MANU/SC/0621/2016

Equivalent/Neutral Citation: AIR2016SC 2728, 2016 (2) ALT (C rl.) 170 (A.P.), III(2016)C C R403(SC ), 2016C riLJ3214, 2016(2)C rimes147(SC ),
ILR2016(2)Kerala879, 2016 INSC 427, 2016(2)MLJ(C rl)542, 2016(5)SC ALE379, (2016)7SC C 221, 2016 (5) SC J 643, [2016]3SC R865

IN THE SUPREME COURT OF INDIA

Writ Petition (Criminal) Nos. 184 of 2014, 8, 19, 56, 62, 63, 64, 67, 73, 77, 79, 82, 91,
96, 98, 106, 110, 116, 117, 118, 119, 120, 121 of 2015 and Transfer Petition (Criminal)
Nos. 102-105 and 94-101 of 2015 (Under Article 32 of the Constitution of India)
Decided On: 13.05.2016
Subramanian Swamy Vs. Union of India (UOI) and Ors.
Hon'ble Judges/Coram:
Dipak Misra and Prafulla C. Pant, JJ.
Counsels:
For Appearing Parties: Mukul Rohatgi, A G , P.S. Narasimha, A S G , K. Parasaran, T.R.
Andhyarujina, Sr. Advs., (A.C.), Sushil Kumar Jain, P.P. Rao, Kapil Sibal, Harin P. Raval,
Mahalakshmi Pavani, Sanjay Hegde, Anup J. Bhambani, Rajeev Dhawan, V. Mohana, L.
Nageswara Rao, Subramonium Prasad, V. Shekhar, Sidharth Luthra, Abhishek Manu
Singhvi, M.N. Krishnamani, K. Radhakrishnan, Sr. Advs., Nikhil Swami, Aditi Dani,
Ashwin Kumar D.S., Gayathri, Vineet Pandey, Prabha Swami, G.S. Mani, P.K. Tripathy,
M.M. Kashyap, Puneet Jain, Pradeep Aggarwal, Abhinav Gupta, Manu Maheshwari, Christi
Jain, Chhaya Kirti, Pratibha Jain, Chirag M. Shroff, Abhay Anand Jena, Ranjit B. Raut,
Bina Gupta, Gautam Narayan, G. Balaji, K.C. Mittal, Santosh Krishnan, Tarannum
Cheema, Advs. for Karanjawala & Co., Nikhil Goel, Naveen Goel, Marsook Bafaki, Sachin
Patil, B.V. Singh, Amit Kumar Pathak, Ruchi Kohli, Ram Sankar, Y. Lokesh, R.V.
Kameshwaran, Abhinav Mukherji, Lalit Kumar, Mohit Paul, Apar Gupta, Dushyant Arora,
Rizwan, Aruneshwar Gupta, D.K. Singh, Pradeep Shukla, Abhijit Sengupta, Anil Kumar
Mishra-I, Snehasish Mukherjee, Pooja Mehra Saigal, Khyati Sharma, Tara Chandra
Sharma, Madhavi Divan, Binu Tamta, Sridhar Potaraju, B. Raghunath, K. Parameshwar,
Gaichangpou Gangmei, Gangmei, Arjun Singh, Mukunda Rao Angara, Vishwajit
Sadanand, I. Denning Shruti S., Sushma Suri, Gaurav Agrawal, P.N. Puri, M. Yogesh
Karma, Jayant Patel, Ashmeet Singh, Tarun Gupta, Supriya Juneja, Anandana Handa,
Viraj Gandhi, Mehaak Jaggi, Vinay P. Tripathi, Saurabh Gupta, Bhakti Vardhan Singh,
S.S. Shamshery, Anish Kumar Gupta, Anand Dey, Merusagar Samantaray, Vishnu
Shankar Jain, Santosh Kumar, Pattabhi Ram, Apeksha Sharan, Advs. for Corporate Law
Group, Sudarshan Singh Rawat, Ajay Sharma, D.S. Mahra, S. Udaya Kumar Sagar,
Krishna Kumar Singh, Balbir Singh Gupta, Mansoor Ali, Rubina Jawed, Mumtaz Bhalla,
Abhay Kumar, K.V. Jagdishvaran, G. Indira, Sukumar Patt Joshi, Mahaling Pandarge,
Prakash Gautam and Nishant Katneshwarkar, Advs.
For Appellant/Petitioner/Plaintiff: Party-in-Person
Case Category:
CRIMINAL MATTERS - MATTERS FOR/AGAINST QUASHING OF CRIMINAL PROCEEDINGS
Case Note:
Constitution - Freedom of Speech and Expression - Reasonable restriction -
Defamation - Writ Petitions preferred Under Article 32 - Constitution of India -
Challenged constitutional validity of Sections 499 and 500 of Indian Penal

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Code - Sections 199(1) of Code of Criminal Procedure - Assertion of
Petitioners - Freedom of thought and expression cannot be scuttled or
abridged - Threat of criminal prosecution - Individual grievances pertaining to
reputation - Can be agitated in civil courts - There is a remedy - No
justification to keep the provision of defamation in criminal law alive -
Creates concavity and unreasonable restriction in individual freedom -
Assertion by Union of India - Reasonable restrictions are based on paradigms
and parameters of the Constitution - Structured and pedestalled on doctrine
of absoluteness of any fundamental right, cultural and social ethos - Need and
feel of time for every right engulfs and incorporates duty to respect other's
right - Whether criminal prosecution for defamation Under Section 499 and
Section 500 Indian Penal Code acts as a "chilling effect" on the freedom of
speech and expression or a potential for harassment, particularly, of the press
and media - Whether the word "defamation" includes both civil and criminal
defamation - Whether criminalization of defamation in the manner as it has
been done Under Section 499 Indian Penal Code withstands the test of
reasonableness - Whether right to freedom of speech and expression can be
allowed so much room that even reputation of an individual which is a
constituent of Article 21 would have no entry into that area - Whether
Section 499 of Indian Penal Code either in substantive sense or procedurally
violates the concept of reasonable restriction - Whether Section 499 is
arbitrary, vague or disproportionate
Miscellaneous - Interpretation of provisions - Word to be judged from the
company it keeps - Whether the doctrine of noscitur a soccis 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"
Facts:
The present batch of writ petitions have been preferred Under Article 32 of
the Constitution of India challenging the constitutional validity of Sections
499 and 500 of the Indian Penal Code, 1860 (Indian Penal Code) and
Sections 199(1) to 199(4) of the Code of Criminal Procedure, 1973 (Code of
Criminal Procedure).
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
treated as things of the past, a symbol of colonial era where the ruler ruled
over the subjects and vanquished concepts of resistance; and, in any case, the
individual grievances pertaining to reputation can be agitated in civil courts
and thus, there is a remedy and viewed from a prismatic perspective, there is
no justification to keep the provision of defamation in criminal law alive as it

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creates a concavity and unreasonable restriction in individual freedom and
further progressively mars voice of criticism and dissent which are
necessitous for the growth of genuine advancement and a matured
democracy.
Held, while disposing of the petitions
Learned Counsel appearing for some of the Petitioners, apart from addressing
at length on the concept of reasonable restriction have also made an effort,
albeit an Everestian one, pertaining to the meaning of the term "defamation"
as used in Article 19(2). In this regard, four aspects, namely, (i) defamation,
however extensively stretched, can only include a civil action but not a
criminal proceeding, (ii) even if defamation is conceived of to include a
criminal offence, regard being had to its placement in Article 19(2), it has to
be understood in association of the words, "incitement to an offence", for the
principle of noscitur a sociis has to be made applicable, then only the
cherished and natural right of freedom of speech and expression which has
been recognized Under Article 19(1)(a) would be saved from peril, (iii) 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 to take in its ambit
an actionable claim 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.[57]
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 the Court
answered the said question, it proceeded 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. Relying on the said debates, it is urged by Mr. Rohatgi that the
founding fathers had no intention to confer a restricted meaning on the term
"defamation".[59]
The Court stated with profit that the debates of the Constituent Assembly can
be taken aid of for the purpose of understanding the intention of the framers
of the Constitution. In S.R. Chaudhuri v. State of Punjab and Ors., a three-
Judge Bench has observed that Constitutional provisions are required to be
understood and interpreted with an object-oriented approach. A Constitution
must not be construed in a narrow and pedantic sense. The words used may
be general in terms but, their full import and true meaning, has to be
appreciated considering the true context in which the same are used and the
purpose which they seek to achieve. While so observing, the Court proceeded
to state that it is a settled position that debates in the Constituent Assembly
may be relied upon as an aid to interpret a constitutional provision because it
is the function of the court to find out the intention of the framers of the

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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.[61]
The Court has referred to the aforesaid aspect only to highlight the intention
of the founding fathers and also how contextually the word "defamation"
should be understood. At this stage, the Court stated that in the course of
hearing, an endeavour was made even to the extent of stating that the word
"defamation" may not even call for a civil action in the absence of a codified
law. The Court has 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.[63] and[66]
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 the associate
words are "incitement to an offence" would so warrant. Mr. Rao, learned
senior counsel, astutely canvassed that unless the word "defamation" is
understood in this manner applying the principle of noscitur a sociis, the
cherished and natural right of freedom of speech and expression which has
been recognized Under Article 19(1)(a) would be absolutely at peril. Mr.
Narsimha, learned ASG would contend that the said Rule of construction
would not be applicable to understand the meaning of the term "defamation".
[67]
Be it noted, while construing the provision of Article 19(2), it is the duty of
the Court to keep in view the exalted spirit, essential aspects, the value and
philosophy of the Constitution. There is no doubt that the principle of noscitur
a sociis can be taken recourse to in order to understand and interpret the
Constitution but while applying the principle, one has to keep in mind the
contours and scope of applicability of the said principle.[67]
Learned author on further discussion has expressed the view that meaning of
a word is to be judged from the company it keeps, i.e., reference to words
found in immediate connection with them. It applies when two or more words
are susceptible of analogous meanings are coupled together, to be read and
understood in their cognate sense. Noscitur a soccis is merely a Rule of
construction and cannot prevail where it is clear that wider and diverse
etymology is intentionally and deliberately used in the provision. It is only
when and where the intention of the legislature in associating wider words
with words of narrowest significance is doubtful or otherwise not clear, that

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the Rule of noscitur a soccis is useful.[70]
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, the Court was 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 speech and expression and reasonable restriction. The word
"incitement" in criminal jurisprudence has a different meaning. It is difficult
to accede to the submission that defamation can only get criminality 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.[71]
The term "defamation" as used in Article 19(2) should not be narrowly
construed. The conferment of a narrow meaning on the word would defeat the
very purpose that the founding fathers intended to convey and further the
Court did not find any justifiable reason to constrict the application. The word
"defamation" as used in Article 19(2) has to be conferred an independent
meaning, for it is incomprehensible to reason that it should be read with the
other words and expressions, namely, "security of the State", "friendly
relations with foreign States", "public order, decency or morality". The
submission is based on the premise that "defamation" is meant to serve
private interest of an individual and not the larger public interest. Both the
aspects of the said submission are interconnected and interrelated.
Defamation has been regarded as a crime in the Indian Penal Code which is a
pre-constitutional law.[75]
It is urged that such kind of legal right is unconnected with the fundamental
right conceived of Under Article 19(1)(a) of the Constitution. Additionally, it
is canvassed that reputation which has been held to be a facet of Article 21 in
Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath
Nadkarni and Ors., Mehmood Nayyar Azam v. State of Chhatisgarh and Ors.,
and Umesh Kumar v. State of Andhra Pradesh and Anr., is against the
backdrop where the State has affected the dignity and reputation of an
individual. 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

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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.[75]
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, considered merely as individuals; public wrongs or crimes and
misdemeanours are a breach and violation of the public rights and duties due
to the whole community in its social aggregate capacity. In all cases the
crime includes injury; every public offence is also a private wrong, and
somewhat more. It affects the individual, and it likewise affects the
community.[80]
The constituents of crime in general has been enumerated in Halsbury's Laws
of England as "a person is not to be convicted of a crime unless he has, by
voluntary conduct, brought about those elements which by common law or
statute constitute that crime. In general a person does not incur criminal
liability unless he intended to bring about, or recklessly brought about, those
elements which constitute the crime. The foregoing concepts are traditionally
expressed in maxim "actus non facit reum nisi mens sit rea". Enforcement of
a right and seeking remedy are two distinct facets. It should not be confused.
[81]
The concept of crime is essentially concerned with social order. It is well
known that man's interests are best protected as a member of the community.
Everyone owes certain duties to his fellow-men and at the same time has
certain rights and privileges which he expects others to ensure for him. This
sense of mutual respect and trust for the rights of others regulates the
conduct of the members of society inter-se. Although most people believe in
the principle of 'live and let live', yet there are a few who, for some reason or
the other, deviate from this normal behavioral pattern and associate
themselves with anti-social elements. This obviously imposes an obligation on
the State to maintain normalcy in the society. This arduous task of protecting
the law abiding citizens and punishing the law breakers vests with the State
which performs it through the instrumentality of law. It is for this reason that
Salmond has defined law as a 'rule of action' regulating the conduct of
individuals in society. The conducts which are prohibited by the law in force
at a given time and place are known as wrongful acts or crimes, whereas
those which are permissible under the law are treated as lawful. The
wrongdoer committing crime is punished for his guilt under the law of crime.
[82]
From the aforesaid discussion, it is plain as day that the contention that the
criminal offence meant to subserve the right of inter se private individuals but
not any public or collective interest in totality is sans substance. In this
regard, the Court took note of the submission put forth by Mr. Narsimha,
learned Additional Solicitor General, that Articles 17, 23 and 24 which deal
with abolition of untouchability and prohibit trafficking in human beings and
forced labour and child labour respectively are rights conferred on the citizens
and they can be regarded as recognition of horizontal rights under the

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Constitution. He has referred to certain legislations to highlight that they
regulate rights of individuals inter se.[88]
The Court 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. The Court hastened
to clarify that creation of an offence may be for some different reason
declared unconstitutional but it cannot be stated that the legislature cannot
have a law to constitute an act or omission done by a person against the
other as a crime. It depends on the legislative wisdom. Needless to say, such
wisdom has to be in accord with constitutional wisdom and pass the test of
constitutional challenge. If the law enacted is inconsistent with the
constitutional provisions, it is the duty of the Court to test the law on the
touchstone of Constitution.[89]
Freedom of speech and expression in a spirited democracy is a highly
treasured value. Authors, philosophers and thinkers have considered it as a
prized asset to the individuality and overall progression of a thinking society,
as it permits argument, allows dissent to have a respectable place, and
honours contrary stances. There are proponents who have set it on a higher
pedestal than life and not hesitated to barter death for it. Some have
condemned compelled silence to ruthless treatment. William Dougles has
denounced Regulation of free speech like regulating diseased cattle and
impure butter. The Court has in many an authority having realized its precious
nature and seemly glorified sanctity has put it in a meticulously structured
pyramid. Freedom of speech is treated as the thought of 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.[91]
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 it had stated hereinabove, the
Court was required to see how the constitutional conception has been
understood by the Court where democracy and Rule of law prevail.[91]
The Court has referred to a series of judgments on freedom of speech and
then referred to Devidas Ramachandra Tuljapurkar v. State of Maharashtra
and Ors. 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 v.
State of Maharashtra. It is to be noted that all the cases, barring Odyssey
Communications Pvt. Ltd. v. Lokvidayan Sanghatana and Ors. and Bobby Art
International v. Om Pal Singh Hoon [Bandit Queen case], all others are in the
fictional realm. The Court was 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.

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[114]
The right of freedom of expression in a poem, play or a novel pertaining to
fictional characters stand on a different footing than defamation as the latter
directly concerns the living or the legal heirs of the dead and most
importantly, having a known identity. A person in reality is defamed contrary
to a "fictional character" being spoken of by another character or through any
other mode of narrative. Liberty of freedom in that sphere is fundamentally
different than the arena of defamation. Therefore, the decisions rendered in
the said context are to be guardedly studied, appreciated and applied. It may
be immediately added here that the freedom in the said sphere is not totally
without any limit or boundary. The Court not only adverted to the said aspect
to note that what could legally be permissible in the arena of fiction may not
have that allowance in reality. Also, the Court stated in quite promptitude
that it has adverted to this concept only to have the completeness with regard
to precious value of freedom of speech and expression and the limitations
perceived and stipulated thereon.[114]
Be that as it may, the aforesaid authorities clearly lay down that freedom of
speech and expression is a highly treasured value under the Constitution and
voice of dissent or disagreement has to be respected and regarded and not to
be scuttled as unpalatable criticism. Emphasis has been laid on the fact that
dissonant and discordant expressions are to be treated as view-points with
objectivity and such expression of views and ideas being necessary for growth
of democracy are to be zealously protected. Notwithstanding, the expansive
and sweeping ambit of freedom of speech, as all rights, right to freedom of
speech and expression is not absolute. It is subject to imposition of
reasonable restrictions.[115]
To appreciate the compass and content of reasonable restriction, the Court
had to analyse nature of reasonable restrictions. Article 19(2) envisages
"reasonable restriction". The said issue many a time has been deliberated by
this Court. The concept of reasonable restriction has been weighed in
numerous scales keeping in view the strength of the right and the effort to
scuttle such a right.[116]
The principles as regards reasonable restriction as has been stated by this
Court from time to time are that the restriction should not be excessive and in
public interest. The legislation should not invade the rights and should not
smack of arbitrariness. The test of reasonableness cannot be determined by
laying down any abstract standard or general pattern. It would depend upon
the nature of the right which has been infringed or sought to be infringed.
The ultimate "impact", that is, effect on the right has to be determined. The
"impact doctrine" or the principle of "inevitable effect" or "inevitable
consequence" stands in contradistinction to abuse or misuse of a legislation
or a statutory provision depending upon the circumstances of the case. The
prevailing conditions of the time and the principles of proportionality of
restraint are to be kept in mind by the court while adjudging the
constitutionality of a provision regard being had to the nature of the right.
The nature of social control which includes public interest has a role. The
conception of social interest has to be borne in mind while considering
reasonableness of the restriction imposed on a right. The social interest

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principle would include the felt needs of the society. [125]
As the submissions would show, the stress is given on the right to freedom of
speech and expression in the context of individual growth, progress of
democracy, conceptual respect for a voice of dissent, tolerance for discordant
note and acceptance of different voices. Right to say what may displease or
annoy others cannot be throttled or garroted. There can never be any cavil
over the fact that the right to freedom of speech and expression is a right that
has to get ascendance in a democratic body polity, but at the same time the
limit has to be proportionate and not unlimited. It is urged that the
defamation has been described as an offence Under Section 499 Indian Penal
Code that protects individual's perception of his own reputation which cannot
be elevated to have the status of public interest. The argument is that to give
a remedy 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.[125]
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.[126]
The thoughts of the aforesaid two thinkers, namely Patrick Henry and Edmund
Burke, as the Court understood, are not contrary to each other. They relate to
different situations and conceptually two different ideas; one speaks of an
attitude of compromising liberty by accepting chains and slavery to save life
and remain in peace than to death, and the other view relates to "qualified
civil liberty" and needed control for existence of the society. Contexts are not
different and reflect one idea. Rhetorics may have its own place when there is
disproportionate restriction but acceptable restraint subserves the social
interest. In the case at hand, it is to be seen whether right to freedom and
speech and expression can be allowed so much room that even reputation of
an individual which is a constituent of Article 21 would have no entry into
that area. To put differently, in the name of freedom of speech and
expression, should one be allowed to mar the other's reputation as is
understood within the ambit of defamation as defined in criminal law.[129]
The aforementioned authorities clearly state that balancing of fundamental
rights is a constitutional necessity. It is the duty of the Court to strike a
balance so that the values are sustained. The submission is that continuance
of criminal defamation Under Section 499 Indian Penal Code is
constitutionally inconceivable as it creates a serious dent in the right to
freedom of speech and expression. It is urged that to have defamation as a
component of criminal law is an anathema to the idea of free speech which is
recognized under the Constitution and, therefore, criminalization of
defamation in any form is an unreasonable restriction. We have already held
that reputation is an inextricable aspect of right to life Under Article 21 of the
Constitution and the State in order to sustain and protect the said reputation

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of an individual has kept the provision Under Section 499 Indian Penal Code
alive as a part of law. The seminal point is permissibility of criminal
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.[139]
In this regard, reproduction of a passage from Noise Pollution (V), In re 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 to make his voice trespass
into the ears or mind of others. Nobody can indulge in aural aggression. If
anyone increases his volume of speech and that too with the assistance of
artificial devices so as to compulsorily expose unwilling persons to hear a
noise raised to unpleasant or obnoxious levels, then the person speaking is
violating the right of others to a peaceful, comfortable and pollution-free life
guaranteed by Article 21. Article 19(1)(a) cannot be pressed into service for
defeating the fundamental right guaranteed by Article 21. We need not
further dwell on this aspect. Two decisions in this regard delivered by the
High Courts have been brought to our notice wherein the right to live in an
atmosphere free from noise pollution has been upheld as the one guaranteed
by Article 21 of the Constitution."[139]
The Court was in respectful agreement with the aforesaid enunciation of law.
Reputation being an inherent component of Article 21, the Court did not think
it should be allowed to be sullied solely because another individual can have
its freedom. It is not a restriction that has an inevitable consequence which
impairs circulation of thought and ideas. In fact, it is control regard being had
to another person's right to go to Court and state that he has been wronged
and abused. He can take recourse to a procedure recognized and accepted in
law to retrieve and redeem his reputation. Therefore, the balance between
the two rights needs to be struck. "Reputation" of one cannot be allowed to
be crucified at the altar of the other's right of free speech. The legislature in
its wisdom has not thought it appropriate to abolish criminality of defamation
in the obtaining social climate.[140]
The Court has referred to Shreya Singhal v. Union of India in extenso as it has
been commended to it to pyramid the submission that it lays the foundation
stone for striking down Sections 499 and 500 Indian Penal Code because
existence of defamation as a criminal offence has a chilling effect on the right
to freedom of speech and expression. As the Court understood the decision,
the two-Judge Bench has neither directly nor indirectly laid down such a
foundation. The analysis throughout the judgment clearly pertains to the
vagueness and to an act which would make an offence dependent on

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uncertain factors billowed in inexcactitude and wide amplitude. The Court has
ruled that Section 66-A also suffers from vice of procedural unreasonableness.
The judgment drew distinction and observed defamation was different. Thus,
the canvas is different. Once the Court has 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.[145]
The analysis therein would show that tendency to create public disorder is not
evincible in the language employed in Section 66A. Section 66A dealt with
punishment for certain obscene messages through communication service,
etc. A new offence had been created and the boundary of the forbidding area
was not clearly marked as has been held in Kedar Nath Singh v. State of
Bihar. The Court also opined that the expression used in Section 66-A having
not been defined and further the provision having not used the expression
that definitions in Indian Penal Code will apply to the Information Technology
Act, 2000, it was vague. The decision in Shreya Singhal v. Union of India is
placed reliance upon to highlight that a restriction has to be narrowly tailored
but criminal defamation is not a narrowly tailored concept. The Court has
early opined that the word "defamation" is in existence from the very
beginning of the Constitution. Defamation as an offence is admittedly a pre-
constitutional law which was in existence when the Constitution 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.[149]
It may be noted here that the decisions rendered in Ramji Lal Modi v. State of
U.P. and Kedar Nath Singh v. State of Bihar 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 the Court has reproduced from S.
Rangarajan v. P. Jagjivan Ram and Ors., which has also been referred to in
Shreya Singhal v. Union of India, has to be understood in the context in which
it is stated having regard to the facts of the case... Therefore, in the ultimate
conclusion, the Court came to hold that applying the doctrine of balancing of
fundamental rights, existence of defamation as a criminal offence is not
beyond the boundary of Article 19(2) of the Constitution, especially when the
word "defamation" has been used in the Constitution.[149]
Permissibility of criminal defamation can be tested on the touchstone of
constitutional fraternity and fundamental duty. It is submitted by Mr.
Narsimha, learned Additional Solicitor General that right to reputation being
an inseparable component of Article 21 deserves to be protected in view of
Preambular concept. Learned Additional Solicitor General has referred to the

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Preamble to the Constitution which provides for "... to promote among them
all Fraternity assuring the dignity of the individual..."[150]
The term "fraternity" has a significant place in the history of constitutional
law. It has, in fact, come into prominence after French Revolution. The motto
of Republican France echoes:'Liberte, egalite, fraternite', 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 per-ambulatory promise. 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 Constitution should be emphasized by special
mention in the Preamble." Fraternity, as a constitutional concept, is
umbilically connected with justice, equality and liberty.[151] and[152]
Fraternity as a concept is characteristically different from the other
constitutional goals. It, as a constitutional concept, has a keen bond of
sorority with other concepts. And hence, it must be understood in the breed of
homogeneity in a positive sense and not to trample dissent and diversity. It is
neither isolated nor lonely. The idea of fraternity is recognised as a
constitutional norm and a precept. It is a constitutional virtue that is required
to be sustained and nourished.[154]
It is a constitutional value which is to be cultivated by the people themselves
as a part of their social behavior. There are two schools of thought; one
canvassing individual liberalization and the other advocating for protection of
an individual as a member of the collective. The individual should have all the
rights under the Constitution but simultaneously he has the responsibility to
live upto the constitutional values like essential brotherhood-the fraternity-
that strengthens the societal interest. Fraternity means brotherhood and
common interest. Right to censure and criticize does not conflict with the
constitutional objective to promote fraternity. Brotherliness does not abrogate
and rescind the concept of criticism. In fact, brothers can and should be
critical. Fault finding and disagreement is required even when it leads to an
individual disquiet or group disquietude. Enemies Enigmas Oneginese on the
part of some does not create a dent in the idea of fraternity but, a significant
one, liberty to have a discordant note does not confer a right to defame the
others. The dignity of an individual is extremely important.[155]
The concept of fraternity under the Constitution expects every citizen to
respect the dignity of the other. Mutual respect is the fulcrum of fraternity
that assures dignity. It does not mean that there cannot be dissent or
difference or discordance or a different voice. It does not convey that all
should join the chorus or sing the same song. Indubitably not. One has a right
to freedom of speech and expression. One is also required to maintain the
constitutional value which is embedded in the idea of fraternity that assures
the dignity of the individual. One is obliged under the Constitution to promote
the idea of fraternity. It is a constitutional obligation.[158]
The Court has referred to two concepts, namely, constitutional fraternity and

