwhich causes him to be shunned or avoided, orwhich 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 inthe estimation of right thinking members of societygenerally"22. We have noted the aforesaid definitions, descriptionsand analytical perceptions only to understand how theconcept has been extensively dealt with regard being had toits ingredients and expanse, and clearly show the solemnity of‘fame’ and its sapient characteristics. Be it stated, Section499 IPC defines fame and covers a quite range of things but14 Manisha Koirala v. Shashi Lal Nair & Ors, 2003 (2) Bom CR 13673the reference to the term ‘fame’ is to ostracise the saying that“fame is a food that dead men eat”.23. CONCEPT OF REPUTATIONHaving dealt about “defamation”, we would like to referto the intrinsic facets of “reputation” and what constitutesreputation. The allusions would clearly exposit the innateuniversal value of “reputation” and how it is a cherishedconstituent of life and not limited or restricted by time. Thedescription may be different, but the crucial base is the same.Vision of the Ancientsi. In Bhagawad Gita, it has been said :-अहहिहसंस स यमक ोध यसगग शसनन तरपपशैशुनमम्।दयस भभू तते वल ोलशु विह ंमसदरविह ंह ीरचसपलमम्॥१६- २॥The English translation of the aforequoted shloka is:
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“Non-violence in thought, word and deed,truthfulness and geniality of speech, absence ofanger even on provocation, disclaiming doership inrespect of actions, quietude or composure of mind.Abstaining from malicious gossip, compassiontowards all creatures, absence of attachment to theobjects of senses even during their contact with thesenses, mildness, a sense of shame intransgressing against the scriptures or usage, andabstaining from frivolous pursuits.”74ii. 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. Onewho has good praise does alone live. Who has nofame and negative praise is equal to one who isdead while alive.”iii. The English translation of Surah 49 Aayaat 11 of theHoly Quran reads as follows:-“Let not some men among you laugh at others: itmay be that the (latter) are better than the (former):nor defame nor be sarcastic to each other, nor calleach other by (offensive) nicknames, ill-seeming isa name connoting wickedness, (to be used of one)after he has believed: and those who do not desistare (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 dispensesknowledge,but the mouths of fools pour outfolly.The eyes of the LORD are in everyplace,keeping watch on the evil and the good.75A gentle tongue is a tree of life,but perverseness in it breaks the spirit.”Though the aforesaid sayings have different contexts, yet
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they lay stress on the reputation, individual honour and alsothe need of gentleness of behavior on the part of each one.Thoughts of the creative writers and thinkers24. William Shakespeare in Othello expressed his creativethoughts on character by the following expression:-“Good name in man and woman, my dear lord,is the immediate jewel of their soulsWho 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 nameRobs me of that which not enriches him,And makes me poor indeed,”25. The said author in Richard II, while enhancing theworth of individual reputation, achieved his creative heights,and the result in the ultimate is the following passage:-“The purest Treasure mortal times affordIs spotless reputation; that away,Men are but gilded loam or painted clay.A jewel in a ten-times-barr’d-up chestIs 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.”7626. The famous Greek philosopher and thinker Socratestaught:-“Regard your good name as the richest jewelyou can possibly be possessed of – for credit islike fire; when once you have kindled it you mayeasily preserve it, but if you once extinguish it,you will find it an arduous task to rekindle itagain. The way to gain a good reputation is toendeavour to be what you desire to appear.”27. The philosopher in Aristotle inspired him to speak:-“Be studious to preserve your reputation; if thatbe once lost, you are like a cancelled writing, ofno value, and at best you do but survive yourown funeral”.28. While speaking about reputation, William Hazlitt had tosay:-
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“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 ofmalicious imputations against any characterleaves a stain, which no after-refutation canwipe out. To create an unfavourable impression,it is not necessary that certain things should betrue, but that they have been said. Theimagination is of so delicate a texture that evenwords wound it.”The International Covenants7729. Various International Covenants have stressed on thesignificance of reputation and honour in a person’s life. TheUniversal Declaration on Human Rights, 1948 has explicitprovisions for both, the right to free speech and right toreputation. Article 12 of the said Declaration provides that:-“No one shall be subjected to arbitrary interferencewith his privacy, family, home or correspondence,nor to attacks upon his honour and reputation.Everyone has the right to the protection of the lawagainst such interference or attacks.”30. The International Covenant on Civil and PoliticalRights (CICCPR) contains similar provisions. Article 19 of theCovenant expressly subjects the right of expression to therights and reputation of others. It reads thus:-“1. Everyone shall have the right to hold opinionswithout interference.2. Everyone shall have the right to freedom ofexpression; this right shall include freedom to seek,receive and impart information and ideas of allkinds, regardless of frontiers, either orally, inwriting or imprint, in the form of art, or throughany other media of his choice.3. The exercise of the rights provided for in paragraph2 of this article carries with it special duties andresponsibilities. It may therefore be subject to78certain restrictions, but these shall only be such asare provided by law and are necessary:(a) For respect of the rights or reputations ofothers;
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(b) For the protection of national security or ofpublic order (order public), or of public healthor morals”.31. Articles 8 and 10 of the European Convention for theProtection of Human Rights and Fundamental Freedoms(ECHR) provide:-“Article 8. Right to respect for private andfamily life1. Everyone has the right to respect for his privateand family life, his home and hiscorrespondence.2. There shall be no interference by a publicauthority with the exercise of this right exceptsuch as is in accordance with the law and isnecessary in a democratic society in theinterests of national security, public safety orthe economic wellbeing of the country for theprevention of disorder or crime, for theprotection of health or morals, or for theprotection of the rights and freedoms of others”“Article 10. Freedom of expression791. Everyone has the right to freedom of expression.This right shall include freedom to hold opinionsand to receive and impart information and ideaswithout interference by public authority andregardless of frontiers. This article shall notprevent States from requiring the licensing ofbroadcasting, television or cinema enterprises.2. The exercise of these freedoms, since it carrieswith it duties and responsibilities, maybe subjectto such formalities, conditions, restrictions orpenalties as are prescribed by law and arenecessary in a democratic society, in the interestsof national security, territorial integrity or publicsafety, for the prevention of disorder or crime, forthe protection of health or morals, for theprotection of the reputation or rights of others, forpreventing the disclosure of information received inconfidence, or for maintaining the authority and
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impartiality of the judiciary.”32. The reference to international covenants has a definitivepurpose. They reflect the purpose and concern and recognizereputation as an inseparable right of an individual. Theyjuxtapose the right to freedom of speech and expression andthe right of reputation thereby accepting restrictions, albeit asper law and necessity. That apart, they explicate that theindividual honour and reputation is of great value to humanexistence being attached to dignity and all constitute aninalienable part of a complete human being. To put it80differently, sans these values, no person or individual canconceive the idea of a real person, for absence of theseaspects in life makes a person a non-person and an individualto be an entity only in existence perceived withoutindividuality.Perception of the Courts in United Kingdom as regardsReputation33. Now, we shall closely cover the judicial perception of theword “reputation” and for the said purpose, we shall first referto the view expressed by other Courts and thereafter returnhome for the necessary survey.34. Lord Denning explained the distinction betweencharacter and reputation in Plato Films Ltd. v. Spiedel15 ina succinct manner. We quote:-“A man's "character," it is sometimes said, is whathe in fact is, whereas his "reputation" is what otherpeople think he is. If this be the sense in which youare using the words, then a libel action isconcerned only with a man's reputation, that is,with what people think of him: and it is for damageto his reputation, that is, to his esteem in the eyesof others, that he can sue, and not for damage to15 (1961) 1 All. E.R. 87681his own personality or disposition. That is whyCave J. spoke of "reputation" rather than"character."The truth is that the word "character" is oftenused, and quite properly used, in the same senseas the word "reputation." Thus, when I say of a
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man that "He has always "borne a good character,"I mean that he has always been thought well of byothers: and when I want to know what his"character" is, I write, not to him, but to others whoknow something about him. In short, his"character" is the esteem in which he is held byothers who know him and are in a position to judgehis worth. A man can sue for damage to hischaracter in this sense, even though he is littleknown to the outside world. If it were said ofRobinson Crusoe that he murdered Man Friday, hewould have a cause of action, even though no onehad ever heard of him before. But a man's"character," so understood, may become known toothers beyond his immediate circle. In so far as theestimate spreads outwards from those who knowhim and circulates among people generally in anincreasing range, it becomes his "reputation,"which is entitled to the protection of the law just asmuch as his character. But here I speak only of areputation which is built upon the estimate ofthose who know him. No other reputation is of anyworth. The law can take no notice of a reputationwhich has no foundation except the gossip andrumour of busybodies who do not know the man.Test it this way. Suppose an honourable manbecomes the victim of groundless rumour. Heshould be entitled to damages without having thiswounding gossip dragged up against him. He cancall people who know him to give evidence of hisgood character. On the other hand, suppose a"notorious rogue" manages to conceal his82dishonesty from the world at large. He should notbe entitled to damages on the basis that he is aman of unblemished reputation. There must, oneswould think, be people who know him and cancome and speak to his bad character.”35. In regard to the importance of protecting an individual’sreputation Lord Nicholls of Birkenhead observed in Reynolds
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v. Times Newspapers Ltd16:-‘Reputation is an integral and important part of thedignity of the individual. It also forms the basis ofmany decisions in a democratic society which arefundamental to its well-being: whom to employ orwork for, whom to promote, whom to do businesswith or to vote for. Once besmirched by anunfounded allegation in a national newspaper, areputation can be damaged forever, especially ifthere is no opportunity to vindicate one’sreputation. When this happens, society as well asthe individual is the loser. For it should not besupposed that protection of reputation is a matterof importance only to the affected individual andhis family. Protection of reputation is conducive tothe public good. It is in the public interest that thereputation of public figures should not be debasedfalsely. In the political field, in order to make aninformed choice, the electorate needs to be able toidentify the good as well as the bad. Consistentlywith these considerations, human rightsconventions recognise that freedom of expression isnot an absolute right. Its exercise may be subjectto such restrictions as are prescribed by law and16 [2001] 2 AC 127 at 20183are necessary in a democratic society for theprotection of the reputations of others.”36. While deliberating on possible balance between the rightto reputation and freedom of expression, in Campbell v. MGNLtd17, it has been stated:-“Both reflect important civilized values, but, asoften happens, neither can be given effect in fullmeasure without restricting the other, How arethey to be reconciled in a particular case? There isin my view no question of automatic priority. Noris there a presumption in favour of one rather thanthe other. The question is rather the extent towhich it is necessary to qualify the one right inorder to protect the underlying value which is
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protected by the other. And the extent of thequalification must be proportionate to the need. …”See : Sedley LJ in Doughlas v. Hellol Ltd. [2001]QB 967View of the Courts in United States37. In Wisconsin v. Constantineau18 it has been observedthat:-“Where a person’s good name, reputation, honor,or integrity is at stake because of what thegovernment is doing to him, notice and an17 (2004) UKHL 22 at para 5518400 U.S. 433 (1971)84opportunity to be heard are essential. “Posting”under the Wisconsin Act may to some be merelythe mark of illness, to others it is a stigma, anofficial branding of a person. The label is adegrading one. Under the Wisconsin Act, a residentof Hartford is given no process at all. This appelleewas not afforded a chance to defend herself. Shemay have been the victim of an official’s caprice.Only when the whole proceedings leading to thepinning of an unsavory label on a person are airedcan oppressive results be prevented.”38. In Rosenblatt v. Baer19 Mr. Justice Stewart observedthat:- “The right of a man to the protection of his ownreputation from unjustified invasion and wrongfulhurt reflects no more than our basic concept of theessential dignity and worth of every human being-- a concept at the root of any decent system ofordered liberty.”Outlook of the Courts in Canada39. Hill v. Church of Scientology of Toronto20“(ii) The Reputation of the Individual19383 U.S. 75 (1966)20
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[1995] 2 SCR 113085107 The other value to be balanced in adefamation action is the protection of thereputation of the individual. Although much hasvery properly been said and written about theimportance of freedom of expression, little has beenwritten of the importance of reputation. Yet, tomost people, their good reputation is to becherished above all. A good reputation is closelyrelated to the innate worthiness and dignity of theindividual. It is an attribute that must, just asmuch as freedom of expression, be protected bysociety's laws. In order to undertake the balancingrequired by this case, something must be saidabout the value of reputation.108 Democracy has always recognized andcherished the fundamental importance of anindividual. That importance must, in turn, bebased upon the good repute of a person. It is thatgood repute which enhances an individual's senseof worth and value. False allegations can so veryquickly and completely destroy a good reputation.A reputation tarnished by libel can seldom regainits former lustre. A democratic society, therefore,has an interest in ensuring that its members canenjoy and protect their good reputation so long asit is merited.”Opinion of the Courts in South Africa40. In the approach of the South African Courts, “humandignity” is one of the founding values of the South AfricanConstitution (Clause 1). The Constitution protects dignity86(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, ourcommon law has separated the causes of action forclaims for injuries to reputation (fama) anddignitas. Dignitas concerns the individual’s ownsense of self worth, but included in the concept area variety of personal rights including, for example,privacy. In our new constitutional order, no sharp
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line can be drawn between these injuries topersonality rights. The value of human dignity inour Constitution is not only concerned with anindividual’s sense of self-worth, but constitutes anaffirmation of the worth of human beings in oursociety. It includes the intrinsic worth of humanbeings shared by all people as well as theindividual reputation of each person built upon hisor her own individual achievements. The value ofhuman dignity in our Constitution therefore valuesboth the personal sense of self-worth as well as thepublic’s estimation of the worth or value of anindividual. It should also be noted that there is aclose link between human dignity and privacy inour constitutional order. [a footnote here in thejudgment reads: “See National Coalition .. at para30: “The present case illustrates how, in particularcircumstances, the rights of equality and dignityare closely related, as are the rights of dignity andprivacy.”] The right to privacy, entrenched insection 14 of the Constitution, recognises thathuman beings have a right to a sphere of intimacyand autonomy that should be protected frominvasion… This right serves to foster humandignity. No sharp lines then can be drawn between21 [2002] ZACC 12; 2002 (5) SA 40187reputation, dignitas and privacy in giving effect tothe value of human dignity in our Constitution. …28. The law of defamation seeks to protect thelegitimate interest individuals have in theirreputation. To this end, therefore, it is one of theaspects of our law which supports the protection ofthe value of human dignity. When considering theconstitutionality of the law of defamation,therefore, we need to ask whether an appropriatebalance is struck between the protection offreedom of expression on the one hand, and thevalue of human dignity on the other.”
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Perception of the European Court of Human Rights41. In Lindon v. France22, Judge Loucaides, in hisconcurring opinion, held:-“Accepting that respect for reputation is anautonomous human right, which derives its sourcefrom the Convention itself, leads inevitably to amore effective protection of the reputation ofindividuals vis-à-vis freedom of expression.”42. In the said case, the Court has expressly recognised thatprotection of reputation is a right which is covered by thescope of the right to respect for one’s private life under Article8 of the Convention. In course of deliberations reference has22(2008) 46 E.H.R.R. 3588been made to Chauvy and Others v. France23, Abeberry v.France (dec.), no. 58729/00, 21 September 2004; and Whitev. Sweden24.43. In Karakó v. Hungary25 the Court has opined that:-“24. The Court reiterates that paragraph 2 ofArticle 10 recognises that freedom of speech maybe restricted in order to protect reputation (seeparagraph 16 above). In other words, theConvention itself announces that restrictions onfreedom of expression are to be determined withinthe framework of Article 10 enshrining freedom ofspeech.25. The Court is therefore satisfied that theinherent logic of Article 10, that is to say, thespecial rule contained in its second paragraph,precludes the possibility of conflict with Article 8.In the Court’s view, the expression “the rights ofothers” in the latter provision encompasses theright to personal integrity and serves as a groundfor limitation of freedom of expression in so far asthe interference designed to protect private life isproportionate.”44. In Axel Springer AG v. Germany26 it has been ruled:-
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23 (2005) 41 EHRR 2924 [2007] EMLR 125(2011) 52 E.H.R.R. 362689“… [T]he right to protection of reputation is a rightwhich is protected by Article 8 of the Convention aspart of the right to respect for private life … Inorder for Article 8 to come into play, however, anattack on a person’s reputation must attain acertain level of seriousness and in a mannercausing prejudice to personal enjoyment of theright to respect for private life … The Court hasheld, moreover, that Article 8 cannot be relied on inorder to complain of a loss of reputation which isthe foreseeable consequence of one’s own actionssuch as, for example, the commission of a criminaloffence …When examining the necessity of an interference ina democratic society in the interests of the“protection of the reputation or rights of others”,the Court may be required to verify whether thedomestic authorities struck a fair balance whenprotecting two values guaranteed by theConvention which may come into conflict with eachother 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 lifeenshrined in Article 8.”The perspective of this Court45. In Board of Trustees of the Port of Bombay v.Dilipkumar Raghavendranath Nadkarni and others27, theCourt has opined that expression “Life” does not merely(2012) 55 E.H.R.R. 627 (1983) 1 SCC 12490connote animal existence or a continued drudgery through
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life. Further, it proceeded to state thus:-“… The expression “life” has a much widermeaning. Where therefore the outcome of adepartmental enquiry is likely to adversely affectreputation or livelihood of a person, some of thefiner graces of human civilization which make lifeworth living would be jeopardised and the samecan be put in jeopardy only by law which inheresfair procedures. In this context one can recall thefamous words of Chapter II of 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 forquashing 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 withregard to the matter of safeguarding the reputation of aperson being prejudicially affected in clause (b) of Section 8-Bof the Commissions of Inquiry Act. It is because reputation ofan individual is a very ancient concept. The Court referred tothe words of caution uttered by Lord Krishna to Arjun in28 (1989) 1 SCC 49491Bhagwad Gita with regard to dishonour or loss of reputation;and proceeded to quote:-“Akirtinchapi bhutani kathaishyantite-a-vyayam, Sambha-vitasya Chakirtirmaranadatirichyate. (2.34)(Men will recount thy perpetual dishonour,and to one highly esteemed, dishonourexceedeth death.)”Thereafter, the Court referred to Blackstone’sCommentary of the Laws of England, Vol. I, 4th Edn., whereinit has been stated that the right of personal security consistsin a person’s legal and uninterrupted enjoyment of his life, hislimbs, his body, his health and his reputation. Thereafter,advertence was made to the statement made in Corpus JurisSecundum, Vol. 77 at p. 268 which is to the following effect:-“It is stated in the definition Person, 70 C.J.S. p.
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688 note 66 that legally the term “person”includes not only the physical body andmembers, but also every bodily sense andpersonal attribute, among which is thereputation a man has acquired. Blackstone inhis Commentaries classifies and distinguishesthose rights which are annexed to the person,jura personarum, and acquired rights in externalobjects, jura rerum; and in the former he92includes personal security, which consists in aperson’s legal and uninterrupted enjoyment ofhis life, his limbs, his body, his health, and hisreputation. And he makes the correspondingclassification of remedies. The idea expressed isthat a man’s reputation is a part of himself, ashis body and limbs are, and reputation is a sortof right to enjoy the good opinion of others, andit is capable of growth and real existence, as anarm or leg. Reputation is, therefore, a personalright, and the right to reputation is put amongthose absolute personal rights equal in dignityand importance to security from violence.According to Chancellor Kent as a part of therights of personal security, the preservation ofevery person’s good name from the vile arts ofdetraction is justly included. The laws of theancients, no less than those of modern nations,made private reputation one of the objects oftheir protection.The right to the enjoyment of a good reputationis a valuable privilege, of ancient origin, andnecessary to human society, as stated in Libeland Slander Section 4, and this right is withinthe constitutional guaranty of personal securityas stated in Constitutional Law Section 205, anda person may not be deprived of this rightthrough falsehood and violence without liabilityfor the injury as stated in Libel and SlanderSection 4.
