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SUPREME COURT OF INDIA
Dipak Misra, Prafulla C. Pant, JJ.
Subramanian Swamy – Petitioner
Versus
Union of India, Ministry of Law & Ors. – Respondents
Writ Petition (Criminal) No. 184 of 2014 With Writ Petition (Criminal) No. 8, 19, 56, 64, 62, 63, 67, 79, 73, 82, 77, 91, 98, 106, 96, 110, 121, 120, 117, 118, 116, 119 of 2015; Transfer Petition (Criminal) Nos. 102-105 & 94-101 of 2015
Decided On : 13-05-2016
2013 (53) PTC 586; AIR 1961 Pat. 164; (1882) QBD 491; (1840) 6 MLW 105; (1921) 37 TLR 646; 2003 (2) Bom CR 136– Referred
(b) Reputation – Constitution of India – Article 21 – Reputation – One of the finer graces of human civilization which make life worth living – Should be safeguarded against being prejudicially affected – Section 8-B(b) – Commissions of Inquiry Act, 1952 – Right to reputation – Natural personal right – Good reputation an element of personal security protected by Article 21 equally with the right to the enjoyment of life, liberty and property – Inseparable facet of Article 21 – Perceived as an honour rather than popularity. (Para 45, 46, 47, 48, 50)
(1983) 1 SCC 124; (1989) 1 SCC 494; (1996) 2 SCC 648; (2012) 8 SCC 1; (2012) 7 SCC 288; (2013) 10 SCC 591; (2013) 2 SCC 398; (1998) 1 SCC 550; (2014) 5 SCC 417; (1998) 7 SCC 392 – Relied upon
(1961) 1 All. E.R. 876; [2001] 2 AC 127; (2004) UKHL 22; 400 U.S. 433 (1971); 383 U.S. 75 (1966); [1995] 2 SCR 1130; [2002] ZACC 12; 2002 (5) SA 401; (2008) 46 E.H.R.R. 35; (2005) 41 EHRR 29; (dec.), no. 58729/00, 21 September 2004; [2007] EMLR 1; (2011) 52 E.H.R.R. 36; (2012) 55 E.H.R.R. 6 – Referred
© Interpretation of Constitution – Notwithstanding generality of the words used in the Constitution their full import and true meaning has to be appreciated considering the context and purpose of their use – Constituent assembly debates therefore can be taken aid of for the purpose of understanding the intention of the framers of the Constitution. (Para 61)
(2001) 7 SCC 126; (2002) 8 SCC 237; (2014) 9 SCC 1 – Relied upon
(1973) 4 SCC 225 – Referred
(d) Code of Civil Procedure, 1908 – Section 9 – Civil action – No governing codified law – Absence of statutory bar on using Common law (a law in force under Article 372 of the Constitution of India) – Common law right can be taken resort to. (Para 66)
AIR 1967 SC 997: (1967) 2 SCR 170 – Relied upon
(e) Interpretation of statute – Noscitur a sociis – Only a rule of interpretation – Applicability – Where intention of the legislature in associating wider words with words of narrower significance is doubtful, or not clear – Also where the meaning of the words of wider import is doubtful – Not applicable where intention of legislature in deliberately using wider words to make scope of the defined word correspondingly wider is clear. (Para 67, 69)
AIR 1960 SC 610: (1960) 2 SCR 866; (2005) 2 SCC 515; (2004) 1 SCC 755 – Relied upon
1988 Supp SCC 47, AIR 1988 SC 151; (1964) 6 SCR 784, AIR 1964 SC 1230 – Referred
(f) Interpretation of Constitution – Article 19(2) – While interpreting Article 19(2) the exalted spirit, essential aspects, the value and philosophy of the Constitution should be kept in view – “Defamation” – Cannot be restricted by “incitement to an offence” – Principle of noscitur a sociis not applicable – Submission that defamation can only get criminality if it incites to make an offence rejected. (Para 71)
AIR 1952 SC 329; 1952 SCR 654 : AIR 1950 SC 129 – Referred
(g) Criminal jurisprudence – Public wrong and private wrong; and crime and civil injury – Distinction – Private wrongs or civil injuries – Infringement or privation of the civil rights of individuals – Public wrongs or crimes and misdemeanours – Breach and violation of the public rights and duties due to the whole community in its social aggregate capacity – Every public offence is also a private wrong, and somewhat more – Affects individual, and the community alike. (Para 80)
(1999) 4 SCC 135; (1987) 1 SCC 424 – Referred
(h) Crime – ‘Public’ wrong, may not be a wrong that injures the public, but one that properly concerns the public – Impact of crime is shared by individual as well as the society – Crime, even though making an individual to suffer, is an offence against the society – Contention that treating defamation as a criminal offence can have no public interest and thereby not serving any social interest or collective value – Rejected – Acts against social order and seriously condemnable are Crime – Crime is an act specifically forbidden by law. (Para 83, 84, 85, 86, 89)
