The punishing hand of the court: Apex court upholds the constitutional validity of defamation as a criminal offence

This article has been written by Torsha Sarkar. Torsha is a third-year law student in National Law University Odisha.

In 2014, the Supreme Court of India upheld the constitutional validity of section 499 of the Indian Penal Code (IPC), whereby defamation is touted a criminal offence. This judgment was in response to the petitions filed by Subramaniam Swamy, Rahul Gandhi and Rajdeep Sardesai. Interestingly, the judgment is remembered more for its vivid, obscure linguistic constructions, and less for its legal precedence, for the obvious reasons.

This judgment was given by the Hon’ble Justice Prafulla C. Pant, and Justice Dipak Misra, who by now (and in light of the recent judgment of making it mandatory to play national anthem in movie theatres), must be one of the most government-friendly justices in the history of Apex Court judges, with the exception of Justice Bhagwati in his ADM Jabalpur judgment.

Yet again, liberalism and freedom of speech had to take a backseat in an India where dissent is increasingly being curbed and blind obedience of the authority is sought after. Historically, in Lord Macaulay’s Penal Code, section 499 was inserted as a counterpart of the English offence of libel. However, with our legislature determined to imbibe the colonial hangover in its true sense, chose to retain it even seventy years of independence. Interestingly, English libel provided truth as a comlete defence, while the Indian law has put conditions on that defence. Only when the truth is used to further public good, the defence can be invoked. Now with the discretion of deciding what public good is left on the court, one can only imagine the effectiveness of this defence.

International stance on the law of defamation.

The International Covenant on Civil and Political Rights (ICCPR), recommends that restrictions to freedom of speech be strictly necessary and proportionate. India is a party to it, and in light of the same, the fact that a private wrong like defamation entails criminal liability stands in blatant violation of ICCPR[1].

In 2014, Amnesty International also made a representation to the Law Commission of India, regarding the widespread exploitation of journalists and curbing of media freedom. Also, the opinion of United Nations Special Rapporteur on the Promotion and Protection of Freedom of Opinion and Expression, Frank La Rue becomes relevant. He coins a term called ‘judicial harassment’, whereby accused, charged under section 499, are kept for long time in custody, having an overall fettering effect on the freedom of speech and expression[2].

Many counties are recognizing the pointlessness of this particular piece of law. United Kingdom, from whom India had borrowed the law so joyously, have abolished it.

The Court’s view in Subramaniam Swamy vs. Union of India.

The judgment handed out has a vivid, obfusciating linguistic construction, and is rife with many, many loopholes. The Court rushed to hold that firstly, defamation was not merely a private wrong, but did not point out the manner in which the damage to one’s reputation by another becomes a public matter, and one that entails criminal liability.

Secondly, the Court also fixed a strict liability standard to the crime of defamation – one that has already been held unconstitutional by the 1995 judgment of R.Rajagopal vs. State of Tamil Nadu[3]. The Court also added a ‘public interest’ aspect to the restrictions to speech and expression, as given under Article 19(2). But this too, has been held unconstitutional in the case of Sakal Papers (P) Ltd. vs. Union of India[4], a judgment that went as back as 1962. However, if the judgment writing trend of Justice Dipak Misra is to be taken into account, precedents do not matter to him. So, this judgment, despite facing raging flak from law scholars, would persist in its glorious 268 pages.

[1]     Vrinda Vinayak, ‘Why The Supreme Court’s Ruling On Criminal Defamation Is An Insult To Free Speech'<http://www.huffingtonpost.in/vrinda-vinayak/why-the-supreme-courts-ruling-on-criminal-defamation-is-an-insu/> last accessed 21st December, 2016

[2]     Id

[3]     R. Rajagopal vs. State of Tamil Nadu, [1994] SCC 632

[4]     Sakal Papers (P) Ltd. vs. Union of India, [1962] SCR 3 842



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