Friday, 13 May 2016


Noting that it is “extremely difficult to accept that criminal defamation has a chilling effect on freedom of speech and expression”, the Supreme Court upheld the constitutional validity of Sections 499 and 500 of the Indian Penal Code to protect the individual's right to reputation.
“Right to free speech is not absolute. Reputation cannot be crucified at the altar of freedom of speech and expression,” a Bench of Justices Dipak Misra and P.C. Pant observed in their judgment.
The apex court held that courts have to strike a balance between the fundamental right free speech as well as the right to reputation which is equivalent to the fundamental right to dignity and life under Article 21 of the Constitution.
“Free speech is sacrosanct. But right to life under Article 21 has its own significance as protection of individual rights form the fulcrum of a society. Courts have to strike a balance,” the Supreme Court reasoned.

The judgment, authored by Justice Misra, said free speech should not rob a person's individual right to go to court to protect his reputation.
The apex court held that Sections 499 and 500 provide the State ammunition to do its sworn duty to protect the dignity and reputation of its citizens.
The judgment came on a batch of petitions filed by BJP leader Subramanian Swamy, Congress vice-president Rahul Gandhi, Delhi Chief Minister Arvind Kejriwal and media associations, among others, who argued extensively that criminal defamation, a colonial law, has a chilling effect on free speech and is being used by political rivals to gag criticism.
Mr. Swamy is facing criminal defamation cases in Tamil Nadu, while Mr. Gandhi is an accused for saying in an election rally that the RSS is behind the Mahatma Gandhi’s assassination. Mr. Kejriwal is facing criminal defamation for using allegedly derogatory terms against Union Transport Minister Nitin Gadkari.
The judgment also casts a shadow of doubt over the free speech rights of the media in a democracy.
The judgment provide the petitioners facing criminal defamation trial a window of eight weeks to approach the High Courts concerned under Article 226 and Section 482 of the Criminal Procedure Code to quash the proceedings against them. For this purpose, the apex court has stayed the criminal proceedings against them for eight weeks.
The apex court further warned magistrates across the country to be “extremely careful” while deciding to issue summons on complaints alleging criminal defamation.
The judgment falls in line with the Centre’s stand in the Supreme Court that criminal defamation offers “some deterrence” to people from maligning others whereas civil cases take over 20 years and “nobody cares”.
The petitioners had argued that the colonial Sections 499 and 500 of the IPC was an affront to article 19 (2) of the Constitution.
They had asked whether criminal defamation, which makes a person liable to prosecution and penal punishment, was necessary when defamation is considered a civil offence by countries across the world.
“We are not like other countries. Here you can file a civil suit and it will drag on for another 20 years. Nobody cares. In criminal defamation, there is some deterrence,” the Centre had replied in an affidavit before the Supreme Court.
The judgment contradicts the stand taken by the court, amicus curiae and senior advocate T.R. Andhyarujina, who had argued that “criminal defamation deters people from speaking out... a number of people are facing criminal defamation, especially politicians because they tend to criticise the people in power”.

Incidentally, the two-judge Bench had refused the Centre’s repeated pleas during the court hearings to refer the question of constitutional validity of criminal defamation to a Constitution Bench and insisted on pronouncing the judgment itself.
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