Subramanian Swamy Vs Union of India, Ministry of Law & Ors

The Case Brief

Subramanian Swamy

Versus

Union of India, Ministry of Law & Ors.

Petitioner- Subramanian Swamy

Respondent- Union of India, Ministry of Law & Ors.

Statutes Referred-

• The Constitution of India.
• The Indian Penal Code, 1860.
• The Code of Criminal Procedure, 1973.
• The Code of Civil Procedure, 1908.
• The Universal Declaration on Human Rights, 1948.
• The International Covenant on Civil and Political Rights.
• European Convention for the Protection of Human Rights and Fundamental Freedoms.
• The Child Labour ( Prohibition & Regulation ) Act, 1986.
• The Scheduled Castes & the Scheduled Tribes (Prevention of Atrocities) Act, 1989.
• Protection of Civil Rights Act, 1955.
• Press Council Act, 1978.
• Noise Pollution (Regulation & Control) Rules, 2000 under the Environment (Protection) Act, 1986.
•  

Cases Referred-

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• N. Ravi and others v. Union of India and others (2007) 15 SCC 631.
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• Shreya Singhal v. Union of India 2015 (5) SCC 1.
• New York Times v. Sullivan 29 LED 2d 822 (1971).
• Scott v. Sampson 1882 QBD 491.
• Parmiter v. Coupland (1840) 6 MLW 105.
• Mycroft v. Sleight (1921) 37 TLR 646.
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• Campbell v. MGN Ltd. (2004) UKHL 22
• Douglas v. Hellol Ltd. (2001) QB 967.
• Wisconsin v. Constantineau 400 U.S. 433 (1971)
• Rosenblatt v. Baer 383 U.S. 75 (1966)
• Hill v. Church of Scientology of Toronto (1995) 2 SCR 1130.
• Khumalo v. Holomisa (2002) ZACC 12 ; 2002 (5) SA 401.
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• Abeberry v. France (dec.), no. 58729/00, 21 Sept. 2004.
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• Godfrey Phillips India Ltd. & Anr v. State of U.P. & Ors. 2005 (2) SCC 515.
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• T.K. Gopal alias Gopi v. State of Karnataka (2000) 6 SCC 168.
• Kartar Singh v. State of Punjab (1994) 3 SCC 569.
• Harpreet Kaur (Mrs) v. State of Maharashtra & Anr. (1992) 2 SCC 177.
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• Vishaka & Ors. v. State of Rajasthan & Ors. (1997) 6 SCC 241.
• State of West Bengal v. Subodh Gopal Bose & Ors. AIR 1954 SC 92.
• Speiser v. Randall (1958) 257 US 513 (530).
• Yates v. U.S. (1958) 354 US 298 (344).
• Stromberg v. California (1931) 283 US 359 (369)
• Palko v. Connecticut (1937) 302 US 319.
• Abrams v. United States 250 US 616 : 63 L Ed 1173 (1919)
• Whitney v California 71 L Ed 1095 : 274 US 357 (1927).
• Kameshwar Prasad v. State of Bihar AIR 1962 SC 1166.
• Indian Express Newspapers (Bombay) Private Ltd. & Ors. v. Union of India & Ors. (1985) 1 SCC 641.
• Romesh Thappar v. State of Madras AIR 1950 SC 124.
• Near v. Minnesota 283 U.S. 607
• Express Newspaper (Private) Ltd. & Anr. v. Union of India & Ors. AIR 1958 SC 578.
• All India Bank Employees’ Association v. National Industrial Tribunal (Bank Disputes), Bombay & Ors. AIR 1962 SC 171.
• Sakal Papers (P) Ltd. v. Union of India AIR 1962 SC 305.
• Bennett Coleman & Co. & Ors. v. Union of India & Ors. (1972) 2 SCC 788.
• Secretary, Ministry of Information & Broadcasting, Govt. of India & Ors. v. Cricket Association of Bengal & Ors. 1995 (2) SCC 161.
• Union of India & Ors. v. Motion Picture Association & Others (1999) 6 SCC 150.
• People’s Union for Civil Liberties(PUCL) & Anr. v. Union of India & Anr. (2003) 4 SCC 399.
• Union of India v. Naveen Jindal & Anr. (2004) 2 SCC 510.
• Government of A.P. & Ors. v. P. Laxmi Devi (2008) 4 SCC 720.
• S. Khushboo v. Kanniammal & Anr. (2010) 5 SCC 600.
• Ramlila Maidan Incident (2012) 5 SCC 1.
• Sahara India Real Estate Corporation Ltd. & Ors. v. Securities & Exchange Board of India & Anr. (2012) 10 SCC 603.
• State of Karnataka & Anr. v. Associated Management of English Medium Primary & Secondary Schools & Ors. (2014) 9 SCC 485.