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Detraction from a man’s reputation is an injuryto his personality, and thus an injury toreputation is a personal injury, that is, an injuryto an absolute personal right”.93Be it noted a passage from D.F. Marion v. Davis29, wasreproduced with approval:-“The right to the enjoyment of a privatereputation, unassailed by malicious slander is ofancient origin, and is necessary to humansociety. A good reputation is an element ofpersonal security, and is protected by theConstitution equally with the right to theenjoyment of life, liberty, and property.”47. In Gian Kaur v. State of Punjab30, this Court observedthat the right to reputation is a natural right. In MehmoodNayyar Azam v. State of Chhatisgarh and others31, whilediscussing the glory of honourable life, the Court observed:-“Albert Schweitzer, highlighting on the Glory ofLife, pronounced with conviction and humility, “thereverence of life offers me my fundamentalprinciple on morality”. The aforesaid expressionmay appear to be an individualistic expression of agreat personality, but, when it is understood in thecomplete sense, it really denotes, in its conceptualessentiality, and connotes, in its macrocosm, thefundamental perception of a thinker about therespect that life commands. The reverence of life is29 55 ALR 17130 (1996) 2 SCC 64831 (2012) 8 SCC 194insegregably associated with the dignity of ahuman being who is basically divine, not servile.”Elucidating further, the Court observed:-“A human personality is endowed with potentialinfinity and it blossoms when dignity is sustained.The sustenance of such dignity has to be thesuperlative concern of every sensitive soul. The
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essence of dignity can never be treated as amomentary spark of light or, for that matter, “abrief candle”, or “a hollow bubble”. The spark of lifegets more resplendent when man is treated withdignity sans humiliation, for every man is expectedto lead an honourable life which is a splendid giftof “creative intelligence”. When a dent is created inthe reputation, humanism is paralysed….”48. In Vishwanath Agrawal v. Saral VishwanathAgrawal32 this Court observed that reputation which is notonly the salt of life, but also the purest treasure and the mostprecious perfume of life. It is a revenue generator for thepresent as well as for the posterity. In Umesh Kumar v.State of Andhra Pradesh and another33 the Court observedthat personal rights of a human being include the right ofreputation. A good reputation is an element of personal32 (2012) 7 SCC 28833 (2013) 10 SCC 59195security and is protected by the Constitution equally with theright to the enjoyment of life, liberty and property and as suchit has been held to be a necessary element in regard to rightto life of a citizen under Article 21 of the Constitution. TheInternational Covenant on Civil and Political Rights, 1966recognises right to have opinions and right to freedom ofexpression under Article 19 is subject to the right ofreputation of others.49. In Kishore Samrite v. State of Uttar Pradesh andothers34, while dealing with the term “person” in the contextof reputation, the Court after referring to the authorities inKiran Bedi (supra) and Nilgiris Bar Association v. T.K.Mahalingam and another35 held that:- “The term “person” includes not only the physicalbody and members but also every bodily sense andpersonal attribute among which is the reputation aman has acquired. Reputation can also be definedto be good name, the credit, honour or characterwhich is derived from a favourable public opinion
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or esteem, and character by report. The right toenjoyment of a good reputation is a valuable34 (2013) 2 SCC 39835 (1998) 1 SCC 55096privilege of ancient origin and necessary to humansociety. “Reputation” is an element of personalsecurity and is protected by the Constitutionequally with the right to enjoyment of life, libertyand property. Although “character” and“reputation” are often used synonymously, butthese terms are distinguishable. “Character” iswhat a man is and “reputation” is what he issupposed to be in what people say he is.“Character” depends on attributes possessed and“reputation” on attributes which others believe oneto possess. The former signifies reality and thelatter merely what is accepted to be reality atpresent. …”50. In Om Prakash Chautala v. Kanwar Bhan andothers36 it has been held that reputation is fundamentally aglorious amalgam and unification of virtues which makes aman feel proud of his ancestry and satisfies him to bequeathit as a part of inheritance on posterity. It is a nobility in itselffor which a conscientious man would never barter it with allthe 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 honourwhich deserves to be equally preserved by the downtroddenand the privileged. The aroma of reputation is an excellence36 (2014) 5 SCC 41797which cannot be allowed to be sullied with the passage oftime. It is dear to life and on some occasions it is dearer thanlife. And that is why it has become an inseparable facet ofArticle 21 of the Constitution. No one would like to have hisreputation dented, and it is perceived as an honour ratherthan popularity.51. In State of Gujarat and another v. Hon’ble High
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Court of Gujarat37, the court opined:-“An honour which is a lost or life which is snuffedout cannot be recompensed”52. We have dwelled upon the view of this Court as regardsvalue of reputation and importance attached to it. We shallbe obliged, as we are, to advert to some passages from theaforementioned authorities and also from otherpronouncements to understand the Court’s “accent” onreputation as an internal and central facet of right to life asprojected under Article 21 of the Constitution at a later stage.37 (1998) 7 SCC 3929853. Having reconnoitered the assessment of the value ofreputation and scrutinised the conceptual meaning of theterm “reputation”, we are required to weigh in the scale offreedom of speech and expression, especially under ourConstitution and the nature of the democratic polity thecountry has.Right of the Freedom of Speech and Expression54. To appreciate the range and depth of the said right, it isessential to understand the anatomy of Articles 19(1)(a) and19(2) of the Constitution. Be it noted here that Article 19(2)was amended by the 1st Amendment to the Constitution on18th June, 1951 w.e.f. 26.01.1950. Article 19(1)(a) hasremained 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 thefollowing words:-99“Nothing in sub-clause (a) of Cl.(1) shall affect theoperation of any existing law in so far as it relatesto, or prevents the state from making any lawrelating to, libel, slander, defamation, contempt ofCourt or any matter which offends against decencyor morality or which undermines the security of, ortends to overthrow, the State.”56. After the amendment, the new incarnation is as follows:-“(2) Nothing in sub-clause (a) of clause (1) shall
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affect the operation of any existing law, or preventthe State from making any law, in so far as suchlaw imposes reasonable restrictions on the exerciseof the right conferred by the said sub-clause in theinterests of the security of the State, friendlyrelations with foreign States, public order, decencyor 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 reasonablerestriction have also made an effort, albeit an Everestian one,pertaining to the meaning of the term “defamation” as used inArticle 19(2). In this regard, four aspects, namely, (i)defamation, however extensively stretched, can only include acivil action but not a criminal proceeding, (ii) even ifdefamation is conceived of to include a criminal offence,100regard being had to its placement in Article 19(2), it has to beunderstood in association of the words, “incitement to anoffence”, for the principle of noscitur a sociis has to be madeapplicable, then only the cherished and natural right offreedom of speech and expression which has been recognizedunder Article 19(1)(a) would be saved from peril, (iii) theintention of clause (2) of Article 19 is to include a public lawremedy in respect of a grievance that has a collective impactbut not to take in its ambit an actionable claim under thecommon law by an individual and (iv) defamation of a personis mostly relatable to assault on reputation by anotherindividual and such an individual cavil cannot be thought ofbeing pedestalled as fundamental right and, therefore, thecriminal defamation cannot claim to have its source in theword “defamation” used in Article 19(2) of the Constitution.58. To appreciate the said facets of the submission, it isnecessary to appreciate ambit and purport of the word“defamation”. To elaborate, whether the word “defamation”includes both civil and criminal defamation. Only after weanswer the said question, we shall proceed to advert to the101aspect of reasonable restriction on the right of freedom ofspeech and expression as engrafted under Article 19(1)(a).Mr. Rohtagi, learned Attorney General for India hascanvassed that to understand the ambit of the word
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“defamation” in the context of the language employed inArticle 19(2), it is necessary to refer to the ConstituentAssembly debates. He has referred to certain aspects of thedebates and we think it appropriate to reproduce the relevantparts:-“The Honourable Dr. B.R. Ambedkar: Sir, thisarticle is to be read along with article 8.Article 8 says –“All laws in force immediately before thecommencement of this Constitution in theterritory of India, in so far as they areinconsistent 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 anyother matter which offends against decency ormorality or undermines the security of the Stateshall 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 anylaw relating to contempt of court article 8 wouldapply, and it would stand abrogated. It isprevent that kind of situation that the words“contempt of court” are introduced, and there is,102therefore, no difficulty in this amendment beingaccepted.Now with regard to the point made by Friend Mr.Santhanam, it is quite true that so far asfundamental rights are concerned, the word“State” is used in a double sense, including theCentre as well as the Provinces. But I think hewill bear in mind that notwithstanding this fact, aState may make a law as well as the Centre maymake a law, some of the heads mentioned heresuch as libel, slander, defamation, security ofState, etc., are matters placed in the Concurrentlist so that if there was any very great variationamong the laws made, relating to these subjects,it will be open to the Centre to enter upon the
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field and introduce such uniformity as the Centrethinks it necessary for this purpose”.“Mahaboob Ali Baig Sahib Bahadur…Then, Sir, it is said by Dr. Ambedkar in hisintroductory speech that fundamental rights arenot absolute. Of course, they are not; they arealways subject to the interests of the generalpublic and the safety of the State, but thequestion is when a certain citizen oversteps thelimits so as to endanger the safety of the State,who is to judge? According to me, Sir, andaccording to well recognized canons, it is not theexecutive or the legislature, but it is theindependent judiciary of the State that has tojudge whether a certain citizen has oversteppedthe limits so as to endanger the safety of theState. This distinction was recognized by theframers of the American Constitution in thatfamous Fourteenth Amendment which clearlylaid down that no Congress can make any law toprejudice the freedom of speech, the freedom ofassociation and the freedom of the press. This103was in 1791, and if the American citizentransgressed the limits and endangered theState, the judiciary would judge him and not thelegislature or the executive.”The following speech from the ConstituentAssembly Debates of Shri. K. Hanumanthaiya(Mysore) is extremely significant:“The question next arises whether this limitingauthority should be the legislature or the court.That is a very much debated question. Very manypeople, very conscientiously too, think that thelegislature or the executive should not haveanything to do with laying down the limitationsfor the operation of these fundamental rights,and that it must be entrusted to courts which arefree from political influences, which areindependent and which can take an impartialview. That is the view taken by a good number of
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people and thinkers. Sir, I for one, though Iappreciate the sincerity with which this argumentis advanced, fail to see how it can work in actualpractice. Courts can, after all, interpret the lawas it is. Law once made may not hold good in itstrue character for all time to come. Societychanges; Government change; the temper andpsychology of the people change from decade todecade if not from year to year. The law must besuch as to automatically adjust itself to thechanging conditions. Courts cannot, in the verynature of things, do legislative work; they canonly interpret. Therefore, in order to see that thelaw automatically adjusts to the conditions thatcome into being in times to come, this power oflimiting the operation of the fundamental rightsis given to the legislature. After all, the legislaturedoes not consist of people who come without thesufferance of the people. The legislature consistsof real representatives of the people as laid down104in this Constitution. If, at a particular time thelegislature thinks that these rights ought to beregulated in a certain manner and in a particularmethod, there is nothing wrong in it, nothingdespotic about it, nothing derogatory to thesefundamental rights. I am indeed glad that thisright of regulating the exercise of fundamentalrights is given to the legislature instead of to thecourts.”59. In this regard, excerpts from speech from Prof. K.T.Shah are also noteworthy:-“… my purpose in bringing forward thisamendment is to point out that, if all thefreedoms enumerated in this article are to be inaccordance with only the provisions of thisarticle, or are to be guaranteed subject to theprovisions of this article only, then they wouldamount more to a negation of freedom than thepromise or assurance of freedom, because in
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everyone of these clauses the exceptions aremuch more emphasised than the positiveprovision. In fact, what is given by one righthand seems to be taken away by three or four orfive left hands; and therefore the article isrendered negatory in any opinion.I am sure that was not the intention or meaningof the draftsmen who put in the other articlesalso. I suggest therefore that instead of making itsubject to the provisions of this article, weshould make it subject to the provisions of thisConstitution. That is to say, in this Constitutionthis article will remain. Therefore if you want toinsist upon these exceptions, the exceptions willalso remain. But the spirit of the Constitution,105the ideal under which this Constitution is based,will also come in, which I humbly submit, wouldnot be the case, if you emphasise only thisarticle. If you say merely subject to theprovisions of this article, then you very clearlyemphasise and make it necessary to read onlythis article by itself, which is more restrictivethan necessary. …… The freedoms are curtly enumerated in 5, 6 or7 items in one sub-clause of the article. Theexceptions are all separately mentioned inseparate sub-clauses. And their scope is sowidened that I do not know what cannot beincluded as exception to these freedoms ratherthan the rule. In fact, the freedoms guaranteedor assured by this article become so elusive thatone would find it necessary to have a microscopeto discover where these freedoms are, wheneverit suits the State or the authorities running it todeny them. I would, therefore, repeat that youshould bring in the provisions of the wholeConstitution, including its Preamble andincluding all other articles and chapters wherethe spirit of the Constitution should be moreeasily and fully gathered than merely in this
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article, which, in my judgment, runs counter tothe spirit of the Constitution. …I also suggest that it would not be enough toenumerate these freedoms, and say the citizenshall have them. I would like to add the wordsalso that by this Constitution these freedoms areguaranteed. That is to say, any exception whichis made, unless justified by the spirit of theConstitution, the Constitution as a whole andevery part of it included, would be a violation ofthe freedoms guaranteed hereby.”106Relying on the said debates, it is urged by Mr. Rohatgithat the founding fathers had no intention to confer arestricted meaning on the term “defamation”.60. After this debate, Article 19(2) came in its original shape.Thereafter, the First Amendment to the Constitution, passedin June, 1951 which empowered the State to impose“reasonable restrictions” on the freedom of speech andexpression “in the interests of the security of the State38,friendly relations with foreign States, public order, decency ormorality, or in relation to contempt of court, defamation, orincitement to an offence”. The words “libel” and “slander” weredropped. “Incitement to an offence” was added as a responseto the rulings in State of Bihar v. Shailabala Devi39 andBrij Bhushan v. State of Delhi40. The restrictions werequalified by prefixing the word “reasonable”. The 16th38 Replacing the words “tends to overthrow the State”.39 AIR 1952 SC 32940 1952 SCR 654 : AIR 1950 SC 129107Amendment to the Constitution in 1963 added the power toimpose restrictions on the freedom of speech and expressionin the interests of “sovereignty and integrity of India”.61. We may state with profit that the debates of theConstituent Assembly can be taken aid of for the purpose ofunderstanding the intention of the framers of the
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Constitution. In S.R. Chaudhuri v. State of Punjab andothers41 a three-Judge Bench has observed thatConstitutional provisions are required to be understood andinterpreted with an object-oriented approach. A Constitutionmust not be construed in a narrow and pedantic sense. Thewords used may be general in terms but, their full import andtrue meaning, has to be appreciated considering the truecontext in which the same are used and the purpose whichthey seek to achieve. While so observing, the Court proceededto state that it is a settled position that debates in theConstituent Assembly may be relied upon as an aid tointerpret a constitutional provision because it is the function41 (2001) 7 SCC 126108of the court to find out the intention of the framers of theConstitution. It was also highlighted that the Constitution isnot just a document in solemn form, but a living frameworkfor the Government of the people exhibiting a sufficient degreeof cohesion and its successful working depends upon thedemocratic spirit underlying it being respected in letter and inspirit. In Special Reference No. 1 of 2002, In re (GujaratAssembly Election matter)42, the issue of relying on theConstituent Assembly Debates again came up forconsideration. Khare, J. (as His Lordship then was) referred toHis Holiness Kesavananda Bharati Sripadagalvaru v.State of Kerala and another43 and held:-“Constituent Assembly Debates although notconclusive, yet show the intention of the framers ofthe Constitution in enacting provisions of theConstitution and the Constituent Assembly Debatescan throw light in ascertaining the intention behindsuch provisions.”42 (2002) 8 SCC 23743 (1973) 4 SCC 22510962. Recently, in Manoj Narula v. Union of India44 themajority in the context of understanding the purpose ofArticle 75 of the Constitution referred to the ConstituentAssembly debates.
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63. We have referred to the aforesaid aspect only to highlightthe intention of the founding fathers and also howcontextually the word “defamation” should be understood. Atthis stage, we may state that in the course of hearing, anendeavour was made even to the extent of stating that theword “defamation” may not even call for a civil action in theabsence of a codified law. In this regard, we may usefully referto M.C. Setalvad’s Hamlyn Lectures (Twelfth Series) “TheCommon Law of India” wherein India’s first Attorney Generalexpressed that:-“an important branch of law which has remaineduncodified in India is the law relating to civilwrongs.Some of the most important rights of a personwhich the law protects from injury are rights to thesecurity of his person, his domestic relations andhis property and reputation… (page 108)44 (2014) 9 SCC 1110One of the outstanding fact of English legal historyfor the last three centuries is the development ofthe law of torts from small beginnings to its presentdimensions as a separate branch of law. Theaction for damages as a remedy for violations ofrights and duties has been fashioned by lawyers,judges and juries of England as an instrument formaking people adhere to standards of reasonablebehavior and respect the rights and interest of oneanother. A body of rules has grown and isconstantly growing in response to new concepts ofright and duty and new needs and conditions ofadvancing civilization. The principles which formthe foundation of the law of torts are usuallyexpressed by saying the injuria sine damno isactionable but damnum sine (or absque) injuria isnot. …”(page 109)64. The common law of England was the prevalent law beingadopted before the Constitution came into force and it isdeclared as a law in force under Article 372 of the
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Constitution of India by a larger Bench decision inSuperintendent 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:-45 AIR 1967 SC 997 = 1967 (2) SCR 17046 (1974) 2 SCC 393 111“There is an inherent right in every person to bringa suit of a civil nature and unless the suit is barredby statue one may, at one’s peril, bring a suit one’schoice. It is no answer to a suit, howsoeverfrivolous the claim, that the law confers no suchright to sue. A suit for its maintainability requiresno authority of law and it is enough that no statutebars the suit.”66. We have referred to this aspect only to clarify the positionthat it is beyond any trace of doubt that civil action for whichthere is no codified law in India, a common law right can betaken recourse to under Section 9 of the Code of CivilProcedure, 1908, unless there is specific statutory bar in thatregard.67. The other aspect that is being highlighted in the contextof Article 19(2)(a) is that defamation even is conceived of toinclude a criminal offence, it must have the potentiality to“incite to cause an offence”. To elaborate, the submission isthe words “incite to cause an offence” should be read to giveattributes and characteristics of criminality to the word“defamation”. It must have the potentiality to lead to breach ofpeace and public order. It has been urged that the intention ofclause (2) of Article 19 is to include a public law remedy in112respect of a grievance that has a collective impact but not asan actionable claim under the common law by an individualand, therefore, the word “defamation” has to be understood inthat context, as the associate words are “incitement to anoffence” would so warrant. Mr. Rao, learned senior counsel,astutely canvassed that unless the word “defamation” isunderstood in this manner applying the principle of noscitur a
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sociis, the cherished and natural right of freedom of speechand expression which has been recognized under Article 19(1)(a) would be absolutely at peril. Mr. Narsimha, learned ASGwould contend that the said rule of construction would not beapplicable to understand the meaning of the term“defamation”. Be it noted, while construing the provision ofArticle 19(2), it is the duty of the Court to keep in view theexalted spirit, essential aspects, the value and philosophy ofthe Constitution. There is no doubt that the principle ofnoscitur a sociis can be taken recourse to in order tounderstand and interpret the Constitution but while applyingthe principle, one has to keep in mind the contours and scopeof applicability of the said principle. In State of Bombay v.113Hospital Mazdoor Sabha 47, it has been held that it must beborne in mind that noscitur a sociis is merely a rule ofconstruction and it cannot prevail in cases where it is clearthat wider words have been deliberately used in order to makethe scope of the defined word correspondingly wider. It is onlywhere the intention of the legislature in associating widerwords with words of narrower significance is doubtful, orotherwise not clear that the said rule of construction can beusefully applied. It can also be applied where the meaning ofthe words of wider import is doubtful; but, where the object ofthe legislature in using wider words is clear and free ofambiguity, the rule of construction in question cannot bepressed into service.68. In Bank of India v. Vijay Transport and others48, theCourt was dealing with the contention that a literalinterpretation is not always the only interpretation of aprovision in a statute and the court has to look at the setting47 AIR 1960 SC 610 = (1960) 2 SCR 86648 1988 Supp SCC 47 = AIR 1988 SC 151114in which the words are used and the circumstances in whichthe law came to be passed to decide whether there issomething implicit behind the words actually used whichwould control the literal meaning of the words used. For thesaid purpose, reliance was placed on R.L. Arora v. State of
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Uttar Pradesh49. Dealing with the said aspect, the Court hasobserved thus:-“… It may be that in interpreting the words of theprovision of a statute, the setting in which suchwords are placed may be taken into consideration,but that does not mean that even though the wordswhich are to be interpreted convey a clear meaning,still a different interpretation or meaning should begiven to them because of the setting. In otherwords, while the setting of the words maysometimes be necessary for the interpretation ofthe words of the statute, but that has not beenruled by this Court to be the only and the surestmethod of interpretation. …”69. The Constitution Bench, in Godfrey Phillips India Ltd.and another v. State of U.P. and others50, while expressingits opinion on the aforesaid rule of construction, opined:-49 (1964) 6 SCR 784 = AIR 1964 SC 123050 (2005) 2 SCC 515115“81. We are aware that the maxim of noscitur asociis may be a treacherous one unless the“societas” to which the “socii” belong, are known.The risk may be present when there is no otherfactor except contiguity to suggest the “societas”.But where there is, as here, a term of widedenotation which is not free from ambiguity, theaddition of the words such as “including” issufficiently indicative of the societas. As we havesaid, the word “includes” in the present contextindicates a commonality or shared features orattributes of the including word with the included.x x x x83. Hence on an application of general principles ofinterpretation, we would hold that the word“luxuries” in Entry 62 of List II means the activityof enjoyment of or indulgence in that which iscostly or which is generally recognised as beingbeyond the necessary requirements of an average
