# 3 S.C.R. 865 SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF LAW & ORS

- **Citation:** [2016] 3 S.C.R. 865
- **Court:** Supreme Court of India
- **Decided:** 2016
- **Bench:** Dipak Misra, Prafulla C.-Pant
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/3-s-c-r-865-subramanian-swamy-v-union-of-india-ministry-of-law-ors-31259
- **Pages:** 153

## Headnote

PENAL CODE, 1860:
ss.499, 500 -
Constitutional validity of -
Held: ls
constitutionally valid - The Preamble balances different and
divergent rights - Keeping in view the constitutional value, the
legislature has not repealed s.499 and kept the same alive as a
criminal offence - It is not correct to hold that the existence of
criminal defamation is absolutely obnoxious to freedom of speech
and expression - It neither invites the frown of any of the Articles
of the Constitution nor its very existence can be regarded as an
unreasonable restriction - Code of Criminal Procedure, 1973 -
ss.199(1) to 199(4).
ss.499, 500 - Criminal defamation which is in existence in
the form of ss.499 and 500 is not a restriction on free speech that
can be characterized as disproportionate - Right to free speech
cannot mean that a citizen can defame the ·other - Protection of
reputation is a fundamental right - It is also a human right -
Cumulatively it serves the social interest -
Thus, it cannot be said
that provisions relating to criminal defamation are not saved by
doctrine of proportionality because it determines a limit which is
not impermissible within the criterion of reasonable restriction.
CONSTITUTION OF INDIA:
Art.14 - Reasonable restriction - To treat a restriction
constitutionally permissible, it is necessary to scrutinize whether
the restriction or imposition of limitation is excessive or not - When
a law limits a constitutional right which many laws do, such limitation
is constitutional if it is proportional - The law imposing restriction
is proportional if it is meant to achieve a proper purpose, and if the
measures taken to achieve such a purpose are rationally connected
to the purpose, and such measures are necessary - Such limitations
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should not be arbitrary or of an excessive nature beyond what is
required in the interest of the public -
Reasonableness is judged
with reference to the Qbjective which the legislation seeks to achieve,
and must not be in excess of that objective - Further, the
reasonableness is examined in an objective manner from ihe stand
point of the interest of the general public and not from the point of
view of the person upon whom the restrictions are imposed or
abstract considerations.
Art.19(2) - Interpretation of term 'defamation' -
Held: The
term 'defamation' as used in Art.19(2) not to be construed narrowly
- The word "defamation" as used in Article 19(2) has to be conferred
an independent meaning, for it is incomprehensible to reason that
it should be read with the other words and expressions, namely,
"security of the State", 'friendly relations with foreign States",
"public order, decency or morality".
'
Art.21 - Right to reputation, an essential component of Art.21
- Held: It is an individuals fundamental right and, therefore,
balancilig of fundamental right is imperative - In the name of freedom
of speech and expression, the right of another cannot be jeopardized
Reputation being aninherent component of Art. 21, it should
not be allowed to be sullied solely because another individual can
have its freedom - Reputation of one cannot be allowed to be
crucified at the altar of others right of free speech.
Art.51-A (e) - Concept of fraternftY - Held: The c011cept of
fraternity under the Constitution expects every citizen to respect
the dignity of the other - Mutual respect is the jitlcrum of fraternity
that assures dignity - It would not mean that there cannot be dissent
or difference or discordance or a different voice - One has a right
to freedom of speech and expression - One is also obliged under
the Constitution to promote the idea of fraternity - It is a
constitutional obligation - In the context of constitutional fraternity,
fundamental duties engrafted under Art. 51-A gain significance -
The prismatic perception of sub-article (e) of Art. 51-A would reflect
that it is. the duty of every citizen of India to promote· harm

## Text

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[2016) 3 S.C.R. 865
SUBRAMANIAN SWAMY
v.
UNION OF INDIA, MINISTRY OF LAW & ORS.
(Writ Petition (Crl.) No. 184 of2014)
MAY 13,2016
[DIPAK MISRA AND PRAFULLA C.-PANT, JJ.]
PENAL CODE, 1860:
ss.499, 500 -
Constitutional validity of -
Held: ls
constitutionally valid - The Preamble balances different and
divergent rights - Keeping in view the constitutional value, the
legislature has not repealed s.499 and kept the same alive as a
criminal offence - It is not correct to hold that the existence of
criminal defamation is absolutely obnoxious to freedom of speech
and expression - It neither invites the frown of any of the Articles
of the Constitution nor its very existence can be regarded as an
unreasonable restriction - Code of Criminal Procedure, 1973 -
ss.199(1) to 199(4).
ss.499, 500 - Criminal defamation which is in existence in
the form of ss.499 and 500 is not a restriction on free speech that
can be characterized as disproportionate - Right to free speech
cannot mean that a citizen can defame the ·other - Protection of
reputation is a fundamental right - It is also a human right -
Cumulatively it serves the social interest -
Thus, it cannot be said
that provisions relating to criminal defamation are not saved by
doctrine of proportionality because it determines a limit which is
not impermissible within the criterion of reasonable restriction.
