Rayat college of law

Project on : case law

Subramanian Swamy v.
Union of India

Submitted to: Ms Kiran

Submitted by:Ashutosh verma

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 Acknowledgement

I would like to express my special thanks of gratitude to

my RTI teacher as well as our principal Ma’am who gave
me the golden opportunity to do this wonderful project
on the topic subramanian vs union of India, which also
helped me in doing a lot of Research and I came to know
about so many new things I am really thankful to them.
Secondly, I would also like to thank my parents and
friends who helped me a lot in finalizing this project
within the limited time frame.
Introduction

If we look at the past, a varied pattern while dealing with the cases of
defamation had been followed by the Supreme Court. The blasphemy laws,
obscenity law, and sedition laws of the colonial era have been upheld by the
Supreme Court in the cases of Ramji Lal Modi v. State of Uttar Pradesh
(1957), Ranjit D. Udeshi v. State of Maharashtra (1964), and Kedar Nath
Singh v. State of Bihar (1962) respectively. The Apex Court had also upheld
the pre-censorship of films in the case of K.A Abbas v. Union of India
(1971).

In addition to this, in the case of Madhu Limaye v. Sub-Divisional

Magistrate (1971), the wide powers of the police in order to curtail free
association was also upheld by the Supreme Court of India. However, this
has limited and restricted the scope of anti-terror laws by putting
incitement to violence as a pre-condition in order to punish members of
banned organizations.
With the challenge to the constitutionality of criminal defamation in the
case Subramanian Swamy v. Union of India (2016), the Supreme Court
had the opportunity to build a legacy of progressive and free speech
rulings.

Criminal defamation

Section 499 of the Indian Penal Code, 1860 is about the offense of criminal
defamation. The speech that is intended to harm any person’s reputation is
criminalized by this provision. The provision is very wordy and also
mentions the instances where the provision can be abused in order to
silence critical reporting. There are about 125 defamation cases that have
been filed against the Hindu by the Tamil Nadu government where such
abuse of the provision of criminal defamation has happened.
The provision had been present in the Indian Penal Code, 1860 since the
Code was first drafted and has completed around 155 years of being present
in the statute books. Thus, it is very surprising that a constitutional
challenge to this old provision took so long to materialize.
The Right to Freedom of Speech and Expression is guaranteed under
the Constitution of India under Article 19(1)(a). However, the power to
impose reasonable restrictions upon the freedom of speech and expression
has been given to the state by virtue of Article 19(2) of the Constitution of
India. These restrictions can be imposed in the interests of eight separate
categories, for instance, public order and decency or morality.

Subramanian Swamy v. Union of India case

In 2014, corruption charges were made by Dr. Subramanian Swamy against

Ms. Jayalathitha. Defamatory cases were filed by the State Government of
Tamil Nadu against Dr. Subramanian Swamy in response to these
allegations. Later, the constitutional validity of the offense of criminal
defamation was challenged by Dr. Subramanian Swamy along with some
other prominent politicians.
This is one of the landmark cases as far as criminal defamation is
concerned. This was also the first case in which the Supreme Court
conducted a hearing on a frontal challenge to the constitutionality of one of
the oldest and most strict laws that restrict speech, that is, criminal
defamation. The challenges to the constitutional validity of the offense of
criminal defamation under the Indian legal system were dismissed by the
Supreme Court in this case.

Brief facts

The various Petitioners involved in this case included some notable

politicians like Subramanian Swamy, Rahul Gandhi, Arvind Kejriwal on
whom the charge of criminal defamation was put. Under Article 32 of the
Constitution of India, several petitions were filed through which the
constitutional validity of criminal defamation as an offense which is
mentioned under Section 499 and Section 500 of the Indian Penal Code,
1860 and Section 199(1) to Section 199 (4) of the Indian Code of Criminal
Procedure, 1973 was challenged.
The Petitioners challenged the constitutionality of the offense of criminal
defamation on the ground that it hampered their Right to Freedom of
Expression guaranteed under Article 19(1)(a) of the Constitution of India.
The criminal proceedings against the Petitioners had stayed pending the
constitutional proceedings.