• Devidas Ramchandra Tuljapurkar v. State of Maharashtra & Ors. (2015) 6 SCC 1.
• Odyssey Communication Pvt. Ltd.  v. Lokvidayan Sanghatana & Ors. (1988) 3 SCC 410.
• S. Rangarajan v. P. Jagjivan Ram & Ors. (1989) 2 SCC 574.
• Ranjit D. Udeshi v. State of Maharashtra AIR 1965 SC 881.
• Chandrakant Kalyandas Kakodkar v. State of Maharashtra (1969) 2 SCC 687.
• K.A. Abbas v. Union of India 1970 (2) SCC 780
• Raj Kapoor v. State (1980) 1 SCC 43
• Samaresh Bose v. Amal Mitra 1985 (4) SCC 289
• Directorate General of Doordarshan v. Anand Patwardhan (2006) 8 SCC 433
• Ajay Goswami v. Union of India (2007) 1 SCC 143
• Boby Art International v. Om Pal Singh Hoon  (1996) 4 SCC 1
• Aveek Sarkar v. State or W.B. (2014) 4 SCC 257.
• Chintaman Rao v. State of M.P. AIR 1951 SC 118.
• State of Madras v. V.G. Row AIR 1952 SC 196.
• Maneka Gandhi v. Union of India & Anr. AIR 1978 SC 597
• R.C Cooper v. Union of India (1970) 2 SCC 298.
• M/s Laxmi Khandsari & Ors. v. State of U.P. & Ors. ( 1981) 2 SCC 600.
• Dwarka Prasad Laxmi Narain v. State of U.P. AIR 1954 SC 234.
• Bishambhar Dayal Chandra Mohan & Ors. v. State of U.P. & Ors. 1982 (1) SCC 39.
• State of Bihar v. K.K. Misra (1969) 3 SCC 377.
• Dr. N.B. Khare v. The State of Delhi 1952 SCR 597.
• Papnasam Labour Union v. Madura Coats Ltd. & Anr. (1995) 1 SCC 501.
• Francis Coralie Mullin v. Administrator, Union Territory of Delhi & Ors. (1981) 1 SCC 608.
• Chameli Singh & Ors. v. State of U.P. & Anr. 1996 (2) SCC 549.
• Siddharam Satlingappa Mhetre v. State of Maharashtra (2011) 1 SCC 694.
• Babu Singh & Ors. v. State of U.P. 1978 (1) SCC 579.
• S.P.Mittal v. Union of India & Ors AIR 1983 SC 1
• Haridas Das v. Usha Rani Banik & Ors. (2007) 14 SCC 1
• Charu Khurana & Ors. v. Union of India & Ors. 2015 (1) SCC 192.
• Acharya Maharajshri Narendra Prasadji Anandprasadji Maharaj & Ors. v. The State of Gujarat & Ors. (1975) 1 SCC 11.
• Delhi Transport Corporation v. D.T.C. Mazdoor Congress & Ors. 1991 Supp. (1) SCC 600
• St. Stephen’s College v. University of Delhi (1992) 1 SCC 558
• Mr ‘X’ v. Hospital ‘Z’ (1998) 8 SCC 296.
• Post Graduate Institute of Medical Education & Research, Chandigarh v. Faculty Association & Ors. (1998) 4 SCC 1.
• Ram Jethmalani & Ors. v. Union of India & Ors. (2011) 8 SCC 1.
• Mohd. Arif alias Ashfaq v. Registrar, Supreme Court of India & Ors. (2014) 9 SCC 737.
• American Communication Assn. v. Douds 94 L Ed 925:339 US 382 (1950).
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• Indra Sawhney & Ors. v. Union of India & Ors. AIR 1993 SC 477.
• AIIMS Students’ Union v. AIIMS & Ors. (2002) 1 SCC 428.
• Indian Medical Association v. Union of India , C.A No. 8170 of 2009 & W.P(C) No. 320 of 2009 & 192 of 2010.
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• P.A Inamdar & Ors  v. State of Maharashtra & Ors. (2005) 6 SCC 537.
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• M. Veerappa v. Evelyn Sequeira & Ors. (1988) 1 SCC 556.
• Sahib Singh Mehra v. State of U.P. AIR 1965 SC 1451.
• G. Narasimhan, G. Kasturi & K. Gopalan v. T.V. Chokkappa (1972) 2 SCC 680.
• Aneeta Hada v. Godfather Travels & Tour (P) Ltd. (2012) 5 SCC 661.
• Chaman Lal v. State of Punjab (1970) 1 SCC 590.
• Harakchand Ratanchand Banthia & Ors. v. Union of India & Ors. (1969) 2 SCC 166.
• Harbhajan Singh v. State of Punjab & Anr. AIR 1966 SC 97.
• Sukra Mahto v. Basdeo Kumar Mahto & Anr. 1971 (1) SCC 885.
• Jatish Chandra Gosh v. Hari Sadhan Mukherjee (1961) 3 SCR 486.
• Kanwal Lal v. State of Punjab 1963 Suppl (1) SCR 479.
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• M.A. Rumugam v. Kittu (2009) 1 SCC 101.
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• MRF Ltd. v. Inspector, Kerala Govt. 1988 (8) SCC 227.
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• Punjab National Bank and others v. Surendra Prasad Sinha 1993 Supp. (1) SCC 499.
• Pepsi Foods Ltd. and another v. Special Judicial Magistrate and others (1998) 5 SCC 749.