CONSTITUTION OF INDIA:
Art.14 - Reasonable restriction - To treat a restriction
constitutionally permissible, it is necessary to scrutinize whether
the restriction or imposition of limitation is excessive or not - When
a law limits a constitutional right which many laws do, such limitation
is constitutional if it is proportional - The law imposing restriction
is proportional if it is meant to achieve a proper purpose, and if the
measures taken to achieve such a purpose are rationally connected
to the purpose, and such measures are necessary - Such limitations
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should not be arbitrary or of an excessive nature beyond what is
required in the interest of the public -
Reasonableness is judged
with reference to the Qbjective which the legislation seeks to achieve,
and must not be in excess of that objective - Further, the
reasonableness is examined in an objective manner from ihe stand
point of the interest of the general public and not from the point of
view of the person upon whom the restrictions are imposed or
abstract considerations.
Art.19(2) - Interpretation of term 'defamation' -
Held: The
term 'defamation' as used in Art.19(2) not to be construed narrowly
- The word "defamation" as used in Article 19(2) has to be conferred
an independent meaning, for it is incomprehensible to reason that
it should be read with the other words and expressions, namely,
"security of the State", 'friendly relations with foreign States",
"public order, decency or morality".
'
Art.21 - Right to reputation, an essential component of Art.21
- Held: It is an individuals fundamental right and, therefore,
balancilig of fundamental right is imperative - In the name of freedom
of speech and expression, the right of another cannot be jeopardized
Reputation being aninherent component of Art. 21, it should
not be allowed to be sullied solely because another individual can
have its freedom - Reputation of one cannot be allowed to be
crucified at the altar of others right of free speech.
Art.51-A (e) - Concept of fraternftY - Held: The c011cept of
fraternity under the Constitution expects every citizen to respect
the dignity of the other - Mutual respect is the jitlcrum of fraternity
that assures dignity - It would not mean that there cannot be dissent
or difference or discordance or a different voice - One has a right
to freedom of speech and expression - One is also obliged under
the Constitution to promote the idea of fraternity - It is a
constitutional obligation - In the context of constitutional fraternity,
fundamental duties engrafted under Art. 51-A gain significance -
The prismatic perception of sub-article (e) of Art. 51-A would reflect
that it is. the duty of every citizen of India to promote· harmony and
the concept of colllmon brotherhood alllongst all the people despite
lllany diversities -It is also.the duty of every citizen !&strive towards
excellence in all spheres of individual and collective activity.
..
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF
LAW & ORS.
Code of Criminal Procedure, 1973: s.199 - Public servants
whether amount to different class to enable them to file a case through
public prosecutor in the Court of Session - Held: A publ'ic servant
is entitled to file a complaint through public prosecutor in respect
of his conduct in discharge of public functions - The provision
gives them protection for their official acts - There cannot be
defamatory attacks on them because of discharge of their due
functions - In that sense, they constitute a different class.
Doctrines/Principles: Principle of Noscitur a soccis -
Applicability of - Held: lt is only when and where the intention of
the legislature in associating wider words with words of narrowest
significance is doubtful or otherwise not clear, that the rule of
noscitur a soccis is useful.
Disposing of the writ petition, the Court
HELD: 1.1 Noscitur <1 soccis is merely a rule of construction
and cannot prevail where it is clear that wider and diverse
etymology is intentionally and deliberately used in the provision.
The term "defamation" as used is absolutely clear and
unambiguous.
The said term was there at the time of
commencement 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 a
restricted one which even the founding fathers did not intend to
do. K_eeping in view the aid that one m_ay take from the
Constituent Assembly Debates and regard being had to the clarity
of expression, there is no warrant to apply the pri_!lciple of 11oscitur
a sociis to give a restricted meaning to the term "defamation"
that it only includes a criminal action if it gives rise to incitement
to constitute an offence. The word "incitement" bas to be
understood in the context of freedom of speech and expression
.and reasonable restriction. The word "incitement" in criminal
jurisprudence has a different meaning. It is difficult to accede to
the submission that defamation can only get criminality ifit incites
to make an offence. The word "defamation" has its own
independent identity and it stands alone and the law relating to
defamation has to be understood as it stood at the time when the
Constitution came into force. [Parns 70, 71) [946-D, E-H; 947-AB)
.
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1.2 The word "defamation" as used in Article 19(2) has to
be conferred an independent meaning, for it is incomprehensible
to reason that it should be read with the other words and
expressions, namely, "security of the State", "friendly relations
with foreign States", "public order, decency or morality".
Defamation has been regarded as a crime in the IPC which is a
pre-constitutional law. Individuals constitute the collective. Law
is enacted to protect the societal interest. The law relating to
defamation protects the reputation of each individual in the
perception of the public at large.
Protection of individual right
is imperative for social stability in a body polity and that is why
the State makes laws relating to crimes. A crime affects the
society. It causes harm and creates a dent in social harmony.
There is a link and connection between individual rights and the
society; and this connection gives rise to community interest at
large.
Therefore, when harm is caused to an individual, the
society as a whole is affected and the danger is perceived. [Para
75] (948-G-H; 949-A-E]
1.3 The concept of crime is essentially concerned with social
order. It is well known that man's interests arc best protected as
a member of the community. Everyone owes certain duties to his
fellow-men and at the same time has certain rights and privileges
which he expects others to ensure for him. This.sense of mutual
respect and trust for the rights of others regulates the conduct of
the members of sociefy illter-se. Although most people believe in
the principle of 'live and let live', yet there arc a few who, for
some reason or the other, deviate from this normal behavioural
pattern and associate themselves with anti-social elements. This
obviously imposes an obligation on the State to maintain normalcy
in the society. This arduous task of protecting the law abiding
citizens and punishing the law breakers vests with the State which
performs it through the instrumentality of law. It is for this reason
that Salmond has defined law as a 'rule of action' regulating the
conduct of individuals in society. The conducts which are
prohibited by the law in force at a given time and place arc known
as wrongful acts or crimes, whereas those which are permissible
under the law arc treated as lawful. [Para 82) [951-G; 952-A-D]
..