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the fundamental duty, as they constitute core constitutional values. Respect
for the dignity of another is a constitutional norm. It would not amount to an
overstatement if it is said that constitutional fraternity and the intrinsic value
inhered in fundamental duty proclaim the constitutional assurance of mutual
respect and concern for each other's dignity. The individual interest of each
individual serves the collective interest and correspondingly the collective
interest enhances the individual excellence. Action against the State is
different than an action taken by one citizen against the other. The
constitutional value helps in structuring the individual as well as the
community interest. Individual interest is strongly established when
constitutional values are respected. The Preamble balances different and
divergent rights. Keeping in view the constitutional value, the legislature has
not repealed Section 499 and kept the same alive as a criminal offence. The
studied analysis from various spectrums, it is difficult to come to a conclusion
that the existence of criminal defamation is absolutely obnoxious to freedom
of speech and expression. As a prescription, it neither invites the frown of any
of the Articles of the Constitution nor its very existence can be regarded as an
unreasonable restriction.[163]
To constitute the offence of "defamation", there has to be imputation and it
must have made in the manner as provided in the provision with the intention
of causing harm or having reason to believe that such imputation will harm
the reputation of the person about whom it is made. Causing harm to the
reputation of a person is the basis on which the offence is founded and mens
rea is a condition precedent to constitute the said offence. The complainant
has to show that the accused had intended or known or had reason to believe
that the imputation made by him would harm the reputation of the
complainant. The criminal offence emphasizes on the intention or harm.
Section 44 of Indian Penal Code defines "injury". It denotes any harm
whatever illegally caused to any person, in body, mind, reputation or property.
Thus, the word "injury" encapsulates harm caused to the reputation of any
person. It also takes into account the harm caused to a person's body and
mind. Section 499 provides for harm caused to the reputation of a person,
that is, the complainant.[165]
Having dwelt upon the ingredients, it is necessary to appreciate the
Explanations appropriately. There are four Explanations to the main provision
and an Explanation has been appended to the Fourth Exception. Explanation 4
needs to be explained first. It is because the said Explanation provides the
expanse and the inherent control wherein what imputation has been regarded
as harm to a person's reputation and that an imputation can only be treated
as harm of a person's reputation if it directly or indirectly, in the estimation of
others, lowers the moral or intellectual character of that person, or lowers the
character of that person in respect of his caste or of his calling, or lowers the
credit of that person, or causes it to be believed that the body of that person
is in a loathsome state, or in a state generally considered as disgraceful. The
Court was conscious that it was 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.[166]
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

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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 is anomalous and creates a piquant
situation which can effortlessly be called unreasonable, for when a civil suit
cannot be entertained or allowed to be prosecuted by the legal heirs or the
legal representatives, how could they prosecute criminal offence by filing a
complaint. On a first blush, the aforesaid submission looks quite attractive,
but on a keener scrutiny, it loses its significance.[167]
The enunciation of law makes it clear how and when the civil action is not
maintainable by the legal heirs. The prosecution, as envisaged in Explanation
1, lays two postulates, that is, (i) the imputation to a deceased person is of
such a nature that would have harmed the reputation of that person if he was
living and (ii) the said imputation must be intended to be hurtful to the
feelings of the family or other near relatives. Unless the twin tests are
satisfied, the complaint would not be entertained Under Section 199 of Code
of Criminal Procedure. The said Explanation protects the reputation of the
family or relatives. The entitlement to damages for personal injury is in a
different sphere whereas a criminal complaint to be filed by the family
members or other relatives under twin tests being satisfied is in a distinct
compartment. It is more rigorous. The principle of grant of compensation and
the principle of protection of reputation of family or near relative cannot be
equated. Therefore, the Court did not find any extra mileage is given to the
legal heirs of a deceased person when they have been made eligible to
initiate a criminal action by taking recourse to file a criminal complaint.[169]
Explanation 2 deals with imputation concerning a company or an association
or collection of persons as such. Explanation 3 says that an imputation in the
form of an alternative or expressed ironically may amount to defamation.
Section 11 of Indian Penal Code defines "person" to mean a company or an
association or collection of persons as such or body of persons, whether
incorporated or not. The inclusive nature of the definition indicates that
juridical persons can come within its ambit. The submission advanced on
behalf of the Petitioners is that collection of persons or, for that matter,
association, is absolutely vague. More than five decades back, the Court, in
Sahib Singh Mehra v. State of Uttar Pradesh 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.
[170]
The enunciation of law clearly lays stress on determinate and definite body. It

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also lays accent on identifiable body and identity of the collection of persons.
It also significantly states about the test of precision so that the collection of
persons have a distinction. Thus, it is fallacious to contend that it is totally
vague and can, by its inclusiveness, cover an indefinite multitude. The Court
has to understand the concept and appositely apply the same. There is no
ambiguity. Be it noted that a three-Judge Bench, though in a different
context, in Aneeta Hada v. Godfather Travels and Tours (P) Ltd. has ruled that
a company has its own reputation. Be that as it may, it cannot be said that
the persons covered under the Explanation are gloriously vague.[172]
Having dealt with the four Explanations, presently, the Court analysed the
Exceptions and noted certain authorities 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, 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.[173]
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 the basic foundation of justice, but
this Exception does not recognize truth as a defence and, therefore, it
deserves to be struck down. It has been canvassed by Mr. Rao, learned senior
counsel, that the term "public good" is a vague concept and to bolster the
said submission, he has placed reliance upon Harakchand Ratanchand Banthia
and Ors. v. Union of India and Ors. to highlight that in the said case, it has
been held that "public interest" do not provide any objective standard or
norm.[174] and[175]
The context in which the said decision was rendered has to be appreciated. As
the Court perceived, the factual score and the provision under challenge was
totally different. It has been stated in the backdrop of the power conferred on
an administrative authority for the purpose of renewal of licence, and in that
context, the Court opined that the criterion of "public interest" did not
provide objective standard. The Court, on analysis of the provision from a
manifold angle, opined that the provision proposed unreasonable restriction.
The context and the conferment of power makes a gulf of difference and,
therefore, the said authority has to be considered on its own facts. It cannot
be ruled that it lays down as a principle that "public interest" is always
without any norm or guidance or has no objective interest. Ergo, the said
decision is distinguishable.[175] and[176]
In Arundhati Roy, In re, this Court, referring to Second Exception, observed
that even a person claiming the benefit of Second Exception to Section 499 of

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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 in Sahib Singh Mehra v. State of Uttar Pradesh.
The Court has clarified that if defamatory remarks are made after due care
and attention, it will be regarded as made in good faith. In the said case, the
Court also adverted to Ninth Exception which gives protection to imputation
made in good faith for the protection of the interest of the person making it or
of any other person or for the public good. [177]
A three-Judge Bench in Harbhajan Singh v. State of Punjab and Anr. has
opined that where the accused invokes Ninth Exception to Section 499 Indian
Penal Code, good faith and public good are both to be satisfied and the failure
of the Appellant to prove good faith would exclude the application of Ninth
Exception in favour of the accused even if requirement of public good is
satisfied. The Court has referred to Section 52 Indian Penal Code which
defines "good faith" that requires the element of honesty. It is necessary to
note here that the three-Judge Bench has drawn a distinction between the
First Exception and the Ninth Exception to opine that the proof of truth which
is one of the ingredients of the First Exception is not an ingredient of the
Ninth Exception and what the Ninth Exception requires an accused person to
prove is that he made the statement in good faith. Proceeding further, the
Court has stated that in dealing with the claim of the accused under the Ninth
Exception, it is not necessary and, in a way, immaterial, to consider whether
he has strictly proved the truth of the allegations made by him.[177]
Fifth Exception stipulates that it is not defamation to express in good faith
any opinion whatever respecting the merits of any case, civil or criminal
which has been decided by a Court of Justice, or respecting the conduct of any
person as a party, witness or agent. The further stipulation is that the said
opinion must relate to the character of said person, as far as his character
appears in that conduct.[180]
Again in M.C. Verghese v. T.J. Poonan, it has been ruled that a person making
libellous statements in his complaint filed in Court is not absolutely protected
in a criminal proceeding for defamation, for under the Eighth Exception and
the illustration to Section 499 the statements are privileged only when they
are made in good faith. There is, therefore, authority for the proposition that
in determining the criminality of an act under the Indian Penal Code the
Courts will not extend the scope of special exceptions by resorting to the Rule
peculiar to English common law that the husband and wife are regarded as
one. In Chaman Lal v. State of Punjab this Court has opined that the Eighth
Exception to Section 499 of the Indian Penal Code indicates that accusation
in good faith against the person to any of those who have lawful authority

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over that person is not defamation. In Rajendra Kumar Sitaram Pande v.
Uttam, it has been observed that Exception 8 to Section 499 Indian Penal
Code clearly indicates that it is not a defamation to prefer in good faith an
accusation against any person to any of those who have lawful authority over
that person with regard to the subject-matter of accusation.[181]
The detailed discussion made hereinabove do clearly reveal that neither the
main provision nor the Explanation nor the Exceptions remotely indicate any
vagueness. It is submitted that the Exceptions make the offence more
rigorous and thereby making the concept of criminal defamation extremely
unreasonable. The criticism advanced pertain to truth being not a defence,
and unnecessary stress on 'public good'. The counter argument is that if a
truthful statement is not made for any kind of public good but only to malign
a person, it is a correct principle in law that the statement or writing can
amount to defamation. Dr. Singhvi, learned senior Counsel for some of the
Respondents has given certain examples. The examples pertain to an
imputation that a person is an alcoholic; an imputation that two family
members are involved in consensual 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. The Court has 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.[183]
From the analysis, the Court has 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 criminal defamation on the statute book and
the manner in which the provision is engrafted suffers from disproportionality
because it has room for such restriction which is disproportionate.[184]
Needless to emphasise that when a law limits a constitutional right which
many laws do, such limitation is constitutional if it is proportional. The law
imposing restriction is proportional if it is meant to achieve a proper purpose,
and if the measures taken to achieve such a purpose are rationally connected
to the purpose, and such measures are necessary. Such limitations should not
be arbitrary or of an excessive nature beyond what is required in the interest
of the public. Reasonableness is judged with reference to the objective which
the legislation seeks to achieve, and must not be in excess of that objective.
Further, the reasonableness is examined in an objective manner form the
stand point of the interest of the general public and not from the point of
view of the person upon whom the restrictions are imposed or abstract
considerations.[185]
One cannot be unmindful that right to freedom of speech and expression is a

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highly valued and cherished right but the Constitution conceives of
reasonable restriction. In that context criminal defamation which is in
existence in the form of Sections 499 and 500 Indian Penal Code is not a
restriction on free speech that can be characterized as disproportionate. Right
to free speech cannot mean that a citizen can defame the other. Protection of
reputation is a fundamental right. It is also a human right. Cumulatively it
serves the social interest. Thus, we are unable to accept that provisions
relating to criminal defamation are not saved by doctrine of proportionality
because it determines a limit which is not impermissible within the criterion
of reasonable restriction.[186]
It has been held in D.C. Saxena (Dr.) v. Hon'ble The Chief Justice of India,
though in a different context, that if maintenance of democracy is the
foundation for free speech, society equally is entitled to regulate freedom of
speech or expression by democratic action. The reason is obvious, viz., that
society accepts free speech and expression and also puts limits on the right of
the majority. Interest of the people involved in the acts of expression should
be looked at not only from the perspective 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.[186]
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 majority. It has kept the criminal defamation on the statute book as in
the existing social climate it subserves the collective interest because
reputation of each is ultimately inhered in the reputation of all. The
submission that imposition of silence will Rule over eloquence of free speech
is a stretched concept inasmuch as the said proposition is basically founded
on the theory of absoluteness of the fundamental right of freedom of speech
and expression which the Constitution does not countenance.[187]
The Court then adverted to Section 199 of Code of Criminal Procedure, which
provides for prosecution for defamation. 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, the Court referred to
plethora of decisions in course of its 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 persons. In fact, it can be stated that the "person
aggrieved" is to be determined by the courts in each case according to the

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fact situation. It will require ascertainment on due deliberation of the facts.
[188] and[189]
It has also been commented upon that by giving a benefit to public servant
employed in connection with the affairs of the Union or of a State in respect
of his conduct in the discharge of public functions to file the case through
public prosecutor, apart from saving his right Under Sub-section (6) of Section
199 Code of Criminal Procedure, the provision becomes discriminatory. In this
regard, it is urged that a public servant is treated differently than the other
persons and the classification invites the frown of Article 14 of the
Constitution and there is no base for such classification. Thus, the attack is on
the base of Article 14 of the Constitution.[190]
Be it stated that learned Counsel for the Petitioners stated that there can be
no cavil about the President of India, the Vice-President of India, the
Governor of a State, the Administrator of a Union territory but about others
whose names find mention in the provision there is no justification to put
them in a different class to enable them to file a case through the public
prosecutor in the Court of Session. A studied scrutiny of the provision makes
it clear that a public servant is entitled to file a complaint through public
prosecutor in respect of his conduct in discharge of public functions. Public
function stands on a different footing than the private activities of a public
servant. The provision gives them protection for their official acts. There
cannot be defamatory attacks on them because of discharge of their due
functions. In that sense, they constitute a different class. Be it clarified here
that criticism is different than defamation. One is bound to tolerate criticism,
dissent and discordance but not expected to tolerate defamatory attack.[192]
Sub-section (6) gives to a public servant what every citizen has as he cannot
be deprived of a right of a citizen. There can be cases where sanction may not
be given by the State Government in favour of a public servant to protect his
right and, in that event, he can file a case before the Magistrate. The
provision relating to engagement of public prosecutor in defamation cases in
respect of the said authorities is seriously criticized on the ground that it
allows unnecessary room to the authorities mentioned therein and the public
servants to utilize the Public Prosecutor to espouse their cause for vengeance.
Once it is held that the public servants constitute a different class in respect
of the conduct pertaining to their discharge of duties and functions, the
engagement of Public Prosecutor cannot be found fault with. It is ordinarily
expected that the Public Prosecutor has a duty to scan the materials on the
basis of which a complaint for defamation is to be filed. He has a duty towards
the Court.[193]
The other ground of attack is that when a complaint is filed in a Court of
Session, right of 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 where a public servant
is defamed. In Court's considered opinion, when sufficient protection is given
and the right to appeal to the High Court is not curtailed as the Code of
Criminal Procedure protects it, the submission does not really commend

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acceptation. In view of the aforesaid, the Court did not perceive any
justification to declare the provisions ultra vires.[193]
On behalf of Petitioner-Foundation of Media Professionals, Mr. Bhambhani,
learned senior Counsel has submitted that the operation of the Press and
Registration of Books Act, 1867 (1867 Act) must necessitate a Magistrate to
accord due consideration of the provision of the 1867 Act before summoning
the accused. Attention has been drawn to the Sections 3, 5, 6 and 8 of the
1867 Act and it is submitted that only person recognized under the said Act as
editor, publisher, printer and owner could be summoned in the proceeding
Under Section 499 Indian Penal Code (Indian Penal Code), apart from the
author or person who has made the offending statements. The submission of
the Petitioner, Mr. Bhambhani, learned senior Counsel is that in all the
proceedings Under Section 499 of Indian Penal Code against a newspaper the
accused must be confined to those who are identifiable to be responsible
Under Section 5 of the 1867 Act. In Court's considered opinion that the said
aspects can be highlighted by an aggrieved person either in a challenge for
quashing of the complaint or during the trial. There is no necessity to deal
with the said facet while deliberating upon the constitutional validity of the
provisions.[194]
In the course of hearing, it has been argued that the multiple complaints are
filed at multiple places and there is abuse of the process of the court. In the
absence of any specific provisions to determine the place of proceedings in a
case of defamation, it shall be governed by the provisions of Chapter XIII of
the Code of Criminal Procedure-Jurisdiction of the Criminal Courts in Inquiries
and Trials. A case is ordinarily tried where the Offence is committed (Section
177). The expression used in Section 177 is "shall ordinarily be inquired and
tried" by a court within whose jurisdiction it was committed. Whereas "shall"
brings a mandatory requirement, the word "ordinarily" brings a situational
variation which results in an interpretation that the case may be 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).[195]
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 steps in
accordance with law. But that cannot be a reason for declaring the provision
unconstitutional.[195]
Another aspect requires to be addressed pertains to issue of summons.

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Section 199 Code of Criminal Procedure envisages filing of a complaint in
court. In case of criminal defamation neither any FIR can be filed nor can any
direction be issued Under Section 156(3) Code of Criminal Procedure. The
offence has its own gravity and hence, the responsibility of the Magistrate is
more. In a way, it is immense at the time of issue of process. Issue of process,
as has been held in Rajindra Nath Mahato v. T. Ganguly, Dy. Superintendent
and Anr., is a matter of judicial determination and before issuing a process,
the Magistrate has to examine the complainant.[196]
In Punjab National Bank and Ors. v. Surendra Prasad Sinha, it has been held
that judicial process should not be an instrument of oppression or needless
harassment. The Court, though in a different context, has observed that there
lies responsibility and duty on the Magistracy to find whether the concerned
accused should be legally responsible for the offence charged for. Only on
satisfying that the law casts liability or creates offence against the juristic
person or the persons impleaded then only process would be issued. At that
stage the court would be circumspect and judicious in exercising discretion
and should take all the relevant facts and circumstances into consideration
before issuing process lest it would be an instrument in the hands of the
private complaint as vendetta to harass the persons needlessly. Vindication of
majesty of justice and maintenance of law and order in the society are the
prime objects of criminal justice but it would not be the means to wreak
personal vengeance. In Pepsi Foods Ltd. and Anr. v. Special Judicial
Magistrate and Ors., a two-Judge Bench has held that summoning of an
accused in a criminal case is a serious matter and criminal law cannot be set
into motion as a matter of course.[196]
The Court referred to the authorities to highlight that in matters of criminal
defamation the heavy burden is on the Magistracy to scrutinise the complaint
from all aspects. The Magistrate has also to keep in view the language
employed in Section 202 Code of Criminal Procedure which stipulates about
the resident of the accused at a place beyond the area in which the
Magistrate exercises his jurisdiction. He must be satisfied that ingredients of
Section 499 Code of Criminal Procedure are satisfied. Application of mind in
the case of complaint is imperative.[197]
The Court felt that it will be failing in its duty if it did 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 v. Kittu 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
Exception should be taken into consideration at the time of the issuing
summons it would be contrary to established criminal jurisprudence and,
therefore, the stand that it cannot be taken into consideration makes the

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provision unreasonable, is absolutely an unsustainable one and in a way, a
mercurial one. And the Court unhesitatingly repelled the same.[198]
In view of the aforesaid analysis, the Court upheld the constitutional validity
of Sections 499 and 500 of the Indian Penal Code and Section 199 of the
Code of Criminal Procedure. During the pendency of the Writ Petitions, this
Court had directed stay of further proceedings before the trial court. As the
Court declared the provisions to be constitutional, it observed that it will be
open to the Petitioners to challenge the issue of summons before the High
Court either Under Article 226 of the Constitution of India or Section 482
Code of Criminal Procedure, as advised and seek appropriate relief and for the
said purpose, Court granted eight weeks time to the Petitioners. The interim
protection granted by this Court shall remain in force for a period of eight
weeks. However, it is made clear that, if any of the Petitioners has already
approached the High Court and also become unsuccessful before this Court,
he shall face trial and put forth his defence in accordance with law.[199]
The Writ Petitions and the Transfer Petitions are disposed of accordingly. All
pending criminal miscellaneous petitions also stand disposed of.[200]

JUDGMENT
Dipak Misra, J.
1 . This batch of writ petitions preferred Under Article 32 of the Constitution of India
exposits cavil in its quintessential conceptuality and percipient discord between
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 treated as
things of the past, a symbol of colonial era where the ruler ruled over the subjects and
vanquished concepts of resistance; and, in any case, the individual grievances
pertaining to reputation can be agitated in civil courts and thus, there is a remedy and
viewed from a prismatic perspective, there is no justification to keep the provision of
defamation in criminal law alive as it creates a concavity and unreasonable restriction in
individual freedom and further progressively mars voice of criticism and dissent which
are necessitous for the growth of genuine advancement and a matured democracy.
2. The structural architecture of these writ petitions has a history, although not in any
remote past, but, in the recent times. In this batch of writ petitions, we are required to
dwell upon the constitutional validity of Sections 499 and 500 of the Indian Penal Code,
1860 (for short, 'Indian Penal Code') and Sections 199(1) to 199(4) of the Code of
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Criminal Procedure, 1973 (for short, "Code of Criminal Procedure"). It is necessary to
note here that when the Writ Petition (Crl.) No. 184 of 2014 was taken up for
consideration, Dr. Subramanian Swamy, the Petitioner appearing in-person, had drawn
our attention to paragraph 28 of the decision in R. Rajagopal alias R.R. Gopal and
Anr. v. State of T.N. and Ors. MANU/SC/0056/1995 : (1994) 6 SCC 632 which
reads as follows:
In all this discussion, we may clarify, we have not gone into the impact of
Article 19(1)(a) read with Clause (2) thereof on Sections 499 and 500 of the
Indian Penal Code. That may have to await a proper case.
3. Dr. Swamy had also drawn our attention to the observations made in N. Ravi and
Ors. v. Union of India and Ors. MANU/SC/1314/2004 : (2007) 15 SCC 631, which
are to the following effect:
Strictly speaking on withdrawal of the complaints, the prayer about the validity
of Section 499 has also become academic, but having regard to the importance
of the question, we are of the view, in agreement with the learned Counsel for
the Petitioners, that the validity aspect deserves to be examined. In this view,
we issue rule, insofar as prayer (a) is concerned.
4. On the aforesaid plinth, a mansion of argument was sought to be built, and that is
why we have used the term 'history'. Regard being had to the importance of the matter,
we had asked Mr. K. Parasaran and Mr. T.R. Andhyarujina, learned senior Counsel to
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, or knowing or having
reason to believe that such imputation will harm, the reputation of such person,
is said, except in the case hereinafter expected to defame that person.
Explanation 1.--It may amount to defamation to impute anything to a deceased
person, if the imputation would harm the reputation of that person if living, and
is intended to be hurtful to the feelings of his family or other near relatives.
Explanation 2.--It may amount to defamation to make an imputation concerning
a company or an association or collection of persons as such.

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 Explanation 3.--An imputation in the form of an alternative or expressed
ironically, may amount to defamation.
Explanation 4.--No imputation is said to harm a person's reputation, unless that
imputation directly or indirectly, in the estimation of others, lowers the moral
or intellectual character of that person, or lowers the character of that person in
respect of his caste or of his calling, or lowers the credit of that person, or
causes it to be believed that the body of that person is in a loathsome state, or
in a state generally considered as disgraceful.
First Exception.--Imputation of truth which public good requires to be made or
published-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. Whether or not it is for the public good is a question of fact.
Second Exception.--Public conduct of public servants.--It is not defamation to
express in good faith any opinion whatever respecting 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, and no further.
Third Exception.--Conduct of any person touching any public question.--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, and no further.
Fourth Exception.--Publication of reports of proceedings of Courts-It is not
defamation to publish substantially true report of the proceedings of a Court of
Justice, or of the result of any such proceedings.
Explanation.--A Justice of the Peace or other officer holding an inquiry in open
Court preliminary to a trial in a Court of Justice, is a Court 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 or arising out of a lawful contract made with
mat other, to pass in good faith any censure on the conduct of that other in

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 matters to which such lawful authority relates.
Eighth Exception.--Accusation preferred in good faith to authorised person-It is
not defamation to prefer in good faith an accusation against any person to any
of those who have lawful authority over that person with respect to the subject-
matter of accusation.
Ninth Exception.--Imputation made in good faith by person for protection of his
or other's interests-It is not defamation to make an imputation on the character
of another provided that the imputation be made in good faith for the protection
of the interests of the person making it, or of any other person, or for the
public good.
Tenth Exception.--Caution intended for good of person to whom conveyed or
for public good-It is not defamation to convey a caution, in good faith, to one
person against another, provided that such caution be intended for the good of
the person to whom it is conveyed, or of some person in whom that person is
interested, or for the public good.
Section 500. Punishment for defamation.--Whoever defames another shall
be punished with simple imprisonment for a term which may extend to two
years, or with fine, or with both.
Section 199 Code of Criminal Procedure provides for prosecution for defamation. It is
apposite to reproduce the said provision in entirety. It is as follows:
199. Prosecution for defamation.--
(1) No Court shall take cognizance of an offence punishable under
Chapter XXI of the Indian Penal Code (45 of 1860) except upon a
complaint made by some person aggrieved by the offence:
Provided that where such person is under the age of eighteen
years, or is an idiot or a lunatic, or is from sickness or infirmity
unable to make a complaint, or is a woman who, according to
the local customs and manners, ought not to be compelled to
appear in public, some other person may, with the leave of the
Court, make a complaint on his or her behalf.
(2) Notwithstanding anything contained in this Code, when any offence
falling under Chapter XXI of the Indian Penal Code (45 of 1860) is
alleged to have been committed against a person who, at the time of
such commission, is the President of India, the Vice-President of India,
the Government of a State, the Administrator of a Union territory or a
Minister 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

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 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 within six months from the
date on which the offence is alleged to have been committed.
(6) 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.
It may be stated that the aforesaid provision came into existence in the present
incarnation after introduction of Section 199(2) to (5) by the Code of Criminal
Procedure (Amendment) Act, 1955 on 10th August, 1955.
7 . The constitutionality of the aforesaid provisions have been challenged on many a
score and from many an angle by different counsel appearing for the writ Petitioners
who belong to different walks of life. First, we shall record the submissions in their
essential facets of the learned Counsel for the Petitioners, the contentions advanced by
the learned Attorney General and the Additional Solicitor General in defence of the
provisions and thereafter the arguments put forth by the learned Amicus Curiae. We
may immediately state that the effort would be to record the submissions in fullest, may
be sans elaborations and individualistically crafted and sculptured nuances during the
oral hearings.
8. Submissions of Mr. P.P. Rao and Ms. Mahalakshmi Pavani
i. The right to uninhibited freedom of speech conferred by Article 19(1)(a) is
basic and vital for the sustenance of parliamentary democracy, which is a part
of the basic structure of the Constitution. The "reasonable restrictions" are
those which are meant to prevent the expression of a thought which is
intrinsically dangerous to public interest and would not include anything else.
The enabling power in Article 19(2) to impose reasonable restrictions on the
right conferred by Article 19(1)(a) is intended to safeguard the interests of the
State and the general public and not of any individual, and, therefore, Article
19(2) cannot be regarded as the source of authority for Section 499 of Indian
Penal Code which makes defamation of any person an offence. That apart,
Article 19(2), being an exception to Article 19(1)(a), needs to be construed
narrowly and it cannot constrict the liberal interpretation warranted to be placed
on Article 19(1)(a) of the Constitution. The schematic intendment in Clause (2)
of Article 19 is founded on the fundamental tenet of interests of the State and
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 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),
defamation of any person by private person cannot be treated as a "crime", for
it does not subserve any public interest.
iii. Section 499 of Indian Penal Code ex facie infringes free speech and it is a
serious inhibition on the fundamental right conferred by Article 19(1) (a) and
hence, cannot be regarded as a reasonable restriction in a democratic republic.
A restriction that goes beyond the requirement of public interest cannot be
considered as a reasonable restriction and would be arbitrary. Additionally,
when the provision even goes to the extent of speaking of truth as an offence
punishable with imprisonment, it deserves to be declared unconstitutional, for it
defeats the cherished value as enshrined Under Article 51-A(b) which is
associated with the national struggle of freedom. The added requirement of the
accused having to prove that the statement made by him was for the public
good is unwarranted and travels beyond the limits of reasonableness because
the words "public good" are quite vague as they do not provide any objective
standard or norm or guidance as a consequence the provisions do not meet the
test of reasonable restriction and eventually they have the chilling effect on the
freedom of speech.
iv. "Reasonableness" is not a static concept, and it may vary from time to time.
What is considered reasonable at one point of time may become arbitrary and
unreasonable at a subsequent point of time. The colonial law has become
unreasonable and arbitrary in independent India which is a sovereign,
democratic republic and it is a well known concept that provisions once held to
be reasonable, become unreasonable with the passage of time.
v. The Explanations and Exceptions appended to the main provision contained in
Section 499 Indian Penal Code, in case the constitutionality of the said Section is
upheld, are to be interpreted with contextual purpose regard being had to the broad
canvas they occupy and the sea change that has taken place in the society.
vi. The words like "company", "association" or "collection of persons as such" as used
in Explanation 2 should exclude each other because different words used in the Section
must be given different meanings and it is appropriate that they are not given meanings
by which an indefinite multitude can launch criminal cases in the name of class action
or common right to reputation.