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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 andothers51, it has been stated that noscitur a sociis is a legitimaterule of construction to construe the words in an Act of theParliament with reference to the words found in immediateconnection with them. In this regard, we may refer to a51 (2004) 1 SCC 755116passage from Justice G.P. Singh, Principles of StatutoryInterpretation52 where the learned author has referred to thelucid explanation given by Gajendragadkar, J. We think itappropriate to reproduce the passage:-“It is a rule wider than the rule of ejusdem generis;rather the latter rule is only an application of theformer. The rule has been lucidly explained byGAJENDRAGADKAR, J. in the following words:“This rule, according to MAXWELL53, means thatwhen two or more words which are susceptible ofanalogous meaning are coupled together, they areunderstood to be used in their cognate sense. Theytake as it were their colour from each other, that is,the more general is restricted to a sense analogousto a less general.”Learned author on further discussion has expressed theview that meaning of a word is to be judged from the companyit keeps, i.e., reference to words found in immediateconnection with them. It applies when two or more words aresusceptible of analogous meanings are coupled together, to beread and understood in their cognate sense.54 Noscitur a52 13th Edn. 2012 p. 50953 Maxwell: Interpretation of Statutes, 11th Edition, p. 32154117soccis is merely a rule of construction and cannot prevailwhere it is clear that wider and diverse etymology isintentionally and deliberately used in the provision. It is only
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when and where the intention of the legislature in associatingwider words with words of narrowest significance is doubtfulor otherwise not clear, that the rule of noscitur a soccis isuseful.71. The core issue is whether the said doctrine of noscitur asoccis should be applied to the expression “incitement of anoffence” used in Article 19(2) of the Constitution so that it getsassociated with the term “defamation”. The term “defamation”as used is absolutely clear and unambiguous. The meaningis beyond doubt. The said term was there at the time ofcommencement of the Constitution. If the word “defamation”is associated or is interpreted to take colour from the terms“incitement to an offence”, it would unnecessarily make it arestricted one which even the founding fathers did not intendto do. Keeping in view the aid that one may take from theConstituent Assembly Debates and regard being had to the Principles of Statutory Interpretations by G.P. Singh, Eighth Edition, p. 379118clarity of expression, we are of the considered opinion thatthere is no warrant to apply the principle of noscitur a sociisto give a restricted meaning to the term “defamation” that itonly includes a criminal action if it gives rise to incitement toconstitute an offence. The word “incitement” has to beunderstood in the context of freedom of speech andexpression and reasonable restriction. The word “incitement”in criminal jurisprudence has a different meaning. It isdifficult to accede to the submission that defamation can onlyget criminality if it incites to make an offence. The word“defamation” has its own independent identity and it standsalone and the law relating to defamation has to be understoodas it stood at the time when the Constitution came into force.72. The submission is that Sections 499 and 500 of IPC arenot confined to defamation of the State or its components butinclude defamation of any private person by another privateperson totally unconnected with the State. In essence, theproponement is that the defamation of an individual byanother individual can be a civil wrong but it cannot be madea crime in the name of fundamental right as protection of119private rights qua private individuals cannot be conferred thestatus of fundamental rights. If, argued the learned counsel,such a pedestal is given, it would be outside the purview of
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Part III of the Constitution and run counter to Articles 14, 19and 21 of the Constitution. It is urged that defamation of aprivate person by another person is unconnected with thefundamental right conferred in public interest by Article 19(1)(a); and a fundamental right is enforceable against the Statebut cannot be invoked to serve a private interest of anindividual. Elucidating the same, it has been propoundedthat defamation of a private person by another person cannotbe regarded as a ‘crime’ under the constitutional frameworkand hence, what is permissible is the civil wrong and theremedy under the civil law. Section 499 IPC, which stipulatesdefamation of a private person by another individual, has nonexus with the fundamental right conferred under Article19(1)(a) of the Constitution, for Article 19(2) is meant toinclude the public interest and not that of an individual and,therefore, the said constitutional provision cannot be thesource of criminal defamation. This argument is built up on120two grounds: (i) the common thread that runs through thevarious grounds engrafted under Article 19(2) is relatable tothe protection of the interest of the State and the public ingeneral and the word “defamation” has to be understood inthe said context, and (ii) the principle of noscitur a sociis,when applied, “defamation” remotely cannot assume thecharacter of public interest or interest of the crime inasmucha crime remotely has nothing to do with the same.73. We have already stated about the doctrine of noscitur asociis with regard to ‘incitement of an offence’. Mr. Rao,learned senior counsel, has emphasized on public interestrelying on the said principle and in that context hascommended us to the decisions in K. Bhagirathi G. Shenoyand others v. K.P. Ballakuraya and another55, ReserveBank of India v. Peerless General Finance andInvestment Co. Ltd. and others56. In Peerless General55 (1999) 4 SCC 13556 (1987) 1 SCC 424121
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Finance and Investment Co. Ltd. (supra), ChinnappaReddy, J. speaking for the Court, has observed that:-“Interpretation must depend on the text and thecontext. They are the bases of interpretation. Onemay well say if the text is the texture, context iswhat gives the colour. Neither can be ignored. Bothare important. That interpretation is best whichmakes the textual interpretation match thecontextual.”74. In K. Bhagirathi (supra), it has been held that:-“It is not a sound principle in interpretation ofstatutes to lay emphasis on one word disjunctedfrom its preceding and succeeding words. A wordin a statutory provision is to be read in collocationwith its companion words. The pristine principlebased on the maxim noscitur a sociis (meaning of aword should be known from its accompanying orassociating words) has much relevance inunderstanding the import of words in a statutoryprovision.”75. The decision in Peerless General Finance andInvestment Co. Ltd. (supra) relates to the principles to beadopted for understanding the statute. In K. Bhagirathi(supra), the Court has referred to the principle having regard tothe statutory context. We have already referred to the decisionin Hospital Mazdoor Sabha (supra) wherein it has been ruled122that the principle of noscitur a sociis is merely a rule ofconstruction and it cannot be allowed to prevail in a casewhere it is clear that wider words have been deliberately usedin order to make the scope of the defined word correspondinglywider. The term “defamation” as used in Article 19(2) shouldnot be narrowly construed. The conferment of a narrowmeaning on the word would defeat the very purpose that thefounding fathers intended to convey and further we do not findany justifiable reason to constrict the application. The word“defamation” as used in Article 19(2) has to be conferred anindependent meaning, for it is incomprehensible to reasonthat it should be read with the other words and expressions,namely, “security of the State”, “friendly relations with foreignStates”, “public order, decency or morality”. The submission is
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based on the premise that “defamation” is meant to serveprivate interest of an individual and not the larger publicinterest. Both the aspects of the said submission areinterconnected and interrelated. Defamation has been regardedas a crime in the IPC which is a pre-constitutional law. It isurged that such kind of legal right is unconnected with the123fundamental right conceived of under Article 19(1)(a) of theConstitution. Additionally, it is canvassed that reputationwhich has been held to be a facet of Article 21 in DilipkumarRaghavendranath Nadkarni (supra), Mehmood NayyarAzam (supra), and Umesh Kumar (supra), is against thebackdrop where the State has affected the dignity andreputation of an individual. This aspect of the submissionneeds apposite understanding. Individuals constitute thecollective. Law is enacted to protect the societal interest. Thelaw relating to defamation protects the reputation of eachindividual in the perception of the public at large. It matters toan individual in the eyes of the society. Protection of individualright is imperative for social stability in a body polity and thatis why the State makes laws relating to crimes. A crime affectsthe society. It causes harm and creates a dent in socialharmony. When we talk of society, it is not an abstract idea ora thought in abstraction. There is a link and connect betweenindividual rights and the society; and this connection gives riseto community interest at large. It is a concrete and visible124phenomenon. 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 basicconcept of crime. In Halsbury’s, 4th Edition, “Principles ofCriminal Liability” it has been described thus:-“There is no satisfactory definition of crime whichwill embrace the many acts and omissions whichare criminal, and which will at the same timeexclude all those acts and omissions which arenot. Ordinarily a crime is a wrong which affectsthe security or well-being of the public generallyso that the public has an interest in itssuppression. A crime is frequently a moral wrongin that it amounts to conduct which is inimical to
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the general moral sense of the community. It is,however, possible to instance many crimes whichexhibit neither of the foregoing characteristics.An act may be made criminal by Parliamentsimply because it is criminal process, rather thancivil, which offers the more effective means ofcontrolling the conduct in question.”77. In Kenny’s Outlines of Criminal law, 19th Edition, 1966by J.W. Cecil Turner, it has been stated that:-“There is indeed no fundamental or inherentdifference between a crime and a tort. Any conductwhich harms an individual to some extent harmssociety, since society is made up of individuals;and therefore although it is true to say of crime125that is an offence against society, this does notdistinguish crime from tort. The difference is oneof degree only, and the early history of the commonlaw shows how words which now suggest a realdistinction began rather as symbols of emotionthan as terms of scientific classification.”And, again :-“So long as crimes continue (as would seeminevitable) to be created by government policy thenature of crime will elude true definition.Nevertheless it is a broadly accurate description tosay that nearly every instance of crime presents allof the three following characteristics: (1) that it is aharm, brought about by human conduct, whichthe sovereign power in the State desires to prevent;(2) that among the measures of prevention selectedis the threat of punishment; (3) that legalproceedings of a special kind are employed todecide whether the person accused did in factcause the harm, and is, according to law, to beheld legally punishable for doing so.”78. Stephen defines a Crime thus:-“a crime is an unlawful act or default which isan offence against the public, rendering theperson guilty of such act or default liable to legalpunishment. The process by which such person
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is punished for the unlawful act or default iscarried on in the name of the Crown; althoughany private person, in the absence of statutoryprovision to the contrary, may commence acriminal prosecution. Criminal proceedings wereformerly called pleas of the crown, because the126King, in whom centres the majesty of the wholecommunity, is supposed by the law to be theperson injured by every infraction of the publicrights belonging to that community. Whereforehe is, in all cases, the proper prosecutor forevery public offence”.5779. Blackstone, while discussing the general nature ofcrime, has defined crime thus:-“A crime, or misdemeanour, is an act committedor omitted, in violation of a public law, eitherforbidding or commanding it. This generaldefinition comprehends both crimes andmisdemeanours; which, properly speaking, aremere synonyms terms: though, in commonusage, the word ‘crimes’ is made to denote suchoffences as are of a deeper and more atrociousdye; while smaller faults, and omissions of lessconsequence, are comprised under the gentlername of ‘misdemeanours’ only.”5880. The distinction of public wrongs from private, of crimesand misdemeanours from civil injuries, seems principally toconsist in this: that private wrongs or civil injuries are aninfringement or privation of the civil rights which belongs toindividuals, considered merely as individuals; public wrongs57 Stephen’s : New Commentaries on the Laws of England, Ed 17, Vol.4, Chap I, p.1-2.58 Blackstone’s : Commentaries on the Laws of England; Edited by Wayne Morrison, Vol. 4,p.5127or crimes and misdemeanours are a breach and violation ofthe public rights and duties due to the whole community inits social aggregate capacity.59 In all cases the crime includesinjury; every public offence is also a private wrong, and
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somewhat more. It affects the individual, and it likewiseaffects the community.6081. The constituents of crime in general has beenenumerated in Halsbury’s Laws of England as “a person is notto be convicted of a crime unless he has, by voluntaryconduct, brought about those elements which by common lawor statute constitute that crime. In general a person does notincur criminal liability unless he intended to bring about, orrecklessly brought about, those elements which constitutethe crime. The foregoing concepts are traditionally expressedin maxim “actus non facit reum nisi mens sit rea”61.59 Ibid. p. 560 Ibid . p. 661 Halsbury’s Laws of England : Edition 4, Vol.2 , Para 4, p.12128Enforcement of a right and seeking remedy are two distinctfacets. It should not be confused.82. The concept of crime is essentially concerned with socialorder. It is well known that man’s interests are best protectedas a member of the community. Everyone owes certain dutiesto his fellow-men and at the same time has certain rights andprivileges which he expects others to ensure for him. Thissense of mutual respect and trust for the rights of othersregulates the conduct of the members of society inter-se.Although most people believe in the principle of ‘live and letlive’, yet there are a few who, for some reason or the other,deviate from this normal behavioural pattern and associatethemselves with anti-social elements. This obviously imposesan obligation on the State to maintain normalcy in thesociety. This arduous task of protecting the law abidingcitizens and punishing the law breakers vests with the Statewhich performs it through the instrumentality of law. It is forthis reason that Salmond has defined law as a ‘rule of action’regulating the conduct of individuals in society. The conducts129which are prohibited by the law in force at a given time andplace are known as wrongful acts or crimes, whereas those
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which are permissible under the law are treated as lawful.The wrongdoer committing crime is punished for his guiltunder the law of crime.62
83. Mr. Rohtagi has referred to the Blackstone’s definitioncrimes and laid emphasis on the statement of Antony Duffwho has lucidly observed that “we should interpret a ‘public’wrong, not as a wrong that injures the public, but as one thatproperly concerns the public i.e. the polity as a whole”. In thisregard, he has drawn our attention to a passage from Duffand Marshall which state that public wrongs are wrongswhich village the shared values that normatively define thepolitical community in which fellow citizens are participants.The impact of such wrongs are shared by both the victims andfellow citizens and in this sense, such wrongs, concern thepublic at large- the polis, the state and fellow citizens. It isbecause of the “public” element that it is the State rather than62 Criminology and Penology by Dr. N.V Pranjape, 15th Edition, 2012 p. 1130the victim who is principally in-charge of the legal process. Itis the police who investigates the case, it is the State thatbrings the charges and whether charges are brought, how farthe case proceeds is up to the prosecution – it is not for thevictim to decide the course of the case. On the other hand, inthe civil process it is the affected private individual who isprimarily in-charge of the legal process and it is for suchindividual to take the case to its logical conclusion or to drop itif he so chooses – there is no duty on him to bring the case atall.84. In this context, reference to certain authorities thatdeliberated the conception of crime in the societal contextwould be apt. In State of Maharashtra v. Sujay MangeshPoyarekar63, this Court has held that every crime isconsidered as an offence against the society as a whole andnot only against an individual even though it is an individualwho is the ultimate sufferer. It is, therefore, the duty of theState to take appropriate steps when an offence has been63 (2008) 9 SCC 475131
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committed. Yet again, in Mohd. Shahabuddin v. State ofBihar and others64, it has been observed that every criminalact is an offence against the society. The crime is a wrongdone more to the society than to an individual. It involves aserious invasion of rights and liberties of some other personor persons. In Vinay Devanna Nayak v. Ryot SewaSahakari Bank Ltd.65, the Court, while deliberating on theissue of compromise in a criminal case, has noted that it is nodoubt true that every crime is considered to be an offenceagainst the society as a whole and not only against anindividual even though an individual might have sufferedthereby. It is, therefore, the duty of the State to takeappropriate action against the offender. It is equally the dutyof a court of law administrating criminal justice to punish acriminal. The stress is on the duty of the State in takingaction against the violator of law.64 (2010) 4 SCC 65365 (2008) 2 SCC 30513285. In R. Sai Bharathi v. J. Jayalalitha and others66,while opining about crime, it has been observed as under:-“56. Crime is applied to those acts, which areagainst social order and are worthy of seriouscondemnation. Garafalo, an eminent criminologist,defined “crime” in terms of immoral and anti-socialacts. He says that:-“crime is an immoral and harmful act that isregarded as criminal by public opinion because itis an injury to so much of the moral sense as ispossessed by a community — a measure whichis indispensable for the adaptation of theindividual to society”.The authors of the Indian Penal Code stated that:“… We cannot admit that a Penal Code is by anymeans to be considered as a body of ethics, thatthe legislature ought to punish acts merelybecause those acts are immoral, or that,
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because an act is not punished at all, it followsthat the legislature considers that act asinnocent. Many things which are not punishableare morally worse than many things which arepunishable. The man who treats a generousbenefactor with gross ingratitude and insolencedeserves more severe reprehension than theman who aims a blow in passion, or breaks awindow in a frolic; yet we have punishment forassault and mischief, and none for ingratitude.The rich man who refuses a mouthful of rice tosave a fellow creature from death may be a farworse man than the starving wretch who66 (2004) 2 SCC 9 133snatches and devours the rice; yet we punishthe latter for theft, and we do not punish theformer for hard-heartedness.””86. In T.K. Gopal alias Gopi v. State of Karnataka67,deliberating on the definition of crime, the Court ruled thatcrime can be defined as an act that subjects the doer tolegal punishment. It may also be defined as commission ofan act specifically forbidden by law; it may be an offenceagainst morality or social order”. In Kartar Singh v. Stateof Punjab68, this Court observed that:-“446. What is a crime in a given society at aparticular time has a wide connotation as theconcept of crime keeps on changing with change inpolitical, economic and social set-up of thecountry. Various legislations dealing with economicoffences or offences dealing with violation ofindustrial activity or breach of taxing provision areample proof of it. The Constitution-makers foresawthe eventuality, therefore they conferred suchpowers both on Central and State Legislatures tomake laws in this regard. Such right includespower to define a crime and provide for its
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punishment. Use of the expression, “including allmatters included in the Indian Penal Code at the67 (2000) 6 SCC 16868 (1994) 3 SCC 569134commencement of the Constitution” is unequivocalindication of comprehensive nature of this entry. Itfurther empowers the legislature to make laws notonly in respect of matters covered by the IndianPenal Code but any other matter which couldreasonably and justifiably be considered to becriminal in nature.”87. In Harpreet Kaur (Mrs) v. State of Maharashtra andanother69, the Court, though in a different context, opinedthat crime is a revolt against the whole society and an attackon the civilisation of the day. In their essential quality, theactivities which affect ‘law and order’ and those which disturb‘public order’ may not be different but in their potentiality andeffect upon even tempo of the society and public tranquilitythere is a vast difference. In State of Karnataka v. AppaBalu Ingale and others70 it has been observed that criminallaw primarily concerns with social protection, prescribes rulesof behavior to be observed by all persons and punishes themfor deviance, transgression or omission.69 (1992) 2 SCC 17770 1995 Supp. (4) SCC 46913588. From the aforesaid discussion, it is plain as day that thecontention that the criminal offence meant to subserve theright of inter se private individuals but not any public orcollective 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 Articles17, 23 and 24 which deal with abolition of untouchability andprohibit trafficking in human beings and forced labour andchild labour respectively are rights conferred on the citizensand they can be regarded as recognition of horizontal rights
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under the Constitution. He has referred to certain legislationsto highlight that they regulate rights of individuals inter se.Mr. Narsimha has drawn immense inspiration from Vishakaand others v. State of Rajasthan and others71 where theCourt has framed guidelines to protect the rights of individualsat their work place. It ultimately resulted in passing of theSexual Harassment of Women at Workplace (Prevention,prohibition and Redressal) Act, 2013 which empowered71 (1997) 6 SCC 241136individuals to protect their fundamental right to dignity againstother citizens. Similarly, legislations like the Child Labour(Prohibition & Regulation) Act, 1986, the Scheduled Castesand 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 underthe Environment (Protection) Act, 1986 regulate thefundamental rights of citizens vis-à-vis other citizens.89. We have referred to this facet only to show that thesubmission so astutely canvassed by the learned counsel forthe petitioners that treating defamation as a criminal offencecan have no public interest and thereby it does not serve anysocial interest or collective value is sans substratum. We mayhasten to clarify that creation of an offence may be for somedifferent reason declared unconstitutional but it cannot bestated that the legislature cannot have a law to constitute anact or omission done by a person against the other as a crime.It depends on the legislative wisdom. Needless to say, suchwisdom has to be in accord with constitutional wisdom andpass the test of constitutional challenge. If the law enacted is137inconsistent with the constitutional provisions, it is the dutyof the Court to test the law on the touchstone of Constitution.90. It is submitted by Mr. Rao, learned senior counsel, thatthe object of Part III of the Constitution is to provide protectionagainst the State action and, therefore, the criminaldefamation which is basically a dispute between two privateindividuals cannot become a facet of the term criminaldefamation as used in Article 19(2) of the Constitution, forthere cannot be a constitutional protection for such an action.
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For the said purpose, he has placed reliance on the authorityin State of West Bengal v. Subodh Gopal Bose andothers72. On a perusal of the said decision, we find that it hasbeen rendered in a quite different context and not with regardto an individual act becoming an offence in the criminal lawand hence, the said decision is remotely not applicable to sucha situation. Therefore, we conclude and hold that the restrictedmeaning sought to be given to the term “defamation” isunacceptable and insupportable.72 AIR 1954 SC 92 : [1954] SCR 587138Sanctity and significance of Freedom of Speech andExpression in a democracy91. Freedom of speech and expression in a spiriteddemocracy is a highly treasured value. Authors, philosophersand thinkers have considered it as a prized asset to theindividuality and overall progression of a thinking society, asit permits argument, allows dissent to have a respectableplace, and honours contrary stances. There are proponentswho have set it on a higher pedestal than life and nothesitated to barter death for it. Some have condemnedcompelled silence to ruthless treatment. William Dougles hasdenounced regulation of free speech like regulating diseasedcattle and impure butter. The Court has in many an authorityhaving realized its precious nature and seemly glorifiedsanctity has put it in a meticulously structured pyramid.Freedom of speech is treated as the thought of the freest whohas not mortgaged his ideas, may be wild, to the artificiallycultivated social norms; and transgression thereof is notperceived as a folly. Needless to emphasise, freedom of speech139has to be allowed specious castle, but the question is shouldit be so specious or regarded as so righteous that it wouldmake reputation of another individual or a group or acollection of persons absolutely ephemeral, so as to hold thatcriminal prosecution on account of defamation negates andviolates right to free speech and expression of opinion.Keeping in view what we have stated hereinabove, we arerequired to see how the constitutional conception has beenunderstood by the Court where democracy and rule of lawprevail.