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF
869
LAW & ORS.
R. Rajagopal alias R.R. Gopal and another v. State of
T.N. and others 1994 (4) Suppl. SCR 353 : (1994) 6
sec 632; N. Ravi and others V. Union of India and
others (2007) 15 SCC 631; Jacob Mathell' le State of
Punjab and another 2005 (2) Suppl. SCR 307 : 2005
(6) SCC 1 ; Shreya Singhal v. Union of India 2015 (5)
SCR 963 : (2015) 5 SCC 1; Special Reference No. 1 of
1964 (1965) 1 SCR 413; Bata India Ltd. v. A.M Turaz
& Ors. 2013 (53) PTC 586; Pandey Surindra Nath
Sinha v. BaKeshwari Pd .. AIR 1961 Pat. 164; Hill v.
Church of Scientology of Toronto 1995 2 SCR 1130;
Board of Trustees of the Port of Bombay v. Dilipkumar
Raghavendranath Nadkarni and others 1983 (1) SCR
828 : (1983) 1 SCC 124 ; Kiran Bedi v. Committee of
Inquiry and another 1989 (1) SCR 20 : (1989) 1 SCC
494; Gian Kaur v. State of Punjab 1996 (3) SCR 697:
(1996) 2 SCC 648; Mehmood Nayyar Azam v. State of
Chhatisgarh and others 2012 (8) SCR 651: (2012) 8
SCC 1 ; Vishll'anath Agrawal v. Sarai Vishwanath
Agrawal 2012 (7) SCR 607 : (2012) 7 SCC 288; Umesh
Kumar v. State of Andhra Pradesh and another 2013
(14) SCR 213 : (2013) 10 SCC 591; Kishore Samrite v.
State of Uttar Pradesh and others 2012 (9) SCR 733 :
(2013) 2 SCC 398; Nilgiris Bar Association v. T.K.
Mahalingam and another.1991 (6) Suppl. SCR 246 :
(1998) 1 SCC 550 ; Om Prakash Chautala v. Kanll'ar
Bhan and others 2014 (1) SCR 939 : (2014) 5 SCC
417; State of Gujarat and another v. Hon 'ble High Court
of Gujarat 1998 (2) Suppl. SCR 31 : (1928) 7 SCC
392; State of Bihar i: Shailabala Devi AIR 1952 SC
329 : 1952 SCR 654; Br(j Bhushan v. State of Delhi
1952 SCR 654 : AIR 1950 SC 129; S.R. Chaudhuri v.
State of Pw?jab and others 2001 (1) Suppl. SCR 621 :
. (2001) 7 SCC 126; Special Reference No. 1 of 2002, /11
re (Gujarat Assembly Election matter) 2002 (3) Suppl.
SCR 366 : (2002) 8 SCC 237; His Holiness
Kesavananda Bharati Sripadagalvaru v. State of Kera/a
and another 1973 (0) Suppl. SCR 1: (1973) 4 SCC
225; Mano} Nant!a v. Union of India 2014 (9) SCR
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[2016] 3 S.C.R .
965 : (2014) 9 SCC 1; Superintendent and
Remembrancer of Legal Affairs v. Corporation of
Calcutta AIR 1967 SC 997: 1967 (2) SCR 170; Ganga
Bai v. Vl}ay Kumar 1974 (3) SCR 882 : (1974) 2 SCC
393; State of Bombay v. Hospital Mazdoor Sabha AIR
1960 SC 610 : (1960) 2 SCI{ 866; Bank of India v.
Vl}ay Transport and nthers 1988 Supp SCC 47 : AIR
1988 SC 151 : 1988 SCR 96i; R.L. Arora.v. State of
Uttar Pradesh (1964) 6 SCR 784 : AIR 1964 SC 1230;
Godfrey Phillips India Ltd. and another v. State of U.P.
and others 2005 (1) SCR 732 : (2005) 2 SCC 515;
Ahmedabad Pvt.
Primary Teachers' Assn.
v.
Administrative Officer and others 2004 (1) SCR 470 :
(2004) 1 SCC 755; K. Bhagirathi G Shenoy and others
v. K.P. Ballakuraya and another 1999 (2) SCR 438 :
(1999) 4 SCC 135; Reserve Bank of India v. Peerless
General Finance and Investment Co. Ltd. and others
1987 (2) SCR 1 : (1987) 1 SCC 424; State of
Maharashtra v. Sz!jay Mangesh Poyarekar 2008 (13)
SCR 750 : (2008) 9 SCC 475; Mohd. Shahabuddin v .
. Stale of Bihar and others 2010 (3) SCR 911 : (2010) 4
SCC 653 ; Vinay Devonna Nayak v. Ryot Sewa
Sahakari Bank Ltd. 2007 (12) SCR 1134 : (2008) 2
SCC 305; R. Sai Bharathi v. J. Jayalalitha and others
2003 (6) Suppl. SCR 85 : (2004) 2 SCC 9 ; T.K. Gopal
alias Gopi v. State of Karnataka 2000 (3) SCR 1640 :
(2000) 6 SCC 168; Kartar Singh v. State of Punjab
1994 (2) SCR 375 : (1994) 3 SCC 569 ; Harpreet
Kaur (Mrs) v. State of Maharashtra and another 1992
(1) SCR 234 : (1992) 2 SCC 177 ; State of Karnataka
v. Appa Batu Ingale and others 1992 (3) Suppl. SCR
284 :1995 Supp. (4) SCC 469 ; Vishaka and others v.
