Freedom of Speech and Expression: In Consonance with Reputation?


Part III of the Constitution of India, which has been described by Dr. Ambedkar as ‘the Heart and Soul of the Constitution’, comprises the Fundamental Rights guaranteed to the citizens of India. These are nothing but inalienable human rights and are applicable irrespective of race, caste, religion, place of birth and gender. They are also justifiable in nature which means that they can be easily enforced by the courts. The judiciary has made innumerable efforts to empower people, especially the members of weaker sections, to live with dignity, liberty, equality, and freedom. It has given wide interpretations to the Constitutional Principles, thereby widening their horizons and making them more meaningful. Two such provisions are the Right to Freedom of Speech and Expression and Right to Reputation that is often found in conflict with each other.

The Right to Free Speech and Expression

The Freedom of Speech and Expression conferred by Article 19(1) (a) has been accentuated as the bulwark of democracy. It is one of the basic and vital rights for the sustenance of parliamentary democracy which is the part of the basic structure of the Constitution. It is at the apex of and is the mother of all the liberties. Freedom in Speech and Expression is absolutely crucial for an individual to mold his personality and this is why this right has been guaranteed to every citizen as a Fundamental Right. But this right is not absolute. It is subject to certain reasonable restrictions. These restrictions prevent the expression of a thought which is intrinsically perilous to the public interest.

The Right to Reputation- An Extension of Article 21

It has been observed that a good name is better than good riches[1]. Article 21 talks about the Right to Life and also includes the right to live with dignity and along with it, other necessities such as food, clothing, shelter etc. The Supreme Court has time and again given broad interpretations of this Article to embellish it with vitality and significance to enhance the dignity and worth of an individual. Emphasis has also been laid on social and economic justice to make Right to Life more meaningful. Article 21 consists of a banquet of rights, one of which is the Right to Reputation. This right has been evolved on the concept that for a rational human being, mere material existence is not enough. He makes an effort to realize the value of life which is inexistent without dignity.

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The Discord between the two Rights and the Need to strike a balance

The Right to Freedom of Speech and Expression and Right to Reputation have often been conflicting. Whereas the former gives liberty to an individual to express his opinions, the latter puts a restriction on statements that are defamatory in nature against individuals. In the recent case of Subramanian Swamy v. Union of India and ors.[2],this conflict has been brought before the Hon’ble Supreme Court wherein sections 499 and 500 of the Indian Penal Code, 1860 that talk about defamation were challenged as being violative of the Right to Freedom of Speech and Expression.

The Supreme Court is not just the sentinel of fundamental rights. It also plays the role of a balancing wheel between the rights, subject to social control. Freedom of expression is not absolute and hence, cannot per se be burdened with upholding a democratic system of government. The constitutional system has other important values as well that guarantee various other liberties which may at times conflict. All these values must balance each other[3].

To quote Justice Krishna Iyer in Maneka Gandhi v. Union of India[4], ‘Man is not dissectible into separate limbs and, likewise, cardinal rights in an organic constitution, which make man human, have a synthesis. The proposition is indubitable that Article 21 does not, in a given situation, exclude Article 19 if both rights are breached.’

 In Mohd. Arif alias Ashfaq v. Registrar, Supreme Court of India and others[5], it was held by the majority of the Constitution Bench that the fundamental right to life and personal liberty is the most precious right among all the fundamental rights. But it has also been observed that personal liberty under Article 21 cannot be read in a restricted sense and that it includes the attributes of personal liberty that are dealt with in Article 19[6]. Further, in R.C. Cooper v. Union of India[7] the court has held that there can be a possibility of overlapping between different fundamental rights and hence, Article 21 must not be interpreted in a way so as to avoid overlapping with Article 19(1). These authorities have been reflected in the judgment of Subramanian Swamy v. Union of India[8] where the Court held that Criminal Defamation is not violative of Article 19(1) (a).

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To conclude, the Right to Reputation and Right to freedom of speech and expression are both crucial parts of the Constitution. Where Free speech is imperative for an effective democracy to function, a person’s reputation is his most prized possession. Hence, his right to reputation must not be jeopardized in the name of Freedom of Speech and Expression and the latter must not be used to defame another person. What is equally important is that the Right to Reputation and other defamation laws must not be allowed to crucify free speech. A balance must be struck.

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[1] Haridas Das v. Usha Rani Banik and others, (2007) 14 SCC 1.

[2] Writ Petition (Criminal) No. 184 of 2014.

[3] Sahara India Real Estate Corpn. Ltd. v. SEBI, (2012) 10 SCC 603.

[4] Maneka Gandhi v. Union of India, AIR 1978 SC 597.

[5] Mohd. Arif alias Ashfaq v. Registrar, Supreme Court of India and others, (2014) 9 SCC 737.

[6] Maneka Gandhi v. Union of India, AIR 1978 SC 597.

[7] AIR 1970 SC 564.

[8] Supra, n. 2.

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