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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]. Inthe words of American Supreme Court, it is “absolutelyindispensible for the preservation of a free society in whichgovernment is based upon the consent of an informed citizenryand is dedicated to the protection of the rights of all, even themost despised minorities” (See Speiser v. Randall73). In73(1958) 257 US 513 (530)140Yates v. U.S.74 the court held that “the only kind of securitysystem that can preserve a free Government – one that leavesthe way wide open for people to favor discuss, advocate, orincite causes and doctrines however obnoxious and antagonisticsuch views may be to the rest of us.” In Stromberg v.California75 the Court remarked “The maintenance of theopportunity for free political discussion to the end thatgovernment may be responsive to the will of the people and thatchanges may be obtained by lawful means… is a fundamentalprinciple of our constitutional system.” In Palko v.Connecticut76 the right to freedom of speech and expressionhas 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 tothe dissenting opinion of Holmes J. in Abrams v. UnitedStates77, thus:-74(1958) 354 US 298 (344)75(1931) 283 US 359 (369)76(1937) 302 US 31977141“… But when men have realised that time hasupset many fighting faiths, they may come tobelieve even more than they believe the veryfoundations of their own conduct that the
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ultimate good desired is better reached by freetrade in ideas—that the best test of truth is thepower of the thought to get itself accepted in thecompetition of the market; and that truth is theonly ground upon which their wishes safely canbe carried out. That at any rate, is the theory ofour Constitution.”94. In the concurring judgment Brandeis, J. inWhitney v. California78, stated that:-“Those who won our independence believed thatthe final end of the State was to make men freeto develop their faculties, and that in itsGovernment the deliberative forces shouldprevail over the arbitrary. They valued libertyboth as an end and as a means. They believedliberty to be the secret of happiness and courageto be the secret of liberty. They believed thatfreedom to think as you will and to speak as youthink are means indispensable to the discoveryand spread of political truth; that without freespeech and assembly discussion would be futile;that with them, discussion affords ordinarilyadequate protection against the dissemination ofnoxious doctrine; that the greatest menace tofreedom is an inert people; that publicdiscussion is a political duty; and that thisshould be a fundamental principle of theAmerican Government. They recognised the risks 250 US 616 :63 L Ed 1173 (1919)78 71 L Ed 1095 : 274 US 357 (1927)142to which all human institutions are subject. Butthey knew that order cannot be secured merelythrough fear of punishment for its infraction;that it is hazardous to discourage thought, hopeand imagination; that fear breeds repression;that repression breeds hate; that hate menacesstable Government; that the path of safety lies inthe opportunity to discuss freely supposedgrievances and proposed remedies; and that the
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fitting remedy for evil counsels is good ones.Believing in the power of reason as appliedthrough public discussion, they eschewedsilence coerced by law—the argument of force inits worst form. Recognising the occasionaltyrannies of governing majorities, they amendedthe Constitution so that free speech andassembly should be guaranteed.Fear of serious injury cannot alone justifysuppression of free speech and assembly. Menfeared witches and burnt women. It is thefunction of speech to free men from the bondageof irrational fears. To justify suppression of freespeech there must be reasonable ground to fearthat serious evil will result if free speech ispracticed. There must be reasonable ground tobelieve that the danger apprehended is imminent.There must be reasonable ground to believe thatthe evil to be prevented is a serious one. Everydenunciation of existing law tends in somemeasure to increase the probability that therewill be violation of it. Condonation of a breachenhances the probability. Expressions of approvaladd to the probability. Propagation of thecriminal state of mind by teaching syndicalismincreases it. Advocacy of law-breaking heightensit still further. But even advocacy of violation,however reprehensible morally, is not ajustification for denying free speech where theadvocacy falls short of incitement and there is143nothing to indicate that the advocacy would beimmediately acted on. The wide differencebetween advocacy and incitement, betweenpreparation and attempt, between assemblingand conspiracy, must be borne in mind. In orderto support a finding of clear and present danger itmust be shown either that immediate seriousviolence was to be expected or was advocated, orthat the past conduct furnished reason to believe
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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 inShreya Singhal (supra). We have only referred to thesedecisions as immense emphasis has been laid on the freedomof speech and expression and in a way propositions have beenpropounded that it can have no boundary in a growingdemocracy if democracy is expected to thrive. In ShreyaSinghal (supra), the Court has drawn a difference betweenthe US First Amendment and Article 19(1)(a) read with Article19(2). The Court has drawn four differences. We need notadvert to the same. However, the Court has also opined thatAmerican judgments have great persuasive value on thecontent of freedom of speech and expression and the testslaid down for its infringement but it is only when it comes to144subserving the general public interest that there is the worldof difference. In the said judgment, a passage has beenquoted from Kameshwar Prasad v. State of Bihar79wherein it has been held that the resultant flexibility of therestrictions that could be validly imposed renders theAmerican decisions inapplicable to and without much use forresolving the questions arising under Article 19(1)(a) or (b) ofour Constitution wherein the grounds on which limitationsmight be placed on the guaranteed right are set out withdefiniteness and precision. The Court has also referred to apassage from Indian Express Newspapers (Bombay)Private Ltd. and others v. Union of India and others80wherein the Court has opined that while examiningconstitutionality of a law which is alleged to contraveneArticle 19(1)(a) of the Constitution, the Court cannot, nodoubt, be solely guided by the decisions of the Supreme Courtof the United States of America. But in order to understand79 1962 Supp. (3) SCR 369 : AIR 1962 SC 116680 (1985) 1 SCC 641145the basic principles of freedom of speech and expression andthe need for that freedom in a democratic country, the Courtmay take them into consideration. We will be referring to
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Shreya Singhal (supra) in detail at a later stage as thelearned counsel for the petitioners have submitted withimmense vigour that the principles stated in Shreya Singhal(supra) would squarely apply to the concept of defamationand application of the said principles would make Section 499IPC unconstitutional.96. In Romesh Thappar v. State of Madras81 themajority opined that freedom of speech and of the press lay atthe foundation of all democratic organisations, for withoutfree political discussion no public education, so essential forthe proper functioning of the processes of popularGovernment, is possible. A freedom of such amplitude mightinvolve risks of abuse. But the Framers of the Constitutionmay well have reflected with Madison who was ‘the leadingspirit in the preparation of the First Amendment of the81 1950 SCR 594 : AIR 1950 SC 124146Federal Constitution’, that ‘it is better to leave a few of itsnoxious branches to their luxuriant growth, than, by pruningthem away, to injure the vigour of those yielding the properfruits’ (Near v. Minnesota82, L Ed p. 1368.).97. In Express Newspaper (Private) Ltd. andanother v. Union of India and others83 the Court referredto the decision in Romesh Thappar (supra), noted a fewdecisions of the Court which involved with the interpretationof Article 19(1)(a) that they only lay down that the freedom ofspeech and expression includes freedom of propagation ofideas by which freedom is ensured; emphasized on liberty ofthe press as it is an essential part of the right to freedom ofspeech and expression and further stated that liberty of thepress consists in allowing no previous restraint uponpublication. Thereafter the Court referred to number ofauthorities of the United States of America and culled out theprinciples from the American decisions to the effect that in82 283 U.S. 607, at 717-883 AIR 1958 SC 578 : 1959 SCR 12147the United States of America (a) the freedom of speech
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comprehends the freedom of press and the freedom of speechand press are fundamental personal rights of the citizens; (b)that the freedom of the press rests on the assumption thatthe widest possible dissemination of information from diverseand antagonistic sources is essential to the welfare of thepublic; (c) that such freedom is the foundation of freeGovernment of a free people; (d) that the purpose of such aguarantee is to prevent public authorities from assumingguardianship of the public mind, and (e) that freedom of pressinvolves freedom of employment or non-employment ofnecessary means of exercising this right or in other words,freedom from restriction in respect of employment in theeditorial force and eventually ruled thus:-“This is the concept of the freedom of speech andexpression as it obtains in the United States ofAmerica and the necessary corollary thereof is thatno measure can be enacted which would have theeffect of imposing a pre-censorship, curtailing thecirculation or restricting the choice of employmentor un-employment in the editorial force. Such ameasure would certainly tend to infringe thefreedom of speech and expression and would,148therefore, be liable to be struck down asunconstitutional.”98. In All India Bank Employees' Association v.National Industrial Tribunal (Bank Disputes), Bombayand 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 veryidea of freedom of expression necessarily connotes that whatone 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 hasbeen held that it must be borne in mind that the Constitutionmust be interpreted in a broad way and not in a narrow andpedantic sense. Certain rights have been enshrined in ourConstitution as fundamental and, therefore, while consideringthe nature and content of those rights the Court must not betoo astute to interpret the language of the Constitution in so
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84 (1962) 3 SCR 269 : AIR 1962 SC 17185 (1962) 3 SCR 842 = AIR 1962 SC 305149literal a sense as to whittle them down. On the other hand,the Court must interpret the Constitution in a manner whichwould enable the citizen to enjoy the rights guaranteed by itin the fullest measure subject, of course, to permissiblerestrictions. The Court further observed that the right tofreedom of speech and expression carries with it the right topublish and circulate one's ideas, opinions and views withcomplete freedom and by resorting to any available means ofpublication, subject again to such restrictions as could belegitimately imposed under clause (2) of Article 19. Be itstated here that in Indian Express Newspapers (supra), thisCourt referring to earlier decisions had accepted that freedomof speech and expression includes within its scope freedom ofpress, for the said freedom promises freedom of propagationof ideas which freedom is assured by the freedom ofcirculation. Liberty of the press has been treated asinseparable and essential for the right to freedom of speechand expression.150100. The Court in Bennett Coleman & Co. and othersv. Union of India and others86 referring to Sakal Paperscase opined that in the said case the Court has held thatfreedom of speech would not be restricted for the purpose ofregulating the commercial aspects of activities of thenewspapers. Similarly, it referred to the authorities in IndianExpress Newspapers (supra) and stated that if a law were tosingle out the press for laying down prohibitive burdens on it,that would restrict circulation and eventually violate Article19(1)(a) and would fall outside the protection afforded byArticle 19(2). Elaborating the idea further, the majority ruled:-“The faith of a citizen is that political wisdom andvirtue will sustain themselves in the free market ofideas so long as the channels of communicationare left open. The faith in the popular Governmentrests on the old dictum, “let the people have thetruth and the freedom to discuss it and all will go
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well.” The liberty of the press remains an “Art ofthe Covenant” in every democracy. Steel will yieldproducts of steel. Newsprint will manifest whateveris thought of by man. The newspapers give ideas”.86 (1972) 2 SCC 788151101. In the said case, the Court referred to WilliamBlackstone’s commentaries:-“Every free man has an undoubted right to lay whatsentiments he pleases before the public; to forbid thisis to destroy the freedom of the press; but if hepublishes what is improper, mischievous or illegal, hemust take the consequence of his own temerity.”102. Mathew, J., while otherwise dissenting, acceptedthe protection of freedom of speech in the following words:-“…. Free expression is necessary (1) for individualfulfilment, (2) for attainment of truth, (3) forparticipation by members of the society in politicalor social decision-making, and (4) for maintainingthe balance between stability and change insociety. In the traditional theory, freedom ofexpression is not only an individual good, but asocial good. It is the best process for advancingknowledge and discovering truth. The theorycontemplates more than a process of individualjudgment. It asserts that the process is also thebest method to reach a general or social judgment.In a democracy the theory is that all men areentitled to participate in the process of formulatingcommon decisions. [See Thomas I. Emerson:Toward a General Theory of First Amendment]. Thecrucial point is not that freedom of expression ispolitically useful but that it is indispensable to theoperation of a democratic system. In a democracythe basic premise is that the people are both thegovernors and the governed. In order that governedmay form intelligent and wise judgment it isnecessary that they must be appraised of all the152aspects of a question on which a decision has to betaken so that they might arrive at the truth”.
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We have reproduced the said passage to appreciate theheight to which the freedom of speech and expression hasbeen elevated by this Court regard being to the democraticand constitutional goals.103. In Indian Express Newspapers (supra), athree-Judge Bench was again concerned with the importanceof freedom of press in a democratic society. Venkataramiah,J. speaking for the Court opined that freedom of press is theheart and soul and political intercourse and it has assumedthe role of public educator making formal and non-formaleducation possible in a large scale particularly in thedeveloping world. The Court further observed that thepurpose of the press is to advance the public interest bypublishing facts and opinions without which a democraticelectorate cannot make responsible judgments. In thisbackdrop, it was emphatically stated it is the primary duty ofthe courts to uphold the said freedom and invalidate all laws153or administrative actions which interfere with it, contrary tothe constitutional mandate.104. In Secretary, Ministry of Information &Broadcasting, Govt. of India and others v. CricketAssociation of Bengal and others87, it has been ruled thatthe freedom of speech and expression includes right to acquireinformation and to disseminate it; and freedom of speech andexpression is necessary, for self-expression which is animportant means of free conscience and self-fulfilment. TheCourt further observed that it enables people to contribute todebates on social and moral issues and it is the best way tofind a truest model of anything, since it is only through it thatthe widest possible range of ideas can circulate. Emphasis hasbeen laid on freedom of the press and freedom to communicateor circulate one’s opinion without interference.105. The Court in Union of India and others v. MotionPicture Association and others88 explaining the significance87 (1995) 2 SCC 16188 (1999) 6 SCC 150154
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of free speech has observed that free speech is the foundationof a democratic society and a free exchange of ideas,dissemination of information without restraints, disseminationof knowledge, airing of differing viewpoints, debating andforming one’s own views and expressing them, are the basicindicia of a free society. It has been further stated thatfreedom alone makes it possible for people to formulate theirown views and opinions on a proper basis and to exercise theirsocial, economic and political rights in a free society in aninformed manner and, therefore, restraints on this right havebeen jealously watched by the courts. Article 19(2) spells outthe various grounds on which this right to free speech andexpression can be restrained. Reddi J. in his concurringopinion in People’s Union for Civil Liberties (PUCL) andanother v. Union of India and another89, has explained thenature of freedom of speech and expression by elucidating thatjust as the equality clause and guarantee of life and liberty,has been very broadly construed by this Court freedom of89 (2003) 4 SCC 399155speech and expression has been variously described as a“basic human right”, “a natural right” and the like. Thelearned Judge has observed that the importance ourConstitution-makers wanted to attach to this freedom isevident from the fact that reasonable restrictions on that rightcould be placed by law only on the limited grounds specified inArticle 19(2), not to speak of inherent limitations of the right.106. In Union of India v. Naveen Jindal andanother90, the Court has laid down that freedom ofexpression is a cornerstone of functioning of the democracyand there is a constitutional commitment to free speech. InGovernment of Andhra Pradesh and others v. P. LaxmiDevi91, it has been ruled that freedom and liberty is essentialfor progress, both economic and social and without freedomto speak, freedom to write, freedom to think, freedom toexperiment, freedom to criticise (including criticism of theGovernment) and freedom to dissent there can be no90
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(2004) 2 SCC 51091 (2008) 4 SCC 720156progress. In S. Khushboo v. Kanniammal and another92, ithas been laid down that even though the constitutionalfreedom of speech and expression is not absolute and can besubjected to reasonable restrictions on grounds such as`decency and morality' among others, stress must be laid onthe need to tolerate unpopular views in the socio-culturalspace. The framers of our Constitution recognised theimportance of safeguarding this right since the free flow ofopinions and ideas is essential to sustain the collective life ofthe citizenry. While an informed citizenry is a pre-conditionfor meaningful governance in the political sense, it is the dutyof everyone to promote a culture of open dialogue when itcomes to societal attitudes.107. The significance of freedom of speech has beenaccentuated in Ramlila Maidan Incident, In re93 byobserving that the freedom of speech is the bulwark of ademocratic Government. This freedom is essential for proper92 (2010) 5 SCC 60093 (2012) 5 SCC 1 157functioning of the democratic process. The freedom of speechand expression is regarded as the first condition of liberty. Itoccupies a preferred position in the hierarchy of liberties,giving succour and protection to all other liberties. It has beentruly said that it is the mother of all other liberties. Freedomof speech plays a crucial role in the formation of publicopinion on social, political and economic matters. It has beendescribed as a “basic human right”, “a natural right” and thelike.108. The observations in Sahara India Real EstateCorporation Ltd. and others v. Securities and ExchangeBoard of India and another94 being extremely significant inthe present context are extracted below:-“Freedom of expression which includes freedom of
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the press has a capacious content and is notrestricted to expression of thoughts and ideaswhich are accepted and acceptable but also tothose which offend or shock any section of thepopulation. It also includes the right to receiveinformation and ideas of all kinds from differentsources. In essence, the freedom of expressionembodies the right to know. However, under ourConstitution no right in Part III is absolute.94 (2012) 10 SCC 603158Freedom of expression is not an absolute valueunder our Constitution. It must not be forgottenthat no single value, no matter exalted, can bearthe full burden of upholding a democratic systemof government.”[Emphasis added]109. In State of Karnataka and another v.Associated Management of English Medium Primary andSecondary Schools and others95, while dealing with thefreedom under Article 19(1)(a), the Constitution Benchopined:-“36. The word ‘freedom’ in Article 19 of theConstitution means absence of control by the Stateand Article 19(1) provides that the State will notimpose controls on the citizen in the mattersmentioned 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 allmatters specified in clause (1) of Article 19, thecitizen has therefore the liberty to choose, subjectonly to restrictions in clauses (2) to (6) of Article19.”
110. The Court referred to the famous essay ‘on liberty’by John Stuart Mill and reproduced a passage from AGrammer of Politics by Harold J. Laski and then ruled that:-95 (2014) 9 SCC 485159
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“Freedom or choice in the matter of speech andexpression is absolutely necessary for an individualto develop his personality in his own way and thisis one reason, if not the only reason, why underArticle 19(1)(a) of the Constitution every citizen hasbeen guaranteed the right to freedom of speech andexpression.”111. Recently in Devidas Ramachandra Tuljapurkarv. State of Mahrashtra and others96 the court relying uponvarious judgments has ruled that:-“…There can be no doubt that there has been anelevation of the concept in a different way, but itcannot form the foundation or base to sustain theargument of Mr Subramanium that the freedomhas to be given absolute and uncurtailed expansewithout any boundaries of exceptions. We acceptthe proposition that there should not be a narrowor condensed interpretation of freedom of speechand expression, but that does not mean that therecannot be any limit.”112. While discussing about importance of freedom ofspeech and expression which includes freedom to express, wefeel it necessary to dwell upon the liberty or freedom toexpress one’s ideas through various medium like writing,printing or making films, etc. Dr. Dhawan, learned seniorcounsel, has commended us to the authorities in Odyssey96 (2015) 6 SCC 1160Communications Pvt. Ltd. v. Lokvidayan Sanghatana andothers97 and S. Rangarajan v. P. Jagjivan Ram andothers98. In Odyssey Communications Pvt. Ltd. (supra), apublic interest litigation was filed before the High Court forrestraining the authorities from telecasting a serial filmHoni-Anhoni on the plea that it had the potential to spreadfalse or blind beliefs and superstition amongst the members ofthe public. The High Court by an interim order had restrainedthe authorities from telecasting the film. This Court allowedthe appeal and observed that right of a citizen to exhibit filmson the Doordarshan subject to the terms and conditions to be
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imposed by the Doordarshan is a part of the fundamental rightof freedom of expression guaranteed under Article 19(1)(a) andcan be curtailed only under circumstances enshrined inArticle 19(2) and by no other measure. In S. Rangarajan(supra) the Court was required to consider whether the HighCourt was justified in revoking the ‘U Certificate’ issued to a97 (1988) 3 SCC 41098 (1989) 2 SCC 574161Tamil film ‘Ore Oru Gramathile’ for public viewing. Theprincipal point that was argued before this Court was basedon right to freedom of speech and expression under Article19(1)(a). The Court after referring to earlier decisions opinedthus:-“The High Court, however, was of opinion thatpublic reaction to the film, which seeks to changethe system of reservation is bound to be volatile.The High Court has also stated that people ofTamil Nadu who have suffered for centuries willnot allow themselves to be deprived of thebenefits extended to them on a particular basis.It seems to us that the reasoning of the HighCourt runs afoul of the democratic principles towhich we have pledged ourselves in theConstitution. In democracy it is not necessarythat everyone should sing the same song.Freedom of expression is the rule and it isgenerally taken for granted. Everyone has afundamental right to form his own opinion onany issue of general concern. He can form andinform by any legitimate means.”113. Recently, in Devidas Ramachandra Tuljapurkar(supra) a two-Judge Bench was dealing with the issue ofobscenity in a poem in a different context. Various judgmentsof the United States of America, the United Kingdom andEuropean Courts were referred to. There was also reference to162the authorities of this Court in the context of Section 292 IPCwhich included Ranjit D. Udeshi v. State ofMaharashtra99
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, 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. AnandPatwardhan104, Ajay Goswami v. Union of India105, BobbyArt International v. Om Pal Singh Hoon106 and AveekSarkar v. State of W.B.107 and observed that factum ofobscenity has to be judged by applying the contemporary99 AIR 1965 SC 881 : (1965) 1 SCR 65100 (1969) 2 SCC 687101 (1970) 2 SCC 780102 (1980) 1 SCC 43103 (1985) 4 SCC 289104 (2006) 8 SCC 433105 (2007) 1 SCC 143106 (1996) 4 SCC 1107 (2014) 4 SCC 257163community standards test. However, the Court held thatwhen name of Mahatma Gandhi is used as a symbol speakingor using obscene words, the concept of ‘degree’ comes in. Wethink it appropriate to reproduce the said passage:-“When the name of Mahatma Gandhi is alludedor used as a symbol, speaking or using obscenewords, the concept of “degree” comes in. To
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elaborate, the “contemporary communitystandards test” becomes applicable with morevigour, in a greater degree and in an accentuatedmanner. What can otherwise pass of thecontemporary community standards test for useof the same language, it would not be so, if thename of Mahatma Gandhi is used as a symbol orallusion or surrealistic voice to put words or toshow him doing such acts which are obscene.While so concluding, we leave it to the poet toput his defence at the trial explaining themanner in which he has used the words and inwhat context. We only opine that view of theHigh Court pertaining to the framing of chargeunder Section 292 IPC cannot be flawed.”114. We have referred to a series of judgments onfreedom of speech and then referred to Devidas RamchandraTuljapurkar (supra) which dealt with Section 292 IPC solelyfor the purpose that test in respect of that offence is different.That apart, constitutional validity of Section 292 has beenupheld in Ranjit D. Udeshi (supra). It is to be noted that all164the cases, barring Odyssey Communication Pvt. Ltd. (supra)and Bobby Art International (supra) [Bandit Queen case], allothers are in the fictional realm. We are disposed to thinkthat the right of expression with regard to fictional charactersthrough any medium relating to creation of a fiction would besomewhat dissimilar for it may not have reference to anindividual or a personality. Right of expression in such casesis different, and be guided by provisions of any enactmentsubject to constitutional scrutiny. The right of freedom ofexpression in a poem, play or a novel pertaining to fictionalcharacters stand on a different footing than defamation as thelatter directly concerns the living or the legal heirs of the deadand most importantly, having a known identity. A person inreality is defamed contrary to a “fictional character” beingspoken of by another character or through any other mode ofnarrative. Liberty of freedom in that sphere is fundamentallydifferent than the arena of defamation. Therefore, the decisionsrendered in the said context are to be guardedly studied,appreciated and applied. It may be immediately added here
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that the freedom in the said sphere is not totally without any165limit or boundary. We have only adverted to the said aspect tonote that what could legally be permissible in the arena offiction may not have that allowance in reality. Also, we maystate in quite promptitude that we have adverted to thisconcept only to have the completeness with regard to preciousvalue of freedom of speech and expression and the limitationsperceived and stipulated thereon.115. Be that as it may, the aforesaid authorities clearlylay down that freedom of speech and expression is a highlytreasured value under the Constitution and voice of dissent ordisagreement has to be respected and regarded and not to bescuttled as unpalatable criticism. Emphasis has been laid onthe fact that dissonant and discordant expressions are to betreated as view-points with objectivity and such expression ofviews and ideas being necessary for growth of democracy areto be zealously protected. Notwithstanding, the expansive andsweeping and ambit of freedom of speech, as all rights, rightto freedom of speech and expression is not absolute. It issubject to imposition of reasonable restrictions. 166Reasonable Restrictions116. To appreciate the compass and content ofreasonable restriction, we have to analyse nature ofreasonable restrictions. Article 19(2) envisages “reasonablerestriction”. The said issue many a time has been deliberatedby this Court. The concept of reasonable restriction has beenweighed in numerous scales keeping in view the strength ofthe right and the effort to scuttle such a right. In ChintamanRao v. State of M.P.108, this Court, opined as under:-“The phrase "reasonable restriction" connotesthat the limitation imposed on a person inenjoyment of the right should not be arbitrary orof an excessive nature, beyond what is requiredin the interests of the public. The word"reasonable" implies intelligent care anddeliberation, that is, the choice of a course whichreason dictates. Legislation which arbitrarily orexcessively invades the right cannot be said tocontain the quality of reasonableness and unless
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it strikes a proper balance between the freedomguaranteed in article 19 (1) (g) and the socialcontrol permitted by clause (6) of article 19, itmust be held to be wanting in that quality.”108 AIR 1951 SC 118167117. In State of Madras v. V.G. Row109, the Court hasruled that the test of reasonableness, wherever prescribed,should be applied to each individual statute impugned and noabstract standard, or general pattern of reasonableness canbe laid down as applicable to all cases. The nature of the rightalleged to have been infringed, the underlying purpose of therestrictions imposed, the extent and urgency of the evilsought to be remedied thereby, the disproportion of theimposition, the prevailing conditions at the time, should allenter into the judicial verdict.118. In Bennett Coleman & Co. (supra) while dealingwith the concept of reasonable restriction, this Court has heldthat the law which lays excessive and prohibitive burdenwhich would restrict the circulation of a newspaper will not besaved by Article 19(2), for the freedom of a newspaper topublish any number of pages or to circulate it to any numberof persons is an integral part of the freedom of speech andexpression and said freedom is violated by placing restraints109 AIR 1952 SC 196168upon it or by placing restraints upon something which is anessential part of that freedom.119. In Maneka Gandhi v. Union of India andanother110 Bhagwati, J. referred to the authority in R.C.Cooper v. Union of India111 and the principles stated inBennett Coleman & Co. (supra) and opined that:-“It may be recalled that the test formulated in R.C.Cooper case (supra) merely refers to “directoperation” or ‘direct consequence and effect’ of theState action on the fundamental right of thepetitioner and does not use the word “inevitable” inthis connection. But there can be no doubt, on areading of the relevant observations of Shah, J.,
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that such was the test really intended to be laiddown by the Court in that case. If the test weremerely of direct or indirect effect, it would be anopen-ended concept and in the absence ofoperational criteria for judging “directness”, itwould give the Court an unquantitiable discretionto decide whether in a given case a consequence oreffect is direct or not. Some other concept-vehiclewould be needed to quantify the extent ofdirectness or indirectness in order to apply the test.And that is supplied by the criterion of “inevitable”consequence or effect adumbrated in the ExpressNewspapers case. This criterion helps to quantifythe extent of directness necessary to constituteinfringement of a fundamental right. Now, if the110 (1978) 1 SCC 248 : AIR 1978 SC 597111 (1970) 2 SCC 298169effect of State action on fundamental right is directand inevitable, then a fortiori it must be presumedto have been intended by the authority taking theaction and hence this doctrine of direct andinevitable effect has been described by some juristsas the doctrine of intended and real effect. …”120. In M/s Laxmi Khandsari and others v. State ofU.P. and others112 the Court has observed that imposition ofreasonable restrictions and its extent would depend upon theobject which they seek to serve. The Court has observed thatit is difficult to lay down any hard and fast rule of universalapplication but in imposing such restrictions the State mustadopt an objective standard amounting to a social control byrestricting the rights of the citizens where the necessities ofthe situation demand and in adopting the social control one ofthe primary considerations which should weigh with the courtis that as the directive principles contained in the Constitutionaim at the establishment of an egalitarian society so as tobring about a welfare State within the framework of theConstitution. That apart, restrictions may be partial, complete,