(2008) 9 SCC 475; (2010) 4 SCC 653; (2008) 2 SCC 305; (2004) 2 SCC 9; (2000) 6 SCC 168; (1994) 3 SCC 569; (1992) 2 SCC 177; 1995 Supp. (4) SCC 469; (1997) 6 SCC 241 – Relied upon
AIR 1954 SC 92 : [1954] SCR 587 – Distinguished
(i) Constitution of India – Article 19(1)(a) r/w 19(2) and US First Amendment – American judgments – Have great persuasive value on the content of freedom of speech and expression and the tests laid down for its infringement – However, validly imposable flexibility of the restrictions renders American decisions inapplicable to interpretation of Articles 19(1)(a) and 19(2). (Para 95)
(2015) 5 SCC 1; 1962 Supp. (3) SCR 369, AIR 1962 SC 1166 – Relied upon
(1958) 257 US 513 (530); (1958) 354 US 298 (344); (1931) 283 US 359 (369); (1937) 302 US 319; 250 US 616 :63 L Ed 1173 (1919); 71 L Ed 1095 : 274 US 357 (1927) – Referred
(j) Constitution of India – Article 19(1)(a) and 19(2) – Freedom of speech and expression – Highly treasured value under the Constitution – However, dissent or disagreement not unpalatable – To be treated as view-points with objectivity – Right to freedom of speech and expression not absolute but subject to imposition of reasonable restrictions. (Para 115)
(2003) 4 SCC 399; (2004) 2 SCC 510; (2008) 4 SCC 720; (2010) 5 SCC 600; (2012) 5 SCC 1; (2012) 10 SCC 603; (2014) 9 SCC 485; (2015) 6 SCC 1; (1988) 3 SCC 410; (1989) 2 SCC 574; AIR 1965 SC 881 : (1965) 1 SCR 65; AIR 1965 SC 881 : (1965) 1 SCR 65; (1969) 2 SCC 687; (1970) 2 SCC 780; (1980) 1 SCC 43; (1985) 4 SCC 289; (2006) 8 SCC 433; (2007) 1 SCC 143; (1996) 4 SCC 1; (2014) 4 SCC 257 – Relied upon
(k) Constitution of India – Article 19(2) – Reasonable restrictions – Tests, judicial review – No abstract standard, or general pattern of reasonableness applicable to all cases can be laid down – Nature of right allegedly infringed, underlying purpose of restrictions imposed, 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 – Restriction should not be excessive and it should be in public interest – Legislation should not invade rights and smack of arbitrariness (Para 117, 125)
AIR 1951 SC 118; AIR 1952 SC 196; (1972) 2 SCC 788; (1978) 1 SCC 248 : AIR 1978 SC 597; (1970) 2 SCC 298; (1981) 2 SCC 600; (2012) 5 SCC 1; (2012) 10 SCC 603; (1982) 1 SCC 39; (1969) 3 SCC 377; [1952] S.C.R. 597; V.G. Row; (1995) 1 SCC 501 – Relied upon
(l) Indian Penal Code, 1860 – Section 499 /w Article 21, Constitution of India – Defamation as a criminal offence – Value of life is incomprehensible without dignity – Right to freedom of speech and expression absolutely sacrosanct – Simultaneously, right to life as understood in the expansive horizon of Article 21 has its own significance – Whether freedom of speech and expression, entitles one to mar the other’s reputation which constitutes defamation in criminal law. (Para 126, 127)
(1981) 1 SCC 608; (1996) 2 SCC 549; (2011) 1 SCC 694; (1978) 1 SCC 579; (2007) 14 SCC 1; (1983) 1 SCC 51 : AIR 1983 SC 1; (2015) 1 SCC 192 – Relied upon
(m) Constitution of India – Articles 19(1)(a) and 21 and section 499, Indian Penal Code, 1860 – Balancing of fundamental rights – No article in Part III is an island but part of a continent – Balancing of fundamental rights a constitutional necessity – Court duty bound to strike a balance so that the values are sustained – Injury to reputation – Basic ingredient of defamation – Reputation an inherent component of Article 21, should not be allowed to be sullied solely to enable another individual to have its freedom (of expression) – Word “defamation” having been used in the Constitution, defamation as a criminal offence held covered by Article 19(2). (Para 137, 139, 140, 143, 149)
(1975) 1 SCC 11; 1991 Supp (1) SCC 600; (1992) 1 SCC 558; (1998) 8 SCC 296; (1998) 4 SCC 1; (2011) 8 SCC 1; (2012) 10 SCC 603; (1978) 1 SCC 248 : AIR 1978 SC 597; 1962 Supp. (3) SCR 369, AIR 1962 SC 1166; (1985) 1 SCC 641; (1989) 2 SCC 574; AIR 1952 SC 329; (2014) 9 SCC 737 – Relied upon
1962 Supp (2) SCR 769 : AIR 1962 SC 955; (2005) 5 SCC 733; 94 L Ed 925 : 339 US 382 (1950); AIR 1957 SC 620 – Referred