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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 dent in free speech are unconstitutional.
ii. Free speech encapsulates the right to circulate one's independent view and
not to join in a chorus or sing the same song. It includes the right of
propagation of ideas, and the freedom of speech and expression cannot brook
restriction and definitely not criminal prosecution which is an anathema to free
speech. Free speech has priority over other rights and whenever and wherever
conflict emerges between the freedom of speech and other interest, the right of
freedom of expression can neither be suppressed nor curtailed unless such
freedom endangers community interest and that apart the said danger should
have immediate and proximate nexus with expression.
iii. Reasonable restriction is founded on the principle of reasonableness which
is an essential facet of constitutional law and one of the structural principles of
the constitution is that if the restriction invades and infringes the fundamental
right in an excessive manner, such a restriction cannot be treated to have
passed the test of reasonableness. The language employed in Sections 499 and
500 Indian Penal Code is clearly demonstrative of infringement in excess and
hence, the provisions cannot be granted the protection of Article 19(2) of the
Constitution. Freedom of expression is quintessential to the sustenance of
democracy which requires debate, transparency and criticism and dissemination
of information and the prosecution in criminal law pertaining to defamation
strikes at the very root of democracy, for it disallows the people to have their
intelligent judgment. The intent of the criminal law relating to defamation
cannot be the lone test to adjudge the constitutionality of the provisions and it
is absolutely imperative to apply the "effect doctrine" for the purpose of
understanding its impact on the right of freedom of speech and expression, and
if it, in the ultimate eventuality, affects the sacrosanct right of freedom, it is
ultra vires. The basic concept of "effect doctrine" would not come in the
category of exercise of power, that is, use or abuse of power but in the
compartment of direct effect and inevitable result of law that abridges the
fundamental right.
iv. Reasonable restriction cannot assume any disproportionate characteristic in
the name of reasonableness, for the concept of reasonableness, as a
constitutional vehicle, conceives of the doctrine of proportionality. The

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 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 rationale and this
distinction has no basis to withstand the constitutional scrutiny. Differential
treatment granted to them is an unacceptable discrimination and for the said
reason, provisions contained in Section 199(2) to (4) Code of Criminal
Procedure are liable to be struck down.
vii. Section 499 Indian Penal Code read in conjunction with Explanation IV
provides a storehouse of criteria for judging reputation and it allows a greater
width and discretion without any guidance and hence, the provision is arbitrary
and unreasonable. There is no justification to enable a company or association
or collection of persons to have the benefit of defamation in the criminal law.
Similarly, there is no justification for any criminal defamation to save
reputation of dead persons and for allowing his legal heirs to prosecute on the
ground that it is intended to be hurtful to the feelings of his family and other
near relatives.
viii. The provision relating to defamation Under Section 499 Indian Penal Code
does not recognize truth as an absolute defence but qualifies that if anything is
imputed which is even true concerning any person, it has to be for the "public
good". If a truthful statement is made and truth being the first basic character
of justice, to restrict the principle of truth only to public good is nothing but an
irrational restriction on the free speech. The concept of "good faith" has been
made intrinsic to certain Exceptions and that really scuttles the freedom of
speech and freedom of thought and expression and thereby it invites the
discomfort to Article 19(1)(a). The words "good faith" and "public good" have
to meet the test of reasonableness and proportionality which would include
honest opinion with due care and attention and the concept of reasonable
restriction has to be narrowed to the sphere of mala fide and reckless
disregard. When the concept of defamation is put in the compartment of
criminal offence by attributing a collective colour to it, it stifles the dissenting
voices and does not tolerate any criticism that affects the foundation of popular
and vibrant democracy which is a basic feature of the Constitution. Quite apart
from that, the concepts of information, ideas, criticisms and disclosures are not
only the need of the hour but also have imperatives; and in such a climate, to
retain defamation as a criminal offence will tantamount to allow a hollowness to
remain which will eventually have a chilling effect on the freedom of speech
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 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. Reputation at its best can be equated with an element of personal security or
a significant part of one's life and unification of virtues which makes the person
proud to protect such private interest but that cannot be regarded as a
justification to whittle down freedom of speech and expression which subserves
the public interest. The language in which Section 499 Indian Penal Code is
couched does not incorporate the seriousness test which has the potentiality of
provoking breach of peace by instigating people as a consequence of the public
interest is endangered but, on the contrary, it subserves only the private
interest and as it caters to individual revenge or acrimony which in the ultimate
eventuate, makes imposed silence to Rule over eloquent free speech.
iv. Though reputation has been treated to be a facet of Article 21 of the
Constitution, yet the scheme of the said Article is quite different and a
distinction is required to be drawn for protection of reputation Under Article 21
and enabling the private complainant to move the criminal court for his sense
of self-worth. The individual reputation can very well be agitated in a civil
court. But fear of a complainant who on the slightest pretext, can file criminal
prosecution, that too, on the base of subjective notion, the fundamental value
of freedom of speech and expression gets paralysed and the resultant effect is
that Sections 499 and 500 Indian Penal Code cause unnecessary discomfort to
Article 19(1)(a) and also to Article 14 of the Constitution.
v. The purpose of criminal prosecution is not concerned with repairing
individual injury, especially, reputation or vindicating or protecting the
reputation of an individual. The purpose of such law has to be the ultimate
protection of the society. Quintessentially, the provision cannot cater to
individual whims and notions about one's reputation, for it is done at the cost
of freedom of speech in the society which is impermissible. The restriction as
engrafted Under Article 19(2) has to be justified on the bedrock of necessity of
the collective interest. The nature of Exceptions carved out and the manner in
which they are engrafted really act as obstruction and are an impediment to the
freedom of speech and expression and such hindrances are inconceivable when
appreciated and tested on the parameters of international democratic values
that have become paramount as a globally accepted democratic culture.

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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 impact or criminal element in it.
iii. On a reading of Sections 499 & 500 Indian Penal Code and Section 199
Code of Criminal Procedure, it is manifest that there is presumption of facts as
a matter of law and that alone makes the provision arbitrary and once the
foundation is unreasonable and arbitrary, the provisions deserve to be declared
ultra vires Articles 14, 19 and 21 of the Constitution.
12. Submissions of Mr. Anup J. Bhambhani
i. The restrictions imposed Under Article 19(2) on the fundamental right to free
speech and expression as contained in Article 19(1)(a) should be reasonable in
substance as well as in procedure. The procedural provisions applicable to
complaints alleging criminal defamation Under Sections 499 and 500 Indian
Penal Code do not pass the test of reasonableness as envisaged Under Article
19(2) of the Constitution. That apart, in the absence of any definition of the
crime of defamation in a precise manner, it is hit by the principle of "void for
vagueness", for the Constitution of India does not permit to include all
categories of situations for constituting offence without making it clear what is
prohibited and what is permitted.
ii. The procedural safeguards can only stand the test of reasonableness if the
Exceptions to Section 499 Indian Penal Code are taken into consideration at the
time of summoning of the accused and if it is ensured that all material facts are
brought on record at that stage. But on a plain reading of the provision that is
not permissible and hence, the provision is ultra vires as the procedure
enshrined affects the basic marrow of the fundamental right pertaining to
freedom of speech and expression.
iii. Section 199(1) Code of Criminal Procedure which is intended to be a
restriction on who may file a criminal complaint Under Section 499/500 Indian
Penal Code has to be narrowly construed so as to confer a meaning to the
words "person aggrieved" that would not in its width, include a person other
than the victim, for that indirectly would affect the procedural safeguard which
eventually affects the substantive right.
iv. The essential ingredients of the offence Under Section 499 Indian Penal
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 Code which include making or publishing any imputation concerning any person
and that the said imputation must have been made with an intention to harm or
having reason to believe that the imputation 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 inasmuch as they are
absolutely vague and unreasonable. Section 499 Indian Penal Code, as it
stands, one may consider an opinion, and, another may call it defamation and,
therefore, the word "defamation" is extremely wide which makes it
unreasonable.
ii. Section 199(2) by which 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", when any offence falling under Chapter XXI of
the Indian Penal Code is alleged to have been committed against "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", if
appositely appreciated deprives the accused of an appeal to the Court of
Session and brings in the State machinery to prosecute a grievance which
would be otherwise personal to the concerned public servant.
iii. In terms of the press, criminal defamation has a chilling effect which leads
to suppress a permissible campaign. The threat of prosecution alone is enough
to suppress the truth being published, and also the investigating journalism
which is necessary in a democracy.
iv. If the Court is not inclined to strike down Section 499 Indian Penal Code, at
least in relation to criminal complaints arising out of media report where the
members of the media are prosecuted, a procedure akin to the decision in
Jacob Mathew v. State of Punjab and Anr. MANU/SC/0457/2005 : 2005
(6) SCC 1 should be adopted. To elaborate, a similar mechanism may be
devised for media professional, either through statutory bodies like the Press
Council of India or non-statutory bodies like the News Broadcasting Standards
Authority which may be given the power to recommend prosecutions in cases of
grossly negligent or malicious reporting made with ulterior motives.
PROPONEMENTS IN OPPUGNATION
14. Submissions of Mr. Mukul Rohatgi, learned Attorney General for India
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 i. Article 19(2) must be read as a part of the freedom of speech and expression
as envisaged Under Article 19(1)(a), for the freedom of speech as a right
cannot be understood in isolation. The freedom of speech is a robust right but
nonetheless, not unrestricted or heedless. Even though the Courts have often
drawn the difference between free speech under the U.S. Constitution and that
under the Indian Constitution, 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 as Article 19(2) represents varied social community
interest. That apart, contextual meaning of the term "defamation"; and if the
grounds of exception Under Article 19(2) are analysed, each of them represent
a public interest and so does defamation, for its principal object is to preserve
reputation as a shared value of the collective.
iii. The stand that criminal defamation Under Section 499 Indian Penal Code
smothers the freedom of speech and expression or is a threat to every dissent
and puts private wrong at the level of public wrong, is totally incorrect. The
legal theorists and thinkers have made a subtle distinction between private and
public wrong and it has been clearly stated that public wrong affects not only
the victim but injures the public and ultimately concerns the polity as a whole
and tested on that count, criminalization of defamation or damage to reputation
is meant to subserve basic harmony in polity.
iv. Right to reputation is an insegregable part of Article 21 of the Constitution.
A person's reputation is an inseparable element of an individual's personality
and it cannot be allowed to be tarnished in the name of right to freedom of
speech and expression because right to free speech does not mean right to
offend. Reputation of a person is neither metaphysical nor a property in terms
of mundane assets but an integral part of his sublime frame and a dent in it is a
rupture of a person's dignity, negates and infringes fundamental values of
citizenry right. Thus viewed, the right enshrined Under Article 19(1)(a) cannot
allowed to brush away the right engrafted Under Article 21, but there has to be
balancing of rights.
v. In many a country, criminal defamation does not infringe the freedom of
speech. The submission that protection of reputation can be sufficiently
achieved by taking recourse to civil law cannot be a ground to declare Section
499/500 Indian Penal Code as unconstitutional. It is to be borne in mind that
the criminal law and the civil law operate in different spheres and aspects and
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 in societal connotations have different perceptions. Monetary damage in civil
law cannot be said to be the only panacea; and permitting an individual to
initiate criminal action as provided under the law against the person making a
defamatory remark does not affect the constitutional right to freedom of speech
and in no 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 decree from the civil court is not justified and regard being
had to that, criminal defamation is constitutionally permissible.
vii. The State is under an obligation to protect human dignity of every
individual. Simultaneously, freedom of speech has its constitutional sanctity;
and in such a situation, balancing of rights is imperative and, therefore, the
Court should not declare the law relating to criminal defamation as
unconstitutional on the ground of freedom of speech and expression as it is
neither an absolute right nor can it confer allowance to the people to cause
harm to the reputation of others. The apprehension of abuse of law, or for that
matter, abuse of a provision of law would not invalidate the legislation.
Possibility of abuse, as is well settled, does not offend Article 14 of the
Constitution. A distinction has to be drawn between the provision in a statute
and vulnerability of the action taken under such a provision.
viii. The provisions have stood the test of time after the Constitution has come
into existence and the concept ingrained in the term "reputation" has not been
diluted but, on the contrary, has become an essential constituent of Article 21.
That apart, the ten Exceptions provide reasonable safeguards to the provision
and, therefore, it can never be said that the provision suffers from lack of
guidance thereby inviting the frown of Article 14 of the Constitution.
ix. The words "some person aggrieved" used in Section 199(1) Code of
Criminal Procedure deserve a strict construction so as to prevent misuse of the
law of criminal defamation. It should be the duty of the court taking cognizance
to ensure that the complainant is the person aggrieved. The court may refer to
earlier authorities and clarify the concept of "some person aggrieved" and
explain the words in the present context. Similarly, the grievance that the
provisions give room for filing of multiple complaints at various places is not
correct as the concept of territorial jurisdiction is controlled by Code of Criminal
Procedure.

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15. Submissions by Mr. P.S. Narsimha, learned Additional Solicitor General
i. The submission that the word "defamation" occurring in Article 19(2) is
confined only to civil defamation and not criminal defamation cannot be
countenanced on the basis of our constitutional history. The Constitutional
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 to reason that
the word "defamation" will take colour from terms like "security of the State",
"friendly relations with a foreign state", "public order", "decency and morality"
and the like thereby restricting and narrowing the ambit of the word
"defamation" in Article 19(2). Defamation of an individual or collection of
persons serves public interest which is the basic parameter of restrictions Under
Article 19(2) and, therefore, it can never be perceived as individual interest in a
narrow compartment.
iii. The contention that the fundamental rights are matters between the State
and the citizens and not between private individuals per se is untenable
because it has been already recognized that it is the duty of the State is to
protect the fundamental rights of citizens inter se other citizens and many a
legislation do so project. In fact, the State is indeed obligated to enact laws to
regulate fundamental rights of individuals vis-à-vis other individuals.
iv. The stand of direct effect test or, to put it differently, "direct and inevitable
impact test" is concerned with incidentally creating a dent in the freedom of
speech and expression but has no nexus with the content of the free speech per
se. A distinction has to be drawn between the external constraints on free
speech and the direct assault on the free speech. The "subject matter test" can
have direct and inevitable impact on the right, but the "Regulation test by law"
has a different connotation.
v. The object of guaranteeing constitutional protection to freedom of speech
and expression is to advance public debate and discourse. However, speech
laden with harmful intent or knowledge of causing harm or made with reckless
disregard is not entitled to the protection of Article 19(1)(a) since it does not
serve any of the purposes mentioned above. Such speech has no social value
except in cases where it is a truthful statement meant for the public good or
where it is made in good faith, in which case it is protected by the Exceptions
in Section 499 Indian Penal Code and is not criminalized.

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 vi. The Preamble to the Constitution plays an important role in interpreting the
freedoms mentioned in Article 19. The ideals mentioned in the Preamble cannot
be divorced from the purpose and objective of conferring 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. Article 51-A
of the Constitution, which deals with the fundamental duties of a citizen, makes
it a duty "to promote harmony and the spirit of common brotherhood amongst
all the people of India transcending religious, linguistic and regional or
sectional diversities; to renounce practices derogatory to the dignity of
women". In fact, this Court has held that Part IVA could be used as an
interpretative tool while assessing the constitutional validity of laws, especially
in the context of restrictions imposed on rights. Judged on the anvil of the
aforesaid constitutional norms, the provisions pertaining to criminal defamation
withstand scrutiny. The principal objective of the law of defamation, civil or
criminal, is to protect the reputation and dignity of the individual against
scurrilous and vicious attacks. Section 44 of Indian Penal Code defines injury as
"any harm whatever illegally caused to any person, in body, mind, reputation or
property." The said Section demonstrates that the harm caused to the mind and
reputation of a person, protected by the right to dignity, is also treated as
injury in the eyes of law, along with the harm caused to body and property.
From the Preamble to the provisions in Part III, it is clear that the aim of the
Constitution has been to protect and enhance human dignity. Reputation in
general, and dignity in particular, are enablers of rights which make the
exercise of other rights guaranteed in the Constitution more meaningful. Dignity
of a person is an affirmation of his/her constitutional identity and the individual
reputation is constitutionally protected as a normative value of dignity. Laws
relating to initiation of civil as well as criminal action are, therefore,
permissible and withstand assail on their constitutionality.
vii. The international human right treaties explicitly provide for the right to
reputation as well as right to free speech and expression. The Universal
Declaration on Human Rights, 1948 in Article 12 clearly stipulates that no one
shall be subjected to attack on his honour and reputation. Scrutinising on this
score, it cannot be said that reputation should be allowed backseat whereas
freedom of speech and expression should become absolutely paramount.
Though certain countries have kept the remedy under common law and have
decriminalized defamation, yet it does not mean that where the law
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.
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 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 Section 499 which makes
the axis of provision certain, definite and unambiguous. That apart, each of the
Exceptions marks the contours of the Section amply clear and provides an
adequate warning of the conduct which may fall within the prescribed area. It
excludes from its purview speech that advances public good and demarcates
what is accepted speech and what is proscribed speech. Hence, it cannot be
said that the said Section is vague and that it leads to uncertainty. First
Exception to Section 499 which does not make truth an absolute defense has a
very relevant purpose. In fact, this Exception is meant to ensure that the
defense is available only in cases where the expression of truth results in
'public good'. Thus, the right to privacy is respected, and will give way only in
case the truthful disclosure, albeit private, is meant for public good.
ix. There is an intelligible differentia between the complaint of the individual
alleging defamation of himself and that of an official in the context of his
governmental functions. This intelligible differentia has a rational nexus to the
object that the Parliament has sought to achieve, i.e., there must be credibility
in the functioning of the Government and that it must protect its functioning
through its officers discharging their duty from malicious disrepute. There is no
justification to assume that the Government grants sanction Under Section
199(4) without due application of mind. In fact, it is a safety valve to protect a
citizen against a government official filing complaints on behalf of the
Government. A public prosecutor is a responsible officer and this Court has held
in a number of cases that he acts independently and with responsibility. The
fact that the prosecution is by the public prosecutor goes to show that the
proceedings will be conducted with objectivity and without any personal bias.
16. Submissions by Dr. Abhishek Manu Singhvi:
i. It is fallacious to argue that fundamental rights are fetters only on State
action and that Article 19(2) is intended to safeguard the interests of the State
and the general public and not of any individual. The exception to this fetter is
that the State can make laws Under Article 19(2) which are reasonable
restrictions on the right Under Article 19(1)(a). Laws constitute State action,
whatever their subject matter. Laws restricting obscenity or offences 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
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 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 community to strike a proper balance
between the liberty guaranteed and the social interests specified Under Article
19(2). One's right must be exercised so as not to come in direct conflict with
the right of another citizen. The argument of the Petitioners that the criminal
law of defamation cannot be justified by the right to reputation Under Article 21
because one fundamental right cannot be abrogated to advance another, is not
sustainable. It is because (i) the right to reputation is not just embodied in
Article 21 but also built in as a restriction placed in Article 19(2) on the
freedom of speech in Article 19(1)(a); and (ii) the right to reputation is no less
important a right than the right to freedom of speech.
iii. Article 19(2) enumerates certain grounds on which the right to free speech
and expression can be subjected to reasonable restrictions and one such ground
is defamation. Although "libel" and "slander" were included in the original
Constitution, yet the same were deleted by the First Amendment, whereas
defamation continues to be a part of the Constitution. Therefore, it is fallacious
to argue that defamation Under Article 19(2) covers only civil defamation when
at the time of the enactment of the Constitution, Section 499 Indian Penal Code
was the only provision that defined defamation and had acquired settled judicial
meaning as it had been on the statute book for more than 90 years.
iv. Sections 499 and 500 of Indian Penal Code continue to serve a public
purpose by defining a public wrong so as to protect the larger interests of the
society by providing reasonable restrictions Under Article 19(2) of the
Constitution. It is incorrect to suggest that the purpose, logic and rationale of
criminal defamation no longer subsists in the modern age, and the law having
served its goal, it must be struck down as violative of Article 14. Arguably, in
the modern age, the need for the law is even stronger than it was in the 19th
century. The constitutional validity of a statute would have to be determined on
the basis of its provisions and on the ambit of its operation as reasonably
construed as has been held in Shreya Singhal v. Union of India
MANU/SC/0329/2015 : (2015) 5 SCC 1. Moreover, given the presumption of
constitutionality, it has also been held by this Court that in judging the
reasonableness of restrictions, the Court is fully entitled to 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
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 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 his caste or calling or his credit, it would not be defamatory. The
concepts like "in good faith" or "for the public good" are the mainstay of the
Exceptions available to the accused, which, if proved to the extent of
preponderance of probability, enable him to avoid conviction, and these facets
make the provision reasonable and definitely not vague. Truth ought not to be
an absolute defence because it can be misutilised to project a negative image to
harm the reputation of a person without any benefit to the public at large.
vii. The argument that protection for "legitimate criticism" or "fair comment" on
a question of public interest is only available in the civil law of defamation and
is not covered by any of the Exceptions to Section 499 Indian Penal Code is not
tenable. Exceptions 2, 3, 5, 6 and 9 of Section 499 Indian Penal Code provide
protection akin to the defence of fair comment in the civil law of defamation.
viii. Section 199(1) Code of Criminal Procedure safeguards the freedom of
speech by placing the burden on the complainant to pursue the criminal
complaint without involving the State prosecution machinery. This itself filters
out many frivolous complaints as the complainant should be willing to bear
burden and pain of pursuing the criminal complaint for defamation only when
he has a clear case. Under the aforesaid provision, the cognizance of an
offence, which pertains to defamation, cannot be taken except upon a complaint
made by "some person aggrieved by the offence". This Section carves out an
exception to the general Rule of criminal jurisprudence that any person can set
the law in motion. Under Section 199 Code of Criminal Procedure, a complaint
can be filed only by "by some person aggrieved". The contention of the
Petitioners that "some person aggrieved" in Section 199(1) Code of Criminal
Procedure is vague and opens floodgate for frivolous litigation is misconceived
and has no basis in law. The phrase "some person aggrieved" is neither vague
nor is it unreasonably wide.
17. Submissions of Mr. M.N. Krishnamani, Mr. Siddharth Luthra and Mr. Satish
Chandra Mishra, in person
i. The power to create an offence being an essential legislative function, there is
nothing inherently wrong with Section 499 Indian Penal Code. The contention
that the word "defamation" 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

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 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 arguments regarding the constitutional
validity of the provision must be considered in the context of the social climate
of a country. The social climate takes in its sweep the concept of social
stability.
iv. The term "harm" is not defined in the Indian Penal Code and must be given
its ordinary dictionary meaning, but what is important is that it must be illegally
caused. There is no distinction in the Indian Penal Code between harm to body,
mind, reputation or property. When the legislature has treated defamation as an
offence regard being had to the social balance, there is no justification to
declare it ultra vires.
v. The mere fact that the offence Under Section 499 Indian Penal Code is non-
cognizable or that the complainant can only be "some person aggrieved" does
not create an arbitrary distinction of it being an offence of a private character as
opposed to an offence against society. There are numerous offences which are
not cognizable but that does not mean that the said category of offences are
private acts, for harm being caused to a person is the subject of focus of
offences under the Penal Code.
vi. Section 199 Code of Criminal Procedure adds a restriction limiting filing of a
complaint by "some person aggrieved" and "a person aggrieved" is to be
determined by the Courts in each case according to the fact situation. The
words "some person aggrieved" and Exception II has been the subject of much
deliberation by the Courts and it is not a vague concept. Section 199 Code of
Criminal Procedure mandates that the Magistrate can take cognizance of the
offence only upon receiving a complaint by a person who is aggrieved. This
limitation on the power to take cognizance of defamation serves the purpose of
discouraging filing of frivolous complaints which would otherwise clog the
Magistrate's Courts. The "collection of persons" is not a vague concept. The
said body has to be an identifiable group in the sense that one could, with
certainty, say that a group of particular people has been defamed as
distinguished from the rest of the community. Establishment of identity of the
collection of people is absolutely necessary in relation to the defamatory
imputations and hence, it is reasonable.
vii. Article 19(1)(a) guarantees freedom of speech and expression, and freedom
of press is included therein. 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

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 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 criminal proceedings on the Editor. The
press has great power in impressing minds of people and it is essential that
persons responsible for publishing anything in newspapers should take good
care before publishing anything which tends to harm the reputation of a person.
Reckless defamatory comments are unacceptable.
18. Submissions of learned Amicus Curiae Mr. K. Parasaran, Sr. Advocate
i. There has to be a harmonious interpretation of Article 19(1)(a) read with
Articles 19(2) and 21. This has to be done by adverting to Articles 13(3),
366(10), 372 (Explanations I and II), and also Article 14, the Preamble, Part III
and Part IV of the Constitution. There is a need to interpret Article 19(2) by
considering as to whether it includes: a) Defamation as an offence with
punishment of imprisonment and/or fine on being proved guilty, or; b)
Defamation as a civil wrong with liability for damages for the injury caused to
reputation, or; c) both of the above. The word "defamation" in Article 19(2)
includes defamation as an offence as well as a civil wrong. The above two
cannot be considered in isolation while interpreting Article 19(2).
ii. The question for determination is whether the word "defamation" used in
Article 19(2) has reference to the Indian Penal Code (statutory law) as an
indictment, or merely tort of defamation, as it appears after "contempt of court"
(which includes criminal contempt) and before the phrase "incitement to an
offence", both being penal in nature. Applying the principle of 'noscitur a
sociis', the word "defamation" is not to be interpreted only as civil defamation.
Applying the principle of 'nomen juris' the word "defamation" must necessarily
refer only to Indian Penal Code, since there is no other statute in existence that
defines "defamation".
iii. The Preamble to the Constitution opens with the word 'Justice'. It is the
concept of Dharma. The foundation of administration of Justice after the advent
of the Constitution is the motto 'yato dharmastato jayaha'. Judge-made law,
insofar as the right to life is concerned, is to protect the inherent right to
reputation as part of the right to life. No one can be deprived of that right
except according to the procedure established by law. The word "law" in Article
21 has to necessarily 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
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 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 plenary legislation. As Article 19(2) itself uses the words
"existing laws" and "defamation", and as the offence of defamation is defined in
Section 499, it must be held to have been incorporated in the Constitution at
least to the extent it is defined in Section 499 ('nomen juris'). It is, thus, not
open to challenge as being an unreasonable restriction for there is no other law
that defined "defamation".
v. The test of reasonableness cannot be a principle in abstraction. A general
pattern cannot be conceived to be made applicable to all cases because it will
depend upon the nature of right infringed or violated and the underlying
purpose of the imposition of restrictions. The evil thought to be remedied and
the prevailing conditions of the time are to be kept in view while judging
proportionality of the restriction. Being a part of the original Constitution, the
penal provision as to defamation having been approved by the constituent
power when Article 19(2) was enacted, it cannot now be held to be
unreasonable. If defamation as an offence is a reasonable law for the purposes
of Article 19(2), it has to be equally a reasonable law for the purposes of Article
14. The principle of a law being worn out by passage of time and the principle
of 'Cessante Ratione Legis Cessat Ipsa Lex' cannot be applied to a constitutional
provision like Article 19(2) or to procedural laws. Section 500 Indian Penal
Code does not impose any mandatory minimum punishment and when a penal
law does not mandate a minimum sentence but provides only for simple
imprisonment with discretion vested in the Court, the provision will not be
struck down as arbitrary or unreasonable.
vi. Right to life and liberty is an inherent right and natural right and not a right
conferred by the Constitution but recognized and protected by it. Judge-made
law is meant to protect fundamental rights and not to impose restrictions on the
fundamental rights. The constitutional courts are assigned the role of a
"Sentinel on the qui vive". In the said bedrock, the right to life which includes
right to reputation has to be protected and respected and cannot be allowed to
succumb to the right to freedom of speech and expression.
vii. The inherent right to life or personal liberty recognized by Article 21, the
fundamental right of freedom of speech conferred 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

