Article 19(1) (a) of the Constitution of India states that all citizens shall have the right to freedom of speech and expression. The philosophy behind this Article lies in the Preamble of the Constitution, where a solemn resolve is made to secure to all its citizens liberty of thought and expression.
It includes the right to express one’s views and opinions on any issue through any medium, e.g., by word of mouth, writing, printing, picture, film, movie, etc. This right is, however, not absolute, and it allows the Government to frame laws to impose reasonable restrictions. Freedom of speech is guaranteed not only by the Indian Constitution but also by international statutes such as the Universal Declaration of Human Rights 1948, the International Covenant on Civil and Political Rights, the European Convention on Human Rights and Fundamental Freedoms, etc.
This is important because democracy works well only if the people have the right to express their opinions about the government and criticize it if needed. In the absence of freedom, democracy is threatened, and the government will become all too powerful and start serving the interests of a few rather than the general public. The right provided under Article 19(1)(a) is not absolute and subject to restriction under Article 19(2); it includes defamation also as a restriction, but this restriction goes beyond the public interest sometimes and the restriction that goes beyond the public interest criterion cannot be viewed as a fair restriction and would be arbitrary. The provision even goes so far as to make truth a punishable offense, which violates the respected value entrenched in Article 51-A(b), which is linked with the national battle for independence. Still, in the landmark case Subramanian Swamy v. Union of India 2016[1], the Supreme Court upheld the constitutional validity of Section 499 and 500 related to criminalizing defamation.
Defamation is a legal concept that seeks to protect a person’s reputation from false statements that harm their character or standing in society. The Indian Penal Code (IPC) addressed defamation under Section 499-500 and the new law Bhartiya Nyaya Sanita(BNS) under Section 356: Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes in any manner, 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 cases hereinafter excepted, to defame that person.
Case Analysis
In a landmark case, Subramanian Swamy v. Union of India[2], a petition was filed to challenge the constitutional validity of Section 499-500 of IPC (Indian Penal Code) and Section 199 of CrPC (Code of Criminal Procedure) as it violates the fundamental right under Article 19(1)(a).
Brief facts of case are, In 1992, when the Petitioner campaigned against the Chief Minister of Tamil Nadu, a defamatory case was filed against the Petitioner under Section 199 of CrPC (which deals with criminal defamation of a public servant in respect of his conduct on the discharge of his public function), In 1993 the petition filed in Madras high court challenging the vires of Section 499 and 500 of the IPC and section 199(2) of CrPC as well the criminal complaints filed against him.
The main contention by the side of the Petitioner was that all the section are macauleyan import of century and are violative to the fundamental right under Article 19(1)(a) (right to freedom of speech and expression) of the Constitution of India (nor it is saved under Article 19(2) as a reasonable restriction) lacking any justification, are only throwback to an earlier repressive regime. The challenge before the court was twofold – first, whether criminalising defamation is an excessive restriction on freedom of speech, and second, whether the criminal defamation law under Sections 499 and 500 of IPC (Indian Penal Code) is vaguely phrased and hence arbitrary.
“The Supreme Court, in judgment, outlined the rights of free expression and how they differ from defamation and concluded that criminal penalties have no chilling impact on free speech. The Court held that Sections 499 and 500 IPC are not vaguely worded or ambiguous. Using the Constituent Assembly Debates to understand what the framers of the Constitution meant by the word “defamation” in Article 19(2), the Court held that the word is its own independent identity. It stands alone, and defamation laws have to be understood as they were when the Constitution came into force, and criminal defamation as an offense is not violative of the fundamental right to freedom of speech and expression under Art.19(1)(a) of the constitution, being a permissible restriction under Article 19(2) (the expression “defamation” in Article 19(2) include both civil and criminal defamation), while in a democracy an individual has a right to criticize and dissent, still, his right under Article 19(1)(a) is not absolute. The court further held that the right to reputation is a facet of Art. 21 of the Constitution, so it is also protected as a fundamental right and upheld the constitutional validity of Section 499-500 of IPC (Indian Penal Code) and 199 of CrPC (Code Of Criminal Procedure)”.
The judgment reflects that criminal penalties have no chilling impact on free speech and the right to reputation as a facet of Article 21 of the Constitution, but According to Article 21, one’s right to reputation is a component of a private right, as a result, defamation of a person by a private person cannot be treated as a “crime,” as it does not further any public good, and its inclusion as a crime under the law that safeguards rights in rem would be unconstitutional and the restriction also creates a “chilling effect” on free speech.
Chilling effect on free speech refers to a situation where individuals or groups are deterred from freely expressing their opinions, ideas, or criticisms due to the fear of legal consequences, such as lawsuits or criminal prosecution. The fear of criminal prosecution can discourage individuals from expressing opinions, particularly against powerful entities. This contradicts the constitutional guarantee of free speech.
Criminal And Civil Defamation
There are two types of defamation: criminal defamation and civil defamation. Civil defamation laws address the harm by awarding compensation instead of criminal penalties. Considering individuals’ laws and rights, There is no need for criminal defamation because it has often been used purely as a means of harassment and also burdens the court as there are provisions given in
The Code of Civil Procedure (CPC) to bring a suit if any harm is done to an individual, and he will be compensated accordingly. Treating defamation as a civil matter reduces the burden on the criminal justice system, allowing courts to focus on serious crimes. Imprisonment for defamation under Section 500 is seen as a disproportionate response to harm that is reputational. Criminal law is reserved for those crimes that threaten the security of society, and criminal sanctions cannot be justified merely because defamation is evil or damaging to a person.
In 2016, Tathagata Satpathy, a Member of Parliament belonging to the Biju Janata Dal, drafted a private member’s Bill entitled “The Protection of Speech and Reputation Bill, 2016”. The Bill seeks to decriminalize defamation and remove the “chilling effect” of old provisions that throttle free speech and encourage censorship. It also aims to remove the criminal provisions while guarding the right to reputation with stronger, more effective remedies for civil relief, including apologies, corrections and retractions, and the award of reasonable damages. The bill will also attempt to set the maximum claim limits and bar governments, local bodies, and other institutions from exercising statutory functions and filing suits for defamation.
Conclusion
Reformation should be made to provide justice and protection to the public and also to journalists who report on public interest matters. The United Nations Human Rights Committee (UNHCR) has emphasized that criminal defamation laws should not be used to stifle free speech and that imprisonment is a disproportionate penalty for defamation. Many democratic countries, e.g., the U.K., the U.S., Canada, Australia, and South Africa, have either decriminalized defamation or significantly curtailed its use in recognition of these human rights concerns.
The debate around criminal defamation underscores the need for legal reforms to ensure that the law does not become an instrument of oppression against dissenting voices. A reform-oriented approach, emphasizing civil remedies over criminal penalties, would ensure a fair balance between individual rights and societal interests, strengthening India’s democratic fabric while aligning with global human rights standards.
[1] Subramaniam Swamy vs Union of India, AIR 2016 SC 2728.
[2] Supra.
Author: Sunidhi, a 3rd year student at NLU,Shimla.