(1962) 3 SCR 842 : AIR 1962 SC 305 – Distinguished
(n) Constitution of India – Preamble and Article 51-A – Section 499, Indian Penal Code, 1860 – Constitutional fraternity and fundamental duty lead to mutual respect – Concept of fraternity expects every citizen to respect the dignity of the other – Mutual respect is the fulcrum – Promoting fraternity or brotherhood is constitutional obligation – Individual interest serves the collective interest – Correspondingly collective interest enhances individual excellence – Held, existence of criminal defamation cannot be regarded as an unreasonable restriction. (Para 155, 158, 163)
AIR 1993 SC 477 : 1992 Supp. (3) SCC 217; (2002) 1 SCC 428; Civil Appeal No. 8170 Of 2009 & Writ Petition (Civil) Nos. 320 Of 2009 & 192 Of 2010; 1994 Supp. (1) SCC 191; (2005) 6 SCC 537; (2012) 5 SCC 1 – Relied upon
(o) Indian Penal Code, 1860 – Section 499 – Defamation – Ingredients – Offence is founded on causing harm or intention to cause harm to reputation of a person and mens rea is a condition precedent to constitute the offence. (Para 165)
(2010) 6 SCC 243 – Relied upon
(p) Constitutional validity and interpretation – Court considering constitutional validity of a provision – Authoritative decisions interpreting the provision – Appreciating the way the provision is understood by the Court helps in determining constitutional validity. (Para 166)
(q) Indian Penal Code, 1860 – Section 499 – Explanation 1 – Civil action for damages for defamation of deceased – Not permissible because the cause of action does not survive after death of the deceased – Criminal action for defamation u/s 499, however on different footing – Complaint cannot be entertained u/s 199 Cr PC unless mandatory conditions under Explanation 1 are fulfilled – Held, Section 499, Explanation 1 does not give any extra mileage to the legal heirs of a deceased person. (Para 169)
(1974) 1 SCC 19; (1986) 1 SCC 118; (1988) 1 SCC 556 – Relied upon
® Indian Penal Code, 1860 – Section 499 – Explanation 2 – Collection of persons – Concept of identifiability and definitiveness – The group must be identifiable and the statement or writing must descend to particulars and individuals to make it a libel – Accentuation is on ‘particulars’ – Criminal prosecution cannot proceed unless composition of the class is ascertained – No ambiguity in the provision. (Para 170)
AIR 1965 SC 1451 : 1965 (2) SCR 823; (1972) 2 SCC 680; (2010) 5 SCC 600; (2012) 5 SCC 661 – Relied upon
(s) Indian Penal Code, 1860 – Section 499, Exception 1 – Necessary that imputation should be true and made for public good – Onus lies on accused – Otherwise it would be defamation – Exception 2 and 3 also lay stress on good faith – Exception 9 requires statement to be made in good faith with due care and attention as well as for public good to escape labeling as defamation – Proof of truth, one of the ingredients of Exception 1, not an ingredient of the 9 th Exception – Good faith and public good are questions of fact – In terms of 4 th Exception it is not defamation to publish a substantially true report of the proceedings of a court of justice – No concession in respect of proceedings of a House of Legislature or Parliament – Fifth Exception stipulates that an opinion on merits of a case decide by a court of justice or conduct of a party, if made in good faith is not defamation – Similarly, a complaint made to competent authority, but not before a court, would not be defamation under Exception 8 – Held, the main provision (Section 499) along with Explanations and Exceptions not being vague, excessive or arbitrary, cannot be called unreasonable – Cannot be struck down. (Para 173, 177, 178, 180, 183, 184)
(1970) 1 SCC 590; (2002) 3 SCC 343; Sahib Singh Mehra; (2002) 3 SCC 343; AIR 1966 SC 97; 1971 (1) SCC 885; (1961) 3 SCR 486; 1963 Supp (1) SCR 479; (1969) 1 SCC 37; (1999) 3 SCC 134; (1981) 3 SCC 208; (2009) 1 SCC 101 – Relied upon
(1969) 2 SCC 166 – Distinguished
(t) Constitutional Law – Validity – Doctrine of proportionality – Means balancing of fundamental rights on the one hand and the restrictions imposed on the other – Right to free speech is a cherished right, but the right to protection of reputation is a fundamental right – Right to free speech cannot mean that a citizen can defame the other – Criminal defamation in the form of Sections 499 and 500 IPC is not a disproportionate restriction on free speech – If maintenance of democracy is the foundation for free speech, society equally is entitled to regulate freedom of speech or expression by democratic action. (Para 184, 185, 186)
