Criminal Defamation and Free Speech:In re Subramanian Swamy V. Union of India 2016

This article is written by Fayza Khan , in her 5th year of BA.LL.B from Mahatma Jyotiba Phule Rohilkhand University, Bareilly , during her internship at LeDroit India , about the concept of Criminal Defamation and Free Speech in light of the landmark case of Subramanian Swamy v. Union of India 2016.

Keywords

Free Speech , Fundamental rights , Criminal Defamation, Constitutionality , Democracy , Dignity, Reputation, Ultra vires.

Abstract

This article explores the delicate balance between the right to free speech under Article 19 (1)(a) of the Indian Constitution and the penal provisions of criminal defamation under Sections 499 and 500 of the Indian Penal Code. It discusses how criminal defamation can act as a deterrent to free expression , potentially stifling dissent and investigative journalism. The article analyzes key judicial pronouncements , notably Subramanian Swamy V. Union of India 2016 , where the Supreme Court upheld the constitutionality of criminal defamation , asserting that the right to reputation is an intrinsic part of Article 21, Right to Life. However , it also emphasizes the need for a careful application of these laws to prevent their misuse against critics , activists and media.

Content

Introduction
Legal Framework of Criminal Defamation in India
Free Speech under the Constitution
Subramanian Swamy v. Union of India 2016
Issues
Arguments by Petitioner
Arguments by Government
Judgment
Conclusion
Reference

Introduction

When truth becomes a crime and opinions risk prosecution , the very essence of free speech stands at trial . In the tug of war between reputation and the right to speak , criminal defamation challenges the core of democracy – can we truly call ourselves free if our words are chained ? Free speech is the heartbeat of Democracy and is guaranteed to every citizen under Article 19(1)(a) of the Indian Constitution . Article 19 guarantees the Fundamental Right to freedom of speech and expression to all citizens . This right includes the freedom to express one’s views and opinions through various means ,such as speech,writing ,printing and visual representations.

However the right is not absolute and is subjected to reasonable restrictions in the interest of the sovereignty and integrity of India.

Defamation is the demonstration of offering false statements about somebody that can harm their reputation. It depends on false data circled to harm an individual’s reputation, decrease their regard, or initiate pessimistic sentiments against them. In India, defamation is culpable under the civil and criminal law. Indian Penal Code (IPC) section 499 makes it unlawful to communicate any false information about an individual to harm their reputation and the prescribed maximum punishment is two years. However, Section 354(2) of the 2023 Bharatiya Nyaya Sanhita Act states: “Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both or with community service.” Criminal defamation is considered necessary to protect an individual’s reputation, which is an essential aspect of personal dignity and fundamental right under Article 21.

There is a constant clash between right to free speech and right to reputation and our judiciary plays a vital role in maintaining the balance between the two . “You are free to express your opinion , but you are not free to falsely harm someone’s reputation in the name of free speech.”

William Dougles has denounced regulation of free speech like regulating diseased cattle and impure butter.The Court has in many an authority having realised its precious nature and seemingly glorified sanctity has put it in a meticulously structured pyramid. In the case of Kaushal Kishor vs The State Of Uttar Pradesh Govt. Of U.P on 3 January, 2023,the court held that “Freedom of speech has to be allowed specious castle, but the question is: should it be so specious or regarded as so righteous that it would make reputation of another individual or a group or a collection of persons absolutely ephemeral, so as to hold that criminal prosecution on account of defamation negates and violates right to free speech and expression of opinion.”

Legal Framework of Criminal Defamation in India

Criminal defamation in India is governed by Sections 499 and 500 of the Indian Penal Code 1860(IPC). Section 499 defines defamation, stating that anyone who makes or publishes a false statement intended to harm another person’s reputation is liable. Section 500 prescribes the punishment for defamation, which can include imprisonment up to two years, a fine, or both.

