9911796707
TMI Blog2016 (5) TMI 1478X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 principles being stated, the attempt at present is to scrutinize whether criminalization of defamation in the manner as it has been done Under Section 499 Indian Penal Code withstands the said test. The submission of the Respondents is that right to life as has been understood by this Court while interpreting Article 21 of the Constitution covers a wide and varied spectrum. Right to life includes the right to life with human dignity and all that goes along with it, namely, the bare necessities of life such as nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forums, freely moving about and mixing and commingling with fellow human beings and, therefore, it is a precious human right which forms the are of all other rights. Whether Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een venerated and exalted right of freedom of speech and expression of an individual, exploring manifold and multilayered, limitless, unbounded and unfettered spectrums, and the controls, restrictions and constrictions, under the assumed power of "reasonableness" ingrained in the statutory provisions relating to criminal law to reviver and uphold one's reputation. The assertion by the Union of India and the complainants is that the reasonable restrictions are based on the paradigms and parameters of the Constitution that are structured and pedestalled on the doctrine of non-absoluteness of any fundamental right, cultural and social ethos, need and feel of the time, for every right engulfs and incorporates duty to respect other's right and ensure mutual compatibility and conviviality of the individuals based on collective harmony and conceptual grace of eventual social order; and the asseveration on the part of the Petitioners is that freedom of thought and expression cannot be scuttled or abridged on the threat of criminal prosecution and made paraplegic on the mercurial stance of individual reputation and of societal harmony, for the said aspects are to be treate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assist the Court and they have assisted with all the devotion and assiduousness at their command. 5. We feel obliged to state at the beginning that we shall refer to the provisions under challenge, record the submissions of the learned Counsel for the parties, dwell upon the concepts of 'defamation' and 'reputation', delve into the glorious idea of "freedom of speech and expression" and conception of "reasonable restrictions" under the constitutional scheme and x-ray the perception of the Court as regards reputation, and appreciate the essential anatomy of the provisions and thereafter record our conclusions. Despite our commitment to the chronology, there is still room for deviation, may be at times being essential in view of overlapping of ideas and authorities. 6. Sections 499 of the Indian Penal Code provides for defamation and Section 500 Indian Penal Code for punishment in respect of the said offence. The said provisions read as follows: Section 499. Defamation.-- Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt within the meaning of the above section. Fifth Exception.--Merits of case decided in Court or conduct of witnesses and Ors. concerned-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 partly, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further. Sixth Exception. --Merits of public performance-It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance, and no further. Explanation.--A performance may be substituted to the judgment of the public expressly or by acts on the part of the author which imply such submission to the judgment of the public. Seventh Exception.--Censure passed in good faith by person having lawful authority over another-It is not defamation in a person having over another any authority, either conferred by law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nister of the Union or of a State or of a Union territory, or any other public servant employed in connection with the affairs of the Union or of a State in respect of his conduct in the discharge of his public functions a Court of Session may take cognizance of such offence, without the case being committed to it, upon a complaint in writing made by the Public Prosecutor. (3) Every complaint referred to in Sub-section (2) shall set forth the facts which constitute the offence alleged, the nature of such offence and such other particulars as are reasonably sufficient to give notice to the accused of the offence alleged to have been committed by him. (4) No complaint Under Sub-section (2) shall be made by the Public Prosecutor except with the previous sanction-- (a) of the State Government, in the case of a person who is or has been the Governor of that State or a Minister of that Government; (b) of the State Government, in the case of any other public servant employed in connection with the affairs of the State; (c) of the Central Government, in any other case. (5) No Court of Session shall take cognizance of an offence Under Sub-section (2) unless the complaint is made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 19 is founded on the fundamental tenet of interests of the State and the public in general and hence, regard being had to the nature of fundamental rights and scope of reasonable restrictions to be imposed thereon, the exception has to be understood applying the principle of noscitur a sociis and excluding criminal defamation. ii. It is to be borne in mind that defamation of an individual by another individual is a civil wrong or tort, pure and simple for which the common law remedy is an action for damages. 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. Right to one's reputation which has been held to be a facet of Article 21 is basically vis-à-vis the State, and hence, Article 19(2) cannot be invoked to serve the private interest of an individual. That apart, crime means an offence against the society of which the State is the custodian. Considering the scope of Article 19(1)(a) and Article 19(2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... class action or common right to reputation. vii. Section 199(2) Code of Criminal Procedure provides a different procedure for certain category of person and Court of Session to be the Court of first instance, and thereby it creates two kinds of procedures, one having the advantage over the other. This classification is impermissible as it affects the equality clause. That apart, it also uses the State machinery by launching of the prosecution through the Public Prosecutor, which enables the State to take a different route to curb the right of freedom of speech and expression. 9. Contentions advanced by Dr. Rajeev Dhawan i. Free Speech which is guaranteed by Article 19(1)(a) and made subject to certain limitations in Article 19(2) is essential to a democracy, for democracy is fundamentally based on free debate and open discussion, and a citizen has the right to exercise his right to free speech in a democracy by discerning the information and eventually making a choice and, if it is curtailed by taking recourse to colonial laws of defamation, the cherished value under the Constitution would be in peril and, therefore, the provisions pertaining to criminal action which create a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l vehicle, conceives of the doctrine of proportionality. The Constitution requires the legislature to maintain a balance between the eventual adverse effects and the purpose it intends to achieve and as the provisions under assail do not meet the test of proportionality or least restrictive measure, they do not withstand the litmus test as postulated Under Article 19(2) of the Constitution. v. The provisions under assail being pre-constitutional, statutory provisions are to be examined with deeper scrutiny and, therefore, when the freedom of speech is treated as a monumental socially progressive value in a democratic set up at the international level, the restrictive provisions deserve to be declared as unconstitutional as they create an unacceptable remora in the growth of an individual. That apart, societal perception having undergone a great change, the constitutional right has to be given a pietistic position and analysed in these parameters, the colonial law meant to invite people to litigate should be allowed a timely extinction. vi. Section 199(2) to (4) Code of Criminal Procedure protects civil servants and creates a separate class and said classification has no rationa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a criminal offence will tantamount to allow a hollowness to remain which will eventually have a chilling effect on the freedom of speech and expression that shall lead to a frozen democracy. 10. Arguments of Mr. Datar, learned Senior Counsel i. Freedom of thought and expression includes a dissent because disagreement or expression of a contrary opinion has significant constitutional value which is engrafted Under Article 19(1)(a) and also is an acceptable pillar for a free and harmonious society. ii. Control of free speech by the majority is not an acceptable principle and, therefore, the provision pertaining to defamation is fundamentally a notion of the majority to arrest and cripple freedom of thought and expression which makes the provision unconstitutional. Criminal prosecution as envisaged Under Section 499 Code of Criminal Procedure. cannot be based on the principle of the State to take appropriate steps when an offence of this nature is committed, for an offence of this nature is really not an offence against the State, because it does not encompass the ultimate facet of criminal prosecution which is meant for "protection of the society as a whole". iii. R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve become paramount as a globally accepted democratic culture. 11. Arguments on behalf of Mr. Aruneshwar Gupta i. Defamation is injury or damage to reputation which is a metaphysical property. Criminal prosecution was entertained in defamation cases because of the erroneous doctrine of 'malice in law or intended imputation or presumption by law of the existence of malice', when the said doctrine has been kept out of criminal jurisprudence, the enactments based on the said doctrine cannot be allowed to survive. Once there is no presumption of malice by law, the thought, idea and concept of 'per se malicious or per se defamatory', and the basis and foundation of defamation becomes non-existent and is eroded and the criminal content in defamation in Article 19(2) has to be severed from the civil content in it. ii. The reputation of every person does not have any specific identifiable existence for it is perceived differently, at different times, by different persons associated, related, concerned for affected by it, who, in turn, are acting with their multi-dimensional personality for multiple reasons and prejudices and as such, they are bereft of any social impac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion will harm the reputation of a person should not be allowed to have a free play to permit multiple points of territorial jurisdiction for the prosecution of a single offensive matter as that would place an unreasonable fetter on the exercise of right of free speech and expression of a person by oppressive litigation. 