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112 (1981) 2 SCC 600 170permanent or temporary but they must bear a close nexuswith the object in the interest of which they are imposed.Another important consideration is that the restrictions mustbe in public interest and are imposed by striking a justbalance between deprivation of right and danger or evil soughtto be avoided.121. In Ramlila Maidan Incident, In re (supra), thisCourt opined that a restriction imposed in any form has to bereasonable and to that extent, it must stand the scrutiny ofjudicial review. It cannot be arbitrary or excessive. It mustpossess a direct and proximate nexus with the object soughtto be achieved. Whenever and wherever any restriction isimposed upon the right to freedom of speech and expression,it must be within the framework of the prescribed law, assubscribed by Article 19(2) of the Constitution. Thereafter, ithas been laid down that associating police as aprerequirement to hold such meetings, dharnas and protests,on such large scale, would not infringe the fundamentalrights enshrined under Articles 19(1)(a) and 19(1)(b) of theConstitution as this would squarely fall within the regulatory171mechanism of reasonable restrictions, contemplated underArticles 19(2) and 19(3). Furthermore, it would help inensuring due social order and would also not impinge uponthe rights of the others, as contemplated under Article 21 ofthe Constitution of India. Emphasis was laid on theconstitutional duties that all citizens are expected todischarge.122. In Sahara India Real Estate Corporation Ltd.(supra), this Court reiterated the principle of social interest inthe context of Article 19(2) as a facet of reasonable restriction.In Dwarka Prasad Laxmi Narain v. State of U.P.113, whiledeliberating upon “reasonable restriction” observed that itconnotes that the limitation imposed upon a person inenjoyment of a right should not be arbitrary or of an excessivenature beyond what is required in the interest of the public.It was also observed that to achieve quality of reasonablenessa proper balance between the freedom guaranteed under113
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AIR 1954 SC 224172Article 19(1)(g) and the social control permitted by clause (6)of Article 19 has to be struck.123. In Bishambhar Dayal Chandra Mohan andothers v. State of Uttar Pradesh and others114, this Courtruled that the expression “reasonable restriction” signifies thatthe limitation imposed on a person in enjoyment of the rightshould not be arbitrary or of an excessive nature, beyond whatis required in the interests of the public. The test ofreasonableness, wherever prescribed, should be applied toeach individual statute impugned, and no abstract standard,or general pattern of reasonableness can be laid down asapplicable in all cases. In State of Bihar v. K.K. Misra115, theCourt, after referring to Dr. N.B. Khare v. The State ofDelhi116 and V.G. Row (supra), ruled that it is not possible toformulate an effective test which would enable the court topronounce any particular restriction to be reasonable or114 (1982) 1 SCC 39115 (1969) 3 SCC 377116[1952] S.C.R. 597173unreasonable per se. All the attendant circumstances must betaken into consideration and one cannot dissociate the actualcontents of the restrictions from the manner of their impositionor the mode of putting them into practice.124. In Papnasam Labour Union v. Madura CoatsLtd. and another117 the Court on the base of earlierauthorities summed up that when the constitutionality of astatutory provision is challenged on the ground ofreasonableness of the restriction, the Court should evaluatewhether the restriction is excessive in nature, existence of thereasonable nexus between restriction imposed and the objectsought to be achieved, quality of reasonableness, felt need ofthe society and the complex issues facing the people whichthe legislature intends to solve, protection of social welfare
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prevailing within the social values, its consistency and accordwith Article 14 of the Constitution. Additionally, the Courtalso observed that in judging the reasonableness of therestriction imposed by clause (6) of Article 19, the Court has117 (1995) 1 SCC 501174to bear in mind the Directive Principles of State Policy andany restriction so imposed which has the effect of promotingor effectuating a directive principle can be presumed to be areasonable restriction in public interest.125. The principles as regards reasonable restriction ashas been stated by this Court from time to time are that therestriction should not be excessive and in public interest. Thelegislation should not invade the rights and should not smackof arbitrariness. The test of reasonableness cannot bedetermined by laying down any abstract standard or generalpattern. It would depend upon the nature of the right whichhas 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 abuseor misuse of a legislation or a statutory provision dependingupon the circumstances of the case. The prevailing conditionsof the time and the principles of proportionality of restraintare to be kept in mind by the court while adjudging the175constitutionality of a provision regard being had to the natureof the right. The nature of social control which includespublic interest has a role. The conception of social interesthas to be borne in mind while considering reasonableness ofthe restriction imposed on a right. The social interestprinciple would include the felt needs of the society. As thesubmissions would show, the stress is given on the right tofreedom of speech and expression in the context of individualgrowth, progress of democracy, conceptual respect for a voiceof dissent, tolerance for discordant note and acceptance ofdifferent voices. Right to say what may displease or annoyothers cannot be throttled or garroted. There can never beany cavil over the fact that the right to freedom of speech andexpression is a right that has to get ascendance in ademocratic body polity, but at the same time the limit has to
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be proportionate and not unlimited. It is urged that thedefamation has been described as an offence under Section499 IPC that protects individual’s perception of his ownreputation which cannot be elevated to have the status ofpublic interest. The argument is that to give a remedy by176taking recourse to criminal jurisprudence to curb theconstitutional right, that is, right to freedom of speech andexpression, is neither permissible nor justified. The provisionpossibly could have met the constitutional requirement has itbeen associated with law and order or breach of peace but thesame is not the position. It is also canvassed that in thecolonial era the defamation was conceived of to keep socialpeace and social order but with the changing climate ofgrowing democracy, it is not permissible to keep alive such arestriction.126. The principles being stated, the attempt at presentis to scrutinize whether criminalization of defamation in themanner as it has been done under S. 499 IPC withstands thesaid test. The submission of the respondents is that right tolife as has been understood by this Court while interpretingArticle 21 of the Constitution covers a wide and variedspectrum. Right to life includes the right to life with humandignity and all that goes along with it, namely, the barenecessities of life such as nutrition, clothing and shelter and177facilities for reading, writing and expressing oneself in diverseforums, freely moving about and mixing and commingling withfellow human beings and, therefore, it is a precious humanright which forms the arc of all other rights [See : FrancisCoralie Mullin v. Administrator, Union Territory of Delhiand others118]. It has also been laid down in the said decisionthat the right to life has to be interpreted in a broad andexpansive spirit so as to invest it with significance and vitalitywhich may endure for years to come and enhance dignity of anindividual and worth of a human being. In Chameli Singhand others v. State of U.P. and another119, the Court hasemphasized on social and economic justice which includes theright to shelter as an inseparable component of meaningfulright to life. The respect for life, property has been regarded asessential requirement of any civilized society in Siddharam
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Satlingappa Mhetre v. State of Maharashtra120.118 (1981) 1 SCC 608119 (1996) 2 SCC 549120 (2011) 1 SCC 694178Deprivation of life, according to Krishna Iyer, J. in Babu Singhand others v. State of U.P.121 has been regarded as a matterof grave concern. Personal liberty, as used in Article 21, istreated as a composition of rights relatable to various spheresof life to confer the meaning to the said right. Thus perceived,the right to life under Article 21 is equally expansive and it, inits connotative sense, carries a collection or bouquet of rights.In the case at hand, the emphasis is on right to reputationwhich has been treated as an inherent facet of Article 21. InHaridas Das v. Usha Rani Banik and others122, it has beenstated that a good name is better than good riches. In adifferent context, the majority in S.P. Mittal v. Union of Indiaand others123, has opined that man, as a rational being,endowed with a sense of freedom and responsibility, does notremain satisfied with any material existence. He has the urgeto indulge in creative activities and effort is to realize the value121 (1978) 1 SCC 579122 (2007) 14 SCC 1123 (1983) 1 SCC 51 : AIR 1983 SC 1179of life in them. The said decision lays down that the value oflife is incomprehensible without dignity.127. In Charu Khurana and others v. Union of Indiaand others124, it has been ruled that dignity is thequintessential quality of a personality, for it is a highlycherished value. Thus perceived, right to honour, dignity andreputation are the basic constituents of right underArticle 21. Submission of the learned counsel for thepetitioners is that reputation as an aspect of Article 21 isalways available against the highhanded action of the State.
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To state that such right can be impinged and remainsunprotected inter se private disputes pertaining to reputationwould not be correct. Neither this right be overridden andblotched notwithstanding malice, vile and venal attack totarnish and destroy the reputation of another by stating thatcurbs and puts unreasonable restriction on the freedom ofspeech and expression. There is no gainsaying thatindividual rights form the fundamental fulcrum of collective124 (2015) 1 SCC 192180harmony and interest of a society. There can be no denial ofthe fact that the right to freedom of speech and expression isabsolutely sacrosanct. Simultaneously, right to life as isunderstood in the expansive horizon of Article 21 has its ownsignificance. We cannot forget the rhetoric utterance ofPatrick Henry:-“Is life so dear, or peace so sweet, as to bepurchased at the price of chains and slavery?Forbid it, Almighty God! I know not what courseothers may take, but as for me, give me liberty,or give me death!”125128. In this context, we also think it apt to quote apassage from Edmund Burke:-“Men are qualified for civil liberty, in exactproportion to their disposition to put moralchains upon their own appetites; in proportionas their love to justice is above their rapacity; inproportion as their soundness and sobriety ofunderstanding is above their vanity andpresumption; in proportion as they are moredisposed to listen to the counsel of the wise andgood, in preference to the flattery of knaves.Society cannot exist unless a controlling powerupon will and appetite be placed somewhere andthe less of it there is within, the more there mustbe without. It is ordained in the eternal125 Patrick Henry, Speech in House of Burgesses on 23.3.1775 (Virginia)181constitution of things that men of intemperate
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minds cannot be free. Their passions forge theirfetters126.”129. The thoughts of the aforesaid two thinkers, as weunderstand, are not contrary to each other. They relate todifferent situations and conceptually two different ideas; onespeaks of an attitude of compromising liberty by acceptingchains and slavery to save life and remain in peace than todeath, and the other view relates to “qualified civil liberty” andneeded control for existence of the society. Contexts are notdifferent and reflect one idea. Rhetorics may have its ownplace when there is disproportionate restriction butacceptable restraint subserves the social interest. In the caseat hand, it is to be seen whether right to freedom and speechand expression can be allowed so much room that evenreputation of an individual which is a constituent of Article 21would have no entry into that area. To put differently, in thename of freedom of speech and expression, should one be126 Alfred Howard, The Beauties of Burke (T. Davison, London) 109182allowed to mar the other’s reputation as is understood withinthe ambit of defamation as defined in criminal law.Balancing of Fundamental Rights130. To appreciate what we have posed hereinabove, it isnecessary to dwell upon balancing the fundamental rights. Ithas been argued by the learned counsel for the petitionersthat the right conferred under Article 19(1)(a) has to be keptat a different pedestal than the individual reputation whichhas been recognized as an aspect of Article 21 of theConstitution. In fact the submission is that right to freedom ofspeech and expression which includes freedom of pressshould be given higher status and the individual’s right tohave his/her reputation should yield to the said right. In thisregard a passage from Sakal Papers (P) Ltd. (supra) hasbeen commended us. It says:-“……Freedom of speech can be restricted only in theinterests of the security of the State, friendlyrelations with foreign State, public order, decency ormorality 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
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the interest of the general public. If a law directlyaffecting it is challenged, it is no answer that the183restrictions enacted by it are justifiable underclauses (3) to (6). For, the scheme of Article 19 is toenumerate different freedoms separately and then tospecify the extent of restrictions to which they maybe subjected and the objects for securing which thiscould be done. A citizen is entitled to enjoy each andevery one of the freedoms together and clause (1)does not prefer one freedom to another. That is theplain meaning of this clause. It follows from this thatthe State cannot make a law which directly restrictsone freedom even for securing the better enjoymentof another freedom.”[Emphasis supplied]131. Having bestowed our anxious consideration on thesaid passage, we are disposed to think that the above passageis of no assistance to the petitioners, for the issue herein issustenance and balancing of the separate rights, one underArticle 19(1)(a) and the other, under Article 21. Hence, theconcept of equipose and counterweighing fundamental rightsof one with other person. It is not a case of mere betterenjoyment of another freedom. In Acharya MaharajshriNarendra Prasadji Anandprasadji Maharaj and othersv. The State of Gujarat and others127, it has been observedthat a particular fundamental right cannot exist in isolation127(1975) 1 SCC 11184in a watertight compartment. One fundamental right of aperson may have to co-exist in harmony with the exercise ofanother fundamental right by others and also with reasonableand valid exercise of power by the State in the light of theDirective Principles in the interests of social welfare as awhole. The Court's duty is to strike a balance betweencompeting claims of different interests. In Delhi TransportCorporation v. D.T.C. Mazdoor Congress and others128 theCourt has ruled that Articles relating to fundamental rightsare all parts of an integrated scheme in the Constitution andtheir waters must mix to constitute that grand flow of
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unimpeded and impartial justice; social, economic andpolitical, and of equality of status and opportunity whichimply absence of unreasonable or unfair discriminationbetween individuals or groups or classes. In St. Stephen’sCollege v. University of Delhi129 this Court whileemphasizing the need for balancing the fundamental rights1281991 Supp (1) SCC 600129 (1992) 1 SCC 558185observed 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 thepresent, between society’s need for stability and its need forchange.”132. In Mr ‘X’ v. Hospital ‘Z’130 this Court stated that,where there is a clash of two Fundamental Rights, the right toprivacy as part of right to life and Ms ‘Y’s right to lead ahealthy life which is her Fundamental Right under Article 21,the right which would advance the public morality or publicinterest, would alone be enforced through the process ofcourt, for the reason that moral considerations cannot bekept at bay and the Judges are not expected to sit as mutestructures of clay in the hall known as the courtroom, buthave to be sensitive, “in the sense that they must keep theirfingers firmly upon the pulse of the accepted morality of theday”. (See: Allen: Legal Duties). That apart, we would also add130 (1998) 8 SCC 296186that there has to be emphasis on advancement of public orsocial interest.133. In Post Graduate Institute of MedicalEducation & Research, Chandigarh v. FacultyAssociation and others131 while emphasizing the need tobalance the fundamental rights, this Court held that:-“… It is to be appreciated that Article 15(4) is anenabling provision like Article 16(4) and thereservation under either provision should notexceed legitimate limits. In making reservationsfor the backward classes, the State cannot
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ignore the fundamental rights of the rest of thecitizens. The special provision under Article 15(4)[sic 16(4)] must therefore strike a balancebetween several relevant considerations andproceed objectively”.134. In Ram Jethmalani and others v. Union ofIndia and others132 it has been held that the rights ofcitizens, to effectively seek the protection of fundamentalrights have to be balanced against the rights of citizens and131 (1998) 4 SCC 1132(2011) 8 SCC 1187persons under Article 21. The latter cannot be sacrificed onthe anvil of fervid desire to find instantaneous solutions tosystemic problems through defamation speech, for it wouldlead to dangerous circumstances and anarchy may becomethe order of the day.135. In Sahara India Real Estate Corporation Ltd.(supra) while describing the role of this Court in balancing thefundamental rights, the Constitution Bench observed that theSupreme Court is not only the sentinel of the fundamentalrights but also a balancing wheel between the rights, subjectto social control. The larger Bench further observed that:-“Freedom of expression is not an absolute valueunder our Constitution. It must not be forgottenthat no single value, no matter exalted, can bearthe full burden of upholding a democraticsystem of government. Underlying ourconstitutional system are a number of importantvalues, all of which help to guarantee ourliberties, but in ways which sometimes conflict.Under our Constitution, probably, no values areabsolute. All important values, therefore, mustbe qualified and balanced against otherimportant, and often competing, values. Thisprocess of definition, qualification and balancingis as much required with respect to the value offreedom of expression as it is for other values”.188
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136. In Maneka Gandhi (supra), it has been held:-“5. … It is indeed difficult to see on whatprinciple we can refuse to give its plain naturalmeaning to the expression ‘personal liberty’ asused in Article 21 and read it in a narrow andrestricted sense so as to exclude those attributesof personal liberty which are specifically dealtwith in Article 19. We do not think that thiswould be a correct way of interpreting theprovisions of the Constitution conferringfundamental rights. The attempt of the Courtshould be to expand the reach and ambit of thefundamental rights rather than attenuate theirmeaning and content by a process of judicialconstruction. The wavelength for comprehendingthe scope and ambit of the fundamental rightshas been set by this Court in R.C. Cooper case(supra) and our approach in the interpretation ofthe fundamental rights must now be in tunewith this wavelength. We may point out even atthe cost of repetition that this Court has said inso many terms in R.C. Cooper case (supra) thateach freedom has different dimensions and theremay be overlapping between differentfundamental rights and therefore it is not a validargument to say that the expression ‘personalliberty’ in Article 21 must be so interpreted as toavoid overlapping between that article andArticle 19(1).”137. Krishna Iyer, J., in his concurring opinion, hasobserved thus:-“96. ……. the law is now settled, as I apprehendit, that no article in Part III is an island but part189of a continent, and the conspectus of the wholepart gives the direction and correction needed forinterpretation of these basic provisions. Man isnot dissectible into separate limbs and, likewise,cardinal rights in an organic constitution, whichmake man human have a synthesis. Theproposition is indubitable that Article 21 does
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not, in a given situation, exclude Article 19 ifboth rights are breached.97. We may switch to Article 19 very briefly andtravel along another street for a while. Is freedomof extra-territorial travel to assure which is theprimary office of an Indian passport, a facet ofthe freedom of speech and expression, ofprofession or vocation under Article 19? My totalconsensus with Shri Justice Bhagwati jettisonsfrom this judgment the profusion of precedentsand the mosaic of many points and confines meto some fundamentals confusion on which, withall the clarity on details, may mar the conclusion.It is a salutary thought that the summit Courtshould not interpret constitutional rightsenshrined in Part III to choke its life-breath orchill its élan vital by processes of legalism,overruling the enduring values burning in thebosoms of those who won our independence anddrew up our founding document. We must alsoremember that when this Court lays down thelaw, not ad hoc tunes but essential notes, nottemporary tumult but transcendental truth, mustguide the judicial process in translating intoauthoritative notation and mood music of theConstitution.”138. Beg, J. has stated that:-190“Articles dealing with different fundamentalrights contained in Part III of the Constitution donot represent entirely separate streams of rightswhich do not mingle at many points. They are allparts of an integrated scheme in theConstitution. Their waters must mix toconstitute that grand flow of unimpeded andimpartial Justice (social, economic and political),…..”139. In Mohd. Arif alias Ashfaq v. Registrar,Supreme Court of India and others133, wherein the majorityin the Constitution Bench has observed that the fundamental
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right to life among all fundamental rights is the most preciousto all human beings. The aforementioned authorities clearlystate that balancing of fundamental rights is a constitutionalnecessity. It is the duty of the Court to strike a balance sothat the values are sustained. The submission is thatcontinuance of criminal defamation under Section 499 IPC isconstitutionally inconceivable as it creates a serious dent inthe right to freedom of speech and expression. It is urgedthat to have defamation as a component of criminal law is ananathema to the idea of free speech which is recognized under133 (2014) 9 SCC 737191the Constitution and, therefore, criminalization of defamationin any form is an unreasonable restriction. We have alreadyheld that reputation is an inextricable aspect of right to lifeunder Article 21 of the Constitution and the State in order tosustain and protect the said reputation of an individual haskept the provision under Section 499 IPC alive as a part oflaw. The seminal point is permissibility of criminal defamationas a reasonable restriction as understood under Article 19(2)of the Constitution. To elucidate, the submission is thatcriminal defamation, a pre-Constitution law is totally alien tothe concept of free speech. As stated earlier, the right toreputation is a constituent of Article 21 of the Constitution. Itis an individual’s fundamental right and, therefore, balancingof fundamental right is imperative. The Court has spokenabout synthesis and overlapping of fundamental rights, andthus, sometimes conflicts between two rights and competingvalues. In the name of freedom of speech and expression, theright of another cannot be jeopardized. In this regard,192reproduction of a passage from Noise Pollution (V), In re134would be apposite. It reads as follows:-“… Undoubtedly, the freedom of speech andright to expression are fundamental rights butthe rights are not absolute. Nobody can claim afundamental right to create noise by amplifyingthe sound of his speech with the help ofloudspeakers. 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
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can claim that he has a right to make his voicetrespass into the ears or mind of others. Nobodycan indulge in aural aggression. If anyoneincreases his volume of speech and that too withthe assistance of artificial devices so as tocompulsorily expose unwilling persons to hear anoise raised to unpleasant or obnoxious levels,then the person speaking is violating the right ofothers to a peaceful, comfortable andpollution-free life guaranteed by Article 21.Article 19(1)(a) cannot be pressed into service fordefeating the fundamental right guaranteed byArticle 21. We need not further dwell on thisaspect. Two decisions in this regard delivered bythe High Courts have been brought to our noticewherein the right to live in an atmosphere freefrom noise pollution has been upheld as the oneguaranteed by Article 21 of the Constitution.These decisions are Free Legal Aid Cell ShriSugan Chand Aggarwal v. Govt. of NCT of Delhi135and P.A. Jacob v. Supdt. of Police136. We have134 (2005) 5 SCC 733135 AIR 2001 Del 455 : (2001) 93 DLT 28 (DB)136193carefully gone through the reasoning adopted inthe two decisions and the principle of law laiddown therein, in particular, the exposition ofArticle 21 of the Constitution. We find ourselvesin entire agreement therewith.”140. We are in respectful agreement with the aforesaidenunciation of law. Reputation being an inherent componentof Article 21, we do not think it should be allowed to besullied solely because another individual can have itsfreedom. It is not a restriction that has an inevitableconsequence which impairs circulation of thought and ideas.In fact, it is control regard being had to another person’s rightto go to Court and state that he has been wronged and
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abused. He can take recourse to a procedure recognized andaccepted in law to retrieve and redeem his reputation.Therefore, the balance between the two rights needs to bestruck. “Reputation” of one cannot be allowed to be crucifiedat the altar of the other’s right of free speech. The legislaturein its wisdom has not thought it appropriate to abolishcriminality of defamation in the obtaining social climate. Inthis context, the pronouncement in Shreya Singhal (supra) AIR 1993 Ker 1194becomes significant, more so, as has been heavily relied uponby the learned counsel for the petitioners. In the said case,constitutional validity of Section 66-A and ancillary theretoSection 69-A of the Information Technology Act, 2000 waschallenged on the ground that they infringe the fundamentalright to free speech and expression and are not saved by anyof the eight subjects covered in Article 19(2). The two-JudgeBench has expressed the view that both U.S. and India permitfreedom of speech and expression as well as freedom of thepress. So far as abridgement and reasonable restrictions areconcerned, both the U.S. Supreme Court and this Court haveheld that a restriction in order to be reasonable must benarrowly tailored or narrowly interpreted so as to abridge orrestrict only what is absolutely necessary. The Court hasobserved that only when it comes to the eight subject mattersin Article 19(2) that there is vast difference. The Court hasfurther observed thus:-“… In the US, if there is a compelling necessityto achieve an important governmental or societalgoal, a law abridging freedom of speech maypass muster. But in India, such law cannot pass195muster if it is in the interest of the generalpublic. Such law has to be covered by one of theeight subject-matters set out under Article 19(2).If it does not, and is outside the pale of Article19(2), Indian courts will strike down such law.”141. The Court has referred to the decisions rendered inKameshwar Prasad (supra) and Indian ExpressNewspapers (Bombay) (P) Ltd. (supra) to understand thegreat persuasive value of the American judgments. There hasbeen a reference to the observations of Jackson, J. in
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American Communications Assn. v. Douds137 which are tothe following effect:-“… Thought control is a copyright oftotalitarianism, and we have no claim to it. It isnot the function of our Government to keep thecitizen from falling into error; it is the function ofthe citizen to keep the Government from fallinginto error. We could justify any censorship onlywhen the censors are better shielded againsterror than the censored.”142. There has been reference to many otherpronouncements relating to reasonable restrictions andpublic order. The Court has reproduced a passage from S.137 94 L Ed 925 : 339 US 382 (1950) 196Rangarajan (supra) and thereafter adverted to thepronouncement in Shailabala Devi (supra) and opined that:-“Viewed at, either by the standpoint of the clearand present danger test or the tendency tocreate public disorder, Section 66-A would notpass muster as it has no element of anytendency to create public disorder which oughtto be an essential ingredient of the offence whichit 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 bedefamatory, injury to reputation is a basicingredient. Section 66-A does not concern itselfwith injury to reputation. Something may begrossly offensive and may annoy or beinconvenient to somebody without at all affectinghis reputation. It is clear, therefore, that thesection is not aimed at defamatory statements atall.”144. The aforesaid paragraph makes it absolutely clearthat the Court has observed that Section 66-A did notconcern itself with injury to reputation. Thereafter, the Courtproceeded to analyse the provision under challenge from the
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point of vagueness. It is apposite to quote:-197“90. That the content of the right under Article19(1)(a) remains the same whatever the means ofcommunication including internetcommunication is clearly established by Renocase138 and by Ministry of Information &Broadcasting, Govt. of India v. Cricket Assn. ofBengal (supra), SCC at para 78 already referredto. It is thus clear that not only are theexpressions used in Section 66-A expressions ofinexactitude but they are also over broad andwould fall foul of the repeated injunctions of thisCourt that restrictions on the freedom of speechmust be couched in the narrowest possibleterms. For example, see, Kedar Nath Singh v.State of Bihar139, SCR at pp. 808-09. In point offact, judgments of the Constitution Bench of thisCourt have struck down sections which aresimilar in nature. A prime example is the sectionstruck down in the first Ram Manohar Lohiacase140, namely, Section 3 of the U.P. SpecialPowers Act, where the persons who “instigated”expressly or by implication any person or classof persons not to pay or to defer payment of anyliability were punishable. This Court specificallyheld that under the section a wide net was castto catch a variety of acts of instigation rangingfrom friendly advice to systematic propaganda. Itwas held that in its wide amplitude, the sectiontakes in the innocent as well as the guilty, bonafide and mala fide advice and whether the personbe a legal adviser, a friend or a well-wisher of theperson instigated, he cannot escape the138 Reno v. American Civil Liberties Union, 521 US 844 : 138 L Ed 2d 874 (1997)139 1962 Supp (2) SCR 769 : AIR 1962 SC 955140 Supt., Central Prison v. Ram Manohar Lohia, (1960) 2 SCR 821 : AIR 1960 SC 633 198tentacles of the section. The Court held that it
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was not possible to predicate with some kind ofprecision the different categories of instigationfalling within or without the field ofconstitutional prohibitions. It further held thatthe section must be declared unconstitutional asthe offence made out would depend upon factorswhich are uncertain.x x x x x94. These two Constitution Bench decisions bindus and would apply directly on Section 66-A. We,therefore, hold that the section isunconstitutional also on the ground that it takeswithin its sweep protected speech and speechthat is innocent in nature and is liable thereforeto be used in such a way as to have a chillingeffect on free speech and would, therefore, haveto be struck down on the ground ofoverbreadth.”145. We have referred to the aforesaid authority inextenso as it has been commended to us to pyramid thesubmission that it lays the foundation stone for striking downSections 499 and 500 IPC because existence of defamation asa criminal offence has a chilling effect on the right to freedomof speech and expression. As we understand the decision, thetwo-Judge Bench has neither directly nor indirectly laid downsuch a foundation. The analysis throughout the judgment199clearly pertains to the vagueness and to an act which wouldmake an offence dependent on uncertain factors billowed ininexcactitude and wide amplitude. The Court has ruled thatSection 66-A also suffers from vice of proceduralunreasonableness. The judgment drew distinction andobserved defamation was different. Thus, the canvas isdifferent. Once we have held that reputation of an individualis a basic element of Article 21 of the Constitution andbalancing of fundamental rights is a constitutional necessityand further the legislature in its wisdom has kept the penalprovision alive, it is extremely difficult to subscribe to the viewthat criminal defamation has a chilling effect on the freedomof speech and expression.