Arguments of the Petitioner

It was argued by the counsel for the Petitioner that the concept given under
Article 19(2) of the Constitution of India is something very broad and
restrictions can be imposed upon it. However, the careful narrow
construction of these restrictions must take place. The principle of noscitur
a sociis (that is, in order to understand and determine the meaning of an
unclear or ambiguous term mentioned under the statute, the words with
which it is associated in the context must be considered) has to be applied
in order to understand the exception.

The counsel for the Petitioner contended that defamation is a civil wrong,
that is, in personam. Therefore, it falls outside the scope of the
Fundamental Rights which are conferred in the interests of the public at
large. Under Article 21 of the Constitution of India, an individual’s right to
reputation is a private right and thus, when a private person makes a
defamatory statement, it cannot be regarded as a criminal act as it does not
promote any public interest. Therefore, it would be unconstitutional to
include defamation as a criminal offense that protects the rights in
rem. Hence, Section 499 of the Indian Penal Code, 1860 would fall outside
the scope of Article 19(2) of the Constitution of India.
It was also pointed out by the counsel for the Petitioner that since Section
499 of the Indian Penal Code,1860 goes beyond the general public’s
interests, it falls outside the scope of the reasonable restrictions under
Article 19(2) of the Constitution of India. Thus, it contended that if a law
deprives a person of their Right to speak the truth, it should be struck down
as being unconstitutional. The requirement of proving that a defamatory
statement was made for public good also stands out of the limits of
reasonableness.

Arguments of the Respondent

It was argued by the Attorney General, the counsel for the Respondents,
that the restrictions under Article 19(2) of the Constitution of India should
not be read in isolation but must be read with context. Article 19(1)(a) of
the Constitution of India is not a standalone and absolute right and thus,
restrictions can be imposed upon this right.

The counsel for the Respondents disregarded the inefficient distinction

between private and public wrong made by the counsel of the Petitioner by
linking the public wrong with the injury caused to the public as a whole. It
was argued by the counsel for the Respondent that harm to the reputation
can not always be compensated in terms of money and keeping this in
mind, it further contended that the Right to Reputation cannot be
separated from the Right to Dignity that falls under the purview of Article
21. The Right to Reputation also dissects the Right to Freedom of Speech
and Expression from the Right to Offend.
The Attorney General hinged over the debates of the Constituent Assembly
and argued that since there existed no other legal provision, thus, in order
to provide constitutional protection to Section 499 under the Indian Penal
Code,1860, the express provision of restrictions under Article 19(2) of the
Indian Constitution was made. Thus, if these restrictions under Article
19(2) are read in isolation and not along with Section 499 of Indian Penal
Code,1860, the whole purpose of placing reasonable restrictions would be
defeated.
As far as the distinction between the establishment of personal rights and
the rights of society at large under Article 14, Article 19, and Article 21 of
the Indian Constitution is concerned, such a distinction would be
misleading. Even the Court in its various precedents has established Article
14, 19, and 21 to be one, and thus, this makes the arguments of the
Petitioner indefensible.
In addition to this, Section 199(1) of the Criminal Procedure Code, 1973
provides protection to the Freedom of Speech and Expression. This Section
puts a burden on the Petitioner to pursue the criminal complaint without
involving the state prosecution machinery. Therefore, this provision deters
anyone from filing a frivolous petition that would otherwise overburden the
Magistrate’s courts.
Case outcome and judgment

The challenges to the constitutionality of the offense of criminal defamation

were dismissed by the Apex Court and the Court said that the restrictions
that were imposed on the Right to Freedom of Expression by the
criminalization of the offense of defamation were reasonable and just in
nature. The Court also said that there exists a constitutional duty to respect
the dignity of other people.
Therefore, the constitutionality of the criminal offense of defamation under
Section 499 and Section 500 of the Indian Penal Code, 1860 was upheld by
the Supreme Court. The Court relied on the judgments given by other
countries on this issue and said that the Right to Reputation falls under the
Right to Life given under Article 21 of the Constitution of India.