13. Arguments of Mr. Sanjay R. Hegde i. The architecture of the Section as envisioned by its draftsmen criminalises speech that harms reputation and then provides Exceptions to such speech in certain specific circumstances. The concept of defamation as a crime remained unchallenged even during the drafting of the constitutional guarantees of free speech. In fact, the Parliament further re-affirmed its intent, when the First Constitutional Amendment Act was passed, primarily to overcome judgments of this Court that provided expansive definitions of the fundamental rights of free speech and property. With the passage of time, the manner of transmission of speech has changed with the coming of modern means of communication and the same is not under the speaker's control. The provisions when judged on the touchstone of Articles 14 and 19(2) do not meet the test i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yet even in the United States, where free speech is regarded as the most robust, it is not absolute. The restrictions have not been left to the courts to carve out but have been exhaustively set out in Article 19(2). It is for the legislature to determine the restrictions to impose and the courts have been entrusted with the task of determining the reasonableness and in the present case, the right to free speech Under Article 19(1)(a) is itself conditioned/qualified by the restrictions contained in Article 19(2) which includes "defamation" as one of the grounds of restriction and the term "defamation" has to include criminal defamation, and there is nothing to suggest its exclusion. Article 19(2) has to be perceived as an integral part of the right to free speech 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. ii. The submission that defamation being only protective of individual cases between two individuals or a group of individuals and no State action is involved, cannot be elevated to the status of a fundamental right, is without much substance inasmuch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case ushers in anarchy. That apart, mitigation of a grievance by an individual can be provided under a valid law and the remedy under the civil law and criminal law being different, both are constitutionally permissible and hence, the provisions pertaining to defamation under the Indian Penal Code do not cause any kind of discomfort to any of the provisions of the Constitution. In addition to this, it can be said that civil remedy for defamation is not always adequate. The value of freedom of speech cannot be allowed to have the comatosing effect on individual dignity, which is also an integral part Under Article 21 of the Constitution. vi. It is a misconception that injury to reputation can adequately be compensated in monetary terms. Reputation which encapsules self-respect, honour and dignity can never be compensated in terms of money. Even if reputation is thought of as a form of property, it cannot be construed solely as property. Property is not a part of individual personality and dignity, whereas reputation is, and, therefore, the stand that the damage caused to a person's reputation should be compensated by money and that the same is realizable by way of obtaining a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... debates amply clarify the position that when the Constituent Assembly debated about the inclusion of defamation as a ground for imposing restrictions on the freedom of speech and expression, the statutory provision for defamation, i.e., Section 499 of Indian Penal Code was already an existing law. The wisdom of the founding fathers is quite demonstrable inasmuch as at the time of drafting of the Constitution, the only statutory law on defamation was Section 499 of Indian Penal Code providing for criminal defamation and, therefore, it stands to reason that the framers always contemplated criminal defamation to fall within the ambit of the word "defamation" occurring in Article 19(2). ii. The argument that the word "defamation" occurring in Article 19(2) must be read in the light of the other grounds mentioned therein by applying the Rule of noscitur a sociis is not correct, for the said Rule has a very limited application. The word "defamation" is clearly not susceptible to analogous meaning with the other grounds mentioned therein. The word "defamation", in fact, has a distinct meaning as compared to the other grounds and it does not stand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rights. The freedom of speech and expression Under Article 19(1)(a) must take colour from the goals set out in the Preamble and must be read in the light of the principles mentioned therein. The Preamble seeks to promote "Fraternity assuring the dignity of the individual and the unity and integrity of the Nation". In its widest meaning and amplitude, fraternity is understood as a common feeling of brotherhood. While justice, liberty and equality have been made justiciable rights under the Constitution, the idea of fraternity has been used to interpret rights, especially horizontal application of rights. The Preamble consciously chooses to assure the dignity of the individual, in the context of fraternity, before it establishes the link between fraternity and unity and integrity of India. The rights enshrined in Part III have to be exercised by individuals against the backdrop of the ideal of fraternity, and viewed in this light, Article 19(2) incorporates the vision of fraternity. Hence, the restriction imposed by the statutory provision satisfies the content of constitutional fraternity. The fraternal ideal finds resonance also in Part IVA of the Constitution. Articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w criminalizing defamation is maintained, the said law is unreasonable and, therefore, unconstitutional. The right to protection of reputation and the right to freedom of speech and expression are seemly balanced. viii. The criminal law of defamation is neither vague nor ambiguous. That apart, the content restrictions in civil law and criminal law are not identical. Section 499 Indian Penal Code read with the Exceptions incorporates all the three classical elements of a crime while penalizing certain forms of speech and expression. The provision criminalizes only that speech which is accompanied by malicious intention to harm or with knowledge that harm will be caused or with reckless disregard. The requirement of guilty intention, knowledge or proof of recklessness (absence of good faith) that form the bedrock of various provisions of Indian Penal Code is also incorporated in Section 499. Moreover, harm to reputation and mind is treated as injury along with the injury to body and property Under Section 44 of Indian Penal Code. Therefore, the same standards applicable to the injury caused to body and property are applicable to the injury caused to the mind and reputation Under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fences against public order or sovereignty of the State, for example, are just as much State action as a law making defamation of a person a criminal offence. Therefore, it cannot be said that Article 19(2) is intended to safeguard only the interests of the State and that of the general public and not of any individual. The argument that the law of criminal defamation protects the interests only of an individual and not the public in general is incorrect inasmuch as defamation cannot be understood except with reference to the general public. The law of criminal defamation protects reputation which is the estimation of a person in the eyes of the general public. That apart, the criminal law of defamation is necessary in the interests of social stability. ii. Articles 14 and 19 have now been read to be a part of Article 21 and, therefore, any interpretation of freedom of speech Under Article 19(1)(a) which defeats the right to reputation Under Article 21 is untenable. The freedom of speech and expression Under Article 19(1) (a) is not absolute but is subject to constrictions Under Article 19 (2). Restrictions Under Article 19(2) have been imposed in the larger interests of the comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o take into consideration matters of common report, history of the times and matters of common knowledge and the circumstances existing at the time of legislation. The concept reasonable restriction conveys that there should not be excessive or disproportionate restriction. Merely because law of criminal defamation is misused or abused would not make the provisions unconstitutional if they are otherwise reasonable. v. Section 499 Indian Penal Code defines the offence of defamation with specificity and particularity and enumerates ten broad Exceptions when statements against a person will not be considered defamatory, and by no stretch of imagination it can be termed as vague. That apart, for the offence of defamation as defined Under Section 499 Indian Penal Code, there are three essential ingredients which make it specific and further Explanation 4 to Section 499 Indian Penal Code also limits the scope of the offence of defamation contained in the Section. It makes only such imputation punishable which lowers a person's reputation in the estimation of others, and if the imputation does not lower the moral or intellectual character or a person's character in respect of hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mation" in Article 19(2) has to be read down not to include criminal defamation in it so that it is confined to civil defamation alone is not permissible, for the principle of reading down a provision is inapplicable to constitutional interpretation. The words in the Constitution are to be understood in their literal dictionary meaning and in any case not to be narrowly construed as suggested. The term "defamation" is neither indefinite nor ambiguous to invite an interpretative process for understanding its meaning. ii. Misuse of a provision or its possibility of abuse is no ground to declare Section 499 Indian Penal Code as unconstitutional. If a provision of law is misused or abused, it is for the legislature to amend, modify or repeal it, if deemed necessary. Mere possibility of abuse of a provision cannot be a ground for declaring a provision procedurally or substantively unreasonable. iii. The law relating to defamation was enacted regard being had to the diversity in the society and it also, as on today, acts as a reasonable restriction and fulfils the purpose behind Section 44 Indian Penal Code. The issue of free speech and right to reputation and the argu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erein. This freedom is not absolute but it is subjected to reasonable restrictions as provided in Article 19(2) of the Constitution. The freedom of speech and expression as guaranteed by the Constitution does not confer an absolute right to speak or publish whatever one chooses and it is not an unrestricted or unbridled licence that may give immunity and prevent punishment for abuse of the freedom. The right has its own natural limitation. viii. Journalists are in no better position than any other person. They have no greater freedom than others to make any imputations or allegations sufficient to ruin the reputation of a citizen. Even truth of an allegation does not permit a justification under the First Explanation unless it is proved to be in the public good. A news item has the potentiality of bringing dooms day for an individual. Editors have to take the responsibility of everything they publish and to maintain the integrity of published records. It can cause far reaching consequences in an individual and country's life. Section 7 of the Press and Registration Books Act, 1867 makes the declarations to be prima facie evidence for fastening the liability in any civil or cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arily bear interpretation that it is procedure established by plenary legislation only. Whenever any right conferred by Part III is abridged or restricted or violated by "law", as widely defined in Article 13 for the purposes of that Article, are rendered void. Right to reputation is an inherent right guaranteed by Article 21. Duty not to commit defamation is owed to the community at large, because the right to reputation is a natural right. The personality and dignity of the individual is integral to the right to life and liberty and fraternity assuring dignity of an individual is part of the Preamble to the Constitution. The right to life or personal liberty includes dignity of individuals which is so precious a right that it is placed on a higher pedestal than all or any of the fundamental rights conferred by Part III. The right to reputation is an inherent right guaranteed by Article 21 and hence, the right to freedom of speech and expression Under Article 19(1)(a) has to be balanced with the right Under Article 21 and cannot prevail over the right Under Article 21. iv. The test of reasonableness has been invariably applied when deciding the constitutionality of a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by Article 19(1)(a) read with Article 19(2) and Article 194 dealing with the Powers, Privileges etc. of the Houses of Legislature and of the Members and Committees thereof (Article 105 also corresponds to this Article) were considered and harmoniously interpreted and applied in Special Reference No. 1 of 1964 (1965) 1 SCR 413 wherein this Court also observed that if a citizen moves the High Court on the ground that his fundamental right Under Article 21 has been contravened, the High Court would be entitled to examine his claim, and that itself would introduce some limitation on the extent of the powers claimed by the House. Thus, balancing of rights is a constitutional warrant. Mr. T.R. Andhyarujina, Sr. Advocate i. Freedom of speech and expression in India is not absolute but subject to various restrictions mentioned in the Constitution itself. Article 19(1)(a) is subject to the restrictions prescribed by Article 19(2) of the Constitution. The protection given to criticism of public officials even if not true, as in the case of New York Times v. Sullivan 29 LED 2d 822 (1971), is not protected by Article 19(1)(a) as this Court has noted that there is a difference between Arti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or in cases of a libel against a Minister or a public servant. These factors need to be considered for safeguarding the freedom of speech. Section 499 Indian Penal Code be read to provide that imputation and criticism or fair comment even if not true but made in good faith and in the public interest would not invite criminal prosecution. Such and other qualifications may be considered as necessary to retain criminal defamation as a reasonable restriction on the freedom of speech and expression. Hence, there may be a need to have a proper balancing between the freedom of speech and the necessity of criminal defamation. 