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 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
Article 19(1)(a) and the First Amendment to the US Constitution
ii. A law of defamation protects reputation of a person. Reputation is an integral
and important part of the dignity of the individual and when reputation is
damaged, society as well as the individual is the loser. Protection of reputation
is conducive to the public good. Therefore, freedom of expression is not an
absolute right.
iii. While the freedom of speech and expression is, no doubt, extremely relevant
and requires protection as a fundamental right, at the same time, it is necessary
that the reputation of individuals requires to be protected from being
unnecessarily tarnished. Reputation is an element of personal security and is
protected as a fundamental right Under Article 21 of the Constitution and
requires equal protection. The right to freedom of expression Under Article 19
is subject to the right to reputation. It is to be noted that civil action for
defamation would not be a satisfactory remedy in many cases as the author of
the defamation may not be able to compensate the person defamed.
iv. The prosecution of a person for defamation Under Sections 499 and 500 of
Indian Penal Code is not absolute. The crime is subject to ten Exceptions in
favour of the author of the imputation. The most relevant is First Exception
which protects the author if the imputation is true and made for the public
good. Even with the Exceptions in Section 499 Indian Penal Code, there
remains the problem of whether criminal prosecution for defamation Under
Section 499 and Section 500 Indian Penal Code acts as a "chilling effect" on the
freedom of speech and expression or a potential for harassment, particularly, of
the press and media. Fair comment on a matter of public interest is not
actionable in civil action for defamation. This right is one of the aspects of the
fundamental principles of freedom of expression and the courts are zealous to
preserve it unimpaired; and the said principle has been stated in Salmon and
Heuston on Law of Torts, 25th Ed., p. 138.
v. In a prosecution for defamation Under Section 499 Indian Penal Code, fair
comment which is not covered by the Exceptions would not be protected. The
prospect of punishment may sometimes act as a deterrent on the freedom of
speech. Section 199(2) Code of Criminal Procedure may also give an unfair
disadvantage to have a public prosecutor 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.
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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.
2 0 . First, we shall expatiate on the concepts of "defamation" and "reputation". The
understanding of the term "defamation" and appreciation of the fundamental concept of
"reputation" are absolutely necessitous to understand the controversy.
21. Meaning of the term "defamation"
i. Salmond & Heuston on the Law of Torts, 20th Edn.1 define a defamatory
statement as under:
A defamatory statement is one which has a tendency to injure the
reputation of the person to whom it refers; which tends, that is to say,
to lower him in the estimation of right-thinking members of society
generally and in particular to cause him to be regarded with feelings of
hatred, contempt, ridicule, fear, dislike, or disesteem. The statement is
judged by the standard of an ordinary, right thinking member of
society...
ii. Halsburys Laws of England, Fourth Edition, Vol. 28, defines 'defamatory
statement' as under:
A defamatory statement is a statement which tends to lower a person in
the estimation of right thinking members of the society generally or to
cause him to be shunned or avoided or to expose him to hatred,
contempt or ridicule, or to convey an imputation on him disparaging or
injurious to him in his office, profession, calling trade or business.
iii. The definition of the term has been given by Justice Cave in the case of
Scott v. Sampson (1882) QBD 491 as a "false statement about a man to his
discredit."
iv. Defamation, according to Chambers Twentieth Century Dictionary,
means to take away or destroy the good fame or reputation; to speak evil of; to
charge falsely or to asperse. According to Salmond:
The wrong of defamation, consists in the publication of a false and
defamatory statement concerning another person without lawful
justification. The wrong has always been regarded as one in which the
Court should have the advantage of the personal presence of the
parties if justice is to be done. Hence, not only does an action of
defamation not survive for or against the estate of a deceased person,
but a statement about a deceased person is not actionable at the suit of
his relative2.
v. Winfield & Jolowics on Torts3 defines defamation thus:
Defamation is the publication of a statement which tends to lower a
person in the estimation of right thinking members of society
generally; or which tends to make them shun or avoid that person.

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 vi. In the book "The Law of Defamation"4, the term defamation has been
defined as below:
Defamation may be broadly defined as a false statement of which 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
2 2 . We have noted the aforesaid definitions, descriptions and analytical perceptions
only to understand how the concept has been extensively dealt with regard being had to
its ingredients and expanse, and clearly show the solemnity of 'fame' and its sapient
characteristics. Be it stated, Section 499 Indian Penal Code defines fame and covers a
quite range of things but the reference to the term 'fame' is to ostracise the saying that
"fame is a food that dead men eat".
23. CONCEPT OF REPUTATION
Having dealt about "defamation", we would like to refer to the intrinsic facets of
"reputation" and what constitutes reputation. The allusions would clearly exposit the
innate universal value of "reputation" and how it is a cherished constituent of life and
not limited or restricted by time. The description may be different, but the crucial base
is the same.
Vision of the Ancients
i. In Bhagawat Gita, it has been said:

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 The English translation of the aforequoted shloka is:
Non-violence in thought, word and deed, truthfulness and geniality of
speech, absence of anger even on provocation, disclaiming doership in
respect of actions, quietude or composure of mind. Abstaining from
malicious gossip, compassion towards all creatures, absence of
attachment to the objects of senses even during their contact with the
senses, mildness, a sense of shame in transgressing against the
scriptures or usage, and abstaining from frivolous pursuits.
ii. In Subhashitratbhandagaram, it has been described:
Sa jeevti yasho yashya kirtiyashya sa jeevti,
Ayashokirtisanyukto jeevannipe mritoopamma
Translated into English it is as follows:
One who possesses fame alone does live. One who has good praise
does alone live. Who has no fame and negative praise is equal to one
who is dead while alive.
iii. The English translation of Surah 49 Aayaat 11 of the Holy Quran reads as
follows:
Let not some men among you laugh at others: it may be that the
(latter) are better than the (former): nor defame nor be sarcastic to
each other, nor call each other by (offensive) nicknames, ill-seeming is
a name connoting wickedness, (to be used of one) after he has
believed: and those who do not desist are (indeed) doing wrong.
iv. Proverb 15 of the Holy Bible reads as under:
A soft answer turns away wrath, but a harsh word stirs up anger. The
tongue of the wise dispenses knowledge,
but the mouths of 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;

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 '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 breast.
Mine honour is my life, both grow in one;
Take honour from me and my life is done.
26. The famous Greek philosopher and thinker Socrates taught:
Regard your good name as the richest jewel you can possibly be possessed of-
for credit is like fire; when once you have kindled it you may easily preserve it,
but if you once extinguish it, you will find it an arduous task to rekindle it
again. The way to gain a good reputation is to endeavour to be what you desire
to appear.
27. The philosopher in Aristotle inspired him to speak:
Be studious to preserve your reputation; if that be once lost, you are like a
cancelled writing, of no value, and at best you do but survive your own funeral.
28. While speaking about reputation, William Hazlitt had to say:
A man's reputation is not in his own keeping, but lies at the mercy of the
profligacy of others. Calumny requires no proof. The throwing out of malicious
imputations against any character leaves a stain, which no after-refutation can
wipe out. To create an unfavourable impression, it is not necessary that certain
things should be true, but that they have been said. The imagination is of so
delicate a texture that even words wound it.
The International Covenants
29. Various International Covenants have stressed on the significance of reputation and
honour in a person's life. The Universal Declaration on Human Rights, 1948 has
explicit provisions for both, the right to free speech and right to reputation. Article 12 of
the said Declaration provides that:
No one shall be subjected to arbitrary interference with his privacy, family,
home or correspondence, nor to attacks upon his honour and reputation.
Everyone has the right to the protection of the law against such interference or
attacks.
30. The International Covenant on Civil and Political Rights (CICCPR) contains
similar provisions. Article 19 of the Covenant expressly subjects the right of expression
to the rights and reputation of others. It reads thus:
1. Everyone shall have the right to hold opinions without interference.
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 2 . Everyone shall have the right to freedom of expression; this right shall
include freedom to seek, receive and impart information and ideas of all kinds,
regardless of frontiers, either orally, in writing or imprint, in the form of art, or
through any other media of his choice.
3. The exercise of the rights provided 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 freedom to hold opinions and to receive and impart information
and ideas without interference by public authority and regardless of
frontiers. This Article shall not prevent States from requiring the
licensing of broadcasting, television or cinema enterprises.
2 . The exercise of these freedoms, since it carries with it duties and
responsibilities, maybe subject to such formalities, conditions,
restrictions or penalties as are prescribed by law and are necessary in a
democratic society, in the interests of national security, territorial
integrity or public safety, for the prevention of disorder or crime, for
the protection of health or morals, for the protection of the reputation
or rights of others, for preventing the disclosure of information
received in confidence, or for maintaining the authority and impartiality
of the judiciary.
32. The reference to international covenants has a definitive purpose. They reflect the
purpose and concern and recognize reputation as an inseparable right of an individual.
They juxtapose the right to freedom of speech and expression and the right of
reputation thereby accepting restrictions, albeit as per law and necessity. That apart,
they explicate that the individual honour and reputation is of great value to human
existence being attached to dignity and all constitute an inalienable part of a complete

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human being. To put it differently, sans these values, no person or individual can
conceive the idea of a real person, for absence of these aspects in life makes a person a
non-person and an individual to be an entity only in existence perceived without
individuality.
Perception of the Courts in United Kingdom as regards Reputation
33. Now, we shall closely cover the judicial perception of the word "reputation" and for
the said purpose, we shall first refer to the view expressed by other Courts and
thereafter return home for the necessary survey.
34. Lord Denning explained the distinction between character and reputation in Plato
Films Ltd. v. Spiedel (1961) 1 All. E.R. 876 in a succinct manner. We quote:
A man's "character," it is sometimes said, is what he in fact is, whereas his
"reputation" is what other people think he is. If this be the sense in which you
are using the words, then a libel action is concerned only with a man's
reputation, that is, with what people think of 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 spreads outwards from those who know him and circulates
among people generally in an increasing range, it becomes his "reputation,"
which is entitled to the protection of the law just as much as his character. But
here I speak only of a reputation which is built upon the estimate of those who
know him. No other reputation is of any worth. The law can take no notice of a
reputation which has no foundation except the gossip and rumour of
busybodies who do not know the man. Test it this way. Suppose an honourable
man becomes the victim of groundless rumour. He should be entitled to
damages without having this wounding gossip dragged up against him. He can
call people who know him to give evidence of his good character. On the other
hand, suppose a "notorious rogue" manages to conceal his dishonesty from the
world at large. He should not be entitled to damages on the basis that he is a
man of unblemished reputation. There must, ones would think, be people who
know him and can come and speak to his bad character.
35. In regard to the importance of protecting an individual's reputation Lord Nicholls of
Birkenhead observed in Reynolds v. Times Newspapers Ltd.
MANU/UKHL/0050/1999 : [2001] 2 AC 127 at 201:
'Reputation is an integral and important part of the dignity of the individual. It
also forms the basis of many decisions in a democratic society which are
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 fundamental to its well-being: whom to employ or work for, whom to promote,
whom to do business with or to vote for. Once besmirched by an unfounded
allegation in a national newspaper, a reputation can be damaged forever,
especially if there is no opportunity to vindicate one's reputation. When this
happens, society as well as the individual is the loser. For it should not be
supposed that protection of reputation is a matter of importance only to the
affected individual and his family. Protection of reputation is conducive to the
public good. It is in the public interest that the reputation of public figures
should not be debased falsely. In the political field, in order to make an
informed choice, the electorate needs to be able to identify the good as well as
the bad. Consistently with these considerations, human rights conventions
recognise that freedom of expression is not an absolute right. Its exercise may
be subject to such restrictions as are prescribed by law and are necessary in a
democratic society 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 L J
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 the
mark of illness, to others it is a stigma, an official branding of a person. The
label is a degrading one. Under the Wisconsin Act, a resident of Hartford is
given no process at all. This appellee was not afforded a chance to defend
herself. She may have been the victim of an official's caprice. Only when the
whole proceedings leading to the pinning of an unsavory label on a person are
aired can oppressive results be prevented.
38. In Rosenblatt v. Baer 383 U.S. 75 (1966) Mr. Justice Stewart observed that:
The right of a man to the protection of his own reputation from unjustified
invasion and wrongful hurt reflects no more than our basic concept of the
essential dignity and worth of every human being--a concept at the root of any
decent system of ordered liberty.
Outlook of the Courts in Canada
39. Hill v. Church of Scientology of Toronto [1995] 2 SCR 1130
(ii) The Reputation of the Individual

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 107. The other value to be balanced in a defamation action is the protection of
the reputation of the individual. Although much has very properly been said and
written about the importance of freedom of expression, little has been written
of the importance of reputation. Yet, to most people, their good reputation is to
be cherished above all. A good reputation is closely related to the innate
worthiness and dignity of the individual. It is an attribute that must, just as
much as freedom of expression, be protected by society's laws. In order to
undertake the balancing required by this case, something must be said about
the value of reputation.
1 0 8 . Democracy has always recognized and cherished the fundamental
importance of an individual. That importance must, in turn, be based upon the
good repute of a person. It is that good repute which enhances an individual's
sense of worth and value. False allegations can so very quickly and completely
destroy a good reputation. A reputation tarnished by libel can seldom regain its
former lustre. A democratic society, therefore, has an interest in ensuring that
its members can enjoy and protect their good reputation so long as it is
merited.
Opinion of the Courts in South Africa
40. In the approach of the South African Courts, "human dignity" is one of the founding
values of the South African Constitution (Clause 1). The Constitution protects dignity
(clause 7), privacy (clause 14) and freedom 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 the judgment
reads: "See National Coalition.. at para 30: "The present case illustrates how,
in particular circumstances, the rights of equality and dignity are closely
related, as are the rights of dignity and privacy."] The right to privacy,
entrenched in Section 14 of the Constitution, recognises that human beings
have a right to a sphere of intimacy and autonomy that should be protected
from invasion... This right serves to foster human dignity. No sharp lines then
can be drawn between reputation, dignitas and privacy in giving effect to the
value of human dignity in our Constitution. ...
28. The law of defamation seeks to protect the legitimate interest individuals
have in their reputation. To this end, therefore, it is one of the aspects of our
law which supports the protection of the value of human dignity. When
considering the constitutionality of the law of defamation, therefore, we need to

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 ask whether an appropriate balance is struck between the protection of freedom
of expression on the one hand, and the value of human dignity on the other.
Perception of the European Court of Human Rights
41. I n Lindon v. France (2008) 46 E.H.R.R. 35, Judge Loucaides, in his concurring
opinion, held:
Accepting that respect for reputation is an autonomous human right, which
derives its source from the Convention itself, leads inevitably to a more
effective protection of the reputation of individuals vis-à-vis freedom of
expression.
42. In the said case, the Court has expressly recognised that protection of reputation is
a right which is covered by the scope of the right to respect for one's private life Under
Article 8 of the Convention. In course of deliberations reference has been made to
Chauvy and Ors. v. France (2005) 41 EHRR 29, Abeberry v. France (dec.), No.
58729/00, 21 September 2004; and White v. Sweden [2007] EMLR 1.
43. In Karako v. Hungary (2011) 52 E.H.R.R. 36 the Court has opined that:
24. The Court reiterates that paragraph 2 of Article 10 recognises that freedom
of speech may be restricted in order to protect reputation (see paragraph 16
above). In other words, the Convention itself announces that restrictions on
freedom of expression are to be determined within the framework of Article 10
enshrining freedom of speech.
25. The Court is therefore satisfied that the inherent logic of Article 10, that is
to say, 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 "protection of the reputation or rights of others", the Court may
be required to verify whether the domestic authorities struck a fair balance
when protecting two values guaranteed by the Convention which may come into
conflict with each other in certain cases, namely, on the one hand, freedom of
expression protected by Article 10 and, on the other, the right to respect for
private life enshrined in Article 8.
The perspective of this Court

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45. In Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath
Nadkarni and Ors. MANU/SC/0184/1982 : (1983) 1 SCC 124, the Court has opined
that expression "Life" does not merely connote animal existence or a continued
drudgery through life. Further, it proceeded to state thus:
... The expression "life" has a much wider meaning. Where therefore the
outcome of a departmental enquiry is likely to adversely affect reputation or
livelihood of a person, some of the finer graces of human civilization which
make life worth living would be jeopardised and the same can be put in
jeopardy only by law which inheres fair procedures. In this context one can
recall the famous words of Chapter II of Bhag wad-Gita:
Sambhavitasya Cha Kirti Marnadati Richyate
4 6 . I n Kiran Bedi v. Committee of Inquiry and Anr. MANU/SC/0512/1989 :
(1989) 1 SCC 494, a three-Judge Bench, while dealing with the petition for quashing of
the inquiry report against the Petitioner therein, referred to Section 8-B of the
Commissions of Inquiry Act, 1952 and opined that the importance has been attached
with regard to the matter of safeguarding the reputation of a person being prejudicially
affected in Clause (b) of Section 8-B of the Commissions of Inquiry Act. It is because
reputation of an individual is a very ancient concept. The Court referred to the words of
caution uttered by Lord Krishna to Arjun in Bhagwad Gita with regard to dishonour or
loss of reputation; and proceeded to quote:
Akirtinchapi bhutani kathaishyanti te-a-vyayam, Sambha-vitasya Chakirtir
maranadatirichyate. (2.34)
(Men will recount thy perpetual dishonour, and to one highly esteemed,
dishonour exceedeth death.)
Thereafter, the Court referred to Blackstone's Commentary of the Laws of England, Vol.
I, 4th Edn., wherein it has been stated that the right of personal security consists in a
person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health
and his reputation. 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 security from violence. According to Chancellor Kent as a
part of the rights of personal security, the preservation of every person's good
name from the vile arts of detraction is justly included. The laws of the
ancients, no less than those of modern nations, made private reputation one of

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 the objects of their protection.
The right to the enjoyment of a good reputation is a valuable privilege, of
ancient origin, and necessary to human society, as stated in Libel and Slander
Section 4, and this right is within the constitutional guaranty of personal
security as stated in Constitutional Law Section 205, and a person may not be
deprived of this right through falsehood and violence without liability for the
injury as stated in Libel and Slander Section 4.
Detraction from a man's reputation is an injury to his personality, and thus an
injury to reputation is a personal injury, that is, an injury to an absolute
personal right.
Be it noted a passage from D.F. Marion v. Davis 55 ALR 171, was reproduced with
approval:
The right to the enjoyment of a private reputation, unassailed by malicious
slander is of ancient origin, and is necessary to human society. 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.
47. In Gian Kaur v. State of Punjab MANU/SC/0335/1996 : (1996) 2 SCC 648, this
Court observed that the right to reputation is a natural right. In Mehmood Nayyar
Azam v. State of Chhatisgarh and Ors. MANU/SC/0615/2012 : (2012) 8 SCC 1,
while discussing the glory of honourable life, the Court observed:
Albert Schweitzer, highlighting on the Glory of Life, pronounced with conviction
and humility, "the reverence of life offers me my fundamental principle on
morality". The aforesaid expression may appear to be an individualistic
expression of a great personality, but, when it is understood in the complete
sense, it really denotes, in its conceptual essentiality, and connotes, in its
macrocosm, the fundamental perception of a thinker about the respect that life
commands. The reverence of life is insegregably associated with the dignity of
a human being who is basically divine, not servile.
Elucidating further, the Court observed:
A human personality is endowed with potential infinity and it blossoms when
dignity is sustained. The sustenance of such dignity has to be 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 MANU/SC/0513/2012
: (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. MANU/SC/0904/2013 : (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
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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 Constitution. The International Covenant on Civil and Political Rights, 1966
recognises right to have opinions and right to freedom of expression Under Article 19 is
subject to the right of reputation of others.
49. In Kishore Samrite v. State of Uttar Pradesh and Ors. MANU/SC/0892/2012
: (2013) 2 SCC 398, while dealing with the term "person" in the context of reputation,
the Court after referring to the authorities in Kiran Bedi (supra) and Nilgiris Bar
Association v. T.K. Mahalingam and Anr. MANU/SC/0875/1998 : (1998) 1 SCC
550 held that:
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. Reputation can also be defined to be good name, the credit,
honour or character which is derived from a favourable public opinion or
esteem, and character by report. The right to enjoyment of a good reputation is
a valuable privilege of ancient origin and necessary to human society.
"Reputation" is an element of personal security and is protected by the
Constitution equally with the right to enjoyment of life, liberty and property.
Although "character" and "reputation" are often used synonymously, but these
terms are distinguishable. "Character" is what a man is and "reputation" is what
he is supposed to be in what people say he is. "Character" depends on
attributes possessed and "reputation" on attributes which others believe one to
possess. The former signifies reality and the latter merely what is accepted to
be reality at present. .
50. I n Om Prakash Chautala v. Kanwar Bhan and Ors. MANU/SC/0075/2014 :
(2014) 5 SCC 417 it has been held that reputation is fundamentally a glorious amalgam
and unification of virtues which makes a man feel proud of his ancestry and satisfies
him to bequeath it as a part of inheritance on posterity. It is a nobility in itself for which
a conscientious man would never barter it with all the tea of China or for that matter all
the pearls of the sea. The said virtue has both horizontal and vertical qualities. When
reputation is hurt, a man is half-dead. It is an honour which deserves to be equally
preserved by the downtrodden and the privileged. The aroma of reputation is an
excellence which cannot be allowed to be sullied with the passage of time. It is dear to
life and on some occasions it is 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.
5 1 . I n State of Gujarat and Anr. v. Hon'ble High Court of Gujarat
MANU/SC/0632/1998 : (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
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the democratic polity the country has.
Right of the Freedom of Speech and Expression
54. To appreciate the range and depth of the said right, it is essential to understand the
anatomy of Articles 19(1)(a) and 19(2) of the Constitution. Be it noted here that Article
19(2) was amended by the 1st Amendment to the Constitution on 18th June, 1951 w.e.f.
26.01.1950. Article 19(1)(a) has remained its original form. It reads as under:
19. (1) All citizens shall have the right-
(a) To freedom of speech and expression;
...............
55. Article 19(2) prior to the amendment was couched in the following words:
Nothing in Sub-clause (a) of Clause (1) shall affect the operation of any
existing law in so far as it relates to, or prevents the state from making any law
relating to, libel, slander, defamation, contempt of Court or any matter which
offends against decency or morality or which undermines the security of, or
tends to overthrow, the State.
56. After the amendment, the new incarnation is as follows:
(2) Nothing in Sub-clause (a) of Clause (1) shall affect the operation of any
existing law, or prevent the State from making any law, in so far as such law
imposes reasonable restrictions on the exercise of the right conferred by the
said Sub-clause in the interests of the security of the State, friendly relations
with foreign States, public order, decency or morality; or in relation to
contempt of Court, defamation or incitement to an offence.
57. Learned Counsel appearing for some of the Petitioners, apart from addressing at
length on the concept of reasonable restriction have also made an effort, albeit an
Everestian one, pertaining to the meaning of the term "defamation" as used in Article
19(2). In this regard, four aspects, namely, (i) defamation, however extensively
stretched, can only include a civil action but not a criminal proceeding, (ii) even if
defamation is conceived of to include a criminal offence, regard being had to its
placement in Article 19(2), it has to be understood in association of the words,
"incitement to an offence", for the principle of noscitur a sociis has to be made
applicable, then only the cherished and natural right of freedom of speech and
expression which has been recognized Under Article 19(1)(a) would be saved from
peril, (iii) 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 to take in its ambit an
actionable claim 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
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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: Sir, this Article is to be read along with
Article 8.
Article 8 says-
All laws in force immediately before the commencement of this
Constitution in the territory of India, in so far as they are inconsistent
with the provision of this Part, shall, to the extent of such inconsistency
be void.
And all that this Article says is this, that all laws, which relate to libels, slander,
defamation or any other matter which offends against decency or morality or
undermines the security of the State shall not be affected by Article 8. That is to
say, they shall continue to operate. If the words "contempt of court" were not
there, then to any law relating to contempt of court Article 8 would apply, and
it would stand abrogated. It is prevent that kind of situation that the words
"contempt of court" are introduced, and there is, therefore, no difficulty in this
amendment being accepted.
Now with regard to the point made by Friend Mr. Santhanam, it is quite true
that so far as fundamental rights are concerned, the word "State" is used in a
double sense, including the Centre as well as the Provinces. But I think he will
bear in mind that notwithstanding this fact, a State may make a law as well as
the Centre may make a law, some of the heads mentioned here such as libel,
slander, defamation, security of State, etc., are matters placed in the
Concurrent list so that if there was any very great variation among the laws
made, relating to these subjects, it will be open to the Centre to enter upon the
field and introduce such uniformity as the Centre thinks it necessary for this
purpose.
Mahaboob Ali Baig Sahib Bahadur...
Then, Sir, it is said by Dr. Ambedkar in his introductory speech that
fundamental rights are not absolute. of course, they are not; they are always
subject to the interests of the general public and the safety of the State, but the
question is when a certain citizen oversteps the limits so as to endanger the
safety of the State, who is to judge? According to me, Sir, and according to
well recognized canons, it is not the executive or the legislature, but it is the
independent judiciary of the State that has to judge whether a certain citizen
has overstepped the limits so as to endanger the safety of the State. This
distinction was recognized by the framers of the American Constitution in that
famous Fourteenth Amendment 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.
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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 good in its true
character for all time to come. Society changes; Government change; the
temper and psychology of the people change from decade to decade if not from
year to year. The law must be such as to automatically adjust itself to the
changing conditions. Courts cannot, in the very nature of things, do legislative
work; they can only interpret. Therefore, in order to see that the law
automatically adjusts to the conditions that come into being in times to come,
this power of limiting the operation of the fundamental rights is given to the
legislature. After all, the legislature does not consist of people who come
without the sufferance of the people. The legislature consists of real
representatives of the people as laid down in this Constitution. If, at a
particular time the legislature thinks that these rights ought to be regulated in a
certain manner and in a particular method, there is nothing wrong in it, nothing
despotic about it, nothing derogatory to these fundamental rights. I am indeed
glad that this right of regulating the exercise of fundamental rights is given to
the legislature instead of to the courts.
59. In this regard, excerpts from speech from Prof. K.T. Shah are also noteworthy:
... my purpose in bringing forward this amendment is to point out that, if all
the freedoms enumerated in this Article are to be in accordance with only the
provisions of this article, or are to be guaranteed subject to the provisions of
this Article only, then they would amount more to a negation of freedom than
the promise or assurance of freedom, because in everyone of these clauses the
exceptions are much more emphasised than the positive provision. In fact, what
is given by one right hand seems to be taken away by three or four or five left
hands; and therefore the Article is rendered nugatory in any opinion.
I am sure that was not the intention or meaning of the draftsmen who put in
the other articles also. I suggest therefore that instead of making it subject to
the provisions of this article, we should make it subject to the provisions of this
Constitution. That is to say, in this Constitution this Article will remain.
Therefore if you want to insist upon these exceptions, the exceptions will also
remain. But the spirit of the Constitution, the ideal under which this
Constitution is based, will also come in, which I humbly submit, would not be
the 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.