Decision overview

The judgment of the case was delivered by Justice Dipak Misra and Justice
Prafulla C. Pant also agreed with this. If we deeply study the judgment, it
starts with the analysis of the meaning of the terms ‘defamation’ and
‘reputation’ as well as their interaction with the Right to Freedom of Speech
and Expression guaranteed under the Constitution of India.
The Court, after conducting the review of various authorities, found that
both these terms were clear and unambiguous. In addition to this, the
Court said that ‘Reputation’ as a concept is something which is a part of the
protection of ‘Dignity’ that is included under Article 21, that is, the Right to
Life and Personal Liberty.

Restriction on Right to Freedom of Speech and

Expression

The Court took this opportunity and emphasized the sanctity as well as the
significance of the Right to Freedom of Speech and Expression in a
democracy and at the same time, it was pointed out by the Court that this
right was subject to reasonable restrictions. However, such restrictions
should not be too much, yet they must serve the public interest. The
legislation which imposes such restrictions should not be arbitrary such
that they intrude upon the rights of the people.
Therefore, there shall be a balance between the Right to Freedom of Speech
and Expression and the restrictions imposed on this right. Such a balance
can be achieved by weighing the importance to society of the Freedom of
Speech and Expression against the societal importance to the public
interest that is sought to be protected.

Protection of reputation under Article 21

The Court noted that the criminal law has been chosen by the State as one
of the things that would protect reputation. Keeping in mind that
reputation is protected under Article 21, the Court said that it cannot
subscribe to the view that the offense of criminal defamation hinders the
Right to Freedom of Speech and Expression. It was emphasized by the
Court that the law on criminal defamation is very clear and thus, this law
can be distinguished from the other laws that had been struck down in the
past as they were infringing the Right to Freedom of Speech.

Duty of every citizen to protect the dignity of

fellow citizens

The Court took the liberty to further emphasize the significance of the
concepts of constitutional fraternity and fundamental duty. As per these
concepts, there is a constitutional duty as well as an expectation from every
citizen of the country to respect the dignity of their fellow citizens. Since
this is a duty that is imposed by the Constitution on each and every citizen
of the country, it would not be sound to conclude that the existence of
defamation as an offense under the law hinders the Right to the Freedom of
Speech and Expression. The Court also addressed the question of whether
the concept of ‘reasonableness’ was violated by the provisions of criminal
defamation whether substantively or procedurally. The Court also
examined whether these provisions of criminal defamation are vague,
arbitrary, or disproportionate.
The Court, after examining the four explanations that are included under
Section 499 of the Indian Penal Code, 1860 concluded that these provisions
are not vague or unambiguous. It was noted by the Court that imputation
can be treated as defamation only if it lowers the character of a person or
their credit in the estimation of others either directly or indirectly. The
Court in this case observed that truth can be taken as a defense in case of
defamation only if the defamatory statement was made for the good of the
public at large. Therefore, the Court gave its view that if a defamatory
statement is not made for serving the public good but only to malign a
person, the statement should not be constitutionally protected.
At last, the Court said that the provision of criminal defamation under the
Indian Penal Code, 1860 is not disproportionate. In addition to this, the
Court said that whether a restriction that is imposed on the Freedom of
Speech and Expression is reasonable and proportional is not determined
from the viewpoint of the person upon whom such restrictions are imposed.
But, this is determined by examining the standpoint of the interest of the
public at large. Applying this, the Court held that the provisions of criminal
defamation are not arbitrary or vague. The Court rejected the contention
made in the case that defamation is a fundamental notion of the majority in
order to crush the Freedom of Speech and Expression of others.
The Court pitched over to Dr. B.R Ambedkar’s speech for addressing the
issue of exaggeration of the term ‘defamation’ by virtue of the restrictions
under Article 19(2) of the Indian Constitution and it pointed out that the
drafters while drafting Article 19(2) of the Indian Constitution and
imposing restrictions on the Freedom of Speech and Expression had the
intention of leaving it to the courts to decide as to what would fall under a
reasonable restriction and thus, did not specifically defined the terms like
‘defamation’ and ‘public order’.