19. We have studiedly put forth the submissions of the learned Counsel for the parties. They have referred to various authorities and penetratingly highlighted on numerous aspects to which we shall advert to at the appropriate stage. Prior to that, we intend to, for the sake of clarity and also keeping in view the gravity of the issue, dwell upon certain aspects. 20. First, we shall expatiate on the concepts of "defamation" and "reputation". The understanding of the term "defamation" and appreciation of the fundamental concept of " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the tendency is to disparage the good name or reputation of another person. vii. In Parmiter v. Coupland (1840) 6 MLW 105, defamation has been described as: A publication, without justification or lawful excuse, which is calculated to injure the reputation of another, by exposing him to hatred, contempt, or ridicule. viii. The definition of defamation by Fraser was approved by Mc Cardie J in Myroft v. Sleight (1921) 37 TLR 646. It says: a defamatory statement is a statement concerning any person which exposes him to hatred, ridicule or contempt or which causes him to be shunned or avoided or which has a tendency to injure him in his office, profession or trade. ix. Carter Ruck on Libel and Slander5 has carved out some of the tests as under: (1) a statement concerning any person which exposes him to hatred, ridicule, or contempt, or which causes him to be shunned or avoided, or which has a tendency to injure him in his office, professional or trade. (2) a false statement about a man to his discredit. (3) would the words tend to lower the Plaintiff in the estimation of right thinking members of society generally 22. We have noted the aforesaid definitions, descriptio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fools pour out folly. The eyes of the LORD are in every place, keeping watch on the evil and the good. A gentle tongue is a tree of life, but perverseness in it breaks the spirit. Though the aforesaid sayings have different contexts, yet they lay stress on the reputation, individual honour and also the need of gentleness of behavior on the part of each one. Thoughts of the creative writers and thinkers 24. William Shakespeare in Othello expressed his creative thoughts on character by the following expression: Good name in man and woman, my dear lord, is the immediate jewel of their souls Who steals my purse steals trash; 'tis something, nothing; 'T was mine, 'tis his, and has been slave to thousands; But he that filches from me my good name Robs me of that which not enriches him, And makes me poor indeed, 25. The said author in Richard II, while enhancing the worth of individual reputation, achieved his creative heights, and the result in the ultimate is the following passage: The purest Treasure mortal times afford Is spotless reputation; that away, Men are but gilded loam or painted clay. A jewel in a ten-times-barr'd-up chest Is a bold spirit in a loyal br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ided for in paragraph 2 of this Article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (order public), or of public health or morals. 31. Articles 8 and 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) provide: Article 8. Right to respect for private and family life 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others Article 10. Freedom of expression 1. Everyone has the right to freedom of expression. This right shall include ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him: and it is for damage to his reputation, that is, to his esteem in the eyes of others, that he can sue, and not for damage to his own personality or disposition. That is why Cave J. spoke of "reputation" rather than "character." The truth is that the word "character" is often used, and quite properly used, in the same sense as the word "reputation." Thus, when I say of a man that "He has always "borne a good character," I mean that he has always been thought well of by others: and when I want to know what his "character" is, I write, not to him, but to others who know something about him. In short, his "character" is the esteem in which he is held by others who know him and are in a position to judge his worth. A man can sue for damage to his character in this sense, even though he is little known to the outside world. If it were said of Robinson Crusoe that he murdered Man Friday, he would have a cause of action, even though no one had ever heard of him before. But a man's "character," so understood, may become known to others beyond his immediate circle. In so far as the estimate spread ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciety for the protection of the reputations of others. 36. While deliberating on possible balance between the right to reputation and freedom of expression, in Campbell v. MGN Ltd. (2004) UKHL 22 at para 55, it has been stated: Both reflect important civilized values, but, as often happens, neither can be given effect in full measure without restricting the other, How are they to be reconciled in a particular case? There is in my view no question of automatic priority. Nor is there a presumption in favour of one rather than the other. The question is rather the extent to which it is necessary to qualify the one right in order to protect the underlying value which is protected by the other. And the extent of the qualification must be proportionate to the need. ... See: Sedley LJ in Doughlas v. Hellol Ltd. [2001] QB 967. View of the Courts in United States 37. In Wisconsin v. Constantineau 400 U.S. 433 (1971) it has been observed that: Where a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential. "Posting" under the Wisconsin Act may to some be merely t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dom of expression (clause 16). In Khumalo v. Holomisa [2002] ZACC 12 : 2002 (5) SA 401 the Court said: 27. In the context of the actio iniuriarum, our common law has separated the causes of action for claims for injuries to reputation (fama) and dignitas. Dignitas concerns the individual's own sense of self worth, but included in the concept are a variety of personal rights including, for example, privacy. In our new constitutional order, no sharp line can be drawn between these injuries to personality rights. The value of human dignity in our Constitution is not only concerned with an individual's sense of self-worth, but constitutes an affirmation of the worth of human beings in our society. It includes the intrinsic worth of human beings shared by all people as well as the individual reputation of each person built upon his or her own individual achievements. The value of human dignity in our Constitution therefore values both the personal sense of self-worth as well as the public's estimation of the worth or value of an individual. It should also be noted that there is a close link between human dignity and privacy in our constitutional order. [a footnote here in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the special Rule contained in its second paragraph, precludes the possibility of conflict with Article 8. In the Court's view, the expression "the rights of others" in the latter provision encompasses the right to personal integrity and serves as a ground for limitation of freedom of expression in so far as the interference designed to protect private life is proportionate. 44. In Axel Springer AG v. Germany (2012) 55 E.H.R.R. 6 it has been ruled: [T]he right to protection of reputation is a right which is protected by Article 8 of the Convention as part of the right to respect for private life ... In order for Article 8 to come into play, however, an attack on a person's reputation must attain a certain level of seriousness and in a manner causing prejudice to personal enjoyment of the right to respect for private life ... The Court has held, moreover, that Article 8 cannot be relied on in order to complain of a loss of reputation which is the foreseeable consequence of one's own actions such as, for example, the commission of a criminal offence ... When examining the necessity of an interference in a democratic society in the interests of the "prot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation. Thereafter, advertence was made to the statement made in Corpus Juris Secundum, Vol. 77 at p. 268 which is to the following effect: It is stated in the definition Person, 70 C.J.S. p. 688 note 66 that legally the term "person" includes not only the physical body and members, but also every bodily sense and personal attribute, among which is the reputation a man has acquired. Blackstone in his Commentaries classifies and distinguishes those rights which are annexed to the person, jura personarum, and acquired rights in external objects, jura rerum; and in the former he includes personal security, which consists in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation. And he makes the corresponding classification of remedies. The idea expressed is that a man's reputation is a part of himself, as his body and limbs are, and reputation is a sort of right to enjoy the good opinion of others, and it is capable of growth and real existence, as an arm or leg. Reputation is, therefore, a personal right, and the right to reputation is put among those absolute personal rights equal in dignity and importance to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the superlative concern of every sensitive soul. The essence of dignity can never be treated as a momentary spark of light or, for that matter, "a brief candle", or "a hollow bubble". The spark of life gets more resplendent when man is treated with dignity sans humiliation, for every man is expected to lead an honourable life which is a splendid gift of "creative intelligence". When a dent is created in the reputation, humanism is paralysed... 48. In Vishwanath Agrawal v. Saral Vishwanath Agrawal: (2012) 7 SCC 288 this Court observed that reputation which is not only the salt of life, but also the purest treasure and the most precious perfume of life. It is a revenue generator for the present as well as for the posterity. In Umesh Kumar v. State of Andhra Pradesh and Anr. (2013) 10 SCC 591 the Court observed that personal rights of a human being include the right of reputation. A good reputation is an element of personal security and is protected by the Constitution equally with the right to the enjoyment of life, liberty and property and as such it has been held to be a necessary element in regard to right to life of a citizen Under Article 21 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s dearer than life. And that is why it has become an inseparable facet of Article 21 of the Constitution. No one would like to have his reputation dented, and it is perceived as an honour rather than popularity. 51. In State of Gujarat and Anr. v. Hon'ble High Court of Gujarat (1998) 7 SCC 392, the court opined: An honour which is a lost or life which is snuffed out cannot be recompensed 52. We have dwelled upon the view of this Court as regards value of reputation and importance attached to it. We shall be obliged, as we are, to advert to some passages from the aforementioned authorities and also from other pronouncements to understand the Court's "accent" on reputation as an internal and central facet of right to life as projected Under Article 21 of the Constitution at a later stage. 