Facts-

The constitutional validity of section 499 and 500 of Indian penal code and sections 199(1) to 199(4) of the Code of Criminal Procedure was challenged before the bench contending that it is a infringement of fundamental rights as the freedom of thought and expression cannot be scuttled or abridged on the threat of criminal prosecution and made paraplegic on the mercurial stands of individual repetition and of societal harmony, for the sender aspects are to be treated as thing of the past.

The provision of definition in criminal law alive as it creates a concavity and reasonable restriction in individual freedom and further progressively mars voice of criticism and dissent which are necessitous for growth of genuine advancement and a mature democracy.

Issue-

The issue being whether the section 499 and 500 of I.P.C. and section 199(1) to 199(4) of the Cr.P.C. are constitutionally valid .

Contention of Parties-

Petitioner–

• The right to inhibited freedom of speech conferred by article 19 (1)(a) is a basic and vital for the substance of parliamentary democracy, which is a part of the basic structure of the constitution. The “reasonable restrictions” are those which are meant to prevent the expression of thought which is intrinsically dangerous to public interest and would not include anything else. The enabling power in article 19 (2) to impose reasonable restriction on the right confirmed by article 19(1)(a) is intended to safeguard the interest of the state and the general public and not of any individual, and, therefore, article 19(2) cannot be regarded as the source of authority of section 499 of I.P.C. which makes the defamation of any person an offence. That apart, article 19(2), being and exception to article 19(1)(a), needs to be construed narrowly and hence the exception has to understood applying the principle noscitur a sociis and excluding criminal defamation.
• It is to be borne in mind that defamation of an individual by another individual is a civil wrong or tort pure and simple for which the common law remedy is an action of damages. That the fundamental rights are conferred in the public interest and defamation of any person by another person is unconnected with the fundamental right therefore, section 499 is outside the scope of article 19(2) of the constitution. That apart, crime means offence against the society of which the state is custodian considering the scope of article 19(1)(a) and article 19(2) defamation of any person by private person cannot be treated as a “crime”, for it does not sub serve any public interest.
• Section 499 of I.P.C. ex facie infringes free speech and it is a serious inhibition on the fundamental right conferred by article 19(1)(a) and hence, cannot be regarded as a reasonable restriction in a democratic republic. A restriction that goes beyond the requirement of public interest cannot be considered a reasonable restriction and would be arbitrary. The provision even goes to the extent of speaking of truth offence punishable with imprisonment, deserve to be declared unconstitutional, for it defeats the cherished value as enshrined under article 51-A(b) which is associated with the national struggle of freedom. The added requirement of the accused having to prove that the statement made by him was for the public good is unwarranted and travels beyond the limits of reasonableness because the words “public good” are quite vague as they do not provide any objective standard or norm or guidance as a consequence of the provisions do not need test of reasonable restriction and eventually they have the chilling effect on the freedom of speech.
• “Reasonableness” is not a static concept, and it may vary from time to time. What is considered reasonable at one point of time may become arbitrary and unreasonable at subsequent point of time. The explanation and exceptions appended to the main provision contained in section 499 I.P.C., incase the constitutionality of the said section is upheld, are to be interpreted with contextual purpose regard being had to the broad Canvas they occupy and the sea change that has taken in the place of society.
• The words like “company”, “association” or “collection of persons as such” as used in explanation 2 should exclude each other because different words used in the section must be given different meanings and it is appropriate that they are not given meanings by which and indefinite multitude can launch criminal cases in the name of class action of common right to reputation.
• Section 199(2) Cr.P.C. provides a different procedure for certain category of person and court of session to be the first court of instance, and thereby it creates two kinds of procedures one having advantage over the other. This classification is impermissible as it affects the equality clause. That apart, also uses the State machinery by launching of the prosecution through the public prosecutor, which enables the state to take a different route to curb the right of freedom of speech and expression.
• As there were several petitioned filed each learned counsel had there views and contentions but the gist of all were similar to one and another just the approach was different.