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 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 citizen shall have them. I would like to add the words also that by this
Constitution these freedoms are guaranteed. That is to say, any exception which
is made, unless justified by the spirit of the Constitution, the Constitution as a
whole and every part of it included, would be a violation of the freedoms
guaranteed hereby.
Relying on the said debates, it is urged by Mr. Rohatgi that the founding fathers had no
intention to confer a restricted meaning on the term "defamation".
6 0 . After this debate, Article 19(2) came in its original shape. Thereafter, the First
Amendment to the Constitution, passed in June, 1951 which empowered the State to
impose "reasonable restrictions" on the freedom of speech and expression "in the
interests of the security of the State6, friendly relations with foreign States, public
order, decency or morality, or in relation to contempt of court, defamation, or
incitement to an offence". The words "libel" and "slander" were dropped. "Incitement to
an offence" was added as a response to the rulings in State of Bihar v. Shailabala
Devi MANU/SC/0015/1952 : AIR 1952 SC 329 andBrij Bhushan v. State of Delhi
MANU/SC/0015/1952 : 1952 SCR 654 : MANU/SC/0007/1950 : AIR 1950 SC 129.
The restrictions were qualified by prefixing the word "reasonable". The 16th Amendment
to the Constitution in 1963 added the power to impose restrictions on the freedom of
speech and expression in the interests of "sovereignty and integrity of India".
61. We may state with profit that the debates of the Constituent Assembly can be taken
aid of for the purpose of understanding the intention of the framers of the Constitution.
I n S.R. Chaudhuri v. State of Punjab and Ors. MANU/SC/0457/2001 : (2001) 7
SCC 126 a three-Judge Bench has observed that Constitutional provisions are required
to be understood and interpreted with an object-oriented approach. A Constitution must
not be construed in a narrow and pedantic sense. The words used may be general in
terms but, their full import and true meaning, has to be appreciated considering the true
context in which the same are used and the purpose which they seek to achieve. While
so observing, the Court proceeded to state that it is a settled position that debates in
the Constituent Assembly may be relied upon as an aid to interpret a constitutional
provision because it is the function of the court to find out the intention 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) MANU/SC/0891/2002 : (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.
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 MANU/SC/0445/1973 : (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 MANU/SC/0736/2014 : (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.
6 3 . We have referred to the aforesaid aspect only to highlight the intention of the
founding fathers and also how contextually the word "defamation" should be
understood. At this stage, we may state that in the course of hearing, an endeavour was
made even to the extent of stating that the word "defamation" may not even call for a
civil action in the absence of a codified law. In this regard, we may usefully refer to
M.C. Setalvad's Hamlyn Lectures (Twelfth Series) "The Common Law of India" wherein
India's first Attorney General expressed that:
an important branch of law which has remained uncodified in India is the law
relating to civil wrongs.
Some of the most important rights of a person which the law protects from
injury are rights to the security of his person, his domestic relations and his
property and reputation... (page 108)
One of the outstanding fact of English legal history for the last three centuries
is the development of the law of torts from small beginnings to its present
dimensions as a separate branch of law. The action for damages as a remedy
for violations of rights and duties has been fashioned by lawyers, judges and
juries of England as an instrument for making people adhere to standards of
reasonable behavior and respect the rights and interest of one another. A body
of Rules has grown and is constantly growing in response to new concepts of
right and duty and new needs and conditions of advancing civilization. The
principles which form the foundation of the law of torts are usually expressed
by saying the injuria sine damno is actionable but damnum sine (or absque)
injuria is not. ...(page 109)
6 4 . The common law of England was the prevalent law being adopted before the
Constitution came into force and it is declared as a law in force Under Article 372 of the
Constitution of India by a larger Bench decision in Superintendent and
Remembrancer of Legal Affairs v. Corporation of Calcutta MANU/SC/0020/1966
: AIR 1967 SC 997 : 1967 (2) SCR 170.
6 5 . The position has further become clear in Ganga Bai v. Vijay Kumar
MANU/SC/0020/1974 : (1974) 2 SCC 393 wherein this Court has ruled thus:
There is an inherent right in every person to bring a suit of a civil nature and
unless the suit is barred by statue one may, at one's peril, bring a suit one's
choice. It is no answer to a suit, howsoever frivolous the claim, that the law
confers no such right to sue. A suit for its maintainability 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

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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 the associate words are
"incitement to an offence" would so warrant. Mr. Rao, learned senior counsel, astutely
canvassed that unless the word "defamation" is understood in this manner applying the
principle of noscitur a sociis, the cherished and natural right of freedom of speech and
expression which has been recognized Under Article 19(1)(a) would be absolutely at
peril. Mr. Narsimha, learned ASG would contend that the said Rule of construction
would not be applicable to understand the meaning of the term "defamation". Be it
noted, while construing the provision of Article 19(2), it is the duty of the Court to keep
in view the exalted spirit, essential aspects, the value and philosophy of the
Constitution. There is no doubt that the principle of noscitur a sociis can be taken
recourse to in order to understand and interpret the Constitution but while applying the
principle, one has to keep in mind the contours and scope of applicability of the said
principle. In State of Bombay v. Hospital Mazdoor Sabha MANU/SC/0200/1960 :
AIR 1960 SC 610 : (1960) 2 SCR 866, it has been held that it must be borne in mind
that noscitur a sociis is merely a Rule of construction and it cannot prevail in cases
where it is clear that wider words have been deliberately used in order to make the
scope of the defined word correspondingly wider. It is only where the intention of the
legislature in associating wider words with words of narrower significance is doubtful,
or otherwise not clear that the said Rule of construction can be usefully applied. It can
also be applied where the meaning of the words of wider import is doubtful; but, where
the object of the legislature in using wider words is clear and free of ambiguity, the
Rule of construction in question cannot be pressed into service.
68. I n Bank of India v. Vijay Transport and Ors. MANU/SC/0023/1987 : 1988
Supp SCC 47 : AIR 1988 SC 151, the Court was dealing with the contention that a literal
interpretation is not always the only interpretation of a provision in a statute and the
court has to look at the setting in which the words are used and the circumstances in
which the law came to be passed to decide whether there is something implicit behind
the words actually used which would control the literal meaning of the words used. For
the said purpose, reliance was placed on R.L. Arora v. State of Uttar Pradesh
MANU/SC/0033/1964 : (1964) 6 SCR 784 : AIR 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. .
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69. The Constitution Bench, in Godfrey Phillips India Ltd. and Anr. v. State of U.P.
and Ors. MANU/SC/0051/2005 : (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 addition of the words such as "including" is sufficiently
indicative of the societas. As we have said, the word "includes" in the present
context indicates a commonality or shared features or attributes of the including
word with the included.
xxxx
83. Hence on an application of general principles of interpretation, we would
hold that the word "luxuries" in Entry 62 of List II means the activity of
enjoyment of or indulgence in that which is costly or which is generally
recognised as being beyond the necessary requirements of an average member
of society and not articles of luxury.
70. At this juncture, we may note that in Ahmedabad Pvt. Primary Teachers' Assn.
v. Administrative Officer and Ors. MANU/SC/0032/2004 : (2004) 1 SCC 755, it has
been stated that noscitur a sociis is a legitimate Rule of construction to construe the
words in an Act of the Parliament with reference to the words found in immediate
connection with them. In this regard, we may refer to a passage from Justice G.P.
Singh, Principles of Statutory Interpretation7 where the learned author has referred to
the lucid explanation given by Gajendragadkar, J. We think it appropriate to reproduce
the passage:
It is a Rule wider than the Rule of ejusdem generis; rather the latter Rule is
only an application of the former. The Rule has been lucidly explained by
GAJENDRAGADKAR, J. in the following words: "This rule, according to
MAXWELL8, means that when two or more words which are susceptible of
analogous meaning are coupled together, they are understood to be used in
their cognate sense. They take as it were their colour from each other, that is,
the more general is restricted to a sense analogous to a less general."
Learned author on further discussion has expressed the view that meaning of a word is
to be judged from the company it keeps, i.e., reference to words found in immediate
connection with them. It applies when two or more words are susceptible of analogous
meanings are coupled together, to be read and understood in their cognate sense. 9
Noscitur a soccis is merely a Rule of construction and cannot prevail where it is clear
that wider and diverse etymology is intentionally and deliberately used in the provision.
It is only when and where the intention of the legislature in associating wider words
with words of narrowest significance is doubtful or otherwise not clear, that the Rule of
noscitur a soccis is useful.
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
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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 speech and expression and reasonable
restriction. The word "incitement" in criminal jurisprudence has a different meaning. It
is difficult to accede to the submission that defamation can only get criminality 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.
72. The submission is that Sections 499 and 500 of Indian Penal Code are not confined
to defamation of the State or its components but include defamation of any private
person by another private person totally unconnected with the State. In essence, the
proponement is that the defamation of an individual by another individual can be a civil
wrong but it cannot be made a crime in the name of fundamental right as protection of
private rights qua private individuals cannot be conferred the status of fundamental
rights. If, argued the Learned Counsel, such a pedestal is given, it would be outside the
purview of Part III of the Constitution and run counter to Articles 14, 19 and 21 of the
Constitution. It is urged that defamation of a private person by another person is
unconnected with the fundamental right conferred in public interest by Article 19(1)(a);
and a fundamental right is enforceable against the State but cannot be invoked to serve
a private interest of an individual. Elucidating the same, it has been propounded that
defamation of a private person by another person cannot be regarded as a 'crime' under
the constitutional framework and hence, what is permissible is the civil wrong and the
remedy under the civil law. Section 499 Indian Penal Code, which stipulates defamation
of a private person by another individual, has no nexus with the fundamental right
conferred Under Article 19(1)(a) of the Constitution, for Article 19(2) is meant to
include the public interest and not that of an individual and, therefore, the said
constitutional provision cannot be the source of criminal defamation. This argument is
built up on two grounds: (i) the common thread that runs through the various grounds
engrafted Under Article 19(2) is relatable to the protection of the interest of the State
and the public in general and the word "defamation" has to be understood in the said
context, and (ii) the principle 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.
7 3 . 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.
MANU/SC/0236/1999 : (1999) 4 SCC 135,Reserve Bank of India v. Peerless
General Finance and Investment Co. Ltd. and Ors. MANU/SC/0073/1987 :
(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.
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74. In K. Bhagirathi (supra), it has been held that:
It is not a sound principle in interpretation of statutes to lay emphasis on one
word disjuncted from its preceding and succeeding words. A word in a statutory
provision is to be read in collocation with its companion words. The pristine
principle based on the maxim noscitur a sociis (meaning of a word should be
known from its accompanying or associating words) has much relevance in
understanding the import of words in a statutory provision.
75. The decision in Peerless General Finance and Investment Co. Ltd. (supra)
relates to the principles to be adopted for understanding the statute. In K. Bhagirathi
(supra), the Court has referred to the principle having regard to the statutory context.
We have already referred to the decision in Hospital Mazdoor Sabha (supra) wherein
it has been ruled that the principle of noscitur a sociis is merely a Rule of construction
and it cannot be allowed to prevail in a case where it is clear that wider words have
been deliberately used in order to make the scope of the defined word correspondingly
wider. The term "defamation" as used in Article 19(2) should not be narrowly
construed. The conferment of a narrow meaning on the word would defeat the very
purpose that the founding fathers intended to convey and further we do not find any
justifiable reason to constrict the application. The word "defamation" as used in Article
19(2) has to be conferred an independent meaning, for it is incomprehensible to reason
that it should be read with the other words and expressions, namely, "security of the
State", "friendly relations with foreign States", "public order, decency or morality". The
submission is based on the premise that "defamation" is meant to serve private interest
of an individual and not the larger public interest. Both the aspects of the said
submission are interconnected and interrelated. Defamation has been regarded as a
crime in the Indian Penal Code which is a pre-constitutional law. It is urged that such
kind of legal right is unconnected with the fundamental right conceived of Under Article
19(1)(a) of the Constitution. Additionally, it is canvassed that reputation which has
been held to be a facet of Article 21 in Dilipkumar Raghavendranath Nadkarni
(supra), Mehmood Nayyar Azam (supra), and Umesh Kumar (supra), is against the
backdrop where the State has affected the dignity and reputation of an individual. 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.
7 6 . 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 are criminal, and which will at the same time exclude all
those acts and omissions which are not. Ordinarily a crime is a wrong which
affects the security or well-being of the public generally so that the public has
an interest in its suppression. A crime is frequently a moral wrong in that it
amounts to conduct which is inimical to the general moral sense of the
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 community. It is, however, possible to instance many crimes which exhibit
neither of the foregoing characteristics. An act may be made criminal by
Parliament simply because it is criminal process, rather than civil, which offers
the more effective means of controlling the conduct in question.
77. In Kenny's Outlines of Criminal law, 19th Edition, 1966 by J.W. Cecil Turner, it has
been stated that:
There is indeed no fundamental or inherent difference between a crime and a
tort. Any conduct which harms an individual to some extent harms society,
since society is made up of individuals; and therefore although it is true to say
of crime that is an offence against society, this does not distinguish crime from
tort. The difference is one of degree only, and the early history of the common
law shows how words which now suggest a real distinction began rather as
symbols of emotion than as terms of scientific classification.
And, again:
So long as crimes continue (as would seem inevitable) to be created by
government policy the nature of crime will elude true definition. Nevertheless it
is a broadly accurate description to say that nearly every instance of crime
presents all of the three following characteristics: (1) that it is a harm, brought
about by human conduct, which the sovereign power in the State desires to
prevent; (2) that among the measures of prevention selected is the threat of
punishment; (3) that legal proceedings of a special kind are employed to decide
whether the person accused did in fact cause the harm, and is, according to
law, to be held legally punishable for doing so.
78. Stephen defines a Crime thus:
a crime is an unlawful act or default which is an offence against the public,
rendering the person guilty of such act or default liable to legal punishment.
The process by which such person is punished for the unlawful act or default is
carried on in the name of the Crown; although any private person, in the
absence of statutory provision to the contrary, may commence a criminal
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

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are an infringement or privation of the civil rights which belongs to individuals,
considered merely as individuals; public wrongs or crimes and misdemeanours are a
breach and violation of the public rights and duties due to the whole community in its
social aggregate capacity. 12 In all cases the crime includes injury; every public offence
is also a private wrong, and somewhat more. It affects the individual, and it likewise
affects the community.13
81. The constituents of crime in general has been enumerated in Halsbury's Laws of
England as "a person is not to be convicted of a crime unless he has, by voluntary
conduct, brought about those elements which by common law or statute constitute that
crime. In general a person does not incur criminal liability unless he intended to bring
about, or recklessly brought about, those elements which constitute the crime. The
foregoing concepts are traditionally expressed in maxim "actus non facit reum nisi mens
sit rea"14. Enforcement of a right and seeking remedy are two distinct facets. It should
not be confused.
82. The concept of crime is essentially concerned with social order. It is well known
that man's interests are best protected as a member of the community. Everyone owes
certain duties to his fellow-men and at the same time has certain rights and privileges
which he expects others to ensure for him. This sense of mutual respect and trust for
the rights of others regulates the conduct of the members of society inter-se. Although
most people believe in the principle of 'live and let live', yet there are a few who, for
some reason or the other, deviate from this normal behavioral pattern and associate
themselves with anti-social elements. This obviously imposes an obligation on the State
to maintain normalcy in the society. This arduous task of protecting the law abiding
citizens and punishing the law breakers vests with the State which performs it through
the instrumentality of law. It is for this reason that Salmond has defined law as a 'rule
of action' regulating the conduct of individuals in society. The conducts which are
prohibited by the law in force at a given time and place are known as wrongful acts or
crimes, whereas those which are permissible under the law are treated as lawful. The
wrongdoer committing crime is punished for his guilt under the law of crime.15
83. Mr. Rohtagi has referred to the Blackstone's definition crimes and laid emphasis 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 case to its logical conclusion or to drop it if he so chooses-there
is no duty on him to bring the case at all.
84. In this context, reference to certain authorities that deliberated the conception of
crime in the societal context would be apt. In State of Maharashtra v. Sujay
Mangesh Poyarekar MANU/SC/8073/2008 : (2008) 9 SCC 475, this Court has held

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that every crime is considered as an offence against the society as a whole and not only
against an individual even though it is an individual who is the ultimate sufferer. It is,
therefore, the duty of the State to take appropriate steps when an offence has been
committed. Yet again, in Mohd. Shahabuddin v. State of Bihar and Ors.
MANU/SC/0203/2010 : (2010) 4 SCC 653, it has been observed that every criminal act
is an offence against the society. The crime is a wrong done more to the society than to
an individual. It involves a serious invasion of rights and liberties of some other person
or persons. In Vinay Devanna Nayak v. Ryot Sewa Sahakari Bank Ltd.
MANU/SC/0061/2008 : (2008) 2 SCC 305, the Court, while deliberating on the issue
of compromise in a criminal case, has noted that it is no doubt true that every crime is
considered to be an offence against the society as a whole and not only against an
individual even though an individual might have suffered thereby. It is, therefore, the
duty of the State to take appropriate action against the offender. It is equally the duty
of a court of law administrating criminal justice to punish a criminal. The stress is on
the duty of the State in taking action against the violator of law.
85. In R. Sai Bharathi v. J. Jayalalitha and Ors. MANU/SC/0956/2003 : (2004) 2
SCC 9, while opining about crime, it has been observed as under:
5 6 . Crime is applied to those acts, which are against social order and are
worthy of serious condemnation. Garafalo, an eminent criminologist, defined
"crime" in terms of immoral and anti-social acts. He says that:
crime is an immoral and harmful act that is regarded as criminal by
public opinion because it is an injury to so much of the moral sense as
is possessed by a community -- a measure which is indispensable for
the adaptation of the individual to society.
The authors of the Indian Penal Code stated that:
... We cannot admit that a Penal Code is by any means to be considered
as a body of ethics, that the legislature ought to punish acts merely
because those acts are immoral, or that, because an 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 MANU/SC/0351/2000 : (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 MANU/SC/1597/1994
: (1994) 3 SCC 569, this Court observed that:
4 4 6 . What is a crime in a given society at a particular time has a wide
connotation as the concept of crime keeps on changing with change in political,
economic and social set-up of the country. Various legislations dealing with
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 economic offences or offences dealing with violation of industrial activity or
breach of taxing provision are ample proof of it. The Constitution-makers
foresaw the eventuality, therefore they conferred such powers both on Central
and State Legislatures to make laws in this regard. Such right includes power to
define a crime and provide for its punishment. Use of the expression, "including
all matters included in the Indian Penal Code at the commencement of the
Constitution" is unequivocal indication of comprehensive nature of this entry. It
further empowers the legislature to make laws not only in respect of matters
covered by the Indian Penal Code but any other matter which could reasonably
and justifiably be considered to be criminal in nature.
8 7 . I n Harpreet Kaur (Mrs.) v. State of Maharashtra and Anr.
MANU/SC/0185/1992 : (1992) 2 SCC 177, the Court, though in a different context,
opined that crime is a revolt against the whole society and an attack on the civilisation
of the day. In their essential quality, the activities which affect 'law and order' and those
which disturb 'public order' may not be different but in their potentiality and effect upon
even tempo of the society and public tranquility there is a vast difference. In State of
Karnataka v. Appa Balu Ingale and Ors. MANU/SC/0151/1993 : 1995 Supp. (4)
SCC 469 it has been observed that criminal law primarily concerns with social
protection, prescribes Rules of behavior to be observed by all persons and punishes
them for deviance, transgression or omission.
8 8 . From the aforesaid discussion, it is plain as day that the contention that the
criminal offence meant to subserve the right of inter se private individuals but not any
public or collective interest in totality is sans substance. In this regard, we may take
note of the submission put forth by Mr. Narsimha, learned Additional Solicitor General,
that Articles 17, 23 and 24 which deal with abolition of untouchability and prohibit
trafficking in human beings and forced labour and child labour respectively are rights
conferred on the citizens and they can be regarded as recognition of horizontal rights
under the Constitution. He has referred to certain legislations to highlight that they
regulate rights of individuals inter se. Mr. Narsimha has drawn immense inspiration
from Vishaka and Ors. v. State of Rajasthan and Ors. MANU/SC/0786/1997 :
(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.
8 9 . 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 that creation of
an offence may be for some different reason declared unconstitutional but it cannot be
stated that the legislature cannot have a law to constitute an act or omission done by a
person against the other as a crime. It depends on the legislative wisdom. Needless to
say, such wisdom has to be in accord with constitutional wisdom and pass the test of
constitutional challenge. If the law enacted is inconsistent with the constitutional
provisions, it is the duty of the Court to test the law on the touchstone of Constitution.

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90. It is submitted by Mr. Rao, learned senior counsel, that the object of Part III of the
Constitution is to provide protection against the State action and, therefore, the criminal
defamation which is basically a dispute between two private individuals cannot become
a facet of the term criminal defamation as used in Article 19(2) of the Constitution, for
there cannot be a constitutional protection for such an action. For the said purpose, he
has placed reliance on the authority in State of West Bengal v. Subodh Gopal Bose
and Ors. MANU/SC/0018/1953 : AIR 1954 SC 92 : [1954] SCR 587. On a perusal of
the said decision, we find that it has been rendered in a quite different context and not
with regard to an individual act becoming an offence in the criminal law and hence, the
said decision is remotely not applicable to such a situation. Therefore, we conclude and
hold that the restricted meaning sought to be given to the term "defamation" is
unacceptable and insupportable.
Sanctity and significance of Freedom of Speech and Expression in a democracy
91. Freedom of speech and expression in a spirited democracy is a highly treasured
value. Authors, philosophers and thinkers have considered it as a prized asset to the
individuality and overall progression of a thinking society, as it permits argument,
allows dissent to have a respectable place, and honours contrary stances. There are
proponents who have set it on a higher pedestal than life and not hesitated to barter
death for it. Some have condemned compelled silence to ruthless treatment. William
Dougles has denounced Regulation of free speech like regulating diseased cattle and
impure butter. The Court has in many an authority having realized its precious nature
and seemly glorified sanctity has put it in a meticulously structured pyramid. Freedom
of speech is treated as the thought of 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.
9 2 . 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 Speiser v. Randall (1958) 257 US 513 (530)). In Yates v.
U.S. (1958) 354 US 298 (344) the court held that "the only kind of security system that
can preserve a free Government-one that leaves the way wide open for people to favor
discuss, advocate, or incite causes and doctrines however obnoxious and antagonistic
such views may be to the rest of us." In Stromberg v. California (1931) 283 US 359
(369) the Court remarked "The maintenance of the opportunity for free political
discussion to the end that government may be responsive to the will of the people and
that changes may be obtained by lawful means... is a fundamental principle of our
constitutional system." In Palko v. Connecticut (1937) 302 US 319 the right to
freedom of speech and expression has been described as the "touchstone of individual
liberty" and "the indispensable condition of nearly every form of freedom."
9 3 . Apart from the aforesaid decisions, we may refer to the dissenting opinion of
Holmes J. in Abrams v. United States 250 US 616 : 63 L Ed 1173 (1919), thus:
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 ... But when men have realised that time has upset many fighting faiths, they
may come to believe even more than they believe the very foundations of their
own conduct that the ultimate good desired is better reached by free trade in
ideas--that the best test of truth is the power of the thought to get itself
accepted in the competition of the market; and that truth is the only ground
upon which their wishes safely can be carried out. That at any rate, is the
theory of our Constitution.
94. In the concurring judgment Brandeis, J. in Whitney v. California 71 L Ed 1095 :
274 US 357 (1927), stated that:
Those who won our independence believed that the final end of the State was
to make men free to develop their faculties, and that in its Government the
deliberative forces should prevail over the arbitrary. They valued liberty both as
an end and as a means. They believed liberty to be the secret of happiness and
courage to be the secret of liberty. They believed that freedom to think as you
will and to speak as you think are means indispensable to the discovery and
spread of political truth; that without free speech and assembly discussion
would be futile; that with them, discussion affords ordinarily adequate
protection against the dissemination of noxious doctrine; that the greatest
menace to freedom 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 reasonable ground to fear that serious evil will result if
free speech is practiced. There must be reasonable ground to believe that the
danger apprehended is imminent. There must be reasonable ground to believe
that the evil to be prevented is a serious one. Every denunciation of existing
law tends in some measure to increase the probability that there will be
violation of it. Condonation of a breach enhances the probability. Expressions
of approval add to the probability. Propagation of the criminal state of mind by
teaching syndicalism increases it. Advocacy of law-breaking heightens it still
further. But even advocacy of violation, however reprehensible morally, is not a
justification for denying free speech where the advocacy falls short of
incitement and there is nothing to indicate that the advocacy would be
immediately acted on. The wide difference between advocacy and incitement,
between preparation and attempt, between assembling and conspiracy, must be
borne in mind. In order to support a finding of clear and present danger it must
be shown either that immediate serious violence was to be expected or was
advocated, or that the past conduct furnished reason to believe that such
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 advocacy was then contemplated.
(Emphasis supplied)
95. Be it stated, the dissenting opinion of Holmes, J. and the concurring opinion of
Brandeis have been quoted in Shreya Singhal (supra). We have only referred to these
decisions as immense emphasis has been laid on the freedom of speech and expression
and in a way propositions have been propounded that it can have no boundary in a
growing democracy if democracy is expected to thrive. In Shreya Singhal (supra), the
Court has drawn a difference between the US First Amendment and Article 19(1)(a) read
with Article 19(2). The Court has drawn four differences. We need not advert to the
same. However, the Court has also opined that American judgments have great
persuasive value on the content of freedom of speech and expression and the tests laid
down for its infringement but it is only when it comes to subserving the general public
interest that there is the world of difference. In the said judgment, a passage has been
quoted from Kameshwar Prasad v. State of Bihar MANU/SC/0410/1962 : 1962
Supp. (3) SCR 369 : AIR 1962 SC 1166 wherein it has been held that the resultant
flexibility of the restrictions that could be validly imposed renders the American
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. MANU/SC/0406/1984
: (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 unconstitutional.
96. In Romesh Thappar v. State of Madras MANU/SC/0006/1950 : 1950 SCR 594
: AIR 1950 SC 124 the majority opined that freedom of speech and of the press lay at
the foundation of all democratic organisations, for without free political discussion no
public education, so essential for the proper functioning of the processes of popular
Government, is possible. A freedom of such amplitude might involve risks of abuse. But
the Framers of the Constitution may well have reflected with Madison who was 'the
leading spirit in the preparation of the First Amendment of the Federal Constitution',
that 'it is better to leave a few of its noxious branches to their luxuriant growth, than,
by pruning them away, to injure the vigour of those yielding the proper fruits' ( Near v.
Minnesota 283 U.S. 607, at 717-8, L Ed p. 1368.).
97. I n Express Newspaper (Private) Ltd. and Anr. v. Union of India and Ors.
MANU/SC/0157/1958 : AIR 1958 SC 578 : 1959 SCR 12 the Court referred to the
decision in Romesh Thappar (supra), noted a few decisions of the Court which
involved with the interpretation of Article 19(1)(a) that they only lay down that the
freedom of speech and expression includes freedom of propagation of ideas by which
freedom is ensured; emphasized on liberty of the press as it is an essential part of the
right to freedom of speech and expression and further stated that liberty of the press
consists in allowing no previous restraint upon publication. Thereafter the Court