Further, in Section 499 ,the essential ingredients of criminal defamation are listed :

Imputation made or Published ; There must be a statement, words, signs,or visible representations made or published , which is alleged to be defamatory.
Imputation Concerning another Person ; The imputation must concern a particular individual or a definite group/ class of persons identifiable from the statement .
Intention to Harm Reputation ; The imputation must be made with the intention , knowledge, or reason to believe that it will harm the reputation of the person concerned .
Harm to Reputation in the Eyes of Others ;The imputation should be such that it lowers the moral or intellectual character , credit ,or respect of the person in the eyes of others.
Publication to a Third person ; For defamation to be complete,the defamatory statement must be communicated to someone other than the person defamed.

Section 499 IPC also provides 10 exceptions( such as truth for public good, fair criticism , public conduct of public servants, etc.) where defamation is not considered an offence. These are:

First Exception.—Imputation of truth which the public good requires to be made or published.—It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact.

Second Exception.—Public conduct of public servants.—It is not defamation to express in good faith any opinion whatsoever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further.

Third Exception.—Conduct of any person touching any public question.—It is not defamation to express in good faith any opinion whatsoever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further.

Fourth Exception.—Publication of reports of proceedings of courts.—It is not defamation to publish substantially true reports of the proceedings of a Court of Justice, or of the result of any such proceedings.

Fifth Exception.—Merits of case decided in Court or conduct of witnesses and others concerned.—It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a party, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further.

Sixth Exception.—Merits of public performance.—It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance, and no further.

Seventh Exception.—Censure passed in good faith by person having lawful authority over another.—It is not defamation in a person having over another any authority, either conferred by law or arising out of a lawful contract made with that other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates.

Eighth Exception.—Accusation preferred in good faith to authorised person.—It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation.

Ninth Exception.—Imputation made in good faith by person for protection of his or other’s interests.—It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good.

Tenth Exception.—Caution intended for good of person to whom conveyed or for public good.—It is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good.

However , Criminal Defamation laws , as they exist,pose a serious threat of misuse. They become tools in the hands of the powerful to silence journalists, whistleblowers, and critics. The mere threat of a criminal case can stifle public debate ,chill investigative journalism, and suppress uncomfortable truths. It is more prone to be misused by the state for dragging /harassing an individual for saying anything allegedly against the ideologies of the ruling party.

The fear of defamation cases may make the journalist hesitant to share their opinions which may have a broader and lasting impact on the society

Free Speech Under the Constitution

Freedom of speech is not just a right – it’s the lifeblood of any free society . Article 19(1)(a)of the Indian Constitution enshrines this very principle, empowering every citizen to voice their thoughts, challenge authority, and participate in the vibrant marketplace of ideas.

However ,in an era where social media amplifies every voice ,the boundary between rightful expression and harmful speech becomes increasingly blurred. The journey of Article 19 reflects this delicate balance between upholding democratic ideals and imposing reasonable restrictions to maintain societal harmony. The scope of freedom of speech includes freedom of the press , the right to express through media , social media, protests, demonstrations , arts , literature,etc. The right to silence is also covered in the ambit of freedom of speech .In Bijoe Emmanuel v. State of Kerala (1986), the Supreme Court upheld the right to silence of three students who were expelled from school because they refused to sing the National Anthem. The Court held that no person can be compelled to sing the National Anthem if he has genuine conscientious objections based on his religious belief. Hence, the right to speak and the right to express includes the right not to express and to be silent.

Also in the case of Shreya Singhal v. Union of India, 2015 Section 66A of the Information Technology Act was challenged. Under this section, there were several arrests which were made due to which a wide outrage was seen in society. The petitioners said that this Article is infringing the Freedom of Speech and Expression. The Supreme Court struck down this provision saying that this provision is too vague and prone to misuse and that it violated the freedom of speech.

But this freedom comes with responsibilities and limitations that are enshrined under Article 19 clause (2). This provision allows the state to impose reasonable restrictions on the following grounds :

Sovereignty and integrity of India
Security of the State
Friendly relations with foreign states
Public order
Decency or morality
Contempt of court
Defamation
Incitement to an offence

The framers of the Constitution recognized that unchecked expression could disrupt public order , defame individuals , or threaten security . These restrictions ensure that freedom of speech does not become a weapon of social discord , but rather functions within a legal framework that respects both individual liberty and collective welfare.

Democracy thrives on dissent , every opinion , however offensive, has a place . But Freedom is not a license for chaos , it must be used cautiously without harming the dignity of any person . The point is not to argue for an unlimited domain of free speech but just enough so that no citizen feels voiceless.