(2001) 2 SCC 386; 2016 (4) SCALE 478; (1982) 2 SCC 33; AIR 1958 SC 731; (1998) 8 SCC 227; (1996) 5 SCC 216 – Relied upon
(u) Code of Criminal Procedure, 1973 – Section 199 – “Some person aggrieved” – Require ascertainment on due deliberation of facts – Submission that it can include any and everyone as a “person aggrieved” – Too spacious a submission to be accepted. (Para 189)
(2001) 6 SCC 30; (2010) 5 SCC 600; (2000) 7 SCC 552; (1972) 2 SCC 680 – Relied upon
(v) Code of Criminal Procedure, 1973 – Section 199 – Different treatment for public servants – a
Public servant entitled to file a complaint through public prosecutor in respect of his conduct in discharge of public functions – Protection for official acts of public servants – They cannot be subjected to defamatory attacks because of discharge of their due functions – Thus they constitute a different class – Criticism and defamation – Distinction – One is bound to tolerate criticism, dissent and discordance but not expected to tolerate defamatory attack – Therefore, engagement of Public Prosecutor cannot be found fault with – Submission that the provision, by prescribing filing of complaint in court of Session instead of Magistrate, curtails right of appeal – Fallacy – While prescribing filing of complaint before Sessions court, provision provides three safeguards – Namely, (i) filing by the public prosecutor; (ii) necessity of obtaining sanction from the appropriate Government and (iii) Court of Session is superior court than the Magistrate to deal such case – Thus sufficient protection is given and right to appeal to High Court not curtailed – Submission not acceptable – No justification to declare the provisions ultra vires. (Para 192, 193)
(1979) 1 SCC 380; (2016) 3 SCC 183; AIR 1958 SC 538; (2008) 5 SCC 287; AIR 1960 SC 1; AIR 1960 SC 548; (2014) 10 SCC 380 – Relied upon
(w) Code of criminal Procedure, 1973 – Chapter XIII – Place of proceeding – Absence of specific provisions to determine place of proceedings in a case of defamation – Determination of right forum for trial of defamation case depends upon f acts and circumstances of the case – Code governs territorial jurisdiction – Issue of summons, if by abuse of jurisdiction – The person grieved can take appropriate steps in accordance with law – However, the provision cannot be declared unconstitutional on that ground. (Para 195)
(x) Code of criminal Procedure, 1973 – Section 199 – Criminal defamation – Neither any FIR can be filed nor can any direction be issued under Section 156(3) CrPC – Therefore responsibility of the Magistrate is more – Criminal law cannot be set into motion as a matter of course – Application of mind in the case of complaint is imperative. (Para 196, 197)
(1972) 1 SCC 450; 1993 Supp. (1) SCC 499; (1998) 5 SCC 749 – Relied upon
(y) Indian Penal Code, 1860 – Section 499, Exceptions – Submission that no provision for considering Exceptions to section 499 at the time of summoning of the accused Exceptions makes it unconstitutional – Well settled that the person pleading the Exception has to prove it – Submission rejected. ((Para 198)
Facts of the case:
In this batch of writ petitions the Court is required to dwell upon the constitutional validity of Sections 499 and 500 of the Indian Penal Code, 1860 and Sections 199(1) to 199(4) of the Code of Criminal Procedure, 1973.
Finding of the Court:
Sections 499 and 500 of the Indian Penal Code and Section 199 of the Code of Criminal Procedure held constitutional.
Result: All Writ Petitions and Transfer Petitions disposed of.
JUDGMENT :
Dipak Misra, J.
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 pedestaled 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, ‘IPC’) and Sections 199(1) to 199(4) of the Code of Criminal Procedure, 1973 (for short, “CrPC”). 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 another v. State of T.N. and others, (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 others v. Union of India and others, (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 ‘de
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