53. Having reconnoitered the assessment of the value of reputation and scrutinised the conceptual meaning of the term "reputation", we are required to weigh in the scale of freedom of speech and expression, especially under our Constitution and the nature of the democratic polity the country has. Right of the Freedom of Speech and Expression 54. To appreciate the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im under the common law by an individual and (iv) defamation of a person is mostly relatable to assault on reputation by another individual and such an individual cavil cannot be thought of being pedestalled as fundamental right and, therefore, the criminal defamation cannot claim to have its source in the word "defamation" used in Article 19(2) of the Constitution. 58. To appreciate the said facets of the submission, it is necessary to appreciate ambit and purport of the word "defamation". To elaborate, whether the word "defamation" includes both civil and criminal defamation. Only after we answer the said question, we shall proceed to advert to the aspect of reasonable restriction on the right of freedom of speech and expression as engrafted Under Article 19(1)(a). Mr. Rohtagi, learned Attorney General for India has canvassed that to understand the ambit of the word "defamation" in the context of the language employed in Article 19(2), it is necessary to refer to the Constituent Assembly debates. He has referred to certain aspects of the debates and we think it appropriate to reproduce the relevant parts: The Honourable Dr. B.R. Ambedkar: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which clearly laid down that no Congress can make any law to prejudice the freedom of speech, the freedom of association and the freedom of the press. This was in 1791, and if the American citizen transgressed the limits and endangered the State, the judiciary would judge him and not the legislature or the executive. The following speech from the Constituent Assembly Debates of Shri. K. Hanumanthaiya (Mysore) is extremely significant: The question next arises whether this limiting authority should be the legislature or the court. That is a very much debated question. Very many people, very conscientiously too, think that the legislature or the executive should not have anything to do with laying down the limitations for the operation of these fundamental rights, and that it must be entrusted to courts which are free from political influences, which are independent and which can take an impartial view. That is the view taken by a good number of people and thinkers. Sir, I for one, though I appreciate the sincerity with which this argument is advanced, fail to see how it can work in actual practice. Courts can, after all, interpret the law as it is. Law once made may not hold goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, if you emphasise only this article. If you say merely subject to the provisions of this article, then you very clearly emphasise and make it necessary to read only this Article by itself, which is more restrictive than necessary. ... ... The freedoms are curtly enumerated in 5, 6 or 7 items in one Sub-clause of the article. The exceptions are all separately mentioned in separate sub-clauses. And their scope is so widened that I do not know what cannot be included as exception to these freedoms rather than the rule. In fact, the freedoms guaranteed or assured by this Article become so elusive that one would find it necessary to have a microscope to discover where these freedoms are, whenever it suits the State or the authorities running it to deny them. I would, therefore, repeat that you should bring in the provisions of the whole Constitution, including its Preamble and including all other articles and chapters where the spirit of the Constitution should be more easily and fully gathered than merely in this article, which, in my judgment, runs counter to the spirit of the Constitution. ... I also suggest that it would not be enough to enumerate these freedoms, and say the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention of the framers of the Constitution. It was also highlighted that the Constitution is not just a document in solemn form, but a living framework for the Government of the people exhibiting a sufficient degree of cohesion and its successful working depends upon the democratic spirit underlying it being respected in letter and in spirit. In Special Reference No. 1 of 2002, In re (Gujarat Assembly Election matter) (2002) 8 SCC 237, the issue of relying on the Constituent Assembly Debates again came up for consideration. Khare, J. (as His Lordship then was) referred to His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and Anr. (1973) 4 SCC 225 and held: Constituent Assembly Debates although not conclusive, yet show the intention of the framers of the Constitution in enacting provisions of the Constitution and the Constituent Assembly Debates can throw light in ascertaining the intention behind such provisions. 62. Recently, in Manoj Narula v. Union of India (2014) 9 SCC 1 the majority in the context of understanding the purpose of Article 75 of the Constitution referred to the Constituent Assembly debates. 63. We have referred to the aforesaid aspect only to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity requires no authority of law and it is enough that no statute bars the suit. 66. We have referred to this aspect only to clarify the position that it is beyond any trace of doubt that civil action for which there is no codified law in India, a common law right can be taken recourse to Under Section 9 of the Code of Civil Procedure, 1908, unless there is specific statutory bar in that regard. 67. The other aspect that is being highlighted in the context of Article 19(2)(a) is that defamation even is conceived of to include a criminal offence, it must have the potentiality to "incite to cause an offence". To elaborate, the submission is the words "incite to cause an offence" should be read to give attributes and characteristics of criminality to the word "defamation". It must have the potentiality to lead to breach of peace and public order. It has been urged that the intention of Clause (2) of Article 19 is to include a public law remedy in respect of a grievance that has a collective impact but not as an actionable claim under the common law by an individual and, therefore, the word "defamation" has to be understood in that context, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1964 SC 1230. Dealing with the said aspect, the Court has observed thus: ... It may be that in interpreting the words of the provision of a statute, the setting in which such words are placed may be taken into consideration, but that does not mean that even though the words which are to be interpreted convey a clear meaning, still a different interpretation or meaning should be given to them because of the setting. In other words, while the setting of the words may sometimes be necessary for the interpretation of the words of the statute, but that has not been ruled by this Court to be the only and the surest method of interpretation. . 69. The Constitution Bench, in Godfrey Phillips India Ltd. and Anr. v. State of U.P. and Ors. (2005) 2 SCC 515, while expressing its opinion on the aforesaid Rule of construction, opined: 81. We are aware that the maxim of noscitur a sociis may be a treacherous one unless the "societas" to which the "socii" belong, are known. The risk may be present when there is no other factor except contiguity to suggest the "societas". But where there is, as here, a term of wide denotation which is not free from ambiguity, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e not clear, that the Rule of noscitur a soccis is useful. 71. The core issue is whether the said doctrine of noscitur a soccis should be applied to the expression "incitement of an offence" used in Article 19(2) of the Constitution so that it gets associated with the term "defamation". The term "defamation" as used is absolutely clear and unambiguous. The meaning is beyond doubt. 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. Keeping in view the aid that one may take from the Constituent Assembly Debates and regard being had to the clarity of expression, we are of the considered opinion that there is no warrant to apply the principle of noscitur 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" has to be understood in the context of freedom of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciple of noscitur a sociis, when applied, "defamation" remotely cannot assume the character of public interest or interest of the crime inasmuch a crime remotely has nothing to do with the same. 73. We have already stated about the doctrine of noscitur a sociis with regard to 'incitement of an offence'. Mr. Rao, learned senior counsel, has emphasized on public interest relying on the said principle and in that context has commended us to the decisions in K. Bhagirathi G. Shenoy and Ors. v. K.P. Ballakuraya and Anr.: (1999) 4 SCC 135, Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. and Ors. (1987) 1 SCC 424. In Peerless General Finance and Investment Co. Ltd. (supra), Chinnappa Reddy, J. speaking for the Court, has observed that: Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. 74. In K. Bhagirathi (supra), it has been held that: It is not a sound principle in interpretation of stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . This aspect of the submission needs apposite understanding. 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. It matters to an individual in the eyes of the society. 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. When we talk of society, it is not an abstract idea or a thought in abstraction. There is a link and connect between individual rights and the society; and this connection gives rise to community interest at large. It is a concrete and visible phenomenon. Therefore, when harm is caused to an individual, the society as a whole is affected and the danger is perceived. 76. In this context, it is necessary to understand the basic concept of crime. In Halsbury's, 4th Edition, "Principles of Criminal Liability" it has been described thus: There is no satisfactory definition of crime which will embrace the many acts and omissions which ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minal prosecution. Criminal proceedings were formerly called pleas of the crown, because the King, in whom centres the majesty of the whole community, is supposed by the law to be the person injured by every infraction of the public rights belonging to that community. Wherefore he is, in all cases, the proper prosecutor for every public offence.10 79. Blackstone, while discussing the general nature of crime, has defined crime thus: A crime, or misdemeanour, is an act committed or omitted, in violation of a public law, either forbidding or commanding it. This general definition comprehends both crimes and misdemeanours; which, properly speaking, are mere synonyms terms: though, in common usage, the word 'crimes' is made to denote such offences as are of a deeper and more atrocious dye; while smaller faults, and omissions of less consequence, are comprised under the gentler name of 'misdemeanours' only.11 80. The distinction of public wrongs from private, of crimes and misdemeanours from civil injuries, seems principally to consist in this: that private wrongs or civil injuries are an infringement or privation of the civil rights which belongs to individuals, cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hasis on the statement of Antony Duff who has lucidly observed that "we should interpret a 'public' wrong, not as a wrong that injures the public, but as one that properly concerns the public i.e. the polity as a whole". In this regard, he has drawn our attention to a passage from Duff and Marshall which state that public wrongs are wrongs which village the shared values that normatively define the political community in which fellow citizens are participants. The impact of such wrongs are shared by both the victims and fellow citizens and in this sense, such wrongs, concern the public at large-the polis, the state and fellow citizens. It is because of the "public" element that it is the State rather than the victim who is principally in-charge of the legal process. It is the police who investigates the case, it is the State that brings the charges and whether charges are brought, how far the case proceeds is up to the prosecution-it is not for the victim to decide the course of the case. On the other hand, in the civil process it is the affected private individual who is primarily in-charge of the legal process and it is for such individual to take the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act is not punished at all, it follows that the legislature considers that act as innocent. Many things which are not punishable are morally worse than many things which are punishable. The man who treats a generous benefactor with gross ingratitude and insolence deserves more severe reprehension than the man who aims a blow in passion, or breaks a window in a frolic; yet we have punishment for assault and mischief, and none for ingratitude. The rich man who refuses a mouthful of rice to save a fellow creature from death may be a far worse man than the starving wretch who snatches and devours the rice; yet we punish the latter for theft, and we do not punish the former for hard-heartedness. 