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Defamation – A Restriction; A Restraint?


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This Article is written by C A SHREYAS GUPTA from JSS Law College, Mysore


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www.lawyerstroop.com

Abstract

The main objective of this article is to make the readers understand the right of freedom of speech and expression which has to be exercised subject to defamation and to understand whether the restriction of defamation acts as a barrier/restraint to the effective exercise of the same right. This article gives the analysis of the provisions of Article 19 (1)(a) and Section 499 of IPC which talk about freedom of speech and expression and defamation respectively and tries to say that the restriction of defamation is not a barrier or restraint to the right of freedom of speech and expression.

Introduction

India is known for its largest democracy in the world and in the democratic form of government, the right to freedom of speech and expression plays a pivotal role in upholding democracy in the country.

In Romesh Thapper Vs State of Madras1, Hon’ble Justice Patanjali Sastri, rightly observed that – “Freedom of speech and press lay at the foundation of all democratic organizations, for without free political discussion, no public education, so essential for the proper functioning of the process of popular government is possible.”

Therefore, there shall be no restraints on citizens in the course of exercise of the right of freedom of speech and expression.

The right to freedom of speech and expression is a constitutionally guaranteed right under Article 19(1)(a) for every citizen of the country. However, the Constitution imposes a restriction called “Defamation”  saying “Right of freedom of speech and expression shall not be so exercised in the manner that is defamatory to others”.

What does this mean?

Firstly, let us know what Article 19(1) says. It says that all the citizens of the country have the right to freedom of speech and expression, i.e., Freedom to express one’s own opinion in writing, drawing, or by any other means. (Subject to the restriction “Defamation”)

Now, what is defamation? 

Defamation is an injury/damage to one’s reputation either by words or by way of publications in any form/medium.

The Hon’ble Supreme Court in the landmark case, Maneka Gandhi vs Union of India2held that the right to life includes the right to live with human dignity.

What Does criminal law have its say about Defamation?

The Indian Penal Code (hereafter referred to as IPC) criminalizes the acts of Defamation under sections 499 and 500.

In Swami Ramdev Vs JaggerNaut Books3, Ramdev was the petitioner who alleged that one of the books published by JuggerNaut Books, written by Priyanka Pathak Narain was an unauthorized Biography and consisted of untrue and defamatory content and thereby violating fundamental right guaranteed under Article 21- the right to live with dignity.

The court drew an interesting inference that balanced between freedom of speech and right to reputation – The right to reputation of living persons under Article 21 can’t be sacrificed or crucified at the altar of another’s right of freedom of speech. Both have to be harmonized as no amount of damages can redeem the adverse impact on a person’s reputation, merely because previous similar publications exist, does not permit repetition of prima facie defamatory insinuations.

So,  the apex court has made it clear that one’s right not to be defamed shall not be vulnerable to any kind of infringements and misuses under the banner of right to freedom of speech and expression.

So, is this defamation against the Constitution?

Now, let us see the constitutional Validity of Defamation.

A case has been filed by Subramanian Swamy praying court for the declaration of Sec 499 of IPC as unconstitutional.

In the case of Subramanian Swamy Vs Union of India4, The division bench of the Hon’ble Supreme Court held that defamation comes under the restrictions enshrined under article 19 and is well within the ambit of Constitution and upheld the constitutionality of Section 499 of IPC.  

Notwithstanding all the aforementioned, IPC provides various exceptions to section 499, which are as follows

 (a) Imputation of truth which public good requires to be made or published,

 (b) Conduct of any person touching any public question.

 (c) Merits of public performance – If the statements made in exercise of the right of freedom of speech and expression is within the purview of the exceptions aforementioned or any other exceptions provided under section 499 of IPC, the same is exempted to be proceeded against for Defamation,

(d) Public conduct of public servants,

(e) Publications of reports of proceedings of courts,

(f) Merits of a case decided in court or conduct of witnesses and others concerned,

(g) Censure passed in good faith by person having lawful authority over another,

(h) Accusation preferred in good faith to authorised person,

(I) imputation made in good faith by person for protection of his or other’s interest and

(j) Caution intended for good of person to whom conveyed or for public good.

In R Rajgopalan Vs State of Tamilnadu5, The Supreme court held that publication of one’s private life touching upon the public good becomes unobjectionable and is valid.

Thus, it is clear that if the right of freedom of speech and expression touches the exceptions provided u/s 499 of IPC, the same can’t amount to defamation.

Article 19(1)(a) & Sedition

Sedition is nothing but bringing or attempting to bring hatred or disaffection towards the government established in accordance with the constitution of India and is an offence under section 124-A of IPC.

Brief History of Sedition

The then British government, while ruling India, in order to suppress the freedom movements and activities of Bal Gangadhar Tilak and Mahatma Gandhi, had included section 124-A, to curb the freedom movement.

Present Scenario

The Law Commission in August 2018 recommended the removal of sedition from the Indian Penal Code.

Hon’ble Justice D Y Chandrachud, in the Telugu News Channels Case, stated that Section 124-A needs to be interpreted.

In a recent case hearing, the incumbent Chief Justice of India Hon’ble NV Ramana stated “whether Sedition is needed even after 75 years of Independence?”

The Supreme Court has also served notices to the Government of India Seeking a reply in the matter relating to the removal of Section 124-A of IPC.

Recently, In KishoreChandra Wangkhemcha & Ors VS Union of India6, the petitioner has filed a writ petition seeking order or direction declaring section 124-A of IPC,1860 to be unconstitutional and void. 

Despite all these, while exercising the right of freedom of speech and expression, if any true statement or opinion is published, the same doesn’t amount to sedition and moreover, in the exercise of freedom of speech, if we are making a true and fair statement, there is no need of bothering about sedition and defamation, as we will be acting in good faith, with due diligence on our statements.

Hence, Sedition is not a restraint to the fundamental right of freedom of speech and expression.

Sedition, The other Side

In recent times, section 124-A is being misused grossly against people who are making mere comments on the government. A sedition case against the member of parliament of Narsapuram, Andhra Pradesh is one such example that can be quoted.

A sedition case filed by the government of Andhra Pradesh on Telugu News channels TV5 & ABN,( wherein the Supreme court has Stated that “ A mere criticism of government doesn’t amount to Sedition)  is another example of sedition being misused.

Sedition is a weapon in the hands of the government to take an action against the people who make frivolous, filthy, and proof-less statements made against the government, and hence the same shall be used positively and shall not be misused.

Concluding Remarks

The main objective of freedom of speech and expression is to ensure that all citizens shall be free to express their opinion by any means and the objective of defamation is to punish those who harm/injure others’ fame or reputation. Finally, the purpose of inclusion of defamation as a restriction under the restrictions for Article 19(1)(a) is to make sure that the citizens while exercising the freedom of speech and expression shall be mindful of their statements.

Hence, as far as the exercise of freedom of speech and expression falls within the ambits of exceptions provided under section 499 of IPC and as long as the statements made in course of exercise of the right are genuine and true, defamation is not at all a restraint for an effective exercise of freedom of speech and expression.


Footnotes

  1. AIR 1950 SC 124
  2. AIR 1978 SC 597
  3. CS (OS) 27/2019; Reported in 263(2019)DLT689
  4. AIR 2016 SC 2728
  5. 1994 6 SCC 632
  6. W.P. (Cr.) No. 106/2021

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