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referred to number of authorities of the United States of America and culled out the
principles from the American decisions to the effect that in the United States of America
(a) the freedom of speech comprehends the freedom of press and the freedom of
speech and press are fundamental personal rights of the citizens; (b) that the freedom
of the press rests on the assumption that the widest possible dissemination of
information from diverse and antagonistic sources is essential to the welfare of the
public; (c) that such freedom is the foundation of free Government of a free people; (d)
that the purpose of such a guarantee is to prevent public authorities from assuming
guardianship of the public mind, and (e) that freedom of press involves freedom of
employment or non-employment of necessary means of exercising this right or in other
words, freedom from restriction in respect of employment in the editorial force and
eventually ruled 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. I n All India Bank Employees' Association v. National Industrial Tribunal
(Bank Disputes), Bombay and Ors. MANU/SC/0240/1961 : (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. I n Sakal Papers (P) Ltd. v. Union of India MANU/SC/0090/1961 : (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 way and not in a narrow and pedantic
sense. Certain rights have been enshrined in our Constitution as fundamental and,
therefore, while considering the nature and content of those rights the Court must not
be too astute to interpret the language of the Constitution in so literal a sense as to
whittle them down. On the other hand, the Court must interpret the Constitution in a
manner which would enable the citizen to enjoy the rights guaranteed by it in the fullest
measure subject, of course, to permissible restrictions. The Court further observed that
the right to freedom of speech and expression carries with it the right to publish and
circulate one's ideas, opinions and views with complete freedom and by resorting to any
available means of publication, subject again to such restrictions as could be
legitimately imposed under Clause (2) of Article 19. Be it stated here that in Indian
Express Newspapers (supra), this Court referring to earlier decisions had accepted
that freedom of speech and expression includes within its scope freedom of press, for
the said freedom promises freedom of propagation of ideas which freedom is assured
by the freedom of circulation. Liberty of the press has been treated as inseparable and
essential for the right to freedom of speech and expression.
1 0 0 . The Court in Bennett Coleman and Co. and Ors. v. Union of India and Ors.
MANU/SC/0038/1972 : (1972) 2 SCC 788 referring to Sakal Papers case opined that in
the said case the Court has held that freedom of speech would not be restricted for the
purpose of regulating the commercial aspects of activities of the newspapers. Similarly,
it referred to the authorities in Indian Express Newspapers (supra) and stated that if
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a law were to single out the press for laying down prohibitive burdens on it, that would
restrict circulation and eventually violate Article 19(1)(a) and would fall outside the
protection afforded by Article 19(2). Elaborating the idea further, the majority ruled:
The faith of a citizen is that political wisdom and virtue will sustain themselves
in the free market of ideas so long as the channels of communication are left
open. The faith in the popular Government rests on the old dictum, "let the
people have the truth and the freedom to discuss it and all will go well." The
liberty of the press remains an "Art of the Covenant" in every democracy. Steel
will yield 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 entitled to participate in the process of formulating common decisions. [See
Thomas I. Emerson: Toward a General Theory of First Amendment]. The crucial
point is not that freedom of expression is politically useful but that it is
indispensable to the operation of a democratic system. In a democracy the
basic premise is that the people are both the governors and the governed. In
order that governed may form intelligent and wise judgment it is necessary that
they must be appraised of all the aspects of a question on which a decision has
to be taken so that they might arrive at the truth.
We have reproduced the said passage to appreciate the height to which the freedom of
speech and expression has been elevated by this Court regard being to the democratic
and constitutional goals.
103. In Indian Express Newspapers (supra), a three-Judge Bench was again concerned
with the importance of freedom of press in a democratic society. Venkataramiah, J.
speaking for the Court opined that freedom of press is the heart and soul and political
intercourse and it has assumed the role of public educator making formal and non-
formal education possible in a large scale particularly in the developing world. The
Court further observed that the purpose of the press is to advance the public interest by
publishing facts and opinions without which a democratic electorate cannot make
responsible judgments. In this backdrop, it was emphatically stated it is the primary
duty of the courts to uphold the said freedom and invalidate all laws or administrative
actions which interfere with it, contrary to the constitutional mandate.

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104. In Secretary, Ministry of Information and Broadcasting, Govt. of India and
Ors. v. Cricket Association of Bengal and Ors. MANU/SC/0246/1995 : (1995) 2
SCC 161, it has been ruled that the freedom of speech and expression includes right to
acquire information and to disseminate it; and freedom of speech and expression is
necessary, for self-expression which is an important means of free conscience and self-
fulfilment. The Court further observed that it enables people to contribute to debates on
social and moral issues and it is the best way to find a truest model of anything, since it
is only through it that the widest possible range of ideas can circulate. Emphasis has
been laid on freedom of the press and freedom to communicate or circulate one's
opinion without interference.
105. The Court in Union of India and Ors. v. Motion Picture Association and Ors.
MANU/SC/0404/1999 : (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. MANU/SC/0234/2003 : (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 construed by this Court freedom of
speech and expression has been variously described as a "basic human right", "a
natural right" and the like. The learned Judge has observed that the importance our
Constitution-makers wanted to attach to this freedom is evident from the fact that
reasonable restrictions on that right could be placed by law only on the limited grounds
specified in Article 19(2), not to speak of inherent limitations of the right.
106. In Union of India v. Naveen Jindal and Anr. MANU/SC/0072/2004 : (2004)
2 SCC 510, the Court has laid down that freedom of expression is a cornerstone of
functioning of the democracy and there is a constitutional commitment to free speech.
I n Government of Andhra Pradesh and Ors. v. P. Laxmi Devi
MANU/SC/1017/2008 : (2008) 4 SCC 720, it has been ruled that freedom and liberty
is essential for progress, both economic and social and without freedom to speak,
freedom to write, freedom to think, freedom to experiment, freedom to criticise
(including criticism of the Government) and freedom to dissent there can be no
progress. In S. Khushboo v. Kanniammal and Anr. MANU/SC/0310/2010 : (2010)
5 SCC 600, it has been laid down that even though the constitutional freedom of speech
and expression is not absolute and can be subjected to reasonable restrictions on
grounds such as 'decency and morality' among others, stress must be laid on the need
to tolerate unpopular views in the socio-cultural space. The framers of our Constitution
recognised the importance of safeguarding this right since the free flow of opinions and
ideas is essential to sustain the collective life of the citizenry. While an informed
citizenry is a pre-condition for meaningful governance in the political sense, it is the
duty of everyone to promote a culture of open dialogue when it comes to societal
attitudes.
107. The significance of freedom of speech has been accentuated in Ramlila Maidan
Incident, In re MANU/SC/0131/2012 : (2012) 5 SCC 1 by observing that the
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freedom of speech is the bulwark of a democratic Government. This freedom is essential
for proper functioning of the democratic process. The freedom of speech and expression
is regarded as the first condition of liberty. It occupies a preferred position in the
hierarchy of liberties, giving succor and protection to all other liberties. It has been
truly said that it is the mother of all other liberties. Freedom of speech plays a crucial
role in the 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. MANU/SC/0735/2012 : (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]
1 0 9 . I n State of Karnataka and Anr. v. Associated Management of English
Medium Primary and Secondary Schools and Ors. MANU/SC/0418/2014 : (2014)
9 SCC 485, while dealing with the freedom Under Article 19(1)(a), the Constitution
Bench opined:
36. The word 'freedom' in Article 19 of the Constitution means absence of
control by the State and Article 19(1) provides that the State will not impose
controls on the citizen in the matters mentioned in Sub-clauses (a), (b), (c),
(d), (e) and (g) of Article 19(1) except those specified in Clauses (2) to (6) of
Article 19 of the Constitution. In all matters specified in Clause (1) of Article
19, the citizen has therefore the liberty to choose, subject only to restrictions in
Clauses (2) to (6) of Article 19.
1 1 0 . The Court referred to the famous essay 'on liberty' by John Stuart Mill and
reproduced a passage from A Grammer of Politics by Harold J. Laski and then ruled
that:
Freedom or choice in the matter of speech and expression is absolutely
necessary for an individual to develop his personality in his own way and this is
one reason, if not the only reason, why Under Article 19(1)(a) of the
Constitution every citizen has been guaranteed the right to freedom of speech
and expression.
111. Recently in Devidas Ramachandra Tuljapurkar v. State of Maharashtra and
Ors. MANU/SC/0612/2015 : (2015) 6 SCC 1 the court relying upon various judgments
has ruled that:
...There can be no doubt that there has been an elevation of the concept in a
different way, but it cannot form the foundation or base to sustain the argument
of Mr. Subramanium that the freedom has to be given absolute and uncurtailed

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 expanse without any boundaries of exceptions. We accept the proposition that
there should not be a narrow or condensed interpretation of freedom of speech
and expression, but that does not mean that there cannot be any limit.
112. While discussing about importance of freedom of speech and expression which
includes freedom to express, we feel it necessary to dwell upon the liberty or freedom
to express one's ideas through various medium like writing, printing or making films,
etc. Dr. Dhawan, learned senior counsel, has commended us to the authorities in
Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana and Ors.
MANU/SC/0350/1988 : (1988) 3 SCC 410 andS. Rangarajan v. P. Jagjivan Ram
and Ors. MANU/SC/0475/1989 : (1989) 2 SCC 574. InOdyssey Communications
Pvt. Ltd. (supra), a public interest litigation was filed before the High Court for
restraining the authorities from telecasting 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 people of Tamil Nadu who have suffered for centuries
will not allow themselves to be deprived of the benefits extended to them on a
particular basis. It seems to us that the reasoning of the High Court runs afoul
of the democratic principles to which we have pledged ourselves in the
Constitution. In democracy it is not necessary that everyone should sing the
same song. Freedom of expression is the Rule and it is generally taken for
granted. Everyone has a fundamental right to form his own opinion on any
issue of general concern. He can form and inform by any legitimate means.
113. Recently, in Devidas Ramachandra Tuljapurkar (supra) a two-Judge Bench
was dealing with the issue of obscenity in a poem in a different context. Various
judgments of the United States of America, the United Kingdom and European Courts
were referred to. There was also reference to the authorities of this Court in the context
of Section 292 Indian Penal Code which included Ranjit D. Udeshi v. State of
Maharashtra MANU/SC/0080/1964 : AIR 1965 SC 881 : (1965) 1 SCR 65,
Chandrakant Kalyandas Kakodkar v. State of Maharashtra MANU/SC/0147/1969
: (1969) 2 SCC 687, K.A. Abbas v. Union of India MANU/SC/0053/1970 : (1970) 2
SCC 780, Raj Kapoor v. State MANU/SC/0210/1979 : (1980) 1 SCC 43,Samaresh
Bose v. Amal Mitra MANU/SC/0102/1985 : (1985) 4 SCC 289,Directorate General
of Doordarshan v. Anand Patwardhan MANU/SC/3637/2006 : (2006) 8 SCC 433,
Ajay Goswami v. Union of India MANU/SC/5585/2006 : (2007) 1 SCC 143,Bobby
Art International v. Om Pal Singh Hoon MANU/SC/0466/1996 : (1996) 4 SCC 1
and Aveek Sarkar v. State of W.B. MANU/SC/0081/2014 : (2014) 4 SCC 257 and
observed that factum of obscenity has to be judged by applying the contemporary
community standards test. However, the Court held that when name of Mahatma Gandhi
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is used as a symbol speaking or using obscene words, the concept of 'degree' comes in.
We think it appropriate to reproduce the said passage:
When the name of Mahatma Gandhi is alluded or used as a symbol, speaking or
using obscene words, the concept of "degree" comes in. To elaborate, the
"contemporary community standards test" becomes applicable with more
vigour, in a greater degree and in an accentuated manner. What can otherwise
pass of the contemporary community standards test for use of the same
language, it would not be so, if the name of Mahatma Gandhi is used as a
symbol or allusion or surrealistic voice to put words or to show him doing such
acts which are obscene. While so concluding, we leave it to the poet to 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
t o 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 pertaining to fictional characters stand on a different footing than
defamation as the latter directly concerns the living or the legal heirs of the dead and
most importantly, having a known identity. A person in reality is defamed contrary to a
"fictional character" being spoken of by another character or through any other mode of
narrative. Liberty or freedom in that sphere is fundamentally different than the arena of
defamation. Therefore, the decisions rendered in the said context are to be guardedly
studied, appreciated and applied. It may be immediately added here that the freedom in
the said sphere is not totally without any limit or boundary. We have only adverted to
the said aspect to note that what could legally be permissible in the arena of fiction may
not have that allowance in reality. Also, we may state in quite promptitude that we have
adverted to this concept only to have the completeness with regard to precious value of
freedom of speech and expression and the limitations perceived and stipulated thereon.
115. Be that as it may, the aforesaid authorities clearly lay down that freedom of
speech and expression is a highly treasured value under the Constitution and voice of
dissent or disagreement has to be respected and regarded and not to be scuttled as
unpalatable criticism. Emphasis has been laid on the fact that dissonant and discordant
expressions are to be treated as view-points with objectivity and such expression of
views and ideas being necessary for growth of democracy are to be zealously protected.
Notwithstanding, the expansive and sweeping and ambit of freedom of speech, as all
rights, right to freedom of speech and expression is not absolute. It is subject to
imposition of reasonable restrictions.
Reasonable Restrictions
1 1 6 . To appreciate the compass and content of reasonable restriction, we have to
analyse nature of reasonable restrictions. Article 19(2) envisages "reasonable

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restriction". The said issue many a time has been deliberated by this Court. The concept
of reasonable restriction has been weighed in numerous scales keeping in view the
strength of the right and the effort to scuttle such a right. In Chintaman Rao v. State
of M.P. MANU/SC/0008/1950 : AIR 1951 SC 118, this Court, opined as under:
The phrase "reasonable restriction" connotes that the limitation imposed on a
person in enjoyment of the right should 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 MANU/SC/0013/1952 : 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.
1 1 8 . I n Bennett Coleman and Co. (supra) while dealing with the concept of
reasonable restriction, this Court has held that the law which lays excessive and
prohibitive burden which would restrict the circulation of a newspaper will not be saved
by Article 19(2), for the freedom of a newspaper to publish any number of pages or to
circulate it to any number of persons is an integral part of the freedom of speech and
expression and said freedom is violated by placing restraints upon it or by placing
restraints upon something which is an essential part of that freedom.
119. In Maneka Gandhi v. Union of India and Anr. MANU/SC/0133/1978 : (1978)
1 SCC 248 : AIR 1978 SC 597 Bhagwati, J. referred to the authority inR.C. Cooper v.
Union of India MANU/SC/0074/1970 : (1970) 2 SCC 298 and the principles stated in
Bennett Coleman and Co. (supra) and opined that:
It may be recalled that the test formulated in R.C. Cooper case (supra) merely
refers to "direct operation" or 'direct consequence and effect' of the State action
on the fundamental right of the Petitioner and does not use the word
"inevitable" in this connection. But there can be no doubt, on a reading of the
relevant observations of Shah, J., that such was the test really intended to be
laid down by the Court in that case. If the test were merely of direct or indirect
effect, it would be an open-ended concept and in the absence of operational
criteria for judging "directness", it would give the Court an unquantitiable
discretion to decide whether in a given case a consequence or effect is direct or
not. Some other concept-vehicle would be needed to quantify the extent of
directness or indirectness in order to apply the test. And that is supplied by the
criterion of "inevitable" consequence or effect adumbrated in the Express
Newspapers case. This criterion helps to quantify the extent of directness
necessary to constitute infringement of a fundamental right. Now, if the effect
of State action on fundamental right is direct and inevitable, then a fortiori it
must be presumed to have been intended by the authority taking the action and

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 hence this doctrine of direct and inevitable effect has been described by some
jurists as the doctrine of intended and real effect. ...
1 2 0 . I n M/s. Laxmi Khandsari and Ors. v. State of U.P. and Ors.
MANU/SC/0067/1981 : (1981) 2 SCC 600 the Court has observed that imposition of
reasonable restrictions and its extent would depend upon the object which they 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 excessive. It must possess a direct and
proximate nexus with the object sought to be achieved. Whenever and wherever any
restriction is imposed upon the right to freedom of speech and expression, it must be
within the framework of the prescribed law, as subscribed by Article 19(2) of the
Constitution. Thereafter, it has been laid down that associating police as a
prerequirement to hold such meetings, dharnas and protests, on such large scale, would
not infringe the fundamental rights enshrined Under Articles 19(1)(a) and 19(1)(b) of
the Constitution as this would squarely fall within the regulatory mechanism of
reasonable restrictions, contemplated Under Articles 19(2) and 19(3). Furthermore, it
would help in ensuring due social order and would also not impinge upon the rights of
the others, as contemplated Under Article 21 of the Constitution of India. Emphasis was
laid on the constitutional duties that all citizens are expected to discharge.
122. I n Sahara India Real Estate Corporation Ltd. (supra), this Court reiterated
the principle of social interest in the context of Article 19(2) as a facet of reasonable
restriction. In Dwarka Prasad Laxmi Narain v. State of U.P. MANU/SC/0030/1954
: AIR 1954 SC 224, while deliberating upon "reasonable restriction" observed that it
connotes that the limitation imposed upon a person in enjoyment of a right should not
be arbitrary or of an excessive nature beyond what is required in the interest of the
public. It was also observed that to achieve quality of reasonableness a proper balance
between the freedom guaranteed Under Article 19(1) (g) and the social control
permitted by Clause (6) of Article 19 has to be struck.
123. I n Bishambhar Dayal Chandra Mohan and Ors. v. State of Uttar Pradesh
and Ors. MANU/SC/0056/1981 : (1982) 1 SCC 39, this Court ruled that the
expression "reasonable restriction" signifies that the limitation imposed on a person in
enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is
required in the interests of the public. 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 in all cases. In State
of Bihar v. K.K. Misra (1969) 3 SCC 377, the Court, after referring to Dr. N.B. Khare
v. The State of Delhi MANU/SC/0013/1952 : [1952] S.C.R. 597 andV.G. Row
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(supra), 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.
1 2 4 . I n Papnasam Labour Union v. Madura Coats Ltd. and Anr.
MANU/SC/0567/1995 : (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 19, the
Court has to bear in mind the Directive Principles of State Policy and any restriction so
imposed which has the effect of promoting or effectuating a directive principle can be
presumed to be a reasonable restriction in public interest.
125. The principles as regards reasonable restriction as has been stated by this Court
from time to time are that the restriction should not be excessive and in public interest.
The legislation should not invade the rights and should not smack of arbitrariness. The
test of reasonableness cannot be determined by laying down any abstract standard or
general pattern. It would depend upon the nature of the right which has been infringed
or sought to be infringed. The ultimate "impact", that is, effect on the right has to be
determined. The "impact doctrine" or the principle of "inevitable effect" or "inevitable
consequence" stands in contradistinction to abuse or misuse of a legislation or a
statutory provision depending upon the circumstances of the case. The prevailing
conditions of the time and the principles of proportionality of restraint are to be kept in
mind by the court while adjudging the constitutionality of a provision regard being had
to the nature of the right. The nature of social control which includes public interest has
a role. The conception of social interest has to be borne in mind while considering
reasonableness of the restriction imposed on a right. The social interest principle would
include the felt needs of the society. As the submissions would show, the stress is given
on the right to freedom of speech and expression in the context of individual growth,
progress of democracy, conceptual respect for a voice of dissent, tolerance for
discordant note and acceptance of different voices. Right to say what may displease or
annoy others cannot be throttled or garroted. There can never be any cavil over the fact
that the right to freedom of speech and expression is a right that has to get ascendance
in a democratic body polity, but at the same time the limit has to be proportionate and
not unlimited. It is urged that the defamation has been described as an offence Under
Section 499 Indian Penal Code that protects individual's perception of his own
reputation which cannot be elevated to have the status of public interest. The argument
is that to give a remedy 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.
1 2 6 . The principles being stated, the attempt at present is to scrutinize whether
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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 [See: Francis Coralie Mullin v. Administrator, Union Territory of
Delhi and Ors. MANU/SC/0517/1981 : (1981) 1 SCC 608]. It has also been laid
down in the said decision that the right to life has to be interpreted in a broad and
expansive spirit so as to invest it with significance and vitality which may endure for
years to come and enhance dignity of an individual and worth of a human being. In
Chameli Singh and Ors. v. State of U.P. and Anr. MANU/SC/0286/1996 : (1996)
2 SCC 549, the Court has emphasized on social and economic justice which includes the
right to shelter as an inseparable component of meaningful right to life. The respect for
life, property has been regarded as essential requirement of any civilized society in
Siddharam Satlingappa Mhetre v. State of Maharashtra MANU/SC/1021/2010 :
(2011) 1 SCC 694. Deprivation of life, according to Krishna Iyer, J. in Babu Singh and
Ors. v. State of U.P. MANU/SC/0059/1978 : (1978) 1 SCC 579 has been regarded as
a matter of grave concern. Personal liberty, as used in Article 21, is treated as a
composition of rights relatable to various spheres of life to confer the meaning to the
said right. Thus perceived, the right to life Under Article 21 is equally expansive and it,
in its connotative sense, carries a collection or bouquet of rights. In the case at hand,
the emphasis is on right to reputation which has been treated as an inherent facet of
Article 21. In Haridas Das v. Usha Rani Banik and Ors. MANU/SC/3005/2007 :
(2007) 14 SCC 1, it has been stated that a good name is better than good riches. In a
different context, the majority in S.P. Mittal v. Union of India and Ors.
MANU/SC/0532/1982 : (1983) 1 SCC 51 : AIR 1983 SC 1, has opined that man, as a
rational being, endowed with a sense of freedom and responsibility, does not remain
satisfied with any material existence. He has the urge to indulge in creative activities
and effort is to realize the value of life in them. The said decision lays down that the
value of life is incomprehensible without dignity.
127. In Charu Khurana and Ors. v. Union of India and Ors. MANU/SC/1044/2014
: (2015) 1 SCC 192, it has been ruled that dignity is the quintessential quality of a
personality, for it is a highly cherished value. Thus perceived, right to honour, dignity
and reputation are the basic constituents of right Under Article 21. Submission of the
learned 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

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 as for me, give me liberty, or give me death!16
128. In this context, we also think it apt to quote a passage from Edmund Burke:
Men are qualified for civil liberty, in exact proportion to their disposition to put
moral chains upon their own appetites; in proportion as their love to justice is
above their rapacity; in proportion as their soundness and sobriety of
understanding is above their vanity and presumption; in proportion as they are
more disposed to listen to the counsel of the wise and good, in preference to
the flattery of knaves. Society cannot exist unless a controlling power upon will
and appetite be placed somewhere and the less of it there is within, the more
there must be without. It is ordained in the eternal constitution of things that
men of intemperate minds cannot be free. Their passions forge their fetters17.
129. The thoughts of the aforesaid two thinkers, as we understand, are not contrary to
each other. They relate to different situations and conceptually two different ideas; one
speaks of an attitude of compromising liberty by accepting chains and slavery to save
life and remain in peace than to death, and the other view relates to "qualified civil
liberty" and needed control for existence of the society. Contexts are not different and
reflect one idea. Rhetorics may have its own place when there is disproportionate
restriction but acceptable restraint subserves the social interest. In the case at hand, it
is to be seen whether right to freedom and speech and expression can be allowed so
much room that even reputation of an individual which is a constituent of Article 21
would have no entry into that area. To put differently, in the name of freedom of speech
and expression, should one be allowed to mar the other's reputation as is understood
within the ambit of defamation as defined in criminal law.
Balancing of Fundamental Rights
130. To appreciate what we have posed hereinabove, it is necessary to dwell upon
balancing the fundamental rights. It has been argued by the learned Counsel for the
Petitioners that the right conferred Under Article 19(1)(a) has to be kept at a different
pedestal than the individual reputation which has been recognized as an aspect of
Article 21 of the Constitution. In fact the submission is that right to freedom of speech
and expression which includes freedom of press should be given higher status and the
individual's right to have his/her reputation should yield to the said right. 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]