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146. We have been diligently commended to thefollowing passage from S. Rangarajan (supra):-“The problem of defining the area of freedom ofexpression when it appears to conflict with thevarious social interests enumerated underArticle 19(2) may briefly be touched upon here.There does indeed have to be a compromisebetween the interest of freedom of expressionand special interests. But we cannot simplybalance the two interests as if they are of equalweight. Our commitment of freedom of200expression demands that it cannot besuppressed unless the situations created byallowing the freedom are pressing and thecommunity interest is endangered. Theanticipated danger should not be remote,conjectural or far-fetched. It should haveproximate and direct nexus with the expression.The expression of thought should be intrinsicallydangerous to the public interest. In other words,the expression should be inseparably locked upwith the action contemplated like the equivalentof a “spark in a power keg”.147. The said paragraph has also been reproduced inShreya Singhal (supra) while dealing with the principle of“tendency to affect”. In the said context, the two-Judge Benchin Shreya Singhal (supra) had analysed how Sections 124Aand 295A IPC were treated to be constitutional by this Courtin Ramji Lal Modi v. State of U.P.141 and Kedar NathSingh (supra). We think it appropriate for the sake ofcompleteness to reproduce the analysis made in ShreyaSinghal (supra) :-“43. In Ramji Lal Modi v. State of U.P. (supra),SCR at p. 867, this Court upheld Section 295-Aof the Penal Code only because it was read downto mean that aggravated forms of insults to141 AIR 1957 SC 620201religion must have a tendency to disrupt publicorder. Similarly, in Kedar Nath Singh v. State of
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Bihar (supra) Section 124-A of the Penal Code,1860 was upheld by construing it narrowly andstating that the offence would only be complete ifthe words complained of have a tendency ofcreating public disorder by violence. It wasadded that merely creating disaffection orcreating feelings of enmity in certain people wasnot good enough or else it would violate thefundamental right of free speech under Article19(1)(a). Again, in Ramesh Yeshwant Prabhoo v.Prabhakar Kashinath Kunte142, Section 123(3-A)of the Representation of the People Act wasupheld only if the enmity or hatred that wasspoken about in the section would tend to createimmediate public disorder and not otherwise.”148. The two-Judge Bench in paragraph 44 has reachedthe following conclusion:-“Viewed at, either by the standpoint of the clearand present danger test or the tendency tocreate public disorder, Section 66-A would notpass muster as it has no element of anytendency to create public disorder which oughtto be an essential ingredient of the offence whichit creates.”149. The analysis therein would show that tendency tocreate public disorder is not evincible in the languageemployed in Section 66-A. Section 66-A dealt with142 (1996) 1 SCC 130202punishment for certain obscene messages throughcommunication service, etc. A new offence had been createdand the boundary of the forbidding area was not clearlymarked as has been held in Kedar Nath Singh (supra). TheCourt also opined that the expression used in Section 66-Ahaving not been defined and further the provision having notused the expression that definitions in IPC will apply to theInformation Technology Act, 2000, it was vague. The decisionin Shreya Singhal (supra) is placed reliance upon tohighlight that a restriction has to be narrowly tailored but
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criminal defamation is not a narrowly tailored concept. Wehave early opined that the word “defamation” is in existencefrom the very beginning of the Constitution. Defamation as anoffence is admittedly a pre-constitutional law which was inexistence when the Constitution came into force. To interpretthat the word “defamation” occurring in Article 19(2) wouldnot include “criminal defamation” or it should have atendency to cause public disorder or incite for an offence,would not be in consonance with the principle ofinterpretation pertaining to the Constitution. It may be noted203here that the decisions rendered in Ramji Lal Modi (supra)and Kedar Nath Singh (supra) where constitutional validityof Sections 124A and 295A IPC had been upheld subject tocertain limitations. But inspiration cannot be drawn fromthe said authorities that to argue that they convey thatdefamation which would include criminal defamation mustincorporate public order or intention of creating publicdisorder. The said decisions relate to a different sphere. Theconcept of defamation remains in a different area regard beinghad to the nature of the offence and also the safeguardsprovided therein which we shall advert to at a later stage. Thepassage 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 isstated having regard to the facts of the case. The said decisionwas rendered in the backdrop that the Tamil film ‘Ore OruGramathile’ which was given “U-Certificate” was revoked bythe High Court observing that the certificate given to themovie was bound to invoke reactions which are bound to bevolatile. This Court observed that all that film seems to204suggest is that existing method of reservation on the basis ofcaste is bad and reservation on the basis of economicbackground is better and also the film deprecated theexploitation of people on caste considerations. In that context,the Court observed, as has been stated earlier, in ademocracy it is not necessary that everyone should sing thesame song; freedom of expression is the rule, and it isgenerally taken for granted. Criticism and commentary onpolicies, enactments or opinions do not remotely constitutedefamation. Disapproval is not defamation. The argument
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ignores the scope and ambit of the contours of what iscriminal defamation. Bearing in mind the factual scenario,the Court has discussed about balancing of freedom ofexpression and “special interest”. The Court was notconcerned with balancing of Article 19(1)(a) and the facet ofArticle 21 of the Constitution. Therefore, in the ultimateconclusion, we come to hold that applying the doctrine ofbalancing of fundamental rights, existence of defamation as acriminal offence is not beyond the boundary of Article 19(2) of205the Constitution, especially when the word “defamation” hasbeen used in the Constitution.Appreciation in the backdrop of constitutional fraternityand fundamental duty150. Permissibility of criminal defamation can be testedon the touchstone of constitutional fraternity andfundamental duty. It is submitted by Mr. Narsimha, learnedAdditional Solicitor General that right to reputation being aninseparable component of Article 21 deserves to be protectedin view of Preambular concept. Learned Additional SolicitorGeneral has referred to the Preamble to the Constitutionwhich provides for “… to promote among them all Fraternityassuring the dignity of the individual…”151. The term “fraternity” has a significant place inthe history of constitutional law. It has, in fact, come intoprominence after French Revolution. The motto ofRepublican France echoes:- ‘Liberté, égalité, fraternité’, or‘Liberty, equality, fraternity’. The term “fraternity” hasan animating effect in the constitutional spectrum. The206Preamble states that it is a constitutional duty to promotefraternity assuring the dignity of the individual. Be itstated that fraternity is a perambulatory promise. Dr. B.R.Ambedkar in the Constituent Assembly spoke:-“The principles of liberty, equality andfraternity are not to be treated as separateentities but in a trinity. They form the unionand trinity in the sense that to divorce onefrom the other is to defeat the very purpose ofdemocracy ... Without fraternity, liberty andequality would not become natural course of
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things. Courts, as sentinel on the qui vive,therefore must strike a balance between thechanging needs of the society for peacefultransformation with orders and protection ofthe rights of the citizens.”152. In the Preamble to the Constitution of India, fraternityhas 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 wasnever greater than now, and that this particular aim of thenew Constitution should be emphasized by special mention inthe Preamble.” Fraternity, as a constitutional concept, isumbilically connected with justice, equality and liberty. 207153. American scholarship tends to be in agreementwith this precept. Morris Abram expresses this in evenmore emphatic terms when he treats it as essential toachieving liberty and equality, and vice versa. Accordingto him:-“In America, we have learned that theelements of the plea are interdependent: thatliberty of itself may not bring about fraternityand equality . . . Permit me to observe that theconverse is also true: merely by possessingfraternity and equality man will not therebyautomatically achieve liberty.’143154. Fraternity as a concept is characteristicallydifferent from the other constitutional goals. It, as aconstitutional concept, has a keen bond of sorority withother concepts. And hence, it must be understood in thebreed of homogeneity in a positive sense and not totrample dissent and diversity. It is neither isolated norlonely. The idea of fraternity is recognised as a143. Morris B Abram, ‘Liberty, Fraternity and Equality - One or Two Alone are not Enough’(1967) 16 Journal of Public Law 3, 8.208constitutional norm and a precept. It is a constitutionalvirtue that is required to be sustained and nourished.155. It is a constitutional value which is to be cultivatedby the people themselves as a part of their social behavior.There are two schools of thought; one canvassing individual
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liberalization and the other advocating for protection of anindividual as a member of the collective. The individualshould have all the rights under the Constitution butsimultaneously he has the responsibility to live upto theconstitutional values like essential brotherhood – thefraternity – that strengthens the societal interest. Fraternitymeans brotherhood and common interest. Right to censureand criticize does not conflict with the constitutional objectiveto promote fraternity. Brotherliness does not abrogate andrescind the concept of criticism. In fact, brothers can andshould be critical. Fault finding and disagreement is requiredeven when it leads to an individual disquiet or groupdisquietude. Enemies Enigmas Oneginese on the part ofsome does not create a dent in the idea of fraternity but, a209significant one, liberty to have a discordant note does notconfer a right to defame the others. The dignity of anindividual is extremely important. In Indra Sawhney andothers v. Union of India and others144, the Court hasdeliberated upon as to how reservation connects equality andfraternity with social, economic and political justice as it canhamper fraternity and liberty if perpetuated for too long.Jeevan Reddy, J. has opined that “Fraternity assuring thedignity of the individual has a special relevance in theIndian context . ...” Sawant, J., in a separate butconcurring opinion, stated:-“Inequality ill-favours fraternity, and unityremains a dream without fraternity. The goalenumerated in the preamble of theConstitution, of fraternity assuring the dignityof the individual and the unity and integrity ofthe nation must, therefore, remainunattainable so long as the equality ofopportunity is not ensured to all.’145
144 AIR 1993 SC 477 : 1992 Supp. (3) SCC 217145 Id. para 514.210156. This principle was reiterated in the case of AIIMS
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Students’ Union v. AIIMS and others146 where reservationfor post graduate students was held unconstitutional as itwent against the objective of attaining fraternity. In IndianMedical Association v. Union of India147 exemptionsgranted to a private non-aided educational institution to onlyadmit wards of army personnel was challenged. Among thevarious tests to determine the constitutionality the Courtfocused on fraternity by stating “in the absence of substantiveequality or equality of means to access resources, varioussocial groups could never achieve the requisite dignitynecessary for the promotion of fraternity.”148157. In Raghunathrao Ganpatrao v. Union of India149where the 26th Amendment to the Constitution which146(2002) 1 SCC 428147 Indian Medical Association V. Union Of India, Civil Appeal No. 8170 Of 2009 & WritPetition(Civil) Nos. 320 Of 2009 & 192 Of 2010.148 Id.1491994 Supp. (1) SCC 191211abolished the privileges given to former rulers of India was inquestion, the Court held it to be a positive step towardsachieving the objective of fraternity. The Court adverted to thestatements of Dr. B.R. Ambedkar during the ConstitutionAssembly debates and stated that:-“In a country such as India, with severaldisruptive forces, such as religion, caste andlanguage, the idea of fraternity is imperative toensure the unity of the nation through a sharedfeeling of common brotherhood.”150158. The concept of fraternity under the Constitutionexpects every citizen to respect the dignity of the other.Mutual respect is the fulcrum of fraternity that assuresdignity. It does not mean that there cannot be dissent ordifference or discordance or a different voice. It does notconvey that all should join the chorus or sing the same song.Indubitably not. One has a right to freedom of speech and
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expression. One is also required to maintain theconstitutional value which is embedded in the idea offraternity that assures the dignity of the individual. One is150 Id.212obliged under the Constitution to promote the idea offraternity. It is a constitutional obligation.159. In the context of constitutional fraternity,fundamental duties engrafted under Article 51-A of theConstitution gain significance. Sub-articles (e) and (j) ofArticle 51-A of the Constitution read as follows:-“Article 51-A.(e) to promote harmony and thespirit of common brotherhood amongst all thepeople of India transcending religious, linguisticand regional or sectional diversities; to renouncepractices derogatory to the dignity of women;X x x x x(j) to strive towards excellence in all spheres ofindividual and collective activity so that thenation constantly rises to higher levels ofendeavour and achievement;”160. The prismatic perception of sub-article (e) wouldreflect that it is the duty of every citizen of India to promoteharmony and the concept of common brotherhood amongstall the people despite many diversities. It is also the duty ofevery citizen to strive towards excellence in all spheres ofindividual and collective activity. In this regard, a passage213from AIIMS Students’ Union (supra) would be apt to refer. Itreads as follows:-“… Fundamental duties, though not enforceableby a writ of the court, yet provide a valuableguide and aid to interpretation of constitutionaland legal issues. In case of doubt or choice,peoples wish as manifested through Article 51A,can serve as a guide not only for resolving theissue but also for constructing or moulding therelief to be given by the courts. Constitutionalenactment of fundamental duties, if it has tohave any meaning, must be used by courts as a
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tool to tab, even a taboo, on State action driftingaway from constitutional values.”161. In P.A. Inamdar and others v. State ofMaharashtra and others151 it has been observed that:-“Fundamental duties recognized by Article51A include, amongst others, (i) to develop thescientific temper, humanism and the spirit ofinquiry and reform; and (ii) to strive towardsexcellence in all spheres of individual andcollective activity so that the nation constantlyrises to higher levels of endeavour andachievement. None can be achieved or ensuredexcept by means of education. It is well acceptedby the thinkers, philosophers and academiciansthat if JUSTICE, LIBERTY, EQUALITY andFRATERNITY, including social, economic andpolitical justice, the golden goals set out in the151(2005) 6 SCC 537214Preamble to the Constitution of India are to beachieved, the Indian polity has to be educatedand educated with excellence. Education is anational wealth which must be distributedequally and widely, as far as possible, in theinterest of creating an egalitarian society, toenable the country to rise high and face globalcompetition…”162. In Ramlila Maidan Incident, In re (supra), theCourt had opined that:-“… a common thread runs through Parts III, IVand IVA of the Constitution of India. One Partenumerates the fundamental rights, the seconddeclares the fundamental principles ofgovernance and the third lays downthe fundamental duties of the citizens. Whileinterpreting any of these provisions, it shallalways be advisable to examine the scope andimpact of such interpretation on all the threeconstitutional aspects emerging from theseparts.”