86. In T.K. Gopal alias Gopi v. State of Karnataka (2000) 6 SCC 168, deliberating on the definition of crime, the Court ruled that crime can be defined as an act that subjects the doer to legal punishment. It may also be defined as commission of an act specifically forbidden by law; it may be an offence against morality or social order". In Kartar Singh v. State of Punjab (1994) 3 SCC 569, this Court observed that: 446. What is a crime in a given society at a particular time has a wide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of individuals inter se. Mr. Narsimha has drawn immense inspiration from Vishaka and Ors. v. State of Rajasthan and Ors. (1997) 6 SCC 241 where the Court has framed guidelines to protect the rights of individuals at their work place. It ultimately resulted in passing of the Sexual Harassment of Women at Workplace (Prevention, prohibition and Redressal) Act, 2013 which empowered individuals to protect their fundamental right to dignity against other citizens. Similarly, legislations like the Child Labour (Prohibition & Regulation) Act, 1986, the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, Protection of Civil Rights Act, 1955, Press Council Act, 1978, the Noise Pollution (Regulation and Control) Rules, 2000 under the Environment (Protection) Act, 1986 regulate the fundamental rights of citizens vis-à-vis other citizens. 89. We have referred to this facet only to show that the submission so astutely canvassed by the learned Counsel for the Petitioners that treating defamation as a criminal offence can have no public interest and thereby it does not serve any social interest or collective value is sans substratum. We may hasten to clarify t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the freest who has not mortgaged his ideas, may be wild, to the artificially cultivated social norms; and transgression thereof is not perceived as a folly. Needless to emphasise, freedom of speech has to be allowed specious castle, but the question is should it be so specious or regarded as so righteous that it would make reputation of another individual or a group or a collection of persons absolutely ephemeral, so as to hold that criminal prosecution on account of defamation negates and violates right to free speech and expression of opinion. Keeping in view what we have stated hereinabove, we are required to see how the constitutional conception has been understood by the Court where democracy and Rule of law prevail. 92. Bury in his work History of Freedom of Thought (1913) has observed that freedom of expression is "a supreme condition of mental and moral progress" [p. 239]. In the words of American Supreme Court, it is "absolutely indispensible for the preservation of a free society in which government is based upon the consent of an informed citizenry and is dedicated to the protection of the rights of all, even the most despised minorities" (See Speise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American Government. They recognised the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable Government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law--the argument of force in its worst form. Recognising the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed. Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decisions inapplicable to and without much use for resolving the questions arising Under Article 19(1)(a) or (b) of our Constitution wherein the grounds on which limitations might be placed on the guaranteed right are set out with definiteness and precision. The Court has also referred to a passage from Indian Express Newspapers (Bombay) Private Ltd. and Ors. v. Union of India and Ors. (1985) 1 SCC 641 wherein the Court has opined that while examining constitutionality of a law which is alleged to contravene Article 19(1)(a) of the Constitution, the Court cannot, no doubt, be solely guided by the decisions of the Supreme Court of the United States of America. But in order to understand the basic principles of freedom of speech and expression and the need for that freedom in a democratic country, the Court may take them into consideration. We will be referring to Shreya Singhal (supra) in detail at a later stage as the learned Counsel for the Petitioners have submitted with immense vigour that the principles stated in Shreya Singhal (supra) would squarely apply to the concept of defamation and application of the said principles would make Section 499 Indian Penal Code unconstitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uled thus: This is the concept of the freedom of speech and expression as it obtains in the United States of America and the necessary corollary thereof is that no measure can be enacted which would have the effect of imposing a pre-censorship, curtailing the circulation or restricting the choice of employment or un-employment in the editorial force. Such a measure would certainly tend to infringe the freedom of speech and expression and would, therefore, be liable to be struck down as unconstitutional. 98. In All India Bank Employees' Association v. National Industrial Tribunal (Bank Disputes), Bombay and Ors. (1962) 3 SCR 269: AIR 1962 SC 171 it has been held that "freedom of speech" means freedom to speak so as to be heard by others, and, therefore, to convey one's ideas to others. Similarly the very idea of freedom of expression necessarily connotes that what one has a right to express may be communicated to others; and that includes right to freedom of circulation of ideas. 99. In Sakal Papers (P) Ltd. v. Union of India (1962) 3 SCR 842 : AIR 1962 SC 305 it has been held that it must be borne in mind that the Constitution must be interpreted in a broad wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... products of steel. Newsprint will manifest whatever is thought of by man. The newspapers give ideas. 101. In the said case, the Court referred to William Blackstone's commentaries: Every free man has an undoubted right to lay what sentiments he pleases before the public; to forbid this is to destroy the freedom of the press; but if he publishes what is improper, mischievous or illegal, he must take the consequence of his own temerity. 102. Mathew, J., while otherwise dissenting, accepted the protection of freedom of speech in the following words: .... Free expression is necessary (1) for individual fulfilment, (2) for attainment of truth, (3) for participation by members of the society in political or social decision-making, and (4) for maintaining the balance between stability and change in society. In the traditional theory, freedom of expression is not only an individual good, but a social good. It is the best process for advancing knowledge and discovering truth. The theory contemplates more than a process of individual judgment. It asserts that the process is also the best method to reach a general or social judgment. In a democracy the theory is that all men are en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. 105. The Court in Union of India and Ors. v. Motion Picture Association and Ors. (1999) 6 SCC 150 explaining the significance of free speech has observed that free speech is the foundation of a democratic society and a free exchange of ideas, dissemination of information without restraints, dissemination of knowledge, airing of differing viewpoints, debating and forming one's own views and expressing them, are the basic indicia of a free society. It has been further stated that freedom alone makes it possible for people to formulate their own views and opinions on a proper basis and to exercise their social, economic and political rights in a free society in an informed manner and, therefore, restraints on this right have been jealously watched by the courts. Article 19(2) spells out the various grounds on which this right to free speech and expression can be restrained. Reddi J. in his concurring opinion in People's Union for Civil Liberties (PUCL) and Anr. v. Union of India and Anr. (2003) 4 SCC 399, has explained the nature of freedom of speech and expression by elucidating that just as the equality Clause and guarantee of life and liberty, has been very broadly con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he formation of public opinion on social, political and economic matters. It has been described as a "basic human right", "a natural right" and the like. 108. The observations in Sahara India Real Estate Corporation Ltd. and Ors. v. Securities and Exchange Board of India and Anr. (2012) 10 SCC 603 being extremely significant in the present context are extracted below: Freedom of expression which includes freedom of the press has a capacious content and is not restricted to expression of thoughts and ideas which are accepted and acceptable but also to those which offend or shock any Section of the population. It also includes the right to receive information and ideas of all kinds from different sources. In essence, the freedom of expression embodies the right to know. However, under our Constitution no right in Part III is absolute. Freedom of expression is not an absolute value under our Constitution. It must not be forgotten that no single value, no matter exalted, can bear the full burden of upholding a democratic system of government. [Emphasis added] 109. In State of Karnataka and Anr. v. Associated Management of English Medium Primary and Secondary S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng a serial film Honi-Anhoni on the plea that it had the potential to spread false or blind beliefs and superstition amongst the members of the public. The High Court by an interim order had restrained the authorities from telecasting the film. This Court allowed the appeal and observed that right of a citizen to exhibit films on the Doordarshan subject to the terms and conditions to be imposed by the Doordarshan is a part of the fundamental right of freedom of expression guaranteed Under Article 19(1)(a) and can be curtailed only under circumstances enshrined in Article 19(2) and by no other measure. In S. Rangarajan (supra) the Court was required to consider whether the High Court was justified in revoking the 'U Certificate' issued to a Tamil film 'Ore Oru Gramathile' for public viewing. The principal point that was argued before this Court was based on right to freedom of speech and expression Under Article 19(1) (a). The Court after referring to earlier decisions opined thus: The High Court, however, was of opinion that public reaction to the film, which seeks to change the system of reservation is bound to be volatile. The High Court has also stated that peo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... put his defence at the trial explaining the manner in which he has used the words and in what context. We only opine that view of the High Court pertaining to the framing of charge Under Section 292 Indian Penal Code cannot be flawed. 114. We have referred to a series of judgments on freedom of speech and then referred to Devidas Ramchandra Tuljapurkar (supra) which dealt with Section 292 Indian Penal Code solely for the purpose that test in respect of that offence is different. That apart, constitutional validity of Section 292 has been upheld in Ranjit D. Udeshi (supra). It is to be noted that all the cases, barring Odyssey Communication Pvt. Ltd. (supra) and Bobby Art International (supra) [Bandit Queen case], all others are in the fictional realm. We are disposed to think that the right of expression with regard to fictional characters through any medium relating to creation of a fiction would be somewhat dissimilar for it may not have reference to an individual or a personality. Right of expression in such cases is different, and be guided by provisions of any enactment subject to constitutional scrutiny. The right of freedom of expression in a poem, play or a novel pertaini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word "reasonable" implies intelligent care and deliberation, that is, the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Article 19 (1) (g) and the social control permitted by Clause (6) of Article 19, it must be held to be wanting in that quality. 