This article has been written by our intern Ravit Singh, a law student from Gujarat National Law University.
Abstract
The Subramanian Swamy v. Union of India case is a landmark decision that upheld the constitutional validity of criminal defamation in India. Additionally, this was the first instance in which the Supreme Court heard a frontal challenge to the validity of criminal defamation legislation, one of the strictest and oldest laws limiting expression. The Court used this opportunity to highlight the importance and sanctity of the right to freedom of speech and expression in a democracy while also pointing out that this right was subject to a variety of justifiable limitations.
This article tries to trace the course that the case followed, in addition to presenting the contentions that arose as a result of the decision. It also provides a perspective on how the decision was crucial in limiting the extent of free speech in India and the aspects of the case that the Court failed to consider in its judgement.
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Facts of the Case
A meeting between the LTTE (Liberation Tigers of Tamil Eelam) and Ms Jayalalitha, the then-chief minister of Tamil Nadu, was mentioned in a tweet by BJP leader Subramanian Swamy. Rahul Gandhi claimed in a speech that the RSS was complicit in Mahatma Gandhi's murder. And Nitin Gadkari was once accused of corruption by Arvind Kejriwal.
Following these events, the three of them were charged with the offence of criminal defamation. Therefore, a petition was filed by DDrSwamy, along with the others, under Article 32 of the Indian Constitution, challenging the validity of criminal defamation under Sections 499 and 500 of the Indian Penal Code,1860, along with Section 199(1)-199(4) of the Code of Criminal Procedure, 1973.
The petition was brought because the petitioners claimed that it violated their fundamental right under Article 19(1)(a) to "freedom of speech and expression".
Issues in the Case
Whether Section 499 of the Indian Penal Code, 1860, together with Section 199(1)-199(4) of the Code of Criminal Procedure, 1973, is violative of Article 19(a) of the Constitution?
Whether ‘right to life’ includes ‘right to reputation?
Arguments Advanced by the Petitioners
The petitioner's counsel disputed the argument that Article 19(1)(a) is a broad notion that is subject to the limitations under Article 19(2) and that those limitations should be interpreted extremely strictly. The exception must be understood by omitting criminal defamation and using the noscitur a sociis principle. The Constitution's Article 19(2) does not apply to Section 499 since defamation is a civil wrong, or in personam, and is not covered by the Fundamental Rights that are granted in the public interest.
According to Article 21, one's right to reputation is a component of a private right; as a result, defamation of a person by a private person cannot be treated as a "crime," as it does not further any public good, and its inclusion as a crime under the law that safeguards rights in rem would be unconstitutional.
The petitioner's counsel also made the case that Section 499 of the IPC violates Article 51-A(b) of the Constitution by going beyond what is in the general public's interest. Additionally, the obligation to demonstrate the public benefit also goes beyond what is reasonable, according to the petitioner's counsel, and falls outside the ambit of Section 499's reasonable constraints under Article 19(2).
According to the argument that it creates two different types of procedures, one of which has an advantage over the other and violates the equality clause, the different procedure for a specific category of people and the Court of Session to be the Court of the first instance established under Section 199(2) CrPC was contested. Additionally, it makes use of the Public Prosecutor's apparatus, which gives the State the ability to restrict the right to free speech and expression.
Arguments Advanced by the Respondent
Attorney General, the respondents' legal counsel requested that Article 19(1)(a) not be treated as a separate right that is completely unabridged and that the limitations under Article 19(2) be understood in the context of the entire article and not in isolation. He ignored the ineffective distinction made by the petitioner between a private wrong and a public wrong by defining a public wrong as one that harms both the public and the polity as a whole, and he was tested on the claim that criminalising defamation or reputation damage is intended to support basic harmony in the polity.
The counsel also argued that reputational harm could not just be made up for financially. In addition, he supported Article 21's protection of the right to reputation as an integral part of an individual's personality and separated the right to free expression from the right to offend. Since there was no other similar provision in any other law, and if the reasonable restrictions under Article 19 were read in isolation, it would defeat the entire purpose for which they were placed, he pitched over the Constituent Assembly Debates and provided that the express provision of restrictions in Article 19(2) was included to provide the constitutional protection to Section 499.
Regarding the disparity between the establishment of individual rights and those of societal rights under Articles 19 and 21, this distinction is misleading because the court has interpreted Articles 14, 19, and 21 as one, rendering the petitioner's claims moot. By placing the onus on the complainant to pursue the criminal complaint independently of the State's legal system, Section 199(1) CrPC protects the right to free speech.
This restriction on the ability to take defamation cases under cognizance aims to prevent the filing of pointless complaints that might otherwise back up the Magistrate's Courts.
Judgment of the Case
Justice P.C. Pant and Justice Dipak Misra both concurred with the decision. Sections 499 and 500 of the Indian Penal Code (IPC), 1860, as well as Section 199 of the Code of Criminal Procedure, were maintained by the court as being constitutionally acceptable. The two-member bench rendered the decision after considering several meanings of "defamation" and "reputation." In its ruling on Writ Petition (Criminal) No. 184 of 2014, the court held that a person's "right to life" as guaranteed by Article 21 of the Indian Constitution also encompasses their "right to reputation," which is an integral component of their identity.
The Court separated itself from past decisions in which it had overturned laws that restricted free speech, such as Shreya Singhal v. Union of India, by emphasising that the law on criminal defamation is clear and unequivocal. Because Criminal Defamation under Sections 499 and 500 of the IPC is constitutionally valid, the Court rejected the pleas. Additionally, the Court ordered that further proceedings cease while the Writ Petitions were pending so that the trial court may allow the petitioners to file a constitutional challenge to the provision.
Comments on the Case
The court examined whether the criminal defamation laws are procedurally or substantively unreasonable by determining if they are vague, arbitrary, or disproportionate. The Court concluded that the four explanations provided in the Penal Code section on defamation were neither unclear nor vague. The Court was aware that imputation can only be considered defamatory if it directly or indirectly damages a person's reputation or good name in the eyes of others. The Court noted that truth is only a defence when a statement also serves the public good, but it believes that a remark that is made solely to defame a person should not be protected by the constitution.
The Court rejected the argument that the majority's conception of defamation is fundamentally intended to stifle the freedom of speech and expression because it was deemed to be too general to be used as a guiding element in determining whether a restriction was fair.
The Court rejected the argument that the majority's conception of defamation is fundamentally intended to stifle the freedom of speech and expression because it was deemed to be too general to be used as a guiding element in determining whether a restriction was fair. The case has been seen as a significant setback for India's right to free speech. In recent years, India has seen a rise in concern over the restriction of the right to free speech and expression.
The court's stated grounds for maintaining the validity of criminal defamation had significant flaws. The court's silence and the points it refused to address are both troublesome. The strange legal scenario that results from the judgement is that criminal culpability for defamation is attracted at a lower threshold than a civil liability! The court's quick dismissal of the argument that criminal defamation chills speech in a single paragraph is equally regrettable. Such declarations are simple to make from the Supreme Court's high, safe, and protected bench.
The court has viewed free speechless as a basic right that forms the basis of our republican democracy and more as a nuisance that may be put to rest whenever "public interest" dictates. Its defamation law ruling carries on that lengthy, regrettable history.
References:
Subramanian Swamy v. Union of India AIR [(2015) 13 SCC 353].
Gian Kaur v. State of Punjab [(1996) 2 SCC 648].
Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni and others [(1983) 1 SCC 124].
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