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Judgement Analysis: Subramanian Swamy v. Union of India, Ministry of Law & Ors. (2016) 7 SCC 221
Bench: Justice Dipak Misra and Justice P. C. Pant
Background: In the year 2014, Dr. Subramaniam Swamy made some allegations against Ms Jayalathitha. Whereby a case of defamation was instituted against him and several others. Following this Dr. Swamy and other politicians challenged the constitutionality of the criminal defamation law in India, i.e., Sections 499 and 500 of the Indian Penal Code (IPC) and Sections 199(1) to 199(4) of the Code of Criminal Procedure, 1973. A two-judge bench of the Supreme Court was constituted to decide over the matter.
Petitioner's Arguments: The counsel for the petitioner pitched over the submissions that Article 19(1)(a) is a wide concept which is subject to the restrictions under Article 19(2) and the restrictions should be construed very narrowly. The exception has to be understood by applying the principle of noscitur a sociis and excluding criminal defamation. The defamation being a civil wrong i.e., in personam is outside the scope of the Fundamental Rights which are conferred in the public interest, therefore, Section 499 is outside the scope of Article 19(2) of the Constitution. One’s right to reputation is the facet of a private right under Article 21, therefore, defamation of any person by a private person cannot be treated as a “crime”, for it does not subserve any public interest and its inclusion as an offense under the code which protects the rights in rem would be unconstitutional.
The counsel for the petitioner also pointed that Section 499 of IPC falls outside the scope of the reasonable restrictions under Article 19(2) as it goes beyond the interest of the common public and law which takes away the right of a person to speak the truth should be held unconstitutional as being violative of Article 51-A(b) and the requirement of proving the public good also stand outside the limits of reasonableness. The different procedure for a certain category of person and Court of Session to be the Court of the first instance established under Section 199(2) CrPC was contested on the ground that it creates two kinds of procedures, one has the advantage over the other defies the equality clause. It also uses the State machinery of the Public Prosecutor, which enables the State to curb the right of freedom of speech and expression.
Respondent's Arguments: Attorney General, the counsel for the respondents bespoke for the restrictions under Article 19(2) as to be read with context and not in isolation and Article 19(1)(a) not being a standalone right which is totally unabridged. He disregarded the inefficient distinction placed by the petitioner over the private and public wrong by linking the public wrong as one which injures the public as well as polity as a whole and tested on that count, criminalization of defamation or damage to reputation is meant to subserve basic harmony in the polity. The council also argued that the damage to reputation can not only be compensated in monetary terms. Adding to this he advocated for the right to reputation as an inseparable element of an individual’s personality and its protection under Article 21 and dissected the right to freedom of speech from the right to offend. 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 as there was no other similar provision in any other law and if the reasonable restrictions are read in isolation then it would defeat the whole purpose for which the reasonable restrictions under Article 19 were placed. As for the difference between the establishment of personal rights and that of society at large under Article 19 and 21 such distinction stands misguiding as the court itself in various precedents have established Article 14, 19, and 21 as one thus making the petitioner’s arguments untenable. Section 199(1) CrPC safeguards the freedom of speech by placing the burden on the complainant to pursue the criminal complaint without involving the State prosecution machinery. This limitation on the power to take cognizance of defamation serves the purpose of discouraging the filing of frivolous complaints that would otherwise clog the Magistrate’s Courts.
Judgment: The court while deciding over the matter considered various landmark judgments including the 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 to come to the peroration of inclusion of the right to reputation under Article 21. Over the issue of the exaggeration of ‘defamation’ under the restrictions of Article 19(1)(a) the court referred to the speech of Dr. B. R. Ambedkar and pointed out the intention of drafters to include reasonable restrictions on free speech and expression through the means of Article 19(2) without specifically defining the terms like ‘defamation’, ‘public order’ etc. and left it to the courts to decide what would constitute as restriction and what not so as to not restrict the meaning of any such term.
The court disregarded the dissection of rights and their enjoyment under Article 19 and 21 as contested by petitioners while holding that every citizen enjoys every right under the constitution simultaneously and took reference from Sakal Papers (P) Ltd. v. Union of India AIR 1962 SC 305 and the Maneka Gandhi v. Union of India and another (1978) 1 SCC 248. To decide upon the constitutionality of Section 499 and its exceptions the bench, while individually determining each exception and various clauses in the provision, clearly enunciated that there is no vagueness in the whole section. The argument of petitioner over the ‘public good’, the court referred the argument as unnecessary and concluded that what can be termed as a public good is a subject matter of facts and has to decide on a case-to-case basis. The court declared section 499 of IPC, as well as Section 199 of CrPC constitutional as it being a subject matter of magistrate to ensure that the judicial process doesn’t become a tool of harassment and inherent duty of the magistrate to take care of it and concluded that the judiciary is independent of the political stigma, therefore, the arguments of petitioners stand void.
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