117. In State of Madras v. V.G. Row AIR 1952 SC 196, the Court has ruled that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. 118. In Bennett Coleman and Co. (supra) while dealing with the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey seek to serve. The Court has observed that it is difficult to lay down any hard and fast Rule of universal application but in imposing such restrictions the State must adopt an objective standard amounting to a social control by restricting the rights of the citizens where the necessities of the situation demand and in adopting the social control one of the primary considerations which should weigh with the court is that as the directive principles contained in the Constitution aim at the establishment of an egalitarian society so as to bring about a welfare State within the framework of the Constitution. That apart, restrictions may be partial, complete, permanent or temporary but they must bear a close nexus with the object in the interest of which they are imposed. Another important consideration is that the restrictions must be in public interest and are imposed by striking a just balance between deprivation of right and danger or evil sought to be avoided. 121. In Ramlila Maidan Incident, In re (supra), this Court opined that a restriction imposed in any form has to be reasonable and to that extent, it must stand the scrutiny of judicial review. It cannot be arbitrary or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , ruled that it is not possible to formulate an effective test which would enable the court to pronounce any particular restriction to be reasonable or unreasonable per se. All the attendant circumstances must be taken into consideration and one cannot dissociate the actual contents of the restrictions from the manner of their imposition or the mode of putting them into practice. 124. In Papnasam Labour Union v. Madura Coats Ltd. and Anr. (1995) 1 SCC 501 the Court on the base of earlier authorities summed up that when the constitutionality of a statutory provision is challenged on the ground of reasonableness of the restriction, the Court should evaluate whether the restriction is excessive in nature, existence of the reasonable nexus between restriction imposed and the object sought to be achieved, quality of reasonableness, felt need of the society and the complex issues facing the people which the legislature intends to solve, protection of social welfare prevailing within the social values, its consistency and accord with Article 14 of the Constitution. Additionally, the Court also observed that in judging the reasonableness of the restriction imposed by Clause (6) of Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy by taking recourse to criminal jurisprudence to curb the constitutional right, that is, right to freedom of speech and expression, is neither permissible nor justified. The provision possibly could have met the constitutional requirement has it been associated with law and order or breach of peace but the same is not the position. It is also canvassed that in the colonial era the defamation was conceived of to keep social peace and social order but with the changing climate of growing democracy, it is not permissible to keep alive such a restriction. 126. The principles being stated, the attempt at present is to scrutinize whether criminalization of defamation in the manner as it has been done Under Section 499 Indian Penal Code withstands the said test. The submission of the Respondents is that right to life as has been understood by this Court while interpreting Article 21 of the Constitution covers a wide and varied spectrum. Right to life includes the right to life with human dignity and all that goes along with it, namely, the bare necessities of life such as nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forums, freel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Counsel for the Petitioners is that reputation as an aspect of Article 21 is always available against the highhanded action of the State. To state that such right can be impinged and remains unprotected inter se private disputes pertaining to reputation would not be correct. Neither can this right be overridden and blotched notwithstanding malice, vile and venal attack to tarnish and destroy the reputation of another by stating that the same curbs and puts unreasonable restriction on the freedom of speech and expression. There is no gainsaying that individual rights form the fundamental fulcrum of collective harmony and interest of a society. There can be no denial of the fact that the right to freedom of speech and expression is absolutely sacrosanct. Simultaneously, right to life as is understood in the expansive horizon of Article 21 has its own significance. We cannot forget the rhetoric utterance of Patrick Henry: Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take, but as for me, give me liberty, or give me death!16 128. In this context, we also think it apt to quote a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In this regard a passage from Sakal Papers (P) Ltd. (supra) has been commended us. It says: ......Freedom of speech can be restricted only in the interests of the security of the State, friendly relations with foreign State, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. It cannot, like the freedom to carry on business, be curtailed in the interest of the general public. If a law directly affecting it is challenged, it is no answer that the restrictions enacted by it are justifiable under Clauses (3) to (6). For, the scheme of Article 19 is to enumerate different freedoms separately and then to specify the extent of restrictions to which they may be subjected and the objects for securing which this could be done. A citizen is entitled to enjoy each and every one of the freedoms together and Clause (1) does not prefer one freedom to another. That is the plain meaning of this clause. It follows from this that the State cannot make a law which directly restricts one freedom even for securing the better enjoyment of another freedom. [Emphasis supplied] 131. Having bestowed our anxious consideration on the said passag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... structures of clay in the hall known as the courtroom, but have to be sensitive, "in the sense that they must keep their fingers firmly upon the pulse of the accepted morality of the day". (See: Allen: Legal Duties). That apart, we would also add that there has to be emphasis on advancement of public or social interest. 133. In Post Graduate Institute of Medical Education and Research, Chandigarh v. Faculty Association and Ors. (1998) 4 SCC 1 while emphasizing the need to balance the fundamental rights, this Court held that: ... It is to be appreciated that Article 15(4) is an enabling provision like Article 16(4) and the reservation under either provision should not exceed legitimate limits. In making reservations for the backward classes, the State cannot ignore the fundamental rights of the rest of the citizens. The special provision Under Article 15(4) [sic 16(4)] must therefore strike a balance between several relevant considerations and proceed objectively. 134. In Ram Jethmalani and Ors. v. Union of India and Ors. (2011) 8 SCC 1 it has been held that the rights of citizens, to effectively seek the protection of fundamental rights have to be balanced against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rent dimensions and there may be overlapping between different fundamental rights and therefore it is not a valid argument to say that the expression 'personal liberty' in Article 21 must be so interpreted as to avoid overlapping between that Article and Article 19(1). 137. Krishna Iyer, J., in his concurring opinion, has observed thus: 96. ....... the law is now settled, as I apprehend it, that no Article in Part III is an island but part of a continent, and the conspectus of the whole part gives the direction and correction needed for interpretation of these basic provisions. 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. 97. We may switch to Article 19 very briefly and travel along another street for a while. Is freedom of extra-territorial travel to assure which is the primary office of an Indian passport, a facet of the freedom of speech and expression, of profession or vocation Under Article 19? My total consensus with Shri Justice Bhagwati jetti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iminal defamation as a reasonable restriction as understood Under Article 19(2) of the Constitution. To elucidate, the submission is that criminal defamation, a pre-Constitution law is totally alien to the concept of free speech. As stated earlier, 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. The Court has spoken about synthesis and overlapping of fundamental rights, and thus, sometimes conflicts between two rights and competing values. In the name of freedom of speech and expression, the right of another cannot be jeopardized. In this regard, reproduction of a passage from Noise Pollution (V), In re (2005) 5 SCC 733 would be apposite. It reads as follows: Undoubtedly, the freedom of speech and right to expression are fundamental rights but the rights are not absolute. Nobody can claim a fundamental right to create noise by amplifying the sound of his speech with the help of loudspeakers. While one has a right to speech, others have a right to listen or decline to listen. Nobody can be compelled to listen and nobody can claim that he has a right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Information Technology Act, 2000 was challenged on the ground that they infringe the fundamental right to free speech and expression and are not saved by any of the eight subjects covered in Article 19(2). The two-Judge Bench has expressed the view that both U.S. and India permit freedom of speech and expression as well as freedom of the press. So far as abridgement and reasonable restrictions are concerned, both the U.S. Supreme Court and this Court have held that a restriction in order to be reasonable must be narrowly tailored or narrowly interpreted so as to abridge or restrict only what is absolutely necessary. The Court has observed that only when it comes to the eight subject matters in Article 19(2) that there is vast difference. The Court has further observed thus: ... In the US, if there is a compelling necessity to achieve an important governmental or societal goal, a law abridging freedom of speech may pass muster. But in India, such law cannot pass muster if it is in the interest of the general public. Such law has to be covered by one of the eight subject-matters set out Under Article 19(2). If it does not, and is outside the pale of Article 19(2), Indian courts wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at para 78 already referred to. It is thus clear that not only are the expressions used in Section 66-A expressions of inexactitude but they are also over broad and would fall foul of the repeated injunctions of this Court that restrictions on the freedom of speech must be couched in the narrowest possible terms. For example, see, Kedar Nath Singh v. State of Bihar 1962 Supp (2) SCR 769 : AIR 1962 SC 955, SCR at pp. 808-09. In point of fact, judgments of the Constitution Bench of this Court have struck down Sections which are similar in nature. A prime example is the Section struck down in the first Ram Manohar Lohia case19, namely, Section 3 of the U.P. Special Powers Act, where the persons who "instigated" expressly or by implication any person or class of persons not to pay or to defer payment of any liability were punishable. This Court specifically held that under the Section a wide net was cast to catch a variety of acts of instigation ranging from friendly advice to systematic propaganda. It was held that in its wide amplitude, the Section takes in the innocent as well as the guilty, bona fide and mala fide advice and whether the person be a legal adviser, a frien ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en the interest of freedom of expression and special interests. But we cannot simply balance the two interests as if they are of equal weight. Our commitment of freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a "spark in a power