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163. We have referred to two concepts, namely,constitutional fraternity and the fundamental duty, asthey constitute core constitutional values. Respect for thedignity of another is a constitutional norm. It would notamount to an overstatement if it is said that constitutionalfraternity and the intrinsic value inhered in fundamental215duty proclaim the constitutional assurance of mutualrespect and concern for each other's dignity. Theindividual interest of each individual serves the collectiveinterest and correspondingly the collective interestenhances the individual excellence. Action against theState is different than an action taken by one citizenagainst the other. The constitutional value helps instructuring the individual as well as the communityinterest. Individual interest is strongly established whenconstitutional values are respected. The Preamblebalances different and divergent rights. Keeping in viewthe constitutional value, the legislature has not repealedSection 499 and kept the same alive as a criminal offence.The studied analysis from various spectrums, it is difficultto come to a conclusion that the existence of criminaldefamation is absolutely obnoxious to freedom of speechand expression. As a prescription, it neither invites thefrown of any of the Articles of the Constitution nor its veryexistence can be regarded as an unreasonable restriction. 216Anatomy of the provision and its field of operation164. Having dealt with this facet, now we shall focus onwhether Section 499 of IPC either in the substantive sense orprocedurally violates the concept of reasonable restriction.We have to examine whether it is vague or arbitrary ordisproportionate.165. For the aforesaid purpose, it is imperative toanalyse in detail what constitutes the offence of “defamation”as provided under Section 499 of IPC. To constitute theoffence, there has to be imputation and it must have made inthe manner as provided in the provision with the intention ofcausing harm or having reason to believe that suchimputation will harm the reputation of the person aboutwhom it is made. Causing harm to the reputation of a person
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is the basis on which the offence is founded and mens rea is acondition precedent to constitute the said offence. Thecomplainant has to show that the accused had intended orknown or had reason to believe that the imputation made byhim would harm the reputation of the complainant. The217criminal offence emphasizes on the intention or harm.Section 44 of IPC defines “injury”. It denotes any harmwhatever illegally caused to any person, in body, mind,reputation or property. Thus, the word “injury” encapsulatesharm caused to the reputation of any person. It also takesinto account the harm caused to a person’s body and mind.Section 499 provides for harm caused to the reputation of aperson, that is, the complainant. In Jeffrey J. Diermeierand another v. State of West Bengal and another152, atwo-Judge Bench deliberated on the aspect as to whatconstitutes defamation under Section 499 of IPC and in thatcontext, it held that there must be an imputation and suchimputation must have been made with the intention ofharming or knowing or having reason to believe that it willharm the reputation of the person about whom it is made. Inessence, the offence of defamation is the harm caused to thereputation of a person. It would be sufficient to show that theaccused intended or knew or had reason to believe that the152 (2010) 6 SCC 243218imputation made by him would harm the reputation of thecomplainant, irrespective of whether the complainant actuallysuffered directly or indirectly from the imputation alleged.166. Having dwelt upon the ingredients, it is necessaryto appreciate the Explanations appropriately. There are fourExplanations to the main provision and an Explanation hasbeen appended to the Fourth Exception. Explanation 4 needsto be explained first. It is because the said Explanationprovides the expanse and the inherent control wherein whatimputation has been regarded as harm to a person’sreputation and that an imputation can only be treated asharm of a person’s reputation if it directly or indirectly, in theestimation of others, lowers the moral or intellectualcharacter of that person, or lowers the character of thatperson in respect of his caste or of his calling, or lowers the
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credit of that person, or causes it to be believed that the bodyof that person is in a loathsome state, or in a state generallyconsidered as disgraceful. It is submitted by Dr. Dhawan,learned senior counsel, that Explanation 4 has many adistinction and covers a number of criteria which can be used219widely. He has commended us to a passage from State ofJammu and Kashmir v. Triloki Nath Khosa and others153solely for the purpose that the Explanation 4 engulfsmicro-distinctions which is impermissible. To appreciatemanifold submissions urged by the learned counsel for thepetitioners, it is seemly to refer to how these Explanationshave been understood by the Court. We are conscious that weare dealing with the constitutional validity of the provisionand the decisions relate to interpretation. But the purpose isto appreciate how the Explanations have been understood bythis Court.167. Explanation 1 stipulates that an imputation wouldamount to defamation if it is done to a deceased person if theimputation would harm the reputation of that person if he isliving and is intended to be harmful to the feelings of hisfamily or other near relatives. It is submitted by the learnedcounsel for the petitioners that the width of the Explanation isabsolutely excessive as it enables the family members to153 (1974) 1 SCC 19220prosecute a criminal action whereas they are debarred toinitiate civil action for damages. According to the learnedcounsel for the petitioners, Explanation 1 is anomalous andcreates a piquant situation which can effortlessly be calledunreasonable, for when a civil suit cannot be entertained orallowed to be prosecuted by the legal heirs or the legalrepresentatives, how could they prosecute criminal offence byfiling a complaint. On a first blush, the aforesaid submissionlooks quite attractive, but on a keener scrutiny, it loses itssignificance. In Melepurath Sankuni Ezhuthassan v.Thekittil Geopalankutty Nair154, a suit for damages wasdismissed by the trial court but on an appeal being preferred,the same was allowed. In second appeal, the High Courtreversed the decree of the appellate court and dismissed the
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cross objections of the respondent therein. The appellantpreferred an appeal by special leave before this Court andduring the pendency before this Court, he died. His survivinglegal heirs came to be brought on record to prosecute the154 (1986) 1 SCC 118221appeal. The issue that arose before this Court was whetherthe appeal should abate. The Court posed the questionwhether in a defamation action, the right to sue survives ifthe plaintiff dies. The Court referred to the Common Lawprinciple and the maxim action personalis moritur cumpersona (a personal action dies with the person) andthereafter referred to Section 306 of the Indian SuccessionAct, 1925 as to which causes of action survive and whichshall abate. The Court in that context opined thus:-“Where a suit for defamation is dismissed andthe plaintiff has filed an appeal, what theappellant-plaintiff is seeking to enforce in theappeal is his right to sue for damages fordefamation and as this right does not survive hisdeath, his legal representative has no right to bebrought on the record of the appeal in his placeand stead if the appellant dies during thependency of the appeal. The position, however, isdifferent where a suit for defamation hasresulted in a decree in favour of the plaintiffbecause in such a case the cause of action hasmerged in the decree and the decretal debt formspart of his estate and the appeal from the decreeby the defendant becomes a question of benefitor detriment to the estate of the plaintiffrespondent which his legal representative isentitled to uphold and defend and is, therefore,entitled to be substituted in place of thedeceased respondent plaintiff”.222168. In M. Veerappa v. Evelyn Sequeira andothers155, a two-Judge Bench distinguished the authority inMelepurath Sankuni Ezhuthassan (supra) as there was asubsisting decree and came to hold thus:-“The maxim “actio personalis cum moritur
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persona” has been applied not only to thosecases where a plaintiff dies during the pendencyof a suit filed by him for damages for personalinjuries sustained by him but also to caseswhere a plaintiff dies during the pendency of anappeal to the appellate court, be it the firstappellate court or the second appellate courtagainst the dismissal of the suit by the trialcourt and/or the first appellate court as the casemay be. This is on the footing that by reason ofthe dismissal of the suit by the trial court or thefirst appellate court as the case may be, theplaintiff stands relegated to his original positionbefore the trial court.And again:-“The maxim of actio personalis cum moriturpersona has been held inapplicable only in thosecases where the injury caused to the deceasedperson has tangibly affected his estate or hascaused an accretion to the estate of thewrong-doer vide Rustomji Dorabji v. W.H. Nurse156and Ratanlal v. Baboolal157 as well as in those155 (1988) 1 SCC 556156 ILR 44 Mad 357157223cases where a suit for damages for defamation,assault or other personal injuries sustained bythe plaintiff had resulted in a decree in favour ofthe plaintiff because in such a case the cause ofaction becomes merged in the decree and thedecretal debt forms part of the plaintiff’s estateand the appeal from the decree by the defendantbecomes a question of benefit or detriment to theestate of the plaintiff which his legalrepresentatives are entitled to uphold and defend(vide Gopal v. Ramchandra158 and MelepurathSankunni v. Thekittil)”.
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169. The aforesaid enunciation of law makes it clear howand when the civil action is not maintainable by the legalheirs. The prosecution, as envisaged in Explanation 1, laystwo postulates, that is, (i) the imputation to a deceasedperson is of such a nature that would have harmed thereputation of that person if he was living and (ii) the saidimputation must be intended to be hurtful to the feelings ofthe family or other near relatives. Unless the twin tests aresatisfied, the complaint would not be entertained underSection 199 of CrPC. The said Explanation protects thereputation of the family or relatives. The entitlement to AIR 1960 MP 200158 ILR 26 Bom 597224damages for personal injury is in a different sphere whereas acriminal complaint to be filed by the family members or otherrelatives under twin tests being satisfied is in a distinctcompartment. It is more rigorous. The principle of grant ofcompensation and the principle of protection of reputation offamily or near relative cannot be equated. Therefore, we donot find any extra mileage is given to the legal heirs of adeceased person when they have been made eligible to initiatea criminal action by taking recourse to file a criminalcomplaint.170. Explanation 2 deals with imputation concerning acompany or an association or collection of persons as such.Explanation 3 says that an imputation in the form of analternative or expressed ironically may amount to defamation.Section 11 of IPC defines “person” to mean a company or anassociation or collection of persons as such or body ofpersons, whether incorporated or not. The inclusive natureof the definition indicates that juridical persons can comewithin its ambit. The submission advanced on behalf of thepetitioners is that collection of persons or, for that matter,225association, is absolutely vague. More than five decadesback, the Court, in Sahib Singh Mehra v. State of UttarPradesh159 while being called upon to decide whether publicprosecutor would constitute a class or come within thedefinition of “collection of persons” referred to Explanation 2to Section 499 of IPC, and held that collection of persons
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must be identifiable in the sense that one could, withcertainty, say that this group of particular people has beendefamed, as distinguished from the rest of the community.The Court, in the facts of the case, held that the prosecutingstaff of Aligarh or, as a matter of fact, the prosecuting staff inthe State of Uttar Pradesh, was certainly such an identifiablegroup or collection of persons, and there was nothingindefinite about it. Thus, in the said authority, emphasis islaid on the concept of identifiability and definitiveness asregards collection of persons.171. In G. Narasimhan, G. Kasturi and K. Gopalan v.T.V. Chokkappa160, the Court dealt with the applicability of159 AIR 1965 SC 1451 : 1965 (2) SCR 823160226the said Explanation as regards “association” or “collection ofpersons” and ruled that a collection of persons must be anidentifiable body so that it is possible to say with definitenessthat a group of particular persons, as distinguished from therest of the community, was defamed. Therefore, in a casewhere Explanation 2 is resorted to, the identity of thecompany or the association or the collection of persons mustbe established so as to be relatable to the defamatory wordsor imputations. Where a writing weighs against mankind ingeneral, or against a particular order of men, e.g., men ofgown, it is no libel. It must descend to particulars andindividuals to make it a libel. Thus, the accentuation is on‘particulars’. In S. Khushboo (supra), it has been ruled thatthough the Explanation is wide yet in order to demonstratethe offence of defamation, such a collection of persons mustbe an identifiable body so that it is possible to say withprecision that a group of particular persons, as distinguishedfrom the rest of the community, stood defamed. In case theidentity of the collection of persons is not established so as to (1972) 2 SCC 680227be relatable to the defamatory words or imputations, thecomplaint is not maintainable. It has been further opinedthat in case a class is mentioned, if such a class is indefinite,the complaint cannot be entertained and furthermore, if it is
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not possible to ascertain the composition of such a class, thecriminal prosecution cannot proceed.172. The aforesaid enunciation of law clearly lays stresson determinate and definite body. It also lays accent onidentifiable body and identity of the collection of persons. Italso significantly states about the test of precision so that thecollection of persons have a distinction. Thus, it is fallaciousto contend that it is totally vague and can, by itsinclusiveness, cover an indefinite multitude. The Court hasto 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. GodfatherTravels & Tours (P) Ltd161 has ruled that a company has its161 (2012) 5 SCC 661228own reputation. Be that as it may, it cannot be said that thepersons covered under the Explanation are gloriously vague.Exceptions and understanding of the same173. Having dealt with the four Explanations, presently,we may analyse the Exceptions and note certain authoritieswith regard to the Exceptions. It is solely for the purpose ofappreciating how the Court has appreciated and appliedthem. The First Exception stipulates that it is not defamationto impute anything which is true concerning any person, if itbe for the public good that the imputation should be made orpublished. “Public good” has to be treated to be a fact. InChaman Lal v. State of Punjab162, the Court has held thatin order to come within the First Exception to Section 499 ofthe Indian Penal Code it has to be established that what hasbeen imputed concerning the respondent is true and thepublication of the imputation is for the public good. The onusof proving these two ingredients, namely, truth of the162 (1970) 1 SCC 590229imputation and the publication of the imputation for thepublic good, is on the accused.174. It is submitted by Dr. Dhawan, learned seniorcounsel for the petitioners that if the imputation is not true,the matter would be different. But as the Exception postulates
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that imputation even if true, if it is not to further public goodthen it will not be defamation, is absolutely irrational anddoes not stand to reason. It is urged that truth is the basicfoundation of justice, but this Exception does not recognizetruth as a defence and, therefore, it deserves to be struckdown.175. It has been canvassed by Mr. Rao, learned seniorcounsel, that the term “public good” is a vague concept and tobolster the said submission, he has placed reliance uponHarakchand Ratanchand Banthia & others v Union ofIndia and others163 to highlight that in the said case, it hasbeen held that “public interest” do not provide any objectivestandard or norm. The context in which the said decision163 (1969) 2 SCC 166230was rendered has to be appreciated. In the said case, theCourt was dealing with the constitutional validity of the GoldControl Act, 1968. Section 27 of the said Act related tolicensing of dealers. It was contended that the conditionsimposed by sub-section (6) of the Act for grant or renewal oflicences were uncertain, vague, unintelligible andconsequently wide and unfettered power was conferred uponthe statutory authorities in the matter of grant or renewal oflicence. The Court expressed the view that the contentionwas well founded. Further analyzing, the Court expressedthat:-“… The expression “anticipated demand” is avague expression which is not capable ofobjective assessment and is bound to lead to agreat deal of uncertainty. Similarly the expression“suitability of the applicant” in Section 27(6)(e)and “public interest” in Section 27(6)(g) do notprovide any objective standard or norm orguidance. For these reasons it must be held thatclauses (a),(d),(e) and (g) of Section 27(6) imposeunreasonable restrictions on the fundamentalright of the petitioner to carry on business andare constitutionally invalid...”231176. As we perceive, the factual score and the provision
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under challenge was totally different. It has been stated inthe backdrop of the power conferred on an administrativeauthority for the purpose of renewal of licence, and in thatcontext, the Court opined that the criterion of “publicinterest” did not provide objective standard. The Court, onanalysis of the provision from a manifold angle, opined thatthe provision proposed unreasonable restriction. The contextand the conferment of power makes a gulf of difference and,therefore, the said authority has to be considered on its ownfacts. It cannot be ruled that it lays down as a principle that“public interest” is always without any norm or guidance orhas no objective interest. Ergo, the said decision isdistinguishable.177. In Arundhati Roy, In re164, this Court, referring toSecond Exception, observed that even a person claiming thebenefit of Second Exception to Section 499 of the Indian PenalCode, is required to show that the opinion expressed by him164 (2002) 3 SCC 343232was in good faith which related to the conduct of a publicservant in the discharge of his public functions or respectinghis character so far as his character appears in that conduct.Third Exception states about conduct of any person touchingany public question and stipulates that it is not defamation toexpress in good faith any opinion whatever respecting theconduct of any person touching any public question andrespecting his character, so far as his character appears inthat conduct. The said Exception uses the words “good faith”and particularizes conduct of any person relating to anypublic question and the Exception, as is perceptible, givesstress on good faith. Third Exception comes into play whensome defamatory remark is made in good faith as held inSahib Singh Mehra (supra). The Court has clarified that ifdefamatory remarks are made after due care and attention, itwill be regarded as made in good faith. In the said case, theCourt also adverted to Ninth Exception which gives protectionto imputation made in good faith for the protection of theinterest of the person making it or of any other person or forthe public good. A three-Judge Bench in Harbhajan Singh v.233State of Punjab and another165 has opined that where the
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accused invokes Ninth Exception to Section 499 IPC, goodfaith and public good are both to be satisfied and the failureof the appellant to prove good faith would exclude theapplication of Ninth Exception in favour of the accused even ifrequirement of public good is satisfied. The Court has referredto Section 52 IPC which defines “good faith” that requires theelement of honesty. It is necessary to note here that thethree-Judge Bench has drawn a distinction between the FirstException and the Ninth Exception to opine that the proof oftruth which is one of the ingredients of the First Exception isnot an ingredient of the Ninth Exception and what the NinthException requires an accused person to prove is that hemade the statement in good faith. Proceeding further, theCourt has stated that in dealing with the claim of the accusedunder the Ninth Exception, it is not necessary and, in a way,immaterial, to consider whether he has strictly proved thetruth of the allegations made by him.165 AIR 1966 SC 97234178. In Sukra Mahto v. Basdeo Kumar Mahto andanother166 the Court has opined that the ingredients of NinthException are first that the imputation must be made in goodfaith; secondly, the imputation must be protection of theinterest of the person making it or of any other person or forthe public good. The Court further opined that good faith andpublic good are questions of fact and emphasis has been laidon making enquiry in good faith and due care and attentionfor making the imputation. In Jatish Chandra Ghosh v.Hari Sadhan Mukherjee167 , the Constitution Bench dealtwith appellant’s claim of absolute privilege as a Member of theWest Bengal Legislative Assembly which was not accepted bythe High Court of Judicature at Calcutta. The appellanttherein was facing a prosecution under Section 500 IPC. Thelarger Bench referred to Section 499 IPC and observed that:-“In this connection, it is also relevant to notethat we are concerned in this case with acriminal prosecution for defamation. The law of166 1971 (1) SCC 885
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167 (1961) 3 SCR 486235defamation has been dealt with in Sections 499and 500 of the Indian Penal Code. Section 499contains a number of exceptions. Those specifiedexceptions lay down what is not defamation. Thefourth exception says that it is not defamation topublish a substantially true report of theproceedings of a court of justice, but does notmake any such concession in respect ofproceedings of a House of Legislature orParliament. The question naturally arises howfar the rule in Wason case168 can be applied tocriminal prosecutions in India, but as thisaspect of the controversy was not canvassed atthe Bar, we need not say anything about it, as itis not necessary for the decision of this case.”179. After so stating, the Court further opined that theproceedings did not deserve to be quashed as there was nosuch absolute privilege in the facts of the case. Being of thisview, the Court opined that the accused appellant must takehis trial and enter upon his defence such as he may have. Wehave referred to the said decision only to highlight that theCourt has clarified publishing of substantial true report ofproceedings of a Court of Justice.168 Wason v. Walter, (1868) 4 QB 73236180. Fifth Exception stipulates that it is not defamationto express in good faith any opinion whatever respecting themerits of any case, civil or criminal which has been decidedby a Court of Justice, or respecting the conduct of any personas a party, witness or agent. The further stipulation is thatthe said opinion must relate to the character of said person,as far as his character appears in that conduct. In KanwalLal v. State of Punjab169 the Court, while dealing with theEighth Exception, has opined that in order to establish adefence under this Exception the accused would have to provethat the person to whom the complaint was made had lawfulauthority over the person complained against, in respect ofthe subject-matter of the accusation.