State of Rajasthan and others 1997 (3) Suppl. SCR 404
: (1997) 6 SCC 241; Manisha Koirala v. Shashi Lal
Nair & Ors 2003 (2) Born CR 136 - referred to.
New York Times v. Sullivan 29 LED 2d 822 (1971);
Parmiter v. Coupland (1840) 6 MLW 105; Myroft v.
Sleight (1921) 37 TLR 646; Plato Films Ltd. v. Spiedel
(1961) 1 All. E.R. 876; Reynolds " Times Newspapers
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF
LAW & ORS.
Ltd [20011 2 AC 127 at 201; Campbell v. MGN Ltd
(2004) UKHL 22; Wisconsin " Constantineau 400 U.S.
433 (1971) ; Rosenblatt v. Baer 383 U.S. 75 (1966);
Khumalo v. Holomisa (2002] ZACC 12; 2002 (5) SA
401; Lindon v. France (2008) 46 E.H.R.R. 35; Chauvy
and Others v. France (2005) 41 EHRR 29; Abeberry v.
France and White v. Sweden (2007) EMLR I; Karak6
v. Hungary (2011) 52 E.H.R.R. 36; Axel Springer AG
, v. Germany (2012) 55 E.H.R.R. 6; D.F. Marion 1' Davis
55 ALR 171; Scoff v. Sampson (1882) QBD 491 -
referred to.
State of West Bengal v. Subodh Gopal Bose and others
AIR 1954 SC 92 : 1954 SCR 587 - distinguished.
Salmond & Heuston on the Law of Torts, 20th Edn.; Winfield
& Jolowics on Torts (17'" Edn. 2006);
.. The Law of Defamation"
Richard O'Sullivan, QC and Roland Brown; Carter- Ruck on Libel
and Slander -
referred to.
2. The right of freedom of expression in a poem, play or a
novel pertaining to fictional characters stand on a different footing
than defamation as the latter directly concerns the living or the
legal heirs of the dead and most importantly, having a known
identity. A person in reality is defamed contrary to a "fictional
character" being spoken of by another character or through any
other mode of narrative. Liberty of freedom in that sphere is
fundamentally different than the arena of defamation. Therefore,
the decisions rendered in tlie said context are to be guardedly
studied, appreciated and applied. The freedom in the said sphere
is not totally without any limit or boundary. What could legally be
permissible in the arena of fiction may not have that allowance in
reality. Freedom of speech and expression is a highly treasured
value under the Constitution and voice of dissent or disagreement
has to be respected· and regarded and not to be scuttled as
unpalatable criticism. Notwithstanding, the expansive and
sweeping and ambit of freedom of speech, as all rights, right to
freedom of speech and expression is not absolute. It is subject
to imposition of reasonable restrictions. [Paras 114 and 115] (969- ·
D-H; 970-AJ
Bennett Coleman & Co. and others v. Union of India
and others 1973 (2) SCR 757 : (1972) 2 SCC 788;
871
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Secretary, Ministry of Information & Broadcasting,
Govt. of India and others v. Cricket Association of
Bengal and others 1995 (1) SCR1036 :(1995) 2 SCC
161; Union of India and others v. Motion Picture
Association and others 1999 (3) SCR 875 : (1999) 6
SCC 150; People'.\· Union for Civil Liberties (PUCL)
and another v. Union of India and another 2003 (2)
SCR 1136: (2003) 4 SCC 399 ; Union of India l( Naveen
Jindal and another 2004 (1 ) SCR 1038 _: (2004) 2
SCC 510 ; Government of Andhra Pradesh and others
v. P. Laxmi Devi 2008 (3) SCR 330 : (2008) 4 SCC
720; S. Khushboo v. Kanniammal and another 2010
(5) SCR 322 : (2010) 5 SCC 600; Ramlila Maidan
Incident, !11 re 2012 (4) SCR 971 : (2012) 5 SCC 1;
Sahara India Real Estate Corporation Ltd. and others
l( Securities and Exchange Board of India and another
2012 (12) SCR 256 : (2012) 10 SCC 603; State of
Karnataka and another v. Associated Management of
English Medium Primary and Secondary Schools and
others (2014) 9 SCC 485; Devidas Ramachandra
Tuljapurkar v. State of Mahrashtra and others 2015
(7) SCR 853 : (2015) 6 SCC I; Odyssey
Communications Pvt. Ltd. v. Lokvidayan Sanghatana
and others 1988 (1) Suppl. SCR 486 : (1988) 3 SCC .
410 - relied on.
Kameshwar Prasad v. State of Bihar 1962 ·Supp. (3)
SCR 369 : AIR 1962 SC 1166 ; Indian Express
Newspapers (Bombay) Private Ltd. and others v. Union
of India and others 1985 (2) SCR 287 : (1985) 1 SCC
641; Ramesh Thappar v. State of Madras 1950 SCR
594 : AIR 1950 SC 124; Express Newspaper (Primte)
Ltd. and another v. Union of India and others AIR 1958
SC 578 : 1959 SCR 12; All India Bank Employees'
Association v. National Industrial Tribunal (Bank
Dispute5), Bombay and others (1962) 3 SCR 269 : AIR
1962 SC 171 - referred to.
Speiser v. Randall (1958) 257 US 513 (530) ; fotes v.