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131. Having bestowed our anxious consideration on the said passage, we are disposed
to think that the above passage is of no assistance to the Petitioners, for the issue
herein is sustenance and balancing of the separate rights, one Under Article 19(1)(a)
and the other, Under Article 21. Hence, the concept of equipoise and counterweighing
fundamental rights of one with other person. It is not a case of mere better enjoyment
of another freedom. In Acharya Maharajshri Narendra Prasadji Anandprasadji
Maharaj and Ors. v. The State of Gujarat and Ors. MANU/SC/0034/1974 : (1975)
1 SCC 11, it has been observed that a particular fundamental right cannot exist in
isolation in a watertight compartment. One fundamental right of a person may have to
co-exist in harmony with the exercise of another fundamental right by others and also
with reasonable and valid exercise of power by the State in the light of the Directive
Principles in the interests of social welfare as a whole. The Court's duty is to strike a
balance between competing claims of different interests. In Delhi Transport
Corporation v. D.T.C. Mazdoor Congress and Ors. MANU/SC/0031/1991 : 1991
Supp (1) SCC 600 the Court has ruled that Articles relating to fundamental rights are all
parts of an integrated scheme in the Constitution and their waters must mix to
constitute that grand flow of unimpeded and impartial justice; social, economic and
political, and of equality of status and opportunity which imply absence of unreasonable
or unfair discrimination between individuals or groups or classes. In St. Stephen's
College v. University of Delhi MANU/SC/0319/1992 : (1992) 1 SCC 558 this Court
while emphasizing the need for balancing the fundamental rights observed that it is
necessary to mediate between Article 29(2) and Article 30(1), between letter and spirit
of these articles, between traditions of the past and the convenience of the present,
between society's need for stability and its need for change."
132. In Mr. 'X' v. Hospital 'Z' MANU/SC/2214/1998 : (1998) 8 SCC 296 this Court
stated that, where there is a clash of two Fundamental Rights, the right to privacy as
part of right to life and Ms. 'Y's right to lead a healthy life which is her Fundamental
Right Under Article 21, the right which would advance the public morality or public
interest, would alone be enforced through the process of court, for the reason that
moral considerations cannot be kept at bay and the Judges are not expected to sit as
mute 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.
1 3 3 . I n Post Graduate Institute of Medical Education and Research,
Chandigarh v. Faculty Association and Ors. MANU/SC/0292/1998 : (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.
1 3 4 . I n Ram Jethmalani and Ors. v. Union of India and Ors.
MANU/SC/0711/2011 : (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
rights of citizens and persons Under Article 21. The latter cannot be sacrificed on the
anvil of fervid desire to find instantaneous solutions to systemic problems through
defamation speech, for it would lead to dangerous circumstances and anarchy may
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become the order of the day.
135. I n Sahara India Real Estate Corporation Ltd. (supra) while describing the
role of this Court in balancing the fundamental rights, the Constitution Bench observed
that the Supreme Court is not only the sentinel of the fundamental rights but also a
balancing wheel between the rights, subject to social control. The larger Bench further
observed that:
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. Underlying our
constitutional system are a number of important values, all of which help to
guarantee our liberties, but in ways which sometimes conflict. Under our
Constitution, probably, no values are absolute. All important values, therefore,
must be qualified and balanced against other important, and often competing,
values. This process of definition, qualification and balancing is as much
required with respect to the value of freedom of expression as it is for other
values.
136. In Maneka Gandhi (supra), it has been held:
5 . ... It is indeed difficult to see on what principle we can refuse to give its
plain natural meaning to the expression 'personal liberty' as used in Article 21
and read it in a narrow and restricted sense so as to exclude those attributes of
personal liberty which are specifically dealt with in Article 19. We do not think
that this would be a correct way of interpreting the provisions of the
Constitution conferring fundamental rights. The attempt of the Court should be
to expand the reach and ambit of the fundamental rights rather than attenuate
their meaning and content by a process of judicial construction. The wavelength
for comprehending the scope and ambit of the fundamental rights has been set
by this Court in R.C. Cooper case (supra) and our approach in the interpretation
of the fundamental rights must now be in tune with this wavelength. We may
point out even at the cost of repetition that this Court has said in so many
terms in R.C. Cooper case (supra) that each freedom has different 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 jettisons from this judgment the profusion of precedents and the
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 mosaic of many points and confines me to some fundamentals confusion on
which, with all the clarity on details, may mar the conclusion. It is a salutary
thought that the summit Court should not interpret constitutional rights
enshrined in Part III to choke its life-breath or chill its elan vital by processes of
legalism, overruling the enduring values burning in the bosoms of those who
won our independence and drew up our founding document. We must also
remember that when this Court lays down the law, not ad hoc tunes but
essential notes, not temporary tumult but transcendental truth, must guide the
judicial process in translating into authoritative notation and mood music of the
Constitution.
138. Beg, J. has stated that:
Articles dealing with different fundamental rights contained in Part III of the
Constitution do not represent entirely separate streams of rights which do not
mingle at many points. They are all parts of an integrated scheme in the
Constitution. Their waters must mix to constitute that grand flow of unimpeded
and impartial Justice (social, economic and political), .....
139. I n Mohd. Arif alias Ashfaq v. Registrar, Supreme Court of India and Ors.
MANU/SC/0754/2014 : (2014) 9 SCC 737, wherein the majority in the Constitution
Bench has observed that the fundamental right to life among all fundamental rights is
the most precious to all human beings. The aforementioned authorities clearly state that
balancing of fundamental rights is a constitutional necessity. It is the duty of the Court
to strike a balance so that the values are sustained. The submission is that continuance
of criminal defamation Under Section 499 Indian Penal Code is constitutionally
inconceivable as it creates a serious dent in the right to freedom of speech and
expression. It is urged that to have defamation as a component of criminal law is an
anathema to the idea of free speech which is recognized under the Constitution and,
therefore, criminalization of defamation in any form is an unreasonable restriction. We
have already held that reputation is an inextricable aspect of right to life Under Article
21 of the Constitution and the State in order to sustain and protect the said reputation
of an individual has kept the provision Under Section 499 Indian Penal Code alive as a
part of law. The seminal point is permissibility of criminal 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 MANU/SC/0415/2005 : (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 to make his voice trespass into the ears or mind of others.
Nobody can indulge in aural aggression. If anyone increases his volume of
speech and that too with the assistance of artificial devices so as to
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 compulsorily expose unwilling persons to hear a noise raised to unpleasant or
obnoxious levels, then the person speaking is violating the right of others to a
peaceful, comfortable and pollution-free life guaranteed by Article 21. Article
19(1)(a) cannot be pressed into service for defeating the fundamental right
guaranteed by Article 21. We need not further dwell on this aspect. Two
decisions in this regard delivered by the High Courts have been brought to our
notice wherein the right to live in an atmosphere free from noise pollution has
been upheld as the one guaranteed by Article 21 of the Constitution. These
decisions are Free Legal Aid Cell Shri Sugan Chand Aggarwal v. Govt. of NCT of
Delhi MANU/DE/0654/2001 : AIR 2001 Del 455 : (2001) 93 DLT 28 (DB) and
P.A. Jacob v. Supdt. of Police MANU/KE/0001/1993 : AIR 1993 Ker 1. We have
carefully gone through the reasoning adopted in the two decisions and the
principle of law laid down therein, in particular, the exposition of Article 21 of
the Constitution. We find ourselves in entire agreement therewith.
140. We are in respectful agreement with the aforesaid enunciation of law. 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. It is not a restriction that
has an inevitable consequence which impairs circulation of thought and ideas. In fact, it
is control regard being had to another person's right to go to Court and state that he
has been wronged and abused. He can take recourse to a procedure recognized and
accepted in law to retrieve and redeem his reputation. Therefore, the balance between
the two rights needs to be struck. "Reputation" of one cannot be allowed to be crucified
at the altar of the other's right of free speech. The legislature in its wisdom has not
thought it appropriate to abolish criminality of defamation in the obtaining social
climate. In this context, the pronouncement in Shreya Singhal (supra) becomes
significant, more so, as has been heavily relied upon by the learned Counsel for the
Petitioners. In the said case, constitutional validity of Section 66-A and ancillary thereto
Section 69-A of the 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 will strike down such law.
141. The Court has referred to the decisions rendered in Kameshwar Prasad (supra)
and Indian Express Newspapers (Bombay) (P) Ltd. (supra) to understand the great
persuasive value of the American judgments. There has been a reference to the
observations of Jackson, J. in American Communications Assn. v. Douds 94 L Ed
925 : 339 US 382 (1950) which are to the following effect:
... Thought control is a copyright of totalitarianism, and we have no claim to it.
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 It is not the function of our Government to keep the citizen from falling into
error; it is the function of the citizen to keep the Government from falling into
error. We could justify any censorship only when the censors are better
shielded against error than the censored.
142. There has been reference to many other pronouncements relating to reasonable
restrictions and public order. The Court has reproduced a passage from S. Rangarajan
(supra) and thereafter adverted to the pronouncement in Shailabala Devi (supra) and
opined that:
Viewed at, either by the standpoint of the clear and present danger test or the
tendency to create public disorder, Section 66-A would not pass muster as it
has no element of any tendency to create public disorder which ought to be an
essential ingredient of the offence which it creates.
143. It is interesting to note that the Court referred to "defamation" as defined in
Section 499 Indian Penal Code and stated thus:
It will be noticed that for something to be defamatory, injury to reputation is a
basic ingredient. Section 66-A does not concern itself with injury to reputation.
Something may be grossly offensive and may annoy or be inconvenient to
somebody without at all affecting his reputation. It is clear, therefore, that the
Section is not aimed at defamatory statements at all.
144. The aforesaid paragraph makes it absolutely clear that the Court has observed that
Section 66-A did not concern itself with injury to reputation. Thereafter, the Court
proceeded to analyse the provision under challenge from the point of vagueness. It is
apposite to quote:
9 0 . That the content of the right Under Article 19(1)(a) remains the same
whatever the means of communication including internet communication is
clearly established by Reno case18 and by Ministry of Information and
Broadcasting, Govt. of India v. Cricket Assn. of Bengal (supra), SCC 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 MANU/SC/0074/1962 : 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 friend or a well-wisher of the person
instigated, he cannot escape the tentacles of the section. The Court held that it
was not possible to predicate with some kind of precision the different
categories of instigation falling within or without the field of constitutional
prohibitions. It further held that the Section must be declared unconstitutional
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 as the offence made out would depend upon factors which are uncertain.
xxxxx
94. These two Constitution Bench decisions bind us and would apply directly
on Section 66-A. We, therefore, hold that the Section is unconstitutional also
on the ground that it takes within its sweep protected speech and speech that is
innocent in nature and is liable therefore to be used in such a way as to have a
chilling effect on free speech and would, therefore, have to be struck down on
the ground of over breadth.
145. We have referred to the aforesaid authority in extenso as it has been commended
to us to pyramid the submission that it lays the foundation stone for striking down
Sections 499 and 500 Indian Penal Code because existence of defamation as a criminal
offence has a chilling effect on the right to freedom of speech and expression. As we
understand the decision, the two-Judge Bench has neither directly nor indirectly laid
down such a foundation. The analysis throughout the judgment clearly pertains to the
vagueness and to an act which would make an offence dependent on uncertain factors
billowed in inexcactitude and wide amplitude. The Court has ruled that Section 66-A
also suffers from vice of procedural unreasonableness. The judgment drew distinction
and observed defamation was different. Thus, the canvas is different. 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.
1 4 6 . We have been diligently commended to the following passage from S.
Rangarajan (supra):
The problem of defining the area of freedom of expression when it appears to
conflict with the various social interests enumerated Under Article 19(2) may
briefly be touched upon here. There does indeed have to be a compromise
between 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. MANU/SC/0101/1957 : AIR 1957 SC 620 andKedar Nath Singh (supra). We
think it appropriate for the sake of completeness to reproduce the analysis made in
Shreya Singhal (supra):
43. In Ramji Lal Modi v. State of U.P. (supra), SCR at p. 867, this Court upheld
Section 295-A of the Penal Code only because it was read down to mean that
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 aggravated forms of insults to religion must have a tendency to disrupt public
order. Similarly, in Kedar Nath Singh v. State of Bihar (supra) Section 124A of
the Penal Code, 1860 was upheld by construing it narrowly and stating that the
offence would only be complete if the words complained of have a tendency of
creating public disorder by violence. It was added that merely creating
disaffection or creating feelings of enmity in certain people was not good
enough or else it would violate the fundamental right of free speech Under
Article 19(1)(a). Again, in Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath
Kunte MANU/SC/0982/1996 : (1996) 1 SCC 130, Section 123(3-A) of the
Representation of the People Act was upheld only if the enmity or hatred that
was spoken about in the Section would tend to create immediate public
disorder and not otherwise.
148. The two-Judge Bench in paragraph 44 has reached the following conclusion:
Viewed at, either by the standpoint of the clear and present danger test or the
tendency to create public disorder, Section 66-A would not pass muster as it
has no element of any tendency to create public disorder which ought to be an
essential ingredient of the offence which it creates.
149. The analysis therein would show that tendency to create public disorder is not
evincible in the language employed in Section 66A. Section 66A dealt with punishment
for certain obscene messages through communication service, etc. A new offence had
been created and the boundary of the forbidding area was not clearly marked as has
been held in Kedar Nath Singh (supra). The Court also opined that the expression
used in Section 66-A having not been defined and further the provision having not used
the expression that definitions in Indian Penal Code will apply to the Information
Technology Act, 2000, it was vague. The decision in Shreya Singhal (supra) is placed
reliance upon to highlight that a restriction has to be narrowly tailored but criminal
defamation is not a narrowly tailored concept. We have earlier opined that the word
"defamation" is in existence from the very beginning of the Constitution. Defamation as
an offence is admittedly a pre-constitutional law which was in existence when the
Constitution 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 the facts of the case. The said decision was rendered in the backdrop that the Tamil
film 'Ore Oru Gramathile' which was given "U-Certificate" was revoked by the High
Court observing that the certificate given to the movie was bound to invoke reactions
which are bound to be volatile. This Court observed that all that film seems to suggest
is that existing method of reservation on the basis of caste is bad and reservation on
the basis of economic background is better and also the film deprecated the exploitation
of people on caste considerations. In that context, the Court observed, as has been
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stated earlier, in a democracy it is not necessary that everyone should sing the same
song; freedom of expression is the rule, and it is generally taken for granted. Criticism
and commentary on policies, enactments or opinions do not remotely constitute
defamation. Disapproval is not defamation. The argument ignores the scope and ambit
of the contours of what is criminal defamation. Bearing in mind the factual scenario, the
Court has discussed about balancing of freedom of expression and "special interest".
The Court was not concerned with balancing of Article 19(1)(a) and the facet of Article
21 of the Constitution. Therefore, in the ultimate conclusion, we come to hold that
applying the doctrine of balancing of fundamental rights, existence of defamation as a
criminal offence is not beyond the boundary of Article 19(2) of the Constitution,
especially when the word "defamation" has been used in the Constitution.
Appreciation in the backdrop of constitutional fraternity and fundamental
duty
1 5 0 . Permissibility of criminal defamation can be tested on the touchstone of
constitutional fraternity and fundamental duty. It is submitted by Mr. Narsimha, learned
Additional Solicitor General that right to reputation being an inseparable component of
Article 21 deserves to be protected in view of Preambular concept. Learned Additional
Solicitor General has referred to the Preamble to the Constitution which provides for "...
to promote among them all Fraternity assuring the dignity of the individual..."
151. The term "fraternity" has a significant place in the history of constitutional law. It
has, in fact, come into prominence after French Revolution. The motto of Republican
France echoes:'Liberte, egalite, fraternite', 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 Constitution should be emphasized by special
mention in the Preamble." Fraternity, as a constitutional concept, is umbilically
connected with justice, equality and liberty.
153. American scholarship tends to be in agreement with this precept. Morris Abram
expresses this in even more emphatic terms when he treats it as essential to achieving
liberty and equality, and vice versa. According to him:
In America, we have learned that the elements of the plea are interdependent:
that liberty of itself may not bring about fraternity and equality... Permit me to
observe that the converse is also true: merely by possessing fraternity and
equality man will not thereby automatically achieve liberty.20

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154. Fraternity as a concept is characteristically different from the other constitutional
goals. It, as a constitutional concept, has a keen bond of sorority with other concepts.
And hence, it must be understood in the breed of homogeneity in a positive sense and
not to trample dissent and diversity. It is neither isolated nor lonely. The idea of
fraternity is recognised as a constitutional norm and a precept. It is a constitutional
virtue that is required to be sustained and nourished.
155. It is a constitutional value which is to be cultivated by the people themselves as a
part of their social behavior. There are two schools of thought; one canvassing
individual liberalization and the other advocating for protection of an individual as a
member of the collective. The individual should have all the rights under the
Constitution but simultaneously he has the responsibility to live upto the constitutional
values like essential brotherhood-the fraternity-that strengthens the societal interest.
Fraternity means brotherhood and common interest. Right to censure and criticize does
not conflict with the constitutional objective to promote fraternity. Brotherliness does
not abrogate and rescind the concept of criticism. In fact, brothers can and should be
critical. Fault finding and disagreement is required even when it leads to an individual
disquiet or group disquietude. Enemies Enigmas Oneginese on the part of some does
not create a dent in the idea of fraternity but, a significant one, liberty to have a
discordant note does not confer a right to defame the others. The dignity of an
individual is extremely important. In Indra Sawhney and Ors. v. Union of India
and Ors. MANU/SC/0104/1993 : AIR 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. MANU/SC/0480/2001 : (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 various tests to determine the constitutionality the Court focused
on fraternity by stating "in the absence of substantive equality or equality of means to
access resources, various social groups could never achieve the requisite dignity
necessary for the promotion of fraternity."23
157. In Raghunathrao Ganpatrao v. Union of India MANU/SC/0908/1994 : 1994
Supp. (1) SCC 191 where the 26th Amendment to the Constitution which abolished the
privileges given to former rulers of India was in question, the Court held it to be a
positive step towards achieving the objective of fraternity. The Court adverted to the
statements of Dr. B.R. Ambedkar during the Constitution Assembly debates and stated
that:
In a country such as India, with several disruptive forces, such as religion,

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 caste and language, the idea of fraternity is imperative to ensure the unity of
the nation through a shared feeling of common brotherhood."24
158. The concept of fraternity under the Constitution expects every citizen to respect
the dignity of the other. Mutual respect is the fulcrum of fraternity that assures dignity.
It does not mean that there cannot be dissent or difference or discordance or a different
voice. It does not convey that all should join the chorus or sing the same song.
Indubitably not. One has a right to freedom of speech and expression. One is also
required to maintain the constitutional value which is embedded in the idea of fraternity
that assures the dignity of the individual. One is obliged under the Constitution to
promote the idea of fraternity. It is a constitutional obligation.
159. In the context of constitutional fraternity, fundamental duties engrafted Under
Article 51-A of the Constitution gain significance. Sub-articles (e) and (j) of Article 51-A
of the Constitution read as follows:
Article 51-A.(e) to promote harmony and the spirit of common brotherhood
amongst all the people of India transcending religious, linguistic and regional
or sectional diversities; to renounce practices derogatory to the dignity of
women;
Xx x x x
(j) to strive towards excellence in all spheres of individual and collective
activity so that the nation constantly rises to higher levels of endeavour and
achievement;
160. The prismatic perception of sub-article (e) would reflect that it is the duty of every
citizen of India to promote harmony and the concept of common brotherhood amongst
all the people despite many diversities. It is also the duty of every citizen to strive
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.
1 6 1 . I n P.A. Inamdar and Ors. v. State of Maharashtra and Ors.
MANU/SC/0482/2005 : (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 that the nation constantly rises to higher levels of endeavour and
achievement. None can be achieved or ensured except by means of education.
It is well accepted by the thinkers, philosophers and academicians that if
JUSTICE, LIBERTY, EQUALITY and FRATERNITY, including social, economic and
political justice, the golden goals set out in the Preamble to the Constitution of
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 India are to be achieved, the Indian polity has to be educated and educated
with excellence. Education is a national wealth which must be distributed
equally and widely, as far as possible, in the interest of creating an egalitarian
society, to enable the country to rise high and face global competition.
162. In Ramlila Maidan Incident, In re (supra), the Court had opined that:
... a common thread runs through Parts III, IV and IVA of the Constitution of
India. One Part enumerates the fundamental rights, the second declares the
fundamental principles of governance and the third lays down the fundamental
duties of the citizens. While interpreting any of these provisions, it shall always
be advisable to examine the scope and impact of such interpretation on all the
three constitutional aspects emerging from these parts.
1 6 3 . We have referred to two concepts, namely, constitutional fraternity and the
fundamental duty, as they constitute core constitutional values. Respect for the dignity
of another is a constitutional norm. It would not amount to an overstatement if it is said
that constitutional fraternity and the intrinsic value inhered in fundamental duty
proclaim the constitutional assurance of mutual respect and concern for each other's
dignity. The individual interest of each individual serves the collective interest and
correspondingly the collective interest enhances the individual excellence. Action
against the State is different than an action taken by one citizen against the other. The
constitutional value helps in structuring the individual as well as the community
interest. Individual interest is strongly established when constitutional values are
respected. The Preamble balances different and divergent rights. Keeping in view the
constitutional value, the legislature has not repealed Section 499 and kept the same
alive as a criminal offence. The studied analysis from various spectrums, it is difficult to
come to a conclusion that the existence of criminal defamation is absolutely obnoxious
to freedom of speech and expression. As a prescription, it neither invites the frown of
any of the Articles of the Constitution nor its very existence can be regarded as an
unreasonable restriction.
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 known or had reason to
believe that the imputation made by him would harm the reputation of the complainant.
The criminal offence emphasizes on the intention or harm. Section 44 of Indian Penal
Code defines "injury". It denotes any harm whatever illegally caused to any person, in
body, mind, reputation or property. Thus, the word "injury" encapsulates harm caused
to the reputation of any person. It also takes into account the harm caused to a person's
body and mind. Section 499 provides for harm caused to the reputation of a person,

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that is, the complainant. In Jeffrey J. Diermeier and Anr. v. State of West Bengal
and Anr. MANU/SC/0390/2010 : (2010) 6 SCC 243, a two-Judge Bench deliberated
on the aspect as to what constitutes defamation Under Section 499 of Indian Penal Code
and in that context, it held that there must be an imputation and such imputation must
have been made with the intention of harming or knowing or having reason to believe
that it will harm the reputation of the person about whom it is made. In essence, the
offence of defamation is the harm caused to the reputation of a person. It would be
sufficient to show that the accused intended or knew or had reason to believe that the
imputation made by him would harm the reputation of the complainant, irrespective of
whether the complainant actually suffered directly or indirectly from the imputation
alleged.
166. Having dwelt upon the ingredients, it is necessary to appreciate the Explanations
appropriately. There are four Explanations to the main provision and an Explanation has
been appended to the Fourth Exception. Explanation 4 needs to be explained first. It is
because the said Explanation provides the expanse and the inherent control wherein
what imputation has been regarded as harm to a person's reputation and that an
imputation can only be treated as harm of a person's reputation if it directly or
indirectly, in the estimation of others, lowers the moral or intellectual character of that
person, or lowers the character of that person in respect of his caste or of his calling, or
lowers the credit of that person, or causes it to be believed that the body of that person
is in a loathsome state, or in a state generally considered as disgraceful. It is submitted
by Dr. Dhawan, learned senior counsel, that Explanation 4 has many a distinction and
covers a number of criteria which can be used widely. He has commended us to a
passage from State of Jammu and Kashmir v. Triloki Nath Khosa and Ors.
MANU/SC/0401/1973 : (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 is anomalous and creates a
piquant situation which can effortlessly be called unreasonable, for when a civil suit
cannot be entertained or allowed to be prosecuted by the legal heirs or the legal
representatives, how could they prosecute criminal offence by filing a complaint. On a
first blush, the aforesaid submission looks quite attractive, but on a keener scrutiny, it
loses its significance. In Melepurath Sankuni Ezhuthassan v. Thekittil
Geopalankutty Nair MANU/SC/0009/1985 : (1986) 1 SCC 118, a suit for damages
was dismissed by the trial court but on an appeal being preferred, the same was
allowed. In second appeal, the High Court reversed the decree of the appellate court
and dismissed the cross objections of the Respondent therein. The Appellant preferred
an appeal by special leave before this Court and during the pendency before this Court,
he died. His surviving legal heirs came to be brought on record to prosecute the appeal.
The issue that arose before this Court was whether the appeal should abate. The Court
posed the question whether in a defamation action, the right to sue survives if the
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Plaintiff dies. The Court referred to the Common Law principle and the maxim action
personalis moritur cum persona (a personal action dies with the person) and thereafter
referred to Section 306 of the Indian Succession Act, 1925 as to which causes of action
survive and which shall abate. The Court in that context opined thus:
Where a suit for defamation is dismissed and the Plaintiff has filed an appeal,
what the Appellant-Plaintiff is seeking to enforce in the appeal is his right to
sue for damages for defamation and as this right does not survive his death, his
legal representative has no right to be brought on the record of the appeal in
his place and stead if the Appellant dies during the pendency of the appeal. The
position, however, is different where a suit for defamation has resulted in a
decree in favour of the Plaintiff because in such a case the cause of action has
merged in the decree and the decretal debt forms part of his estate and the
appeal from the decree by the Defendant becomes a question of benefit or
detriment to the estate of the Plaintiff Respondent which his legal representative
is entitled to uphold and defend and is, therefore, entitled to be substituted in
place of the deceased Respondent Plaintiff.
168. In M. Veerappa v. Evelyn Sequeira and Ors. MANU/SC/0259/1988 : (1988)
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 MANU/TN/0208/1920 : ILR
44 Mad 357 and Ratanlal v. Baboolal MANU/MP/0099/1960 : AIR 1960 MP 200
as well as in those cases where a suit for damages for defamation, assault or
other personal injuries sustained by the Plaintiff had resulted in a decree in
favour of the Plaintiff because in such a case the cause of action becomes
merged in the decree and the decretal debt forms part of the Plaintiff's estate
and the appeal from the decree by the Defendant becomes a question of benefit
or detriment to the estate of the Plaintiff which his legal representatives are
entitled to uphold and defend (vide Gopal v. Ramchandra ILR 26 Bom 597 and
Melepurath Sankunni v. Thekittil).
169. The aforesaid enunciation of law makes it clear how and when the civil action is
not maintainable by the legal heirs. The prosecution, as envisaged in Explanation 1,
lays two postulates, that is, (i) the imputation to a deceased person is of such a nature
that would have harmed the reputation of that person if he was living and (ii) the said
imputation must be intended to be hurtful to the feelings of the family or other near

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relatives. Unless the twin tests are satisfied, the complaint would not be entertained
Under Section 199 of Code of Criminal Procedure. The said Explanation protects the
reputation of the family or relatives. The entitlement to damages for personal injury is
in a different sphere whereas a criminal complaint to be filed by the family members or
other relatives under twin tests being satisfied is in a distinct compartment. It is more
rigorous. The principle of grant of compensation and the principle of protection of
reputation of family or near relative cannot be equated. Therefore, we do not find any
extra mileage is given to the legal heirs of a deceased person when they have been
made eligible to initiate a criminal action by taking recourse to file a criminal complaint.
170. Explanation 2 deals with imputation concerning a company or an association or
collection of persons as such. Explanation 3 says that an imputation in the form of an
alternative or expressed ironically may amount to defamation. Section 11 of Indian
Penal Code defines "person" to mean a company or an association or collection of
persons as such or body of persons, whether incorporated or not. The inclusive nature
of the definition indicates that juridical persons can come within its ambit. The
submission advanced on behalf of the Petitioners is that collection of persons or, for
that matter, association, is absolutely vague. More than five decades back, the Court, in
Sahib Singh Mehra v. State of Uttar Pradesh MANU/SC/0067/1965 : 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.
1 7 1 . I n G. Narasimhan, G. Kasturi and K. Gopalan v. T.V. Chokkappa
MANU/SC/0119/1972 : (1972) 2 SCC 680, the Court dealt with the applicability of the
said Explanation as regards "association" or "collection of persons" and ruled that a
collection of persons must be an identifiable body so that it is possible to say with
definiteness that a group of particular persons, as distinguished from the rest of the
community, was defamed. Therefore, in a case where Explanation 2 is resorted to, the
identity of the company or the association or the collection of persons must be
established so as to be relatable to the defamatory words or imputations. Where a
writing weighs against mankind in general, or against a particular order of men, e.g.,
men of gown, it is no libel. It must descend to particulars and individuals to make it a
libel. Thus, the accentuation is on 'particulars'. In S. Khushboo (supra), it has been
ruled that though the Explanation is wide yet in order to demonstrate the offence of
defamation, such a collection of persons must be an identifiable body so that it is
possible to say with precision that a group of particular persons, as distinguished from
the rest of the community, stood defamed. In case the identity of the collection of
persons is not established so as to be relatable to the defamatory words or imputations,
the complaint is not maintainable. It has been further opined that in case a class is
mentioned, if such a class is indefinite, the complaint cannot be entertained and
furthermore, if it is not possible to ascertain the composition of such a class, the
criminal prosecution cannot proceed.
172. The aforesaid enunciation of law clearly lays stress on determinate and definite
body. It also lays accent on identifiable body and identity of the collection of persons. It
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also significantly states about the test of precision so that the collection of persons have
a distinction. Thus, it is fallacious to contend that it is totally vague and can, by its
inclusiveness, cover an indefinite multitude. The Court has to understand the concept
and appositely apply the same. There is no ambiguity. Be it noted that a three-Judge
Bench, though in a different context, in Aneeta Hada v. Godfather Travels and
Tours (P) Ltd. MANU/SC/0335/2012 : (2012) 5 SCC 661 has ruled that a company
has its own reputation. Be that as it may, it cannot be said that the persons covered
under the Explanation are gloriously vague.
Exceptions and understanding of the same
173. Having dealt with the four Explanations, presently, we may analyse the Exceptions
and note certain authorities 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
MANU/SC/0107/1970 : (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 the basic foundation of justice, but this Exception does not recognize truth as a
defence and, therefore, it deserves to be struck down.
175. It has been canvassed by Mr. Rao, learned senior counsel, that the term "public
good" is a vague concept and to bolster the said submission, he has placed reliance
upon Harakchand Ratanchand Banthia and Ors. v. Union of India and Ors.
MANU/SC/0038/1969 : (1969) 2 SCC 166 to highlight that in the said case, it has
been held that "public interest" do not provide any objective standard or norm. The
context in which the said decision was rendered has to be appreciated. In the said case,
the Court was dealing with the constitutional validity of the Gold Control Act, 1968.
Section 27 of the said Act related to licensing of dealers. It was contended that the
conditions imposed by Sub-section (6) of the Act for grant or renewal of licences were
uncertain, vague, unintelligible and consequently wide and unfettered power was
conferred upon the statutory authorities in the matter of grant or renewal of licence. The
Court expressed the view that the contention was well founded. Further analyzing, the
Court expressed that:
... The expression "anticipated demand" is a vague expression which is not
capable of objective assessment and is bound to lead to a great deal of
uncertainty. Similarly the expression "suitability of the applicant" in Section
27(6)(e) and "public interest" in Section 27(6)(g) do not provide any objective
standard or norm or guidance. For these reasons it must be held that Clauses
(a),(d),(e) and (g) of Section 27(6) impose unreasonable restrictions on the
fundamental right of the Petitioner to carry on business and are constitutionally
invalid.