keg. 147. The said paragraph has also been reproduced in Shreya Singhal (supra) while dealing with the principle of "tendency to affect". In the said context, the two-Judge Bench in Shreya Singhal (supra) had analysed how Sections 124A and 295A Indian Penal Code were treated to be constitutional by this Court in Ramji Lal Modi v. State of U.P. AIR 1957 SC 620 and Kedar Nath Singh (supra). We think it appropriate for the sake of completeness to reproduce the analysis made in Shreya Singhal (supra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion came into force. To interpret that the word "defamation" occurring in Article 19(2) would not include "criminal defamation" or it should have a tendency to cause public disorder or incite for an offence, would not be in consonance with the principle of interpretation pertaining to the Constitution. It may be noted here that the decisions rendered in Ramji Lal Modi (supra) and Kedar Nath Singh (supra) where constitutional validity of Sections 124A and 295A Indian Penal Code had been upheld subject to certain limitations. But inspiration cannot be drawn from the said authorities that to argue that they convey that defamation which would include criminal defamation must incorporate public order or intention of creating public disorder. The said decisions relate to a different sphere. The concept of defamation remains in a different area regard being had to the nature of the offence and also the safeguards provided therein which we shall advert to at a later stage. The passage which we have reproduced from S. Rangarajan (supra), which has also been referred to in Shreya Singhal (supra), has to be understood in the context in which it is stated having regard to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te', or 'Liberty, equality, fraternity'. The term "fraternity" has an animating effect in the constitutional spectrum. The Preamble states that it is a constitutional duty to promote fraternity assuring the dignity of the individual. Be it stated that fraternity is a perambulatory promise. Dr. B.R. Ambedkar in the Constituent Assembly spoke: The principles of liberty, equality and fraternity are not to be treated as separate entities but in a trinity. They form the union and trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy... Without fraternity, liberty and equality would not become natural course of things. Courts, as sentinel on the qui vive, therefore must strike a balance between the changing needs of the society for peaceful transformation with orders and protection of the rights of the citizens. 152. In the Preamble to the Constitution of India, fraternity has been laid down as one of the objectives. Dr. B.R. Ambedkar inserted the same in the Draft Constitution stating "the need for fraternal concord and goodwill in India was never greater than now, and that this particular aim of the new Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1993 SC 477 : 1992 Supp. (3) SCC 217, the Court has deliberated upon as to how reservation connects equality and fraternity with social, economic and political justice as it can hamper fraternity and liberty if perpetuated for too long. Jeevan Reddy, J. has opined that "Fraternity assuring the dignity of the individual has a special relevance in the Indian context...." Sawant, J., in a separate but concurring opinion, stated: Inequality ill-favours fraternity, and unity remains a dream without fraternity. The goal enumerated in the preamble of the Constitution, of fraternity assuring the dignity of the individual and the unity and integrity of the nation must, therefore, remain unattainable so long as the equality of opportunity is not ensured to all.21 156. This principle was reiterated in the case of AIIMS Students' Union v. AIIMS and Ors. (2002) 1 SCC 428 where reservation for post graduate students was held unconstitutional as it went against the objective of attaining fraternity. In Indian Medical Association v. Union of India22 exemptions granted to a private non-aided educational institution to only admit wards of army personnel was challenged. Among the var ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ongst all the people despite many diversities. It is also the duty of every citizen to strive towards excellence in all spheres of individual and collective activity. In this regard, a passage from AIIMS Students' Union (supra) would be apt to refer. It reads as follows: ... Fundamental duties, though not enforceable by a writ of the court, yet provide a valuable guide and aid to interpretation of constitutional and legal issues. In case of doubt or choice, peoples wish as manifested through Article 51A, can serve as a guide not only for resolving the issue but also for constructing or moulding the relief to be given by the courts. Constitutional enactment of fundamental duties, if it has to have any meaning, must be used by courts as a tool to tab, even a taboo, on State action drifting away from constitutional values. 161. In P.A. Inamdar and Ors. v. State of Maharashtra and Ors. (2005) 6 SCC 537 it has been observed that: Fundamental duties recognized by Article 51A include, amongst others, (i) to develop the scientific temper, humanism and the spirit of inquiry and reform; and (ii) to strive towards excellence in all spheres of individual and collective activity so tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tely 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. Anatomy of the provision and its field of operation 164. Having dealt with this facet, now we shall focus on whether Section 499 of Indian Penal Code either in the substantive sense or procedurally violates the concept of reasonable restriction. We have to examine whether it is vague or arbitrary or disproportionate. 165. For the aforesaid purpose, it is imperative to analyse in detail what constitutes the offence of "defamation" as provided Under Section 499 of Indian Penal Code. To constitute the offence, 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 kno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be used widely. He has commended us to a passage from State of Jammu and Kashmir v. Triloki Nath Khosa and Ors. (1974) 1 SCC 19 solely for the purpose that the Explanation 4 engulfs micro-distinctions which is impermissible. To appreciate manifold submissions urged by the learned Counsel for the Petitioners, it is seemly to refer to how these Explanations have been understood by the Court. We are conscious that we are dealing with the constitutional validity of the provision and the decisions relate to interpretation. But the purpose is to appreciate how the Explanations have been understood by this Court. 167. 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 if he is living and is intended to be harmful to the feelings of his family or other near relatives. It is submitted by the learned Counsel for the Petitioners that the width of the Explanation is absolutely excessive as it enables the family members to prosecute a criminal action whereas they are debarred to initiate civil action for damages. According to the learned Counsel for the Petitioners, Explanation 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 988) 1 SCC 556, a two-Judge Bench distinguished the authority in Melepurath Sankuni Ezhuthassan (supra) as there was a subsisting decree and came to hold thus: The maxim "actio personalis cum moritur persona" has been applied not only to those cases where a Plaintiff dies during the pendency of a suit filed by him for damages for personal injuries sustained by him but also to cases where a Plaintiff dies during the pendency of an appeal to the appellate court, be it the first appellate court or the second appellate court against the dismissal of the suit by the trial court and/or the first appellate court as the case may be. This is on the footing that by reason of the dismissal of the suit by the trial court or the first appellate court as the case may be, the Plaintiff stands relegated to his original position before the trial court. And again: The maxim of actio personalis cum moritur persona has been held inapplicable only in those cases where the injury caused to the deceased person has tangibly affected his estate or has caused an accretion to the estate of the wrong-doer vide Rustomji Dorabji v. W.H. Nurse ILR 44 Mad 357 and Ratanlal v. Baboolal AIR 1960 MP 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , for that matter, association, is absolutely vague. More than five decades back, the Court, in Sahib Singh Mehra v. State of Uttar Pradesh AIR 1965 SC 1451 : 1965 (2) SCR 823 while being called upon to decide whether public prosecutor would constitute a class or come within the definition of "collection of persons" referred to Explanation 2 to Section 499 of Indian Penal Code, and held that collection of persons must be identifiable in the sense that one could, with certainty, say that this group of particular people has been defamed, as distinguished from the rest of the community. The Court, in the facts of the case, held that the prosecuting staff of Aligarh or, as a matter of fact, the prosecuting staff in the State of Uttar Pradesh, was certainly such an identifiable group or collection of persons, and there was nothing indefinite about it. Thus, in the said authority, emphasis is laid on the concept of identifiability and definitiveness as regards collection of persons. 171. In G. Narasimhan, G. Kasturi and K. Gopalan v. T.V. Chokkappa (1972) 2 SCC 680, the Court dealt with the applicability of the said Explanation as regards "association" or "colle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thorities with regard to the Exceptions. It is solely for the purpose of appreciating how the Court has appreciated and applied them. The First Exception stipulates that it is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. "Public good" has to be treated to be a fact. In Chaman Lal v. State of Punjab (1970) 1 SCC 590, the Court has held that in order to come within the First Exception to Section 499 of the Indian Penal Code it has to be established that what has been imputed concerning the Respondent is true and the publication of the imputation is for the public good. The onus of proving these two ingredients, namely, truth of the imputation and the publication of the imputation for the public good, is on the accused. 174. It is submitted by Dr. Dhawan, learned senior Counsel for the Petitioners that if the imputation is not true, the matter would be different. But as the Exception postulates that imputation even if true, if it is not to further public good then it will not be defamation, is absolutely irrational and does not stand to reason. It is urged that truth is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a principle that "public interest" is always without any norm or guidance or has no objective interest. Ergo, the said decision is distinguishable. 