Reputation forms an intrinsic part of everyone’s life. People care about their honor and name like they care about their life. In the case of Subramanian Swamy v. Union of India (2016), the constitutional validity of the offense of criminal defamation was challenged but the Supreme Court observed that the right to reputation is protected under Article 21 of the Constitution of India, 1950. Defamation under the Indian Penal Code, of 1860 refers to attacking another person’s reputation by making or publishing defamatory statements against them. It could be libel or slander. Libel is defamation in some permanent form such as written, printed, etc., and slander is defamation through spoken words or gestures.
Offense of defamation
Sections 499, 500, 501, and 502 of the Indian Penal Code, 1860 contain the provisions regarding the offense of defamation. Section 499 lays down a comprehensive definition of defamation and its exceptions. According to these provisions, the three essentials of the offense are as follows:
- • Making or publication of imputation: An imputation regarding any person has been made or published. It could be either libel or slander. When the statement consists of words or gestures, then it is called slander, while when these are in permanent form, they are called libel.
- • Means of imputation: The imputation should have been made via words, writing, signs, or visible representations. Editors, printers, publishers, and distributors could be made liable for the offense of defamation. However, if a newspaper editor can avoidthe charge of defamation against him/her by proving that libel was published without their knowledge and in their absence.
- • intention of harming the reputation: There should be the presence of intention of harming the reputation of another person. Reputation refers to the opinion of others about a person. The imputation should be made with the intention of lowering the moral or intellect of a person in the eyes of society. The presence of means rea is the sine qua non of the offense of defamation.
There are 4 explanations with Section 499 to make it lucid as to what constitutes defamation:
• Defamation of the dead: The Section covers the offense of defamation against a dead person also provided that the imputation is both defamatory to the deceased and hurtful to his/her relatives.
• Defamation of a company or collection of persons: An offense of defamation against any corporation could be made out when the words accuse it of mismanagement or fraud in its dealings.
• Defamation by innuendo: Sometimes the words in their literal sense appear to be non-defamatory, but there is hidden sarcasm that intends to harm the reputation. This also constitutes defamation.
• Meaning of harming reputation: Explanation 4 to Section 499 lays down that it refers to lowering the morals or intellect of a person. Also, harming someone’s reputation by calling them of a lower caste or lowering their credit would be included in the offense.
- Subramanian Swamy v. Union of India, Min. of Law (2016)
In this case, the constitutional validity of the offense of defamation under Sections 499 and 500 of the Indian Penal Code,1860 was challenged against the right to freedom of speech and expression, but the Supreme Court upheld the validity of these provisions.
Facts of the case
A writ petition under Article 32 of the Indian Constitution was filed which challenged the constitutional vires of the offense of defamation under the Indian Penal Code. The petitioners contended that the offense of defamation breaches the right to free speech and expression under Article 19(1)(a) of the Indian Constitution.
Contentions of the petitioners
- • The petitioners submitted that the right to freedom of speech and expression is an integral part of democracy and carries constitutional significance and is a part of the basic structure of the Indian Constitution.
- • The right ensured under Article 19(1)(a) is of utmost importance and has priority over other rights, therefore, in case of conflicts, the right to free speech and expression is not to be curtailed unless it hinders the community interest.
- • The reasonable restrictions provided under Article 19(2) of the Constitution protect the interest of the public and not any individual. Thus, Section 499 of the Indian Penal Code cannot be granted protection under this constitutional provision.
- • As Article 19(2) is an exception to Article 19(1)(a) of the Constitution, it cannot be liberally construed, and its ambit cannot be widened. • The concept behind the test of reasonable restriction is that if the restriction infringes the fundamental right excessively, then it cannot pass the test of reasonableness. Moreover, restrictions should be reasonable in substance and procedure, and the procedure for complaints for the offense of defamation does not pass the test of reasonableness.
- • Explanation IV to Section 499 of the Indian Penal Code provides a wide ambit for the offense of defamation, and it allows a greater width and ambit without any guidance, hence it is arbitrary.
Contentions of the respondent
- • Respondents, while highlighting the importance of the right to reputation, submitted that it is an integral part of the right to life protected under Article 21 of the Indian Constitution. Also, it is an inseparable element of a person’s personality that cannot be overlooked.
- • Article 19(2) is to be read as a part of speech and expression as it cannot be considered as an absolute right. Thus, the offense of defamation is covered under the exception provided under Article 19(2).
- • All the constitutional provisions are to be read in context with the Preamble, which talks about fraternity and states, “fraternity assuring the dignity of the individual and the unity and integrity of the Nation”. Thus, it aims at preserving the dignity of the individuals and hence, the restriction imposed by Section 499 satisfies the motive of constitutional fraternity.
- • Press can influence the minds of the public and cannot be given unbridled power. Even explanation I to Section 499 of the Indian Penal Code does justify truths unless they are for the public good.
- • It was also submitted that the contention that the law of criminal defamation protects the interests of only an individual does not hold good as defamation serves the public purpose and is for the larger interests of society.
- • Reputation cannot be compensated in monetary terms as it is linked with self-respect, Honor, and dignity. Therefore, the argument of the petitioners that a civil remedy could be granted in case of defamatory remarks is not tenable.
Observations of the Court
The two-judge bench of the Supreme Court upheld the constitutionality of the offense of defamation under the Indian Penal Code by making the following important observations:
- • It was observed that there is no ambiguity in the intent of the legislature behind associating wider words in the words of narrower sense. Thus the rule of noscitur a sociis, which is a rule of construction, cannot be applied.
- • Any person cannot, in the name of freedom of speech and expression, defame others, and hence, the Court held that “it is difficult to come to a conclusion that the existence of criminal defamation is absolutely obnoxious to freedom of speech and expression.”
- • Furthermore, the Court stated, “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 the doctrine of proportionality because it determines a limit that is not impermissible within the criterion of reasonable restriction.
- Chaman Lal v. State of Punjab (1970)
In this case, the Supreme Court laid down the basis of establishing the good faith and bona fide as specified in the exceptions to Section 499 of the Indian Penal Code.
Facts of the case
According to the facts of this case, one President of the Municipal Corporation wrote a letter which contained defamatory remarks against a nurse of the local hospital. Complaint was filed against the accused under Section 499 of the Indian Penal Code. The accused contended that the imputations were true, and he made them in good faith. The imputations were sent to the lawful authority.
Observations of the Court
The alleged accused was punished for a simple imprisonment of two months and the Supreme Court laid down the following basis of proving good faith and bona fides:
- • The circumstances under which the letter was written, or words were uttered. • Whether there was any malice.
- • Whether the accused made any enquiry before he made the allegation. • Whether there are reasons to accept the version that he acted with care and caution.
- • Whether there is a preponderance of probability that the accused acted in good faith.
With respect to the nature of an interest, the Supreme Court said that the “interest of the person must be real and legitimate when communication is made in protection of the interest of the person making it. If that be so, then good faith is automatically drawn in and good faith obviously does not require logical infallibility”.