New Delhi: The Supreme Court on Friday upheld the constitutional validity of India’s criminal defamation law that was contested by Congress vice president Rahul Gandhi, Delhi Chief Minister Arvind Kejriwal and BJP leader Subramanian Swamy.
Upholding sections 499 and 500 of the Indian Penal Code and sections 199(1) to 199(4) of the Code of Criminal Procedure, 1973, a bench of Justice Dipak Misra and Justice Prafulla C. Pant in their judgment said that the defamation doesn’t have any “chilling effect on freedom of speech”.
“Once we have held that reputation of an individual is a basic element of article 21 of the constitution and balancing of fundamental rights is a constitutional necessity and further the legislature in its wisdom has kept the penal provision alive, it is extremely difficult to subscribe to the view that criminal defamation has a chilling effect on the freedom of speech and expression,” said Justice Misra pronouncing the judgment.
“Reputation being an inherent component of article 21, we do not think it should be allowed to be sullied solely because another individual can have its freedom, and it “cannot be allowed to be crucified at the altar of the other’s right of free speech”.
Not accepting the contention that defamation would be criminal only if it gives rise to incitement to constitute an offence, the court said: “It is difficult to accede to the submission that defamation can only get criminality if it incites to make an offence.
“The word ‘defamation’ has its own independent identity and it stands alone and the law relating to defamation has to be understood as it stood at the time when the constitution came into force.”
The court rejected the argument that the defamation of an individual by another can be a civil wrong and could not be made a crime in the name of fundamental rights as protection of private rights qua private individuals cannot be conferred the status of fundamental rights.
“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.
“… 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,” it said.
But noting that “is not necessary for all in the chorus to sing the same song”, the court, in a caution to prevent any misuse of criminal defamation law, said that a magistrate should be extremely careful in issuing summons on a plea for initiation of any criminal defamation case.
Referring to the apex court’s earlier judgments on the issue, the court said: “We have referred to these authorities to highlight that in matters of criminal defamation the heavy burden is on the magistracy to scrutinise the complaint from all aspects. Application of mind in the case of complaint is imperative.”
On the effect on the petitioners Gandhi, Kejriwal and Swamy, the court said that now it would be open to them “to challenge the issue of summons before the high court either under article 226 of the constitution or section 482 CrPC, as advised and seek appropriate relief”.
To decide on their next course of action, the court granted them eight weeks time.