US. (1958) 354 US 298 (344) ; Stromberg v. California
(1931) 283 US 359 (369) ; Palko 1'. Connecticut (1937)
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF
873
LAW & ORS.
302 US319 ; Abrams v. United States 250 US 616 :63 L
A
Ed 1173 (1919) ; Whitney v. California 71 L Ed 1095
: 274 US 357 (1927) - referred to.
Sakal Papers (P) Ltd. v. Union of India (1962) 3 SCR
842 : AIR 1962 SC 305 - held inapplicable.
3. The legislation should not invade the rights and should
not smack of arbitrariness. The test of reasonableness cannot be
determined by laying down any abstract standard or general
pattern. It would depend upon the nature of the right which has
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 abuse or misuse of
a legislation or a statutory provision depending upon the
circumstances of the case. The prevailing conditions of the time
and' the principles of proportionality of restraint are to be kept in
mind by the court while adjudging the constitutionality of a
provision regard being had to the nature of the right. The nature
of social control which includes public interest has a role. The
conception of social interest has to be borne in mind while
considering reasonableness of the restriction imposed on a right.
The social interest principle would include the felt needs of the
society. The right to freedom of speech and expression is a right
that has to get ascendance in a democratic body polity, but at the
same· time the limit has to be proportionate and not unlimited.
(Para 125) (973-G; 974-A-E)
S. Rangarajan v. P. Jagjivan Ram and others 1989 (2)'
SCR 204 :1989 (2) SCC 574 ; Ranjit D. Udeshi v. State
of Maharashtra AIR 1965 SC 881 : (1965) 1 SCR 65;
Chandrakant Kalyandas Kakodkar v. State of
Maharashtra 1970 (2) SCR 80 : (1969) 2 SCC 687;
K.A. Abbas v. Union of India 1971 (2) SCR 446 : (1970)
2 SCC 780 ; Raj Kapoor v. State 1980 (1) SCR1081 :
(1980) 1 SCC 43 ; Samaresh Bose v. Amal Mitra 1985
(3) Suppl. SCR 17 : (1985) 4 SCC 289 ; Directorate
General of Doordarshan v. Anand Patwardhan 2006
(5) Suppl. SCR 403 : (2006) 8 SCC .433 ; Ajay Gosll'ami
v. Union of India 2006 (10) Suppl. SCR 770 : (2007) 1
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SCC 143; Bobby Art International v. Om Pal Singh Hoon
1996 (2) Suppl. SCR 136 ; (1996) 4 SCC 1; Aveek
Sarkar v. State of W.B. (2014) 4 SCC 257; Chintaman
Rao v. State of MP. AIR 1951 SC 118 : 1950 SCR
759; State of Madras v. V.G Row AIR 1952 SC 196 :
1952 SCR 597; Maneka Gandhi v. Union of India and
another (1978) 1 SCC 248 : AIR 1978 SC 597 : 1978
(2) SCR 621; R.C. Cooper v. Union of India 1971 (1)
SCR 512 : (1970) 2 SCC 298; Mis Laxmi Khandsari
and others v. State of U.P. and others 1981 (3) SCR 92
: (1981) 2 SCC 600 ; Dwarka Prasad Laxmi Narain v.
State of U.P. AIR 1954 SC 224 :1954 SCR 803;
Bishambhar Dayal Chandra Mohan and others v. State
of Uttar Pradesh and others 1982 (1) SCR1137: (1982)
1 SCC 39; State of Bihar v. K.K. Misra ( 1969) 3 SCC
377; Dr. N.B. Khare v. The State ofDelhi (1952] S.C.R.
597; Papnasam Labour Union v. Madura Coats Ltd.
and another 1994 (6) Suppl. SCR 369 : (1995) 1 SCC
501; Francis Coralie Mullin v. Administrator, Union
Territory of Delhi and others 1981 (2) SCR 516 : (1981)
1 SCC 608; Chameli Singh and others v. State of U.P.
and another 1995 (6) Suppl. SCR 827 : (1996) 2 SCC
549; Siddharam Satlingappa Mhetre v. State of
Maharashtra 2010 (15 ) SCR 201 : (2011) 1 SCC 694;
Babu Singh and others v. State of U.P. 1978 (2) SCR
771 : (1978) 1 SCC 579; Haridas Das v. Usha Rani
Banik and others 2007 (8) SCR 365 : (2007) 14 SCC
1; S.P. Mittal v. Union of India and others (1983) 1
sec 51 : AIR 1983 SC 1: 1983 (1) SCR 729 ; Charil
Khurana and others v. Union of India and oJhers 2014
(12) SCR 259 : (2015) 1 SCC 192 - referred to.
4. The right to reputation is a constituent of Article 21 of
the Constitution. It is an individual's fundamental right and,
therefore, balancing of fundamental right is imperative. In the
name of freedom of speech and expression, the right of another
cannot be jeopardized. Reputation being an inherent component
of Article 21, it should not be allowed to be sullied solely because
another individual can have its freedom. It is not a r~striction
that has an inevitable consequence which impairs circulation of
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF
LAW & ORS.
thought and ideas. In faft, it is control regard being had to another
person's right to go to Court and state that he has been wronged
and abused .. He can take recourse to a procedure recognized
and accepted in law to retrieve and redeem his reputation.
Therefore, the balance between the two rights needs to be struck.