But can freedom of speech remain unchecked in society where words can trigger riots , ruin reputations , and destabilize nations ? Speech that destroys Reputations is abuse , not Freedom . The Hon’ble Supreme Court in the landmark judgement of Subramanian Swamy V. Union of India upheld criminal defamation, stating that freedom of speech cannot be used as a weapon to assassinate someone’s reputation.

Subramanian Swamy v. Union of India (2016)

Numerous petitions were filed under Article 32 of the Constitution of India challenging the constitutional validity of the offense of criminal defamation as provided for in Sections 499 and 500 of the Indian Penal Code and Sections 199(1) to 199(4) of the Indian Code of Criminal Procedure, 1973.

In 2014, Dr. Subramanian Swamy made corruption allegations against Ms. Jayalathitha. In response, the Tamil Nadu State Government filed defamation cases against Dr. Swamy.

Several of the petitioners, such as Subramanian Swamy, Rahul Gandhi and Arvind Kejriwal, are politicians who had been charged with criminal defamation. They contested the constitutionality of the offense of criminal defamation, arguing that it inhibited their right to freedom of expression.

Issues :

Are Section 499 and 500 of Indian Penal Code Constitutionally valid ?
Do these provisions violate the right to Freedom of Speech and expression ?
Are they saved under the “reasonable restrictions” clause of Article 19(2) ?

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 is vaguely phrased and hence arbitrary.

Arguments by Petitioners : The Petitioners argued that Criminal Defamation is not a reasonable restriction and that these provisions are vague and overbroad. They are violative of Article 19(1)(a)- The Right to Freedom of Speech and Expression.

They also argued that civil remedies are sufficient and less intrusive . They advocated for decriminalising defamation and treating it as a civil wrong , with remedies limited to compensation, rather than criminal punishment.

Arguments by Government : The respondents contended that Reputation is an integral part of Article 21 , Right to Life and Personal Liberty . Therefore anything which violates the dignity of a person must not be promoted ,quoting that “free Speech ends where Defamation begins”. They emphasised that criminal defamation laws are needed to protect individual dignity and public order.

These provisions have built-in-safeguard-like exceptions under Sec 499 of the Indian Penal Code.

Judgment :

The judgment of the Court was delivered by Justice Dipak Misra, with whom Justice Prafulla C. Pant agreed. The judgment begins by analyzing the meaning of the terms ‘defamation’ and ‘reputation’, and the interaction of these terms with the right of the freedom of speech and expression. The court reaffirmed that “Reputation” is an integral part of Article 21 and also stated that the provisions of criminal defamation are not ultra vires to the Freedom of Speech.

The tension between criminal defamation and free speech is a complex legal and ethical issue.

The Court took note that truth is a defense only when a statement also serves the public good, but opines that if a truthful statement is not made for any kind of public good but only to malign a person, this should not be constitutionally protected.

Finally, the Court holds that the penal code provision is not disproportionate. The reasonableness and proportionality of a restriction is examined from the stand point of the interest of the general public, and not from the point of view of the person upon whom the restrictions are imposed.

While the judiciary has upheld the constitutionality of criminal defamation , there is an ongoing need to ensure that these laws are not misused to stifle legitimate criticism and dissent.

Conclusion

The true test of a democracy is not how it protects agreeable speech , but how it defends voices of dissent , criticism,and uncomfortable truths. While reputation is important , it cannot come at the cost of intellectual freedom, fearless journalism, and the right to hold power accountable. In a modern democracy, defamation should be addressed through civil remedies , not through criminal punishment that silences debate and promotes self-censorship. If we criminalize words , we criminalize ideas. If we protect reputation by gagging criticism, we weaken the very foundation of democracy. The need of the hour is to decriminalize defamation , strengthen civil remedies , and ensure that free speech remains fearless, not fearful.

Even after Subramanian Swamy’s case , the debate isn’t closed – shouldn’t India align with global democracies that treat defamation as a civil wrong , not a criminal offence ?

“Because a society that punishes speech is not protecting dignity ; it is protecting silence”

Reference