Subramanian Swamy v. Union of India

The court in this case discusses that reasonableness and proportionality of a restriction is determined from the view point of the interest of the general public at large, and not from the point of view of the person upon whom the restrictions are imposed.

Facts of the Case

  • The petition was filed under Article 32 of the Indian Constitution by Subramanian Swamy along with other petitioners challenging the Constitutional validity of Criminal defamation under Section 499 (defamation) and Section 500 (punishment for defamation) of Indian Penal Code, 1860 and Sections 199(1) to 199(4) of Indian Code of Criminal Procedure, 1973.
  • The petition was filed because the petitioners argued that it curtailed their Fundamental Right of ‘Right to freedom of speech and expression’ under Article 19(1)(a).
  • In the year 2014, a corruption allegation was made by Dr. Subramanian Swamy against Ms. Jayalathitha in response to this the Tamil Nadu state government filed a defamation case against him.
  • After this Dr. Swamy along with other prominent politicians challenged the constitutionality of criminal defamation laws in India[1]

Issues

  • Whether Section 499 and Section 500 of IPC are Constitutionally valid?
  • Whether ‘Right to life’ includes ‘Right to Reputation’?
  • Whether Defamation under Section 499 contravenes Article 19(1)(a) of the Indian Constitution?

Arguments Raised By Prosecution

The constitutionality of the aforesaid provisions has been challenged on many a score and from many an angle by the different counsel appearing for the writ petitioners who belong to different walks of life. The arguments put forth by the learned counsel can be noted down as follows;

  • Firstly, Article19(1)(a) is only to preserve the interests of the state and the public in general. In addition to this if there is any case of defamation among any private individuals it must be dealt with the “Law of Torts” as it is a civil wrong or a tort.
  •  Article 19(2) cannot be regarded as the source of authority for Section 499 of IPC which makes defamation of any person an offense.
  • It has to be kept in mind that fundamental rights are conferred in the public interest and defamation of any person by another person is unconnected with the fundamental right conferred in the public interest by Article 19(1)(a) and, therefore, Section 499 is outside the scope of Article 19(2) of the Constitution.
  • An arbitrary restriction on the fundamental right that goes beyond public interest, cannot be considered as a reasonable restriction.
  • On analyzing Sections 499 and 500 IPC and Section 199 CrPC, it is manifest that there is the presumption of facts as a matter of law and that itself makes the provision arbitrary and once the foundation is unreasonable and arbitrary, the provisions are meant to be called “ultra vires” Articles 14, 19 and 21 of the Constitution.

Proponements in Oppugnation

Submissions in defence were given by Mr. Mukul Rohatgi, learned Attorney General of India and Mr. P.S. Narasimha, learned Additional Solicitor General along with various prominent lawyers of the country. The following arguments were put forward by the learned counsels against the claims of the petitioners;

  • Article19(1)(a) dealing with freedom of speech, the most robust right. Article19(2) must be read in reference to freedom of speech and not in isolation. Article 19(2) must be considered as an integral part of the right to free speech and expression as Article 19(1)(a) is not a standalone right and, therefore, it cannot be said that there is an unbridled right to free, much less defamatory speech.
  • When the grounds of the exception under Article 19(2) are analyzed, each of them upheld public interest and so does defamation, for its principal object is to preserve reputation as a shared value of the collective.
  • The stand that Sec 499 puts private wrong at the level of public wrong is totally incorrect, as defamation or damage to reputation is an act that is meant to subserve basic harmony in the polity.[2]
  • Section 499 and 500 continues to cover the objective of protection of public interests by defining civil wrong so as to protect the same by providing reasonable restrictions u/s 19(2) of the Constitution.
  • Thus viewed, the right enshrined under Article 19(1)(a) cannot be allowed to brush away the right engrafted under Article 21, but there has to be a balancing of rights.

Judgment

The judgment was passed by Justice Dipak Misra and was agreed upon by Justice P.C. Pant. The court upheld the constitutional validity of Section 499 and 500 of the Indian Penal Code (IPC), 1860, and Section 199 of the Code of Criminal Procedure. The judgment was given by a two-member bench after analyzing different definitions of ‘Defamation’ and ‘Reputation’. The bench while deciding the Writ Petition (Criminal) No. 184 of 2014 was of the opinion that ‘Right to life’ under Article 21 of the Indian Constitution also includes ‘Right to Reputation’, which is an inseparable part of a person’s personality. The Court emphasized that the law on criminal defamation is clear and unambiguous and thus distinguished other cases in which it had struck down legislation that infringed freedom of speech, such as Shreya Singhal v. Union of India[3]. Hence, the petitions were dismissed by the Court by upholding the constitutional validity of the Criminal Defamation under Section 499 and 500 of IPC. Also, the Court during the pendency of the Writ Petitions directed the stay of further proceedings before the trial court makes it open for the petitioners to challenge the issue as the provision has been declared Constitutional.

Comments

Defamation can be criminal or civil in nature. The offenses committed as civil defamation are dealt with penalties limited to damages only whereas the punishment for committing criminal defamation is imprisonment which may extend to 2 years, or fine, or both and is governed by IPC whereas the former falls under the law of torts.

Replacing criminal penalties with civil penalties cannot fulfill the criteria to balance the right of freedom of expression with the right to reputation. The main idea for maintaining balance should be an exercise of an individual’s ‘freedom of speech and expression’ without compromising with the person’s ‘reputation’ in the eyes of the public.

The reasonableness and proportionality of a restriction are determined from the viewpoint of the interest of the general public at large, and not from the point of view of the person upon whom the restrictions are imposed. The judgment rightly upholds the constitutionality of the offense of criminal defamation, stating that it constitutes a ‘reasonable restriction’ on the right to freedom of expression under Article 19(1)(a) of the Indian Constitution.

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[1] Defamation as a Criminal offence, Supreme Court Observer, (July 11, 2020, 4:25 AM) https://www.scobserver.in/court-case/defamation-as-a-criminal-offence

[2] Jasmin Jose, Subramanian Swamy vs. Union of India, Ministry of Law & ors., Law times Journal, ( July 11, 2020 5:10 AM ) http://lawtimesjournal.in/subramanian-swamy-vs-union-of-india-ministry-of-law-ors/

[3] (2015) 5 SCC 1 : (2015) 2 SCC (Cri) 449