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181. Again in M.C. Verghese v. T.J. Poonan170, it hasbeen ruled that a person making libellous statements in hiscomplaint filed in Court is not absolutely protected in acriminal proceeding for defamation, for under the Eighth169 1963 Supp (1) SCR 479170 (1969) 1 SCC 37237Exception and the illustration to Section 499 the statementsare privileged only when they are made in good faith. There is,therefore, authority for the proposition that in determiningthe criminality of an act under the Indian Penal Code theCourts will not extend the scope of special exceptions byresorting to the rule peculiar to English common law that thehusband and wife are regarded as one. In Chaman Lal(supra) this Court has opined that the Eighth Exception toSection 499 of the Indian Penal Code indicates thataccusation in good faith against the person to any of thosewho have lawful authority over that person is not defamation.In Rajendra Kumar Sitaram Pande v. Uttam171, it has beenobserved that Exception 8 to Section 499 IPC clearly indicatesthat it is not a defamation to prefer in good faith anaccusation against any person to any of those who havelawful authority over that person with regard to thesubject-matter of accusation. In the said case the report ofthe Treasury Officer clearly indicated that pursuant to the171 (1999) 3 SCC 134238report made by the accused persons against the complainant,a departmental enquiry had been initiated and thecomplainant was found to be guilty. Under suchcircumstances the fact that the accused persons had made areport to the superior officer of the complainant alleging thathe had abused the Treasury Officer in a drunken state whichwas the gravamen of the complaint, would be covered byException 8 to Section 499 of the Indian Penal Code.182. In Chaman Lal (supra) the Court has opined thatgood faith requires care and caution and prudence in thebackground of context and circumstances. The position of the
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persons making the imputation will regulate the standard ofcare and caution. In Sukra Mahto (supra), emphasis hasbeen laid on protection of the interest of the person making itor of any other person or for the public good. Reference hasbeen made to Harbhajan Singh case (supra) to stress ondue care and attention. In Sewakram Sobhani v. R.K.Karanjia172, it has been observed that the ingredients of the172(1981) 3 SCC 208239Ninth Exception are that (1) the imputation must be made ingood faith, and (2) the imputation must be for the protectionof the interests of the person making it or of any other personor for the public good, and the imputation made must be ingood faith for the public good. In M.A. Rumugam v. Kittu173,it has been held that for the purpose of bringing the casewithin the purview of the Eighth and the Ninth Exceptionappended to Section 499 of the Penal Code, it would benecessary for the accused to prove good faith for theprotection of the interests of the person making it or of anyother 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 ofdefamation under Section 500 IPC the accusedinvokes the aid of Tenth Exception to Section499 IPC, “good faith” and “public good” haveboth to be established by him. The mere pleathat the accused believed that what he hadstated was in “good faith” is not sufficient toaccept his defence and he must justify the sameby adducing evidence. However, he is notrequired to discharge that burden by leadingevidence to prove his case beyond a reasonabledoubt.173 (2009) 1 SCC 10124038. It is well settled that the degree and thecharacter of proof which an accused is expectedto furnish in support of his plea cannot be
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equated with the degree of proof expected fromthe prosecution in a criminal trial. The momentthe accused succeeds in proving apreponderance of probability, onus which lies onhim in this behalf stands discharged. Therefore,it is neither feasible nor possible to lay down arigid test for deciding whether an accusedperson acted in “good faith” and for “public good”under the said Exception.”183. The detailed discussion made hereinabove doclearly reveal that neither the main provision nor theExplanation nor the Exceptions remotely indicate anyvagueness. It is submitted that the Exceptions make theoffence more rigorous and thereby making the concept ofcriminal defamation extremely unreasonable. The criticismadvanced pertain to truth being not a defence, andunnecessary stress on ‘public good’. The counter argument isthat if a truthful statement is not made for any kind of publicgood but only to malign a person, it is a correct principle inlaw that the statement or writing can amount to defamation.Dr. Singhvi, learned senior counsel for some of therespondents has given certain examples. The examples241pertain to an imputation that a person is an alcoholic; animputation that two family members are involved inconsensual incest; an imputation that a person is impotent; astatement is made in pubic that a particular person suffersfrom AIDS; an imputation that a person is a victim of rape;and an imputation that the child of a married couple is notfathered by the husband but born out of an affair withanother man. We have set out the examples cited by thelearned senior counsel only to show that there can beoccasions or situations where truth may not be sole defence.And that is why the provision has given emphasis on publicgood. Needless to say, what is public good is a question offact depending on the facts and circumstances of the case.184. From the analysis we have made it is clear as daythat the provision along with Explanations and Exceptionscannot be called unreasonable, for they are neither vague norexcessive nor arbitrary. There can be no doubt that Court
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can strike down a provision, if it is excessive, unreasonable ordisproportionate, but the Court cannot strike down if it thinks242that the provision is unnecessary or unwarranted. Be itnoted that it has also been argued that the provision isdefeated by doctrine of proportionality. It has been arguedthat existence of criminal defamation on the statute book andthe manner in which the provision is engrafted suffers fromdisproportionality because it has room for such restrictionwhich is disproportionate. In Om Kumar v. Union ofIndia174, the Court has observed that while regulating theexercise of fundamental rights it is to be seen whether thelegislature while exercising its choice has infringed the rightexcessively. Recently, the Constitution Bench in ModernDental College & Research Centre and others v. State ofMadhya Pradesh and others175, explaining the doctrine ofproportionality has emphasized that when the Court is calledupon to decide whether a statutory provision or a ruleamounts to unreasonable restriction, the exercise that isrequired to be undertaken is the balancing of fundamental174 (2001) 2 SCC 386175 2016 (4) SCALE 478243rights on the one hand and the restrictions imposed on theother. Emphasis is on recognition of affirmative constitutionalrights along with its limitations. Limitations, save certaininterests and especially public or social interests. Socialinterest takes in its sweep to confer protection to rights of theothers to have social harmony founded on social values. Totreat a restriction constitutionally permissible it is necessaryto scrutinize whether the restriction or imposition oflimitation is excessive or not. The proportionality doctrinerecognizes balancing of competing rights and the saidhypothesis gains validity if it subserves the purpose it ismeant for.185. Needless to emphasise that when a law limits aconstitutional right which many laws do, such limitation isconstitutional if it is proportional. The law imposingrestriction is proportional if it is meant to achieve a properpurpose, and if the measures taken to achieve such a purpose
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are rationally connected to the purpose, and such measuresare necessary. Such limitations should not be arbitrary or of244an excessive nature beyond what is required in the interest ofthe public. Reasonableness is judged with reference to theobjective which the legislation seeks to achieve, and must notbe in excess of that objective (see : P.P. Enterprises v. Unionof India176). Further, the reasonableness is examined in anobjective manner form the stand point of the interest of thegeneral public and not from the point of view of the personupon whom the restrictions are imposed or abstractconsiderations (see : Mohd Hanif Quareshi. V. State ofBihar177). The judgment refers to and approves guidelinespropounded in MRF Ltd. v. Inspector, Kerala Govt.178 forexamining reasonableness of a statutory provision. In thesaid decision the Constitution Bench while discussing aboutthe doctrine of proportionality has observed:-“54. Modern theory of constitutional rightsdraws a fundamental distinction between thescope of the constitutional rights, and the extent176 (1982) 2 SCC 33177 AIR 1958 SC 731178 (1998) 8 SCC 227245of its protection. Insofar as the scope ofconstitutional rights is concerned, it marks theouter boundaries of the said rights and definesits contents. The extent of its protectionprescribes the limitations on the exercises of therights within its scope. In that sense, it definesthe justification for limitations that can beimposed on such a right.55. It is now almost accepted that there are noabsolute constitutional rights 14 and all suchrights are related. As per the analysis of AharonBarak179, two key elements in developing themodern constitutional theory of recognisingpositive constitutional rights along with its
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limitations are the notions of democracy and therule of law. Thus, the requirement of proportionallimitations of constitutional rights by asub-constitutional law, i.e. the statute, is derivedfrom an interpretation of the notion of democracyitself. Insofar as Indian Constitution isconcerned, democracy is treated as the basicfeature of the Constitution and is specificallyaccorded a constitutional status that isrecognised in the Preamble of the Constitutionitself. It is also unerringly accepted that thisnotion of democracy includes human rightswhich is the corner stone of Indian democracy.Once we accept the aforesaid theory (and therecannot be any denial thereof), as a fortiori, it hasalso to be accepted that democracy is based on abalance between constitutional rights and thepublic interests. In fact, such a provision inArticle 19 itself on the one hand guarantees somecertain freedoms in clause (1) of Article 19 and atthe same time empowers the State to impose179 Proportionality : Constitutional Rights and Their Limitation by Aharon Barak,Cambridge University Press, 2012246reasonable restrictions on those freedoms inpublic interest. This notion accepts the modernconstitutional theory that the constitutionalrights are related. …”186. One cannot be unmindful that right to freedom ofspeech and expression is a highly valued and cherished rightbut the Constitution conceives of reasonable restriction. Inthat context criminal defamation which is in existence in theform of Sections 499 and 500 IPC is not a restriction on freespeech that can be characterized as disproportionate. Rightto free speech cannot mean that a citizen can defame theother. Protection of reputation is a fundamental right. It isalso a human right. Cumulatively it serves the social interest.Thus, we are unable to accept that provisions relating tocriminal defamation are not saved by doctrine ofproportionality because it determines a limit which is not
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impermissible within the criterion of reasonable restriction. Ithas been held in D.C. Saxena (Dr) v. Hon’ble The ChiefJustice of India180, though in a different context, that if180 (1996) 5 SCC 216247maintenance of democracy is the foundation for free speech,society equally is entitled to regulate freedom of speech orexpression by democratic action. The reason is obvious, viz.,that society accepts free speech and expression and also putslimits on the right of the majority. Interest of the peopleinvolved in the acts of expression should be looked at not onlyfrom the perspective of the speaker but also the place atwhich he speaks, the scenario, the audience, the reaction ofthe publication, the purpose of the speech and the place andthe forum in which the citizen exercises his freedom of speechand expression. The Court had further observed that theState has legitimate interest, therefore, to regulate thefreedom of speech and expression which liberty represents thelimits of the duty of restraint on speech or expression not toutter defamatory or libellous speech or expression. There is acorrelative duty not to interfere with the liberty of others.Each is entitled to dignity of person and of reputation. Nobodyhas a right to denigrate others’ right to person or reputation.187. The submission of Mr. Datar, learned seniorcounsel is that defamation is fundamentally a notion of the248majority meant to cripple the freedom of speech andexpression. It is too broad a proposition to be treated as aguiding principle to adjudge reasonable restriction. There is adistinction between social interest and a notion of themajority. The legislature has exercised its legislative wisdomand it is inappropriate to say that it expresses the notion ofthe majority. It has kept the criminal defamation on thestatute book as in the existing social climate it subserves thecollective interest because reputation of each is ultimatelyinhered in the reputation of all. The submission thatimposition of silence will rule over eloquence of free speech isa stretched concept inasmuch as the said proposition isbasically founded on the theory of absoluteness of thefundamental right of freedom of speech and expression which
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the Constitution does not countenance.188. Now, we shall advert to Section 199 of CrPC, whichprovides for prosecution for defamation. Sub-section (1) ofthe said section stipulates that no court shall take cognizanceof an offence punishable under Chapter XXI of the Indian249Penal Code (45 of 1860) except upon a complaint made bysome person aggrieved by, the offence; provided that wheresuch person is under the age of eighteen years, or is an idiotor a lunatic, or is from sickness or infirmity unable to make acomplaint, or is a woman who, according to the local customsand manners, ought not to be compelled to appear in public,some other person may, with the leave of the court, make acomplaint on his or her behalf. Sub-section (2) states thatwhen any offence is alleged against a person who is thePresident of India, the Vice-President of India, the Governmentof a State, the Administrator of a Union territory or a Ministerof the Union or of a State or of a Union territory, or any otherpublic servant employed in connection with the affairs of theUnion or of a State in respect of his conduct in the dischargeof his public functions, a Court of Session may takecognizance of such offence, without the case being committedto it, upon a complaint in writing made by the PublicProsecutor. Sub-section 3 states that every complaint referredto in sub-section (2) shall set forth the facts which constitutethe offence alleged, the nature of such offence and such other250particulars as are reasonably sufficient to give notice to theaccused 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 theprevious sanction of the State Government, in the case of aperson who is or has been the Governor of that State or aMinister of that Government or any other public servantemployed in connection with the affairs of the State and of theCentral Government, in any other case. Sub-section 5 barsCourt of Session from taking cognizance of an offence undersub-section (2) unless the complaint is made within six monthsfrom the date on which the offence is alleged to have beencommitted. Sub-section (6) states that nothing in this sectionshall affect the right of the person against whom the offence isalleged to have been committed, to make a complaint in respect
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of that offence before a Magistrate having jurisdiction or thepower of such Magistrate to take cognizance of the offenceupon such complaint.251189. The said provision is criticized on the ground that“some person aggrieved” is on a broader spectrum and that iswhy, it allows all kinds of persons to take recourse todefamation. As far as the concept of “some person aggrieved” isconcerned, we have referred to plethora of decisions in course ofour deliberations to show how this Court has determined theconcept of “some person aggrieved”. While dealing with variousExplanations, it has been clarified about definite identity of thebody of persons or collection of persons. In fact, it can be statedthat the “person aggrieved” is to be determined by the courts ineach case according to the fact situation. It will requireascertainment on due deliberation of the facts. In JohnThomas v. Dr. K. Jagadeesan181 while dealing with “personaggrieved”, the Court opined that the test is whether thecomplainant has reason to feel hurt on account of publicationis a matter to be determined by the court depending upon thefacts of each case. In S. Khushboo (supra), while dealingwith “person aggrieved”, a three-Judge Bench has opined that181(2001) 6 SCC 30252the respondents therein were not “person aggrieved” withinthe meaning of Section 199(1) CrPC as there was no specificlegal injury caused to any of the complainants since theappellant’s remarks were not directed at any individual orreadily identifiable group of people. The Court placed relianceon M.S. Jayaraj v. Commr. of Excise182 and G.Narasimhan (supra) and observed that if a Magistrate wereto take cognizance of the offence of defamation on a complaintfiled by one who is not a “aggrieved person”, the trial andconviction of an accused in such a case by the Magistratewould be void and illegal. Thus, it is seen that the words“some person aggrieved” are determined by the courtsdepending upon the facts of the case. Therefore, thesubmission that it can include any and everyone as a “personaggrieved” is too spacious a submission to be accepted.190. It has also been commented upon that by giving a
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benefit to public servant employed in connection with theaffairs of the Union or of a State in respect of his conduct in182 (2000) 7 SCC 552253the discharge of public functions to file the case throughpublic prosecutor, apart from saving his right undersub-section (6) of Section 199 CrPC, the provision becomesdiscriminatory. In this regard, it is urged that a public servantis treated differently than the other persons and theclassification invites the frown of Article 14 of theConstitution and there is no base for such classification.Thus, the attack is on the base of Article 14 of theConstitution. In Special Courts Bill, 1978, In re183Chandrachud, CJ, speaking for the majority of theConstitution Bench after referring to series of judgments ofthis Court, culled out certain principles. We may refer to afew of them:-“(1) x x x x x(2) The State, in the exercise of its governmentalpower, has of necessity to make laws operatingdifferently on different groups or classes ofpersons within its territory to attain particularends in giving effect to its policies, and it mustpossess for that purpose large powers of183 (1979) 1 SCC 380254distinguishing and classifying persons or thingsto be subjected to such laws.(3) The constitutional command to the State toafford equal protection of its laws sets a goal notattainable by the invention and application of aprecise formula. Therefore, classification need notbe constituted by an exact or scientific exclusionor inclusion of persons or things. The courtsshould not insist on delusive exactness or applydoctrinaire tests for determining the validity ofclassification in any given case. Classification isjustified if it is not palpably arbitrary.(4) The principle underlying the guarantee ofArticle 14 is not that the same rules of law
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should be applicable to all persons within theIndian territory or that the same remedies shouldbe made available to them irrespective ofdifferences of circumstances. It only means thatall persons similarly circumstanced shall betreated alike both in privileges conferred andliabilities imposed. Equal laws would have to beapplied to all in the same situation, and thereshould be no discrimination between one personand another if as regards the subject-matter ofthe legislation their position is substantially thesame.(5) By the process of classification, the State hasthe power of determining who should be regardedas a class for purposes of legislation and inrelation to a law enacted on a particular subject.This power, no doubt, in some degree is likely toproduce some inequality; but if a law deals withthe liberties of a number of well-defined classes,it is not open to the charge of denial of equalprotection on the ground that it has no255application to other persons. Classification thusmeans segregation in classes which have asystematic relation, usually found in commonproperties and characteristics. It postulates arational basis and does not mean herdingtogether of certain persons and classesarbitrarily.(6) x x x x x(7) The classification must not be arbitrary butmust be rational, that is to say, it must not onlybe based on some qualities or characteristicswhich are to be found in all the persons groupedtogether and not in others who are left out butthose qualities or characteristics must have areasonable relation to the object of thelegislation. In order to pass the test, twoconditions must be fulfilled, namely, (1) that theclassification must be founded on an intelligible
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differentia which distinguishes those that aregrouped together from others, and (2) thatdifferentia must have a rational relation to theobject 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 themaking of a distinction or discriminationbetween persons classified and those who arenot members of that class. It is the essence of aclassification that upon the class are cast dutiesand burdens different from those resting uponthe general public. Indeed, the very idea ofclassification is that of inequality, so that it goeswithout saying that the mere fact of inequality in256no manner determines the matter ofconstitutionality.”191. Recently, in Yogendra Kumar Jaiswal & othersv. State of Bihar and others184, the Court, after referring toRam Krishna Dalmia v. S.R. Tendolkar185, SatyawatiSharma v. Union of India186, Rehman Shagoo v. State ofJ&K187 and C.I. Emden v. State of U.P.188 in the context ofchallenge to the constitutional validity of the Orissa SpecialCourts Act, 2006 and the Bihar Special Courts Act, 2009,repelled the contention that there was no justification for trialof offence under Section 13(1)(e) and the rest of the offencesenumerated in Section 13 in different Act and ultimatelyopined:-184 (2016) 3 SCC 183185 AIR 1958 SC 538186 (2008) 5 SCC 287187 AIR 1960 SC 1188
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AIR 1960 SC 548257“… Section 13(1)(e) targets the persons who havedisproportionate assets to their known sources ofincome. This conceptually is a period offence, forit is not incident-specific as such. It does notrequire proof of corruption in specific acts, buthas reference to assets accumulated and knownsources of income in a particular period. The testapplicable and proof required is different. Thatapart, in the context of the present Orissa Act itis associated with high public office or withpolitical office which are occupied by people whocontrol the essential dynamics of power whichcan be a useful weapon to amass wealth adoptingillegal means. In such a situation, the argumentthat they being put in a different class and triedin a separate Special Court solely because thealleged offence, if nothing else, is a self-defeatingone. The submission that there is asub-classification does not remotely touch theboundaries of Article 14; and certainly does notencroach thereon to invite the wrath of theequality clause.”192. Be it stated that learned counsel for the petitionersstated that there can be no cavil about the President of India,the Vice-President of India, the Governor of a State, theAdministrator of a Union territory but about others whosenames find mention in the provision there is no justificationto put them in a different class to enable them to file a casethrough the public prosecutor in the Court of Session. Astudied scrutiny of the provision makes it clear that a public258servant is entitled to file a complaint through publicprosecutor in respect of his conduct in discharge of publicfunctions. Public function stands on a different footing thanthe private activities of a public servant. The provision givesthem protection for their official acts. There cannot bedefamatory attacks on them because of discharge of their duefunctions. In that sense, they constitute a different class. Beit clarified here that criticism is different than defamation.
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One is bound to tolerate criticism, dissent and discordancebut not expected to tolerate defamatory attack.193. Sub-section (6) gives to a public servant what everycitizen has as he cannot be deprived of a right of a citizen.There can be cases where sanction may not be given by theState Government in favour of a public servant to protect hisright and, in that event, he can file a case before theMagistrate. The provision relating to engagement of publicprosecutor in defamation cases in respect of the saidauthorities is seriously criticized on the ground that it allowsunnecessary room to the authorities mentioned therein and259the public servants to utilize the Public Prosecutor to espousetheir cause for vengeance. Once it is held that the publicservants constitute a different class in respect of the conductpertaining to their discharge of duties and functions, theengagement of Public Prosecutor cannot be found fault with.It is ordinarily expected that the Public Prosecutor has a dutyto scan the materials on the basis of which a complaint fordefamation is to be filed. He has a duty towards the Court.This Court in Bairam Muralidhar v. State of AndhraPradesh189 while deliberating on Section 321 CrPC hasopined that the Public Prosecutor cannot act like the postoffice on behalf of the State Government. He is required to actin good faith, peruse the materials on record and form anindependent opinion. It further observed that he cannotremain oblivious to his lawful obligations under the Code andis required to constantly remember his duty to the court aswell as his duty to the collective. While filing cases underSections 499 and 500 IPC, he is expected to maintain that189 (2014) 10 SCC 380260independence and not act as a machine. The other ground ofattack is that when a complaint is filed in a Court of Session,right or appeal is curtailed. The said submission suffers froma basic fallacy. Filing of a complaint before the Court ofSession has three safeguards, namely, (i), it is filed by thepublic prosecutor; (ii) obtaining of sanction from theappropriate Government is necessary, and (iii) the Court ofSession is a superior court than the Magistrate to deal with acase where a public servant is defamed. In our considered
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opinion, when sufficient protection is given and the right toappeal to the High Court is not curtailed as the CrPC protectsit, the submission does not really commend acceptation. Inview of the aforesaid, we do not perceive any justification todeclare the provisions ultra vires.194. On behalf of petitioner―Foundation of MediaProfessionals, Mr. Bhambhani, learned senior counsel hassubmitted that the operation of the Press and Registration ofBooks Act, 1867 (for short “1867 Act”) must necessitate aMagistrate to accord due consideration of the provision of the2611867 Act before summoning the accused. Attention has beendrawn to the Sections 3, 5, 6 and 8 of the 1867 Act and it issubmitted that only person recognized under the said Act aseditor, publisher, printer and owner could be summoned inthe proceeding under Section 499 Indian Penal Code (IPC),apart from the author or person who has made the offendingstatements. The submission of the petitioner, Mr.Bhambhani, learned senior counsel is that in all theproceedings under Section 499 of IPC against a newspaperthe accused must be confined to those who are identifiable tobe responsible under Section 5 of the 1867 Act. In ourconsidered opinion that the said aspects can be highlightedby an aggrieved person either in a challenge for quashing ofthe complaint or during the trial. There is no necessity todeal with the said facet while deliberating upon theconstitutional validity of the provisions.195. In the course of hearing, it has been argued thatthe multiple complaints are filed at multiple places and thereis abuse of the process of the court. In the absence of anyspecific provisions to determine the place of proceedings in a262case of defamation, it shall be governed by the provisions ofChapter XIII of the CrPC - Jurisdiction of the Criminal Courtsin Inquiries and Trials. A case is ordinarily tried where theOffence is committed (Section 177). The expression used inSection 177 is “shall ordinarily be inquired and tried” by acourt within whose jurisdiction it was committed. Whereas“shall” brings a mandatory requirement, the word “ordinarily”brings a situational variation which results in aninterpretation that the case may be tried as per the further
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provisions of the Chapter. In case the place of committing theoffence is uncertain, the case may also be tried where theoffence was partly committed or continues to be committed(Section 178). The case may also be tried where theconsequence of the act ensues (Section 179). The otherprovisions in the chapter also deal with regard to certainspecific circumstances. Section 186 CrPC gives the HighCourt powers to determine the issue if two or more courtstake cognizance of the same offence. If cases are filed in twoor more courts in different jurisdictions, then the Jurisdictionto determine the case lies with the High Court under whose263jurisdiction the first complaint was filed. Upon the decision ofthe High Court regarding the place of trial, the proceedings inall other places shall be discontinued. Thus, it is again left tothe facts and circumstances of each case to determine theright forum for the trial of case of defamation. Thus, CrPCgoverns the territorial jurisdiction and needless to say, if thereis abuse of the said jurisdiction, the person grieved by theissue of summons can take appropriate steps in accordancewith law. But that cannot be a reason for declaring theprovision unconstitutional.196. Another aspect requires to be addressed pertains toissue of summons. Section 199 CrPC envisages filing of acomplaint in court. In case of criminal defamation neitherany FIR can be filed nor can any direction be issued underSection 156(3) CrPC. The offence has its own gravity andhence, the responsibility of the Magistrate is more. In a way,it is immense at the time of issue of process. Issue of process,as has been held in Rajindra Nath Mahato v. T. Ganguly,Dy. Superintendent and another190, is a matter of judicial190264determination and before issuing a process, the Magistratehas to examine the complainant. In Punjab National Bankand others v. Surendra Prasad Sinha191 it has been heldthat judicial process should not be an instrument ofoppression or needless harassment. The Court, though in adifferent context, has observed that there lies responsibilityand duty on the Magistracy to find whether the concernedaccused should be legally responsible for the offence chargedfor. Only on satisfying that the law casts liability or creates
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offence against the juristic person or the persons impleadedthen only process would be issued. At that stage the courtwould be circumspect and judicious in exercising discretionand should take all the relevant facts and circumstances intoconsideration before issuing process lest it would be aninstrument in the hands of the private complaint as vendettato harass the persons needlessly. Vindication of majesty ofjustice and maintenance of law and order in the society arethe prime objects of criminal justice but it would not be the (1972) 1 SCC 450191 1993 Supp. (1) SCC 499265means to wreak personal vengeance. In Pepsi Foods Ltd.and another v. Special Judicial Magistrate and others192a two-Judge Bench has held that summoning of an accusedin a criminal case is a serious matter and criminal law cannotbe set into motion as a matter of course.197. We have referred to these authorities to highlightthat in matters of criminal defamation the heavy burden is onthe Magistracy to scrutinise the complaint from all aspects.The Magistrate has also to keep in view the languageemployed in Section 202 CrPC which stipulates about theresident of the accused at a place beyond the area in whichthe Magistrate exercises his jurisdiction. He must besatisfied 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 noteof submission of Mr. Bhambhani, learned senior counsel. It issubmitted by the learned senior counsel that Exception toSection 499 are required to be considered at the time of192 (1998) 5 SCC 749266summoning of the accused but as the same is not conceivedin the provision, it is unconstitutional. It is settled position oflaw that those who plead Exception must prove it. It hasbeen laid down in M.A. Rumugam (supra) that for thepurpose of bringing any case within the purview of the Eighthand the Ninth Exceptions appended to Section 499 IPC, itwould be necessary for the person who pleads the Exception
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to prove it. He has to prove good faith for the purpose ofprotection of the interests of the person making it or anyother person or for the public good. The said propositionwould definitely apply to any Exception who wants to have thebenefit of the same. Therefore, the argument that if the saidException should be taken into consideration at the time ofthe issuing summons it would be contrary to establishedcriminal jurisprudence and, therefore, the stand that itcannot be taken into consideration makes the provisionunreasonable, is absolutely an unsustainable one and in away, a mercurial one. And we unhesitatingly repel the same.267199. In view of the aforesaid analysis, we uphold theconstitutional validity of Sections 499 and 500 of the IndianPenal Code and Section 199 of the Code of CriminalProcedure. During the pendency of the Writ Petitions, thisCourt had directed stay of further proceedings before the trialcourt. As we declare the provisions to be constitutional, weobserve that it will be open to the petitioners to challenge theissue of summons before the High Court either under Article226 of the Constitution of India or Section 482 CrPC, asadvised and seek appropriate relief and for the said purpose,we grant eight weeks time to the petitioners. The interimprotection granted by this Court shall remain in force for aperiod of eight weeks. However, it is made clear that, if any ofthe petitioners has already approached the High Court andalso become unsuccessful before this Court, he shall face trialand put forth his defence in accordance with law.200. The Writ Petitions and the Transfer Petitions aredisposed of accordingly. All pending criminal miscellaneous268petitions also stand disposed of. There shall be no order as tocosts. .......................................J. [Dipak Misra] ………………….................J. [Prafulla C. Pant]New DelhiMay 13, 2016
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