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176. As we perceive, the factual score and the provision under challenge was totally
different. It has been stated in the backdrop of the power conferred on an
administrative authority for the purpose of renewal of licence, and in that context, the
Court opined that the criterion of "public interest" did not provide objective standard.
The Court, on analysis of the provision from a manifold angle, opined that the provision
proposed unreasonable restriction. The context and the conferment of power makes a
gulf of difference and, therefore, the said authority has to be considered on its own
facts. It cannot be ruled that it lays down as 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 MANU/SC/0160/2002 : (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 in Sahib Singh Mehra (supra). The Court has clarified that if
defamatory remarks are made after due care and attention, it will be regarded as made
in good faith. In the said case, the Court also adverted to Ninth Exception which gives
protection to imputation made in good faith for the protection of the interest of the
person making it or of any other person or for the public good. A three-Judge Bench in
Harbhajan Singh v. State of Punjab and Anr. MANU/SC/0074/1965 : AIR 1966 SC
97 has opined that where the accused invokes Ninth Exception to Section 499 Indian
Penal Code, good faith and public good are both to be satisfied and the failure of the
Appellant to prove good faith would exclude the application of Ninth Exception in favour
of the accused even if requirement of public good is satisfied. The Court has referred to
Section 52 Indian Penal Code which defines "good faith" that requires the element of
honesty. It is necessary to note here that the three-Judge Bench has drawn a distinction
between the First Exception and the Ninth Exception to opine that the proof of truth
which is one of the ingredients of the First Exception is not an ingredient of the Ninth
Exception and what the Ninth Exception requires an accused person to prove is that he
made the statement in good faith. Proceeding further, the Court has stated that in
dealing with the claim of the accused under the Ninth Exception, it is not necessary and,
in a way, immaterial, to consider whether he has strictly proved the truth of the
allegations made by him.
178. I n Sukra Mahto v. Basdeo Kumar Mahto and Anr. MANU/SC/0194/1971 :
1971 (1) SCC 885 the Court has opined that the ingredients of Ninth Exception are first
that the imputation must be made in good faith; secondly, the imputation must be
protection of the interest of the person making it or of any other person or for the
public good. The Court further opined that good faith and public good are questions of
fact and emphasis has been laid on making enquiry in good faith and due care and
attention for making the imputation. In Jatish Chandra Ghosh v. Hari Sadhan
Mukherjee MANU/SC/0117/1961 : (1961) 3 SCR 486, the Constitution Bench dealt
with Appellant's claim of absolute privilege as a Member of the West Bengal Legislative
Assembly which was not accepted by the High Court of Judicature at Calcutta. The
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Appellant therein was facing a prosecution Under Section 500 Indian Penal Code. The
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 have. We have referred to the said decision only to
highlight that the Court has clarified publishing of substantial true report of proceedings
of a Court of Justice.
180. Fifth Exception stipulates that it is not defamation to express in good faith any
opinion whatever respecting the merits of any case, civil or criminal which has been
decided by a Court of Justice, or respecting the conduct of any person as a party,
witness or agent. The further stipulation is that the said opinion must relate to the
character of said person, as far as his character appears in that conduct. In Kanwal Lal
v. State of Punjab MANU/SC/0149/1962 : 1963 Supp (1) SCR 479 the Court, while
dealing with the Eighth Exception, has opined that in order to establish a defence under
this Exception the accused would have to prove that the person to whom the complaint
was made had lawful authority over the person complained against, in respect of the
subject-matter of the accusation.
181. Again in M.C. Verghese v. T.J. Poonan MANU/SC/0054/1968 : (1969) 1 SCC
37, it has been ruled that a person making libellous statements in his complaint filed in
Court is not absolutely protected in a criminal proceeding for defamation, for under the
Eighth Exception and the illustration to Section 499 the statements are privileged only
when they are made in good faith. There is, therefore, authority for the proposition that
in determining the criminality of an act under the Indian Penal Code the Courts will not
extend the scope of special exceptions by resorting to the Rule peculiar to English
common law that the husband and wife are regarded as one. In Chaman Lal (supra)
this Court has opined that the Eighth Exception to Section 499 of the Indian Penal Code
indicates that accusation in good faith against the person to any of those who have
lawful authority over that person is not defamation. In Rajendra Kumar Sitaram
Pande v. Uttam MANU/SC/0093/1999 : (1999) 3 SCC 134, it has been observed that
Exception 8 to Section 499 Indian Penal Code clearly indicates that it is not a
defamation to prefer in good faith an accusation against any person to any of those who
have lawful authority over that person with regard to the subject-matter of accusation.
In the said case the report of the Treasury Officer clearly indicated that pursuant to the
report made by the accused persons against the complainant, a departmental enquiry
had been initiated and the complainant was found 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
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state which was the gravamen of the complaint, would be covered by Exception 8 to
Section 499 of the Indian Penal Code.
182. I n 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 MANU/SC/0219/1981 : (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. Rumugam v. Kittu MANU/SC/4958/2008 : (2009) 1 SCC 101, it has been held
that for the purpose of bringing the case within the purview of the Eighth and the Ninth
Exception appended to Section 499 of the Penal Code, it would be necessary for the
accused to prove good faith for the protection of the interests of the person making it or
of any other person or for the public good. This Court, in Jeffrey J. Diermeier
(supra), has observed thus:
37. It is trite that where to the charge of defamation Under Section 500 Indian
Penal Code the accused invokes the aid of Tenth Exception to Section 499
Indian Penal Code, "good faith" and "public good" have both to be established
by him. The mere plea that the accused believed that what he had stated was in
"good faith" is not sufficient to accept his defence and he must justify the same
by adducing evidence. However, he is not required to discharge that burden by
leading evidence to prove his case beyond a reasonable doubt.
3 8 . It is well settled that the degree and the character of proof which an
accused is expected to furnish in support of his plea cannot be equated with the
degree of proof expected from the prosecution in a criminal trial. The moment
the accused succeeds in proving a preponderance of probability, onus which
lies on him in this behalf stands discharged. Therefore, it is neither feasible nor
possible to lay down a rigid test for deciding whether an accused person acted
in "good faith" and for "public good" under the said Exception.
183. The detailed discussion made hereinabove do clearly reveal that neither the main
provision nor the Explanation nor the Exceptions remotely indicate any vagueness. It is
submitted that the Exceptions make the offence more rigorous and thereby making the
concept of criminal defamation extremely unreasonable. The criticism advanced pertain
to truth being not a defence, and unnecessary stress on 'public good'. The counter
argument is that if a truthful statement is not made for any kind of public good but only
to malign a person, it is a correct principle in law that the statement or writing can
amount to defamation. Dr. Singhvi, learned senior Counsel for some of the Respondents
has given certain examples. The examples pertain to an imputation that a person is an
alcoholic; an imputation that two family members are involved in consensual 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.
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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 criminal defamation on the statute book and the
manner in which the provision is engrafted suffers from disproportionality because it
has room for such restriction which is disproportionate. In Om Kumar v. Union of
India MANU/SC/0704/2000 : (2001) 2 SCC 386, the Court has observed that while
regulating the exercise of fundamental rights it is to be seen whether the legislature
while exercising its choice has infringed the right excessively. Recently, the Constitution
Bench in Modern Dental College and Research Centre and Ors. v. State of
Madhya Pradesh and Ors. MANU/SC/0495/2016 : 2016 (4) SCALE 478, explaining
the doctrine of proportionality has emphasized that when the Court is called upon to
decide whether a statutory provision or a Rule amounts to unreasonable restriction, the
exercise that is required to be undertaken is the balancing of fundamental rights on the
one hand and the restrictions imposed on the other. Emphasis is on recognition of
affirmative constitutional rights along with its limitations. Limitations, save certain
interests and especially public or social interests. Social interest takes in its sweep to
confer protection to rights of the others to have social harmony founded on social
values. To treat a restriction constitutionally permissible it is necessary to scrutinize
whether the restriction or imposition of limitation is excessive or not. The
proportionality doctrine recognizes balancing of competing rights and the said
hypothesis gains validity if it subserves the purpose it is meant for.
185. Needless to emphasise that when a law limits a constitutional right which many
laws do, such limitation is constitutional if it is proportional. The law imposing
restriction is proportional if it is meant to achieve a proper purpose, and if the measures
taken to achieve such a purpose are rationally connected to the purpose, and such
measures are necessary. Such limitations should not be arbitrary or of an excessive
nature beyond what is required in the interest of the public. Reasonableness is judged
with reference to the objective which the legislation seeks to achieve, and must not be
in excess of that objective (see: P.P. Enterprises v. Union of India
MANU/SC/0036/1982 : (1982) 2 SCC 33). Further, the reasonableness is examined in
an objective manner form the stand point of the interest of the general public and not
from the point of view of the person upon whom the restrictions are imposed or
abstract considerations (see: Mohd. Hanif Quareshi. v. State of Bihar
MANU/SC/0027/1958 : AIR 1958 SC 731). The judgment refers to and approves
guidelines propounded in MRF Ltd. v. Inspector, Kerala Govt. MANU/SC/0702/1998
: (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:
5 4 . 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
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 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 law. Thus, the requirement of proportional limitations of
constitutional rights by a sub-constitutional law, i.e. the statute, is derived from
an interpretation of the notion of democracy itself. Insofar as Indian
Constitution is concerned, democracy is treated as the basic feature of the
Constitution and is specifically accorded a constitutional status that is
recognised in the Preamble of the Constitution itself. It is also unerringly
accepted that this notion of democracy includes human rights which is the
corner stone of Indian democracy. Once we accept the aforesaid theory (and
there cannot be any denial thereof), as a fortiori, it has also to be accepted that
democracy is based on a balance between constitutional rights and the public
interests. In fact, such a provision in Article 19 itself on the one hand
guarantees some certain freedoms in Clause (1) of Article 19 and at the same
time empowers the State to impose reasonable restrictions on those freedoms
in public interest. This notion accepts the modern constitutional theory that the
constitutional rights are related. .
186. One cannot be unmindful that right to freedom of speech and expression is a
highly valued and cherished right but the Constitution conceives of reasonable
restriction. In that context criminal defamation which is in existence in the form of
Sections 499 and 500 Indian Penal Code is not a restriction on free speech that can be
characterized as disproportionate. Right to free speech cannot mean that a citizen can
defame the other. Protection of reputation is a fundamental right. It is also a human
right. Cumulatively it serves the social interest. Thus, we are unable to accept that
provisions relating to criminal defamation are not saved by doctrine of proportionality
because it determines a limit which is not impermissible within the criterion of
reasonable restriction. It has been held in D.C. Saxena (Dr.) v. Hon'ble The Chief
Justice of India MANU/SC/0627/1996 : (1996) 5 SCC 216, though in a different
context, that if maintenance of democracy is the foundation for free speech, society
equally is entitled to regulate freedom of speech or expression by democratic action.
The reason is obvious, viz., that society accepts free speech and expression and also
puts limits on the right of the majority. Interest of the people involved in the acts of
expression should be looked at not only from the perspective 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.
1 8 7 . 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 majority. It has kept the criminal defamation on
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the statute book as in the existing social climate it subserves the collective interest
because reputation of each is ultimately inhered in the reputation of all. The submission
that imposition of silence will Rule over eloquence of free speech is a stretched concept
inasmuch as the said proposition is basically founded on the theory of absoluteness of
the fundamental right of freedom of speech and expression which the Constitution does
not countenance.
1 8 8 . Now, we shall advert to Section 199 of Code of Criminal Procedure, which
provides for prosecution for defamation. Sub-section (1) of the said Section stipulates
that no court shall take cognizance of an offence punishable under Chapter XXI of the
Indian Penal Code (45 of 1860) except upon a complaint made by some person
aggrieved by, the offence; provided that where such person is under the age of eighteen
years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a
complaint, or is a woman who, according to the local customs and manners, ought not
to be compelled to appear in public, some other person may, with the leave of the
court, make a complaint on his or her behalf. Sub-section (2) states that when any
offence is alleged against a person who is the President of India, the Vice-President of
India, the Government of a State, the Administrator of a Union territory or a Minister 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. Sub-Section 3 states that 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. Sub-section mandates
that no complaint Under Sub-section (2) shall be made by the Public Prosecutor except
with the previous sanction 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 or any other
public servant employed 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 persons. In fact, it can be stated that the "person aggrieved" is to be
determined by the courts in each case according to the fact situation. It will require
ascertainment on due deliberation of the facts. In John Thomas v. Dr. K. Jagadeesan
MANU/SC/0362/2001 : (2001) 6 SCC 30 while dealing with "person aggrieved", the
Court opined that the test is whether the complainant has reason to feel hurt on account
of publication is a matter to be determined by the court depending upon the facts of
each case. In S. Khushboo (supra), while dealing with "person aggrieved", a three-
Judge Bench has opined that the Respondents therein were not "person aggrieved"
within the meaning of Section 199(1) Code of Criminal Procedure as there was no
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specific legal injury caused to any of the complainants since the Appellant's remarks
were not directed at any individual or readily identifiable group of people. The Court
placed reliance on M.S. Jayaraj v. Commr. of Excise MANU/SC/0627/2000 : (2000)
7 SCC 552 and G. Narasimhan (supra) and observed that if a Magistrate were to take
cognizance of the offence of defamation on a complaint filed by one who is not a
"aggrieved person", the trial and conviction of an accused in such a case by the
Magistrate would be void and illegal. Thus, it is seen that the words "some person
aggrieved" are determined by the courts depending upon the facts of the case.
Therefore, the submission that it can include any and everyone as a "person aggrieved"
is too spacious a submission to be accepted.
1 9 0 . It has also been commented upon that by giving a benefit to public servant
employed in connection with the affairs of the Union or of a State in respect of his
conduct in the discharge of public functions to file the case through public prosecutor,
apart from saving his right Under Sub-section (6) of Section 199 Code of Criminal
Procedure, the provision becomes discriminatory. In this regard, it is urged that a public
servant is treated differently than the other persons and the classification invites the
frown of Article 14 of the Constitution and there is no base for such classification. Thus,
the attack is on the base of Article 14 of the Constitution. In Special Courts Bill,
1978, In re MANU/SC/0039/1978 : (1979) 1 SCC 380 Chandrachud, CJ, speaking for
the majority of the Constitution Bench after referring to series of judgments of this
Court, 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. It only means that all persons similarly
circumstanced shall be treated alike both in privileges conferred and liabilities
imposed. Equal laws would have to be applied to all in the same situation, and
there should be no discrimination between one person and Anr. if as regards
the subject-matter of the legislation their position is substantially the same.
(5) By the process of classification, the State has the power of determining who
should be regarded as a class for purposes of legislation and in relation to a
law enacted on a particular subject. This power, no doubt, in some degree is
likely to produce some inequality; but if a law deals with the liberties of a
number of well-defined classes, it is not open to the charge of denial of equal

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 protection on the ground that it has no application to other persons.
Classification thus means segregation in classes which have a systematic
relation, usually found in common properties and characteristics. It postulates a
rational basis and does not mean herding together of certain persons and
classes arbitrarily.
(6) x x x x x
(7) The classification must not be arbitrary but must be rational, that is to say,
it must not only be based on some qualities or characteristics which are to be
found in all the persons grouped together and not in others who are left out but
those qualities or characteristics must have a reasonable relation to the object
of the legislation. In order to pass the test, two conditions must be fulfilled,
namely, (1) that the classification must be founded on an intelligible differentia
which distinguishes those that are grouped together from others, and (2) that
differentia must have a rational relation to the object sought to be achieved by
the Act.
(8) x x x x x
(9) x x x x x
(10) x x x x x
(11) Classification necessarily implies the making of a distinction or
discrimination between persons classified and those who are not members of
that class. It is the essence of a classification that upon the class are cast duties
and burdens different from those resting upon the general public. Indeed, the
very idea of classification is that of inequality, so that it goes without saying
that the mere fact of inequality in no manner determines the matter of
constitutionality.
191. Recently, in Yogendra Kumar Jaiswal and Ors. v. State of Bihar and Ors.
MANU/SC/1441/2015 : (2016) 3 SCC 183, the Court, after referring toRam Krishna
Dalmia v. S.R. Tendolkar MANU/SC/0024/1958 : AIR 1958 SC 538,Satyawati
Sharma v. Union of India MANU/SC/1870/2008 : (2008) 5 SCC 287,Rehman
Shagoo v. State of J&K MANU/SC/0028/1959 : AIR 1960 SC 1 and C.I. Emden v.
State of U.P. MANU/SC/0044/1959 : 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 such a situation, the argument that they being put in a
different class and tried in a separate Special Court solely because the alleged
offence, if nothing else, is a self-defeating one. The submission that there is a
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 sub-classification does not remotely touch the boundaries of Article 14; and
certainly does not encroach thereon to invite the wrath of the equality clause.
192. Be it stated that learned Counsel for the Petitioners stated that there can be no
cavil about the President of India, the Vice-President of India, the Governor of a State,
the Administrator of a Union territory but about others whose names find mention in the
provision there is no justification to put them in a different class to enable them to file a
case through the public prosecutor in the Court of Session. A studied scrutiny of the
provision makes it clear that a public servant is entitled to file a complaint through
public prosecutor in respect of his conduct in discharge of public functions. Public
function stands on a different footing than the private activities of a public servant. The
provision gives them protection for their official acts. There cannot be defamatory
attacks on them because of discharge of their due functions. In that sense, they
constitute a different class. Be it clarified here that criticism is different than
defamation. One is bound to tolerate criticism, dissent and discordance but not
expected to tolerate defamatory attack.
193. Sub-section (6) gives to a public servant what every citizen has as he cannot be
deprived of a right of a citizen. There can be cases where sanction may not be given by
the State Government in favour of a public servant to protect his right and, in that
event, he can file a case before the Magistrate. The provision relating to engagement of
public prosecutor in defamation cases in respect of the said authorities is seriously
criticized on the ground that it allows unnecessary room to the authorities mentioned
therein and the public servants to utilize the Public Prosecutor to espouse their cause for
vengeance. Once it is held that the public servants constitute a different class in respect
of the conduct pertaining to their discharge of duties and functions, the engagement of
Public Prosecutor cannot be found fault with. It is ordinarily expected that the Public
Prosecutor has a duty to scan the materials on the basis of which a complaint for
defamation is to be filed. He has a duty towards the Court. This Court in Bairam
Muralidhar v. State of Andhra Pradesh MANU/SC/0640/2014 : (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
where a public servant is defamed. In our considered opinion, when sufficient
protection is given and the right to appeal to the High Court is not curtailed as the Code
of Criminal Procedure protects it, the submission does not really commend acceptation.
In view of the aforesaid, we do not perceive any justification to declare the provisions
ultra vires.
194. On behalf of Petitioner-Foundation of Media Professionals, Mr. Bhambhani, learned
senior Counsel has submitted that the operation of the Press and Registration of Books
Act, 1867 (for short "1867 Act") must necessitate a Magistrate to accord due
consideration of the provision of the 1867 Act before summoning the accused. Attention
has been drawn to the Sections 3, 5, 6 and 8 of the 1867 Act and it is submitted that
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only person recognized under the said Act as editor, publisher, printer and owner could
be summoned in the proceeding Under Section 499 Indian Penal Code (Indian Penal
Code), apart from the author or person who has made the offending statements. The
submission of the Petitioner, Mr. Bhambhani, learned senior Counsel is that in all the
proceedings Under Section 499 of Indian Penal Code against a newspaper the accused
must be confined to those who are identifiable to be responsible Under Section 5 of the
1867 Act. In our considered opinion that the said aspects can be highlighted by an
aggrieved person either in a challenge for quashing of the complaint or during the trial.
There is no necessity to deal with the said facet while deliberating upon the
constitutional validity of the provisions.
195. In the course of hearing, it has been argued that the multiple complaints are filed
at multiple places and there is abuse of the process of the court. In the absence of any
specific provisions to determine the place of proceedings in a case of defamation, it
shall be governed by the provisions of Chapter XIII of the Code of Criminal Procedure-
Jurisdiction of the Criminal Courts in Inquiries and Trials. A case is ordinarily tried
where the Offence is committed (Section 177). The expression used in Section 177 is
"shall ordinarily be inquired and tried" by a court within whose jurisdiction it was
committed. Whereas "shall" brings a mandatory requirement, the word "ordinarily"
brings a situational variation which results in an interpretation that the case may be
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 steps in accordance with
law. But that cannot be a reason for declaring the provision unconstitutional.
196. Another aspect requires to be addressed pertains to issue of summons. Section
199 Code of Criminal Procedure envisages filing of a complaint in court. In case of
criminal defamation neither any FIR can be filed nor can any direction be issued Under
Section 156(3) Code of Criminal Procedure. The offence has its own gravity and hence,
the responsibility of the Magistrate is more. In a way, it is immense at the time of issue
of process. Issue of process, as has been held in Rajindra Nath Mahato v. T.
Ganguly, Dy. Superintendent and Anr. MANU/SC/0167/1971 : (1972) 1 SCC 450,
is a matter of judicial determination and before issuing a process, the Magistrate has to
examine the complainant. In Punjab National Bank and Ors. v. Surendra Prasad
Sinha MANU/SC/0345/1992 : 1993 Supp. (1) SCC 499 it has been held that judicial
process should not be an instrument of oppression or needless harassment. The Court,
though in a different context, has observed that there lies responsibility and duty on the
Magistracy to find whether the concerned accused should be legally responsible for the
offence charged for. Only on satisfying that the law casts liability or creates offence
against the juristic person or the persons impleaded then only process would be issued.
At that stage the court would be circumspect and judicious in exercising discretion and
should take all the relevant facts and circumstances into consideration before issuing
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process lest it would be an instrument in the hands of the private complaint as vendetta
to harass the persons needlessly. Vindication of majesty of justice and maintenance of
law and order in the society are the prime objects of criminal justice but it would not be
the means to wreak personal vengeance. In Pepsi Foods Ltd. and Anr. v. Special
Judicial Magistrate and Ors. MANU/SC/1090/1998 : (1998) 5 SCC 749 a two-Judge
Bench has held that summoning of an accused in a criminal case is a serious matter and
criminal law cannot be set into motion as a matter of course.
1 9 7 . 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. The Magistrate has also to keep in view the language employed in Section 202
Code of Criminal Procedure which stipulates about the resident of the accused at a place
beyond the area in which the Magistrate exercises his jurisdiction. He must be satisfied
that ingredients of Section 499 Code of Criminal Procedure are satisfied. Application of
mind in the case of complaint is imperative.
1 9 8 . 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 Exception should be taken into consideration at the time of the issuing
summons it would be contrary to established criminal jurisprudence and, therefore, the
stand that it cannot be taken into consideration makes the provision unreasonable, is
absolutely an unsustainable one and in a way, a mercurial one. And we unhesitatingly
repel the same.
199. In view of the aforesaid analysis, we uphold the constitutional validity of Sections
499 and 500 of the Indian Penal Code and Section 199 of the Code of Criminal
Procedure. During the pendency of the Writ Petitions, this Court had directed stay of
further proceedings before the trial court. As we declare the provisions to be
constitutional, we observe that it will be open to the Petitioners to challenge the issue
of summons before the High Court either Under Article 226 of the Constitution of India
or Section 482 Code of Criminal Procedure, as advised and seek appropriate relief and
for the said purpose, we grant eight weeks time to the Petitioners. The interim
protection granted by this Court shall remain in force for a period of eight weeks.
However, it is made clear that, if any of the Petitioners has already approached the High
Court and also become unsuccessful before this Court, he shall face trial and put forth
his defence in accordance with law.
2 0 0 . The Writ Petitions and the Transfer Petitions are disposed of accordingly. All
pending criminal miscellaneous petitions also stand disposed of. There shall be no order
as to costs.

1 Bata India Ltd. v. A.M. Turaz and Ors. MANU/DE/5043/2012 : 2013 (53) PTC 586;
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1 Bata India Ltd. v. A.M. Turaz and Ors. MANU/DE/5043/2012 : 2013 (53) PTC 586;
Pandey Surindra Nath Sinha v. Bageshwari Pd. MANU/BH/0043/1961 : AIR 1961 Pat.
164
2 Gatley's Libel and Slander, 6th edition, 1960 also Odger's Libel and Slander 6th Ed.
1929
3 (17th Edn. 2006)
4 Richard O' Sullivan, QC and Roland Brown
5 Manisha Koirala v. Shashi Lal Nair and Ors. MANU/MH/1179/2002 : 2003 (2) Bom CR
136
6 Replacing the words "tends to overthrow the State".
7 13th Edn. 2012 p. 509
8 Maxwell: Interpretation of Statutes, 11th Edition, p. 321
9 Principles of Statutory Interpretations by G.P. Singh, Eighth Edition, p. 379
10 Stephen's: New Commentaries on the Laws of England, Ed 17, Vol. 4, Chap I, p.1-2.
11 Blackstone's: Commentaries on the Laws of England; Edited by Wayne Morrison, Vol.
4, p.5
12 Ibid. p. 5
13 Ibid. p. 6
14 Halsbury's Laws of England: Edition 4, Vol. 2, Para 4, p.12
15 Criminology and Penology by Dr. N.V. Pranjape, 15th Edition, 2012 p. 1
16 Patrick Henry, Speech in House of Burgesses on 23.3.1775 (Virginia)
17 Alfred Howard, The Beauties of Burke (T. Davison, London) 109
18 Reno v. American Civil Liberties Union 521 US 844 : 138 L Ed 2d 874 (1997)
19 Supt., Central Prison v. Ram Manohar Lohia MANU/SC/0058/1960 : (1960) 2 SCR
821 : AIR 1960 SC 633
20 Morris B Abram, 'Liberty, Fraternity and Equality-One or Two Alone are not Enough'
(1967) 16 Journal of Public Law 3, 8.
21 Id. para 514.
22 Indian Medical Association v. Union of India Civil Appeal No. 8170 of 2009 and Writ
Petition (Civil) Nos. 320 of 2009 and 192 of 2010.
23 Id.
24 Id.
25 Wason v. Walter (1868) 4 QB 73
26 Proportionality: Constitutional Rights and Their Limitation by Aharon Barak,
Cambridge University Press, 2012
© Manupatra Information Solutions Pvt. Ltd.

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