"Reputation" of one cannot be allowed to be crucified at the altar
of the other's right of free speech. Applying the doctrine of
balancing of fundamental rights, existence of defamation as a
criminal offence is not beyond the boundary of Article 19(2) of
the Constitution, especially when the word "defamation" has been
· used in the Constitution. [Paras 139, 140, 149} [982-C-D; 983B-C; 989-B-C]
.
Noise Pollution (V), In re 2005 (1) Suppl. SCR 624 :
(2005) 5 sec 733 - relied on.
Ramji Lal Modi v. State of U.P. AIR 1957 SC 620 :
1957 SCR 860 - distinguished ..
Acharya
Maharajshri
Narendra
Prasadji
Anandprasadji Maharashtra and others v. The State
of Gujarat and others 1975 (2) SCR 317 : (1975) 1
SCC 11; Delhi Transport Corporation v. D. T. C.
Mazdoor Conl{ress and others 1990 (1) Suppl. SCR
142 : 1991 Supp (1) SCC 600 ; St. Stephens ColleRe v.
University of Delhi 1991 (3) Suppl. SCR 121: (1992) 1
SCC 558 ; Mr X' v. Hospital 'Z' 1998 (1) Suppl. SCR
723 : (1998) 8 SCC 296 ; Post Graduate Institute of
Medical Education & Research, Chandigarh v. Faculty
"Association and others 1998 (2) SCR 8~5 : (1998) 4
SCC 1; Ram Jethmalani and others v. Union of India
and others 2011 (8) SCR 725: (2011) 8 SCC 1; Mohd.
Arif alias Ashfaq v. Registrar, Supreme Court of India
and others 2014 (11) SCR 1009 : (2014) 9 SCC 737 -
ref~rred to.
--- ---- ---. =··-.,;!\..--
American Communications Assn. v. Douds 94 L Ed 925
: 339 US 382 (1950) - referred to.
5.1 Permissibility of criminal defamation can be tested on
the touchstone of constitutional fraternity and fundamental duty.
The term "fraternity" has a significant place in the history of
constitutional law. The Preamble states that it is a cons.titutional
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duty to promote fraternity assuring the dignity of the individual.
Fraternity as a concept is characteristically different from the other
constitutional goals. It is a constitutional value which is. to be
cultivated by the people themselves as a part of their social
behavior. There are two schools of thought; one canvassing
individual liberalization and the other advocating for protection
of an individual as a member of the collective. The individual
should have all the rights under the Constitution but
simultaneously he has the responsibility to live upto the
constitutional values like essential brotherhood - the fraternity
- that strengthens the societal interest. Fraternity means
brotherhood and common interest. Right to censure and criticize
does not conflict with the constitutional objective to promote
fraternity. Brotherliness does not abrogate and rescind the
concept of criticism. In fact, brothers can and should be critical.
Fault finding and disagreement is required even when it leads to
an individual disquiet or group disquietude. [Paras 150, 151,
154, 155) (989-C-F; 990-D, F-G)
5.2 The concept of fraternity under the Constitution expects
every citizen to respect the dignity of the other. Mutual respect
is the fulcrum of fraternity that assures dignity. It docs not mean
that there cannot be dissent or difference or discordance or a
different voice. It does not convey that all should join the chorus
or sing the same song. One has a right to freedom of speech and
expression. One is also required to maintain the constitutional
value which is embedded in the idea of fraternity that assures the
dignity of the individual. One is obliged under the Constitution
to promote the idea of fratern!ty. It is a constitutional obligation.
In the context of constitutional fratcmity, fundamental duties
engrafted under Article 51-A of the Constitution gain significance.
The prismatic perception of sub-article (e) of Article 51-A would
reflect that it is the duty of eY.ery citizen of India to promote
harmony and the concept of common brotherhood amongst all
the people despite many diversities. It is also the duty of every
citizen to strive towai·ds excellence in all spheres of individual
and collective acti¥ity. [Paras 158, 159, 160) [992-B-D, F)
5.3. ·The individual interest of each individual -serves the
collective interest and correspondingly the collective interest
H · enhances the individual excellence. Action against the State is
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF
LAW & ORS.
different than an action taken by one citizen against the other.
The constitutional value helps in structuring the individual as
well as the community interest. Individual interest is strongly
established· when constitutional values are respected. The
Preamble balances different and divergent rights. Keeping in view
the constitutional value, the legislature has not repealed Section
499 and kept the same alive as a criminal offence. It is difficult to
hold that the existence of criminal defamation is absolutely
obnoxious to freedom of speech and expression. As a prescription,
it neither invites the frown of any of the Articles of the Constitution
nor its very existence can be regarded as an unreasonable
restriction. [Para 163] [993-H; 994-A-C]
Indra Sawhney and ors. v. Union of India and ors. AIR
1993 SC 477 : 1992 (2) Suppl. SCR 454; 1992 Supp.
(3) SCC 217; AIIMS Students' Union v. A/IMS and
others 2001 (2) Suppl. SCR 79 : (2002) 1 SCC 428;
Raghunathrao Ganpatrao v. Union of India 1993 (1)
SCR 480 : 1994 Supp. (1) SCC 191; PA. 111a111dar and
others v. State of Maharashtra and others 2005 (2)
Suppl. SCR 603 : (2005) 6 SCC 537 ; Jeffrey J.
Diermeier and anr. v. State of West BenRal and am: 2010
(7) SCR 128 : (2010) .6 SCC 243 - referred to.