177. In Arundhati Roy, In re. (2002) 3 SCC 343, this Court, referring to Second Exception, observed that even a person claiming the benefit of Second Exception to Section 499 of the Indian Penal Code, is required to show that the opinion expressed by him was in good faith which related to the conduct of a public servant in the discharge of his public functions or respecting his character so far as his character appears in that conduct. Third Exception states about conduct of any person touching any public question and stipulates that it is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question and respecting his character, so far as his character appears in that conduct. The said Exception uses the words "good faith" and particularizes conduct of any person relating to any public question and the Exception, as is perceptible, gives stress on good faith. Third Exception comes into play when some defamatory remark is made in good faith as held i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... larger Bench referred to Section 499 Indian Penal Code and observed that: In this connection, it is also relevant to note that we are concerned in this case with a criminal prosecution for defamation. The law of defamation has been dealt with in Sections 499 and 500 of the Indian Penal Code. Section 499 contains a number of exceptions. Those specified exceptions lay down what is not defamation. The fourth exception says that it is not defamation to publish a substantially true report of the proceedings of a court of justice, but does not make any such concession in respect of proceedings of a House of Legislature or Parliament. The question naturally arises how far the Rule in Wason case25 can be applied to criminal prosecutions in India, but as this aspect of the controversy was not canvassed at the Bar, we need not say anything about it, as it is not necessary for the decision of this case. 179. After so stating, the Court further opined that the proceedings did not deserve to be quashed as there was no such absolute privilege in the facts of the case. Being of this view, the Court opined that the accused Appellant must take his trial and enter upon his defence such as he may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound to be guilty. Under such circumstances the fact that the accused persons had made a report to the superior officer of the complainant alleging that he had abused the Treasury Officer in a drunken state which was the gravamen of the complaint, would be covered by Exception 8 to Section 499 of the Indian Penal Code. 182. In Chaman Lal (supra) the Court has opined that good faith requires care and caution and prudence in the background of context and circumstances. The position of the persons making the imputation will regulate the standard of care and caution. In Sukra Mahto (supra), emphasis has been laid on protection of the interest of the person making it or of any other person or for the public good. Reference has been made to Harbhajan Singh case (supra) to stress on due care and attention. In Sewakram Sobhani v. R.K. Karanjia (1981) 3 SCC 208, it has been observed that the ingredients of the Ninth Exception are that (1) the imputation must be made in good faith, and (2) the imputation must be for the protection of the interests of the person making it or of any other person or for the public good, and the imputation made must be in good faith for the public good. In M.A. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ensual incest; an imputation that a person is impotent; a statement is made in public that a particular person suffers from AIDS; an imputation that a person is a victim of rape; and an imputation that the child of a married couple is not fathered by the husband but born out of an affair with another man. We have set out the examples cited by the learned senior Counsel only to show that there can be occasions or situations where truth may not be sole defence. And that is why the provision has given emphasis on public good. Needless to say, what is public good is a question of fact depending on the facts and circumstances of the case. 184. From the analysis we have made it is clear as day that 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. Be it noted that it has also been argued that the provision is defeated by doctrine of proportionality. It has been argued that existence of crim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act considerations (see: Mohd. Hanif Quareshi. v. State of Bihar AIR 1958 SC 731). The judgment refers to and approves guidelines propounded in MRF Ltd. v. Inspector, Kerala Govt. (1998) 8 SCC 227 for examining reasonableness of a statutory provision. In the said decision the Constitution Bench while discussing about the doctrine of proportionality has observed: 54. Modern theory of constitutional rights draws a fundamental distinction between the scope of the constitutional rights, and the extent of its protection. Insofar as the scope of constitutional rights is concerned, it marks the outer boundaries of the said rights and defines its contents. The extent of its protection prescribes the limitations on the exercises of the rights within its scope. In that sense, it defines the justification for limitations that can be imposed on such a right. 55. It is now almost accepted that there are no absolute constitutional rights 14 and all such rights are related. As per the analysis of Aharon Barak26, two key elements in developing the modern constitutional theory of recognising positive constitutional rights along with its limitations are the notions of democracy and the Rule of l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spective of the speaker but also the place at which he speaks, the scenario, the audience, the reaction of the publication, the purpose of the speech and the place and the forum in which the citizen exercises his freedom of speech and expression. The Court had further observed that the State has legitimate interest, therefore, to regulate the freedom of speech and expression which liberty represents the limits of the duty of restraint on speech or expression not to utter defamatory or libellous speech or expression. There is a correlative duty not to interfere with the liberty of others. Each is entitled to dignity of person and of reputation. Nobody has a right to denigrate others' right to person or reputation. 187. The submission of Mr. Datar, learned senior Counsel is that defamation is fundamentally a notion of the majority meant to cripple the freedom of speech and expression. It is too broad a proposition to be treated as a guiding principle to adjudge reasonable restriction. There is a distinction between social interest and a notion of the majority. The legislature has exercised its legislative wisdom and it is inappropriate to say that it expresses the notion of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ployed in connection with the affairs of the State and of the Central Government, in any other case. Sub-Section 5 bars Court of Session from taking cognizance of an offence Under Sub-section (2) unless the complaint is made within six months from the date on which the offence is alleged to have been committed. Sub-section (6) states that nothing in this Section shall affect the right of the person against whom the offence is alleged to have been committed, to make a complaint in respect of that offence before a Magistrate having jurisdiction or the power of such Magistrate to take cognizance of the offence upon such complaint. 189. The said provision is criticized on the ground that "some person aggrieved" is on a broader spectrum and that is why, it allows all kinds of persons to take recourse to defamation. As far as the concept of "some person aggrieved" is concerned, we have referred to plethora of decisions in course of our deliberations to show how this Court has determined the concept of "some person aggrieved". While dealing with various Explanations, it has been clarified about definite identity of the body of persons or collection of person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , culled out certain principles. We may refer to a few of them: (1) x x x x x (2) The State, in the exercise of its governmental power, has of necessity to make laws operating differently on different groups or classes of persons within its territory to attain particular ends in giving effect to its policies, and it must possess for that purpose large powers of distinguishing and classifying persons or things to be subjected to such laws. (3) The constitutional command to the State to afford equal protection of its laws sets a goal not attainable by the invention and application of a precise formula. Therefore, classification need not be constituted by an exact or scientific exclusion or inclusion of persons or things. The courts should not insist on delusive exactness or apply doctrinaire tests for determining the validity of classification in any given case. Classification is justified if it is not palpably arbitrary. (4) The principle underlying the guarantee of Article 14 is not that the same Rules of law should be applicable to all persons within the Indian territory or that the same remedies should be made available to them irrespective of differences of circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rring to Ram Krishna Dalmia v. S.R. Tendolkar AIR 1958 SC 538, Satyawati Sharma v. Union of India (2008) 5 SCC 287, Rehman Shagoo v. State of J&K AIR 1960 SC 1 and C.I. Emden v. State of U.P. AIR 1960 SC 548 in the context of challenge to the constitutional validity of the Orissa Special Courts Act, 2006 and the Bihar Special Courts Act, 2009, repelled the contention that there was no justification for trial of offence Under Section 13(1)(e) and the rest of the offences enumerated in Section 13 in different Act and ultimately opined: ... Section 13(1)(e) targets the persons who have disproportionate assets to their known sources of income. This conceptually is a period offence, for it is not incident-specific as such. It does not require proof of corruption in specific acts, but has reference to assets accumulated and known sources of income in a particular period. The test applicable and proof required is different. That apart, in the context of the present Orissa Act it is associated with high public office or with political office which are occupied by people who control the essential dynamics of power which can be a useful weapon to amass wealth adopting illegal means. In suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a complaint for defamation is to be filed. He has a duty towards the Court. This Court in Bairam Muralidhar v. State of Andhra Pradesh (2014) 10 SCC 380 while deliberating on Section 321 Code of Criminal Procedure has opined that the Public Prosecutor cannot act like the post office on behalf of the State Government. He is required to act in good faith, peruse the materials on record and form an independent opinion. It further observed that he cannot remain oblivious to his lawful obligations under the Code and is required to constantly remember his duty to the court as well as his duty to the collective. While filing cases Under Sections 499 and 500 Indian Penal Code, he is expected to maintain that independence and not act as a machine. The other ground of attack is that when a complaint is filed in a Court of Session, right to appeal is curtailed. The said submission suffers from a basic fallacy. Filing of a complaint before the Court of Session has three safeguards, namely, (i), it is filed by the public prosecutor; (ii) obtaining of sanction from the appropriate Government is necessary, and (iii) the Court of Session is a superior court than the Magistrate to deal with a case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e tried as per the further provisions of the Chapter. In case the place of committing the offence is uncertain, the case may also be tried where the offence was partly committed or continues to be committed (Section 178). The case may also be tried where the consequence of the act ensues (Section 179). The other provisions in the chapter also deal with regard to certain specific circumstances. Section 186 Code of Criminal Procedure gives the High Court powers to determine the issue if two or more courts take cognizance of the same offence. If cases are filed in two or more courts in different jurisdictions, then the Jurisdiction to determine the case lies with the High Court under whose jurisdiction the first complaint was filed. Upon the decision of the High Court regarding the place of trial, the proceedings in all other places shall be discontinued. Thus, it is again left to the facts and circumstances of each case to determine the right forum for the trial of case of defamation. Thus, Code of Criminal Procedure governs the territorial jurisdiction and needless to say, if there is abuse of the said jurisdiction, the person grieved by the issue of summons can take appropriate ste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lace beyond the area in which the Magistrate exercises his jurisdiction. He must be satisfied that ingredients of Section 499 Code of Criminal Procedure are satisfied. Application of mind in the case of complaint is imperative. 198. We will be failing in our duty if we do not take note of submission of Mr. Bhambhani, learned senior counsel. It is submitted by the learned senior Counsel that Exception to Section 499 are required to be considered at the time of summoning of the accused but as the same is not conceived in the provision, it is unconstitutional. It is settled position of law that those who plead Exception must prove it. It has been laid down in M.A. Rumugam (supra) that for the purpose of bringing any case within the purview of the Eighth and the Ninth Exceptions appended to Section 499 Indian Penal Code, it would be necessary for the person who pleads the Exception to prove it. He has to prove good faith for the purpose of protection of the interests of the person making it or any other person or for the public good. The said proposition would definitely apply to any Exception who wants to have the benefit of the same. Therefore, the argument that if the said Exceptio ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