Respondents-

• Article 19(2) must be read as a part of the freedom of speech and expression as envisaged under Article 19(1)(a), for the freedom of speech as a right cannot be understood in isolation. The freedom of speech is a robust right but none the less, not unrestricted or heedless. Even though the court have often drawn the difference between free speech under the U.S. constitution and under the Indian constitution, yet even in United States, where free speech is regarded as the most robust is not absolute. The restrictions have been left to the courts to carve out but have exhaustively set out in article 19(2). It is for the legislature to determine the restriction to impose and the court have been entrusted with the task of determining the reasonableness and in the present case right to free speech under article 19(1)(a) is itself conditioned/qualified by the restrictions contained in article 19(2) which   includes “defamation” as one of the grounds of restriction and the term “defamation” has to include criminal defamation, and there is nothing to suggest its exclusion.     Article 19(2) has to be perceived as an integral   part   of   the   right   to   free   speech as Article 19(1)(a) is not a standalone   right and, therefore, it cannot be said that there is an unbridled right to free, much less defamatory speech.
• The Submission that defamation being only protective of individual cases between two individuals or a group of individuals and no state action is involved, cannot be elevated to the status of a fundamental right, is without much substance inasmuch as article 19(2) represents varied social community interest. That apart, contextual meaning of the term “defamation” ; and if the grounds of exception are analyzed, each of them represents a public interest and so does defamation its principle object is to preserve the reputation as a shared value of the collective.
• The stand that criminal defamation Smothers the freedom of speech and expression is a threat to every decent and puts private wrong at the level of public wrong is totally incorrect. The legal theorists and thinkers have made a subtle distinction between private and public wrong.
• Right to reputation reason is a part of article 21 of the Constitution. A person’s verification is an inseparable element of the individuals personality and it cannot be allowed to be tarnished in the name of right to freedom of speech and expression because right to free speech does not mean right to offend.
•  There were a lot of arguments made by the respondent side all were trying to convince the validity of the above mentioned section with reference to constitution.

The opinion of court appointed amicus curiae was that there has to be a harmonious interpretation of article 19(1)(a) read with article 19(2) and 21.

Judgement-

The division bench of Supreme Court consisting Justice Dipak Misra and Justice Prafulla C. Pant while disposing of writ petition and the transfer petition and all criminal miscellaneous stated that “we uphold the constitutional validity of section 499 and 500 of the I.P.C and section 199 of the Cr.P.C.

Rule of Law-

The definition of defamation is as such “ whoever, by words spoken or intended to be read or by signs or by visible representations make or publishers 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 this is the definition of sec 499 “Defamation” of I.P.C., the section 500 of I.P.C is punishment for defamation which is “simple imprisonment for a term which may extend to 2 years, or with fine, or with both”, and section 199 of Cr.P.C. is prosecution of defamation.

Comment-

The bench after hearing contentions from the parties, perusal of submitted documents, record and after discussing about the major cases, statutes, law in the other countries, they were in consensus that even though there is freedom of speech in a democratic country that but that still doesn’t give right to someone to defame someone or somebody, as they viewed the historical aspect of the law along with the discussion that took place between the farmers of constitution and there views on freedom of speech and defamation they also referred to several principles of law and how the interpretation works the ancient text books were also the part of discussion and there verses about reputation, respect and doing harm to someone’s reputation, the famous writers, and books were used by the bench to clarify the discussion with the help of these court was able to reach it’s judgement.

Conclusion-

Aa there were more then two dozens writ petition filed on the issue that whether defamation is criminal offence or not there were a lot of counsel from the both side of the parties the court heard all of them and there contention, reports, documents and the also referred to ancient books, religious books and famous author’s, thinkers and philosophers the judgement given by court was in the good side of as the image/reputation of person is one of the most precious thing and it cannot be compensated or replaced with any other thing so to provide monetary damages for defamation is a possible recourse but it is the duty of court to decide whether the nature of offence is ho grave and how it effects that person individually.