6.1. To constitute the offence of defamation, there has to
be imputation and it must have made in the manner as provided
in the provision with the intention of causing harm or having
reason to believe that such imputation will harm the reputation
of the person about whom it is made. Causing harm to the
reputation of a person is the basis on which the offence is founded
and mens rea is a condition precedent to constitute the said offence.
The complainant has to show that the accused had intended or
known or had reason to believe,i.hat the imputation made by him
would harm the reputation of the complainant. The criminal offence
emphasizes on the intention or harm. Section 44 of IPC defines
"injury". It denotes any harm whatever ille-gally caused to any
person, in body, mind, reputation or proper-ty. Thus, the word
"injury" encapsulates harm caused to the reputation of any person.
It also takes into account the harm caused to a person's body
and mind. [Para 165] [994-E-G]
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others 1974 (l)SCR 771 : (1974) 1 SCC 19 - referred
to.
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6.2. Section 499 provides for harm caused to the reputation
of a person, that is, the complainant. There are four Explanations
to the main provision and an Explanation has been appended to
the Fourth Exception. Explanation 4 needs to be explained first.
It is because the said Explanation provides the expanse and the
inherent control wherein what imputation has been regarded as
harm to a person's reputation and that an imputation can only be
treated as harm of a person's reputation if it directly or indirectly,
in the estimation of others, lowers the mora• or intellectual
character of that person, or lowers the character of that person
in respect of his caste or of his calling, or lowers the credit of that
person, or causes it to be believed that the body of that person is
in a loathsome state, or in a state generally considered as
disgraceful. Explanation 1 stipulates that an imputation would
amount to defamation if it is done to a deceased person if the
imputation would harm the reputation of that person ifhe is living
and is intended to be harmful to the feelings of his family or other
near relatives. [Paras 165, 166, 167] [994-G-H; 995-C-E, G-H] ·
Melepurath Sankuni Ezhuthassan v.
Thekittil
Phytoplankton Nair 1985 (3) Suppl. SCR 805: (1986)
1 SCC 118 ; M Veerappa v. Evelyn Sequeira and others
1988 (2) SCR 606 : (1988) 1 SCC 556 - referred to.
6.3 The prosecution, as envisaged in Explanation 1, lays
two postulates, that is, (i) the imputation to a deceased person is
of such a nature that would have harmed the reputation of that
person if he was living and (ii) the said imputation must be
intended to be hurtful to the feelings of the family or other near
relatives. Unless the twin tests a'f satisfied, the complaint would.
not be entertained under Section 199 of CrPC. The said
Explanation protects the reputation of the family or relatives.
The entitlement to damages for personal injury is in a different
sphere whereas a criminal complaint to be filed by the family
members or other relatives under twin tests being satisfied is in
a distinct compartment. It is more rigorous. The principle of
grant of compensation and the principle of protection of reputation
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF
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of family or near relative cannot be equated. Explanation 2 deals
with imputation concerning a company or an association or
collection of persons as such. Explanation 3 says that an
imputation in the form of l\n alternative or expressed ironically
may amount to defamation. Section 11 of IPC defines "person"
to mean a company or an association or collection of persons as
such or body of persons, .whether incorporated or not.
The
inclusive nature of the definition indicates that juridical persons
can come within its ambit.
[Paras 169, 170] [997-G; 998-A-D]
Sahib Singh Mehra v. State of Uttar Pradesh AIR 1965
SC 1451 : 1965 (2) SCR 823; G. Narasimhan, G.
Asterisk and K. Gopalan v. T. V. Chokkappa 1973 (2)
SCR 40 : (1972) 2 SCC 680 ; Aneeta Hada v. Godfather
Travels & Tours (P) Ltd 2012 (5) SCR 503 : (2012) 5
sec 661 - referred to.
6.4 The First Exception stipulates that it is not defamation
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to impute anything which is true concerning any person, if it be . D
for the public good that the imputation should be made or
published. "Public good" has to be treated to be a fact. Fifth
Exception stipulates that it is not defamation to express in good
faith any opinion whatever respecting the merits of any case, civil
or criminal which has been decided by a Court of Justice, or
respecting the conduct of any person as a party, witness or agent.
The further stipulation is that the said opinion must .relate to the
character of said person, as far as his 'character appears in that
conduct. neither the main provision nor the Explanation nor the
Exceptions remotely indicate any vagueness. The provision along
with Explanations and Exceptions cannot be called unreasonable,
for they are neither vague nor excessive nor arbitrary. There
can be no doubt that Court can strike down ·a provision, if it is
excessive, unreasonable or disproportionate, but the Court cannot
strike down if it thinks that the provision is unnecessary or
unwarranted. [Paras 173, 180, 183, 184] (999-H; 1000-A; 1003C-D; 1005-D, G~H; 1006-A]
'
Harakchand Ratanchand Banthia & others v Union of
India and others 1970 (1) SCR 479 : (1969) 2 SCC
166 - distinguished.