Chilling effect

In the history of the Supreme Court, lies the most powerful and most strong
argument against the constitutionality of criminal defamation. A judgment
was delivered by the Apex Court in 1994 in the case of R. Rajagopal v. State
of Tamil Nadu (1994) in which it was recognized by the Court that the
provision of civil defamation under the Indian legal system poses an
unreasonable restriction on the Right to Freedom of Speech and
Expression. Under this provision, the burden of proving the ‘truth’ of the
defamatory statement is on the maker of such a statement. There is no
space for letting off of honest mistakes or for mistakes that had been made
despite taking all due care by the person.

In a popular case of the United States of America, New York Times v.

Sullivan (1964), it was asserted by the Supreme Court that free speech
requires ‘breathing space’ in order to survive. In simple words, it means
that there must be freedom to make mistakes. The Court held that as far a
speech about public officials is concerned, it would not be ample to show
that a statement was defamatory and false. It is also required to prove that
the speaker was aware of the fact that the statement was false and despite
that he acted with reckless disregard as to its truth or falsity.

A strange and peculiar regime set by the judgment delivered by the

Supreme Court of India in the Rajagopal case. Along the lines of the law in
America as well as other liberal jurisdictions, civil defamation was placed
under strict and speech-protective standards. If we look at Section 499 of
the Indian Penal Code,1860, it reveals that the provision of criminal
defamation is much worse than civil defamation which was held
unreasonable and inconsistent with the Rajagopal case.
As per Section 499 of the Indian Penal Code,1860, it must be proved by the
accused that the defamatory statement was made in ‘public interest’ in
addition to proving the truthfulness of the statement. Now, the public
interest is a very compendious term and thus, it becomes very difficult for
the speaker to know on which side of the line their speech would fall before
making that speech. This has a chilling effect even on legitimate speech as it
prompts the speaker to do self-censorship. This was also the concern of the
Court in the Rajagopal case and this led the Court to make modifications to
the civil law of defamation.
In order to neutralize the chilling effect on the Right to Freedom of Speech
and Expression produced by the provision of criminal defamation, many
jurisdictions have either struck down criminal defamation as
unconstitutional or have introduced enough safeguards to the Freedom of
Speech on the lines of the Sullivan case in America. However, Section 499
of IPC is precise and clear and it admits no creative judicial modifications.
Thus, in one view, criminal defamation can be regarded as an unreasonable
restriction on the Right to Freedom of Speech and Expression.
Conclusion

Section 499 of the Indian Penal Code,1860 defines criminal defamation and
the punishment for the same is prescribed under Section 500 of the Indian
Penal Code, 1860. In simple terms, defamation can be defined as any
speech or words that are intended to harm the reputation of a person in the
eyes of others. This could be either written words or spoken works. In
addition to this, visible representations also fall under the purview of
defamation. However, the provision of criminal defamation includes some
exceptions like imputation of truth that was required for the good of the
public at large, a person’s conduct that touches any public question or
expressing opinions on a public performance.
The case of Subramanian Swamy v. Union of India placed two challenges
before the Apex Court. First, the Court had to determine whether the
provision of criminal defamation is a superfluid restriction on the Freedom
of Speech and Expression, and secondly, the Court had to determine
whether Section 499 and Section 500 of the Indian Penal Code, 1860 were
ambiguously and arbitrarily drafted.

However, the Supreme Court in the Subramanian case held that these
Sections are not superfluid restrictions on the Right to Freedom of Speech
and Expression. The Court noted that whatever affects an individual, in
turn, affects society as a whole. Thus, it said that defamation must be
considered a public wrong.

Since the protection of the reputation is a human as well as a fundamental

right, the Court held that criminal defamation does not impose an
unreasonable restriction on the Right to Freedom of Speech and
Expression. Further, the Court held that Section 499 and Section 500 of the
Indian Penal Code, 1860 are not arbitrarily framed.
Bibliography
https://blog.ipleaders.in/aspects-of-
defamation-in-india-with-respect-to-
subramanian-swamy-v-union-of-india/
Indian kanoon.org