Defamation law stays: Supreme Court

The Supreme Court on Friday held that Sections 499 and 500 IPC on criminal defamation are constitutionally valid and rejected the charge that they had a chilling effect on the right to freedom of speech and expression in a democracy. In a 268-page order, the court held that the fundamental right to freedom of speech and expression was subject to reasonable restrictions, and could not be misused to tarnish or sully the reputation of an individual.

A bench of Justices Dipak Misra and Prafulla C. Pant said reputation is an inextricable aspect of right to life under Article 21 and the state, to sustain and protect the reputation of an individual, has kept the provision under Section 499 IPC alive.

The bench disposed of petitions filed by BJP leader Subramanian Swamy, Congress leader Rahul Gandhi, Delhi chief minister Arvind Kejriwal, actor Vijaykanth and several others who drew the court’s attention as to how Sections 499 and 500 were being misused to target political opponents. It was claimed even dissent and fair criticism of governments or individuals was construed as defamation, leading to the throttling of democracy. The petitioners sought striking down of Sections 499 and 500 as the existence of defamation as a criminal offence had a chilling effect on the right to freedom of speech and expression.

In the order, Justice Misra said the right to reputation was a constituent of Article 21 of the Constitution. It was an individual’s fundamental right and, therefore, balancing of fundamental rights was imperative. Free speech and expression were fundamental rights, but they were not absolute. Reputation being an inherent component of Article 21, it shouldn’t be allowed to be sullied solely as another individual was entitled to its freedom, it said.

The court directed the petitioners, including Mr Gandhi, Mr Kejriwal and Dr Swamy, to face trial in defamation complaints against them or seek remedy in the high court by seeking a stay of summons or quashing of criminal proceedings.

The bench also noted that an intention to cause harm to a person’s reputation was the basis on which the offence was founded, and a complainant had to show the accused intended or known or had reason to believe the imputation made by him would harm the complainant’s reputation.

It cautioned magistrates that they should be circumspect and judicious in exercising discretion and should come to a prima facie conclusion on issuing summons. They must take all relevant facts and circumstances into account before issuing summons to ensure that the process was not misused to harass anyone needlessly.

On Section 199, relating to sanction for prosecution by government servants and filing complaints through the public prosecutor, the bench said this clause gives public servants protection for official acts. There cannot be defamatory attacks on them due to the discharge of their functions, and in that sense they constitute a different class. The court, however, clarified that criticism was not defamation, and while one is bound to tolerate criticism, dissent and discordance, one is not expected to tolerate defamatory attacks.