Chaman Lal v. State of Punjab 1970 (3) SCR 913 :
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(1970) 1 SCC 590; Arundhati Roy, In re 2002 (2) SCR
H
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213 : (2002) 3 SCC 343; Harbhajan Singh v. State of
Punjab and another AIR 1966 SC 97 : 1965 SCR
235; Sukra Mahto v. Basdeo Kumar Mahto and another
1971 (0) Suppl. SCR 329 :1971 (1) SCC 885 ; Jatish
Chandra Ghosh v. Hari Sadhan Mukherjee (1961) 3
SCR 486; Kanll'al Lal v State of Punjab 1963 Supp (1)
SCR 479; MC. Verghese v. T.J. Poonan 1969 (2) SCR
692 : (1969) 1 SCC 37 ; Rajendra Kumar Sitaram Pande
v. Uttam 1999 (1) SCR 580 : (1999) 3 sec 134;
Sewakram Sobhani v. R.K. Karanjia 1981 (3) SCR 627
: (1981) 3 SCC 208; Om Kumar v. Union of India 2000
(4) Suppl. SCR 693 : (2001) 2 SCC 386; Modern Dental
College & Research Centre and others v. State of
Madhya Pradesh and others 2016 (4) SCALE 478 -
referred to.
6.5 The law imposing restriction is proportional ifit is meant
to achieve a proper purpose, and if the measures taken to achieve
such a purpose are rationally connected to the purpose, and such
measures are necessary. Such limitations should not be arbitrary
or of an excessive nature beyond what is required in the interest
of the public. Reasonableness is judged with reference to the
ob,jective which the legislation seeks to achieve, and must not
be in excess of that objective. Further, the reasonableness is
examined in an objective manner form the stand point of the
interest of the general public and not from the point of view of
the person upon whom the restrictions arc imposed or abstract
considerations. The right to freedom of speech and expression
is a highly valued and cherished right but the Constitution
conceives of reasonable restriction. In that context criminal
defamation which is in existence in the form of Sections 499 and
500 IPC is not a restriction on free speech that can be
characterized as disproportionate.
Right to free speech cannot
mean that a citizen can defame the other. Protection of reputation
is a fundamental right. It is also a human right. Cumulatively it
serves the social interest. Thus, it cannot be said that provisions
relating to criminal defamation are not saved by doctrine of
proportionality because it determines a limit which is not
impermissible within the criterion of reasonable restriction. [Paras
185, 186] (1006-F-G; 1007-A; 1008-B-C)
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF
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.
P.P. Enterprises v. Union of India 1982 (3) SCR 510 :
(1982) 2 SCC 33; Mohd Hanif Quareshi. V. State of
Bihar AIR 1958 SC 731:1959 SCR 629 ; MRF Ltd. v.
Inspector, Kera/a Govt. 1998 (2) Suppl. SCR 632 :
(1998) 8 sec 227 ; D.C. Saxena (Dr) V. Hon 'ble The
Chief Justice of India 1996 (3) Suppl. SCR 677 : (1996)
5 sec 216 - relied on.
6.6 A public servant is entitled to file a complaint through
public prosecutor in respect of his conduct in discharge of public
functions. Public function stands on a different footing than the
private activities of a public servant. The provision gives them
protection for their official acts. There cannot be defamatory
attacks on them because of discharge of their due functions. In
that sense, they constitute a different class. .However, criticism
is different than defamation. One is bound to tolerate criticism,
dissent and discordance but not expected to tolerate defamatory
attack. Sub-section (6) gives to a public servant what every citizen
has as he cannot be deprived of a right of a citizen. There can be
cases where sanction may not be given by the State Government
in favour of a public servant to protect his right and, in that event,
he can file a case before the Magistrate. The provision relating
to engagement of public prosecutor in defamation cases in respect
of the said authorities is seriously criticized on the ground that it
allows unnecessary room to the authorities mentioned therein
and the public servants to utilize the Public Prosecutor to espouse
their cause for vengeance. Once it is held that the public servants
constitute a different class in respect of the conduct pertaining
to their discharge of duties and functions, the engagement of Public
Prosecutor cannot be found fault with. It is ordinarily expected
that the Public Prosecutor has a duty to scan the materials on the
basis of which a complaint for defamation is to be filed. He has a
duty towards the Court. When sufficient protection is given and
the right to appeal to the High Court is not curtailed as the CrPC
protects it, the submission does not really commend acceptation.
In view thereof the said, there is no justification to declare the
provisions ultra vires. [Paras 192,193)[1013-E-H;1014-A-B,E-Fj
John Thomas v. Dr. K. Jaf{adeesan 2001 ( 3 ) SCR 934
: (2001) 6 SCC 30; MS. Jayaraj v. Co111m1: of Excise
(2000) 7 SCC 552; Special Courts Bill, 1978, /11 re 1979
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(2) SCR 476 : (1979) 1 SCC 380 ; Yogendra Kumar
Jaiswal & others v. State of Bihar and others (2016) 3
SCC 183 ; Ram KPishna Da/111ia v. S.R. Tendolkar AIR
1958 SC 538: 1959 SCR 279 ; Satyall'ati Sharma v.
Union of India 2008 (6) SCR 566 : (2008) 5 SCC 287
; Rehman Shagoo v. State of J&K AIR 1960 SC 1:
1960 SCR 680; C.I. Emden v. State of U.P. AIR 1960
SC 548: 1960 SCR 592 ; Baira111 Muralidhar v. State
of Chandra Pradesh 2014 (8) SCR 328 : (2014) 10
sec 380 - referred to.
7. Section 199 CrPC envisages filing of a complaint in court.
In case of criminal defamation neither any FIR can be filed nor
can any direction be issued under Section· 156(3) CrPC. The
offence has its own gravity and hence, 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 is a matter of judicial determination and before issuing a
process, the Magistrate has to examine the complainant. 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. It is settled position of law that
those who plead Exception must prove it. It has been laid down
in M.A.