Supreme Court upholds criminalizing of defamation

By Vivek Vashi and Shaheda Madraswala, Bharucha & Partners

The Supreme Court in its recent judgment in Subramanian Swamy v Union of India, Ministry of Law & Ors, considered the constitutional validity of the archaic sections 499 and 500 of the Indian Penal Code, 1860 (IPC).

Vivek Vashi
Vivek Vashi

The petitions, filed by leaders such as Swamy of the Bharatiya Janata Party, Congress Vice-President Rahul Gandhi and Delhi Chief Minister Arvind Kejriwal, sought to decriminalize defamation and strike down sections 499 and 500 on the grounds that they are “outmoded” and contrary to the right to freedom of speech and expression, enshrined in article 19 of the constitution of India. Moreover, the petitioners contended that having a criminal penalty for a wrong that can be dealt with satisfactorily by civil law is a disproportionate restriction on free speech.

Article 19(1)(a) of the constitution guarantees all Indian citizens the right to freedom of speech and expression. Article 19(2) allows the state to make laws which impose reasonable restrictions on this right in the interests of, among others, the sovereignty and integrity of India, the security of the state and public order, decency or morality, and defamation.

The test in determining the constitutionality of a law under article 19(2) is whether the law is a “reasonable restriction” on free speech. In order to be reasonable, the Supreme Court has laid down that a restriction must be narrowly tailored or narrowly interpreted so as to abridge or restrict only what is absolutely necessary. In other words, the restriction must be narrow and restrict only what is necessary and should not be arbitrary or excessive.

However, a mere glance at the exceptions contained in section 499 of the IPC makes it abundantly clear that these are not “reasonable restrictions”. The exceptions are broadly worded and open to wide interpretation. To begin with, even speaking the truth could lead to being penalized for defamation, unless the truthful statement was made for public good, which is a question of fact to be assessed by the court.

The core issue for the court was whether criminalization of defamation was unconstitutional and had a chilling effect on the right to freedom of speech. The bench, which comprised judges Dipak Misra and Prafulla C Pant, on considering this upheld sections 499 and 500 as constitutionally valid.

The court held that a balance had to be struck, and one’s reputation ought not to be allowed to be crucified at the altar of another’s right to speech. It further held that the legislature in its wisdom has not thought it appropriate to abolish criminality of defamation in the prevailing social climate. The submission that criminalization of defamation has a chilling effect on one’s freedom of speech and expression was dismissed by the court.

Shaheda Madraswala
Shaheda Madraswala

The court went on to distinguish the view taken in Shreya Singhal v Union of India, where a Supreme Court bench of judges J Chelameswar and Rohinton F Nariman struck down the draconian section 66A of the Information Technology Act in its entirety as being unconstitutional. In that case, the court held that section 66A arbitrarily, excessively and disproportionately invades the right of free speech and upsets the balance between that right and the reasonable restrictions that may be imposed on it. However, while delivering this judgment on the constitutionally of section 66A, the court stated that it did not concern itself with injury to reputation. Thus, the view in the present case was different.

Finally, the court in the present case noted that the explanations to section 499 were “reasonable restrictions”, as envisaged under article 19(2), and that it would be fallacious to contend that they were vague and could cover a multitude of opinions. The court held that while the right to freedom of speech and expression is highly valued, the penal provision for defamation is not a restriction on this right and cannot be characterized as disproportionate. Protection of reputation is a fundamental right and also a human right, and therefore serves social interest.

While the court has in its judgment attempted to narrow the scope of interpretation to the explanations contained in section 499, the fact remains that litigants initiate proceedings to extend their personal vendettas and, in even the most frivolous case, the accused must face the legal process, which can drag on for months, if not years.

Moreover, the ratio in the case is bound to provide impetus to litigants to continue to misuse the provisions of section 499 not only in cases of freedom of speech relating to journalism and television but also in other disputes such as family and corporate disputes.

Vivek Vashi is the mainstay of the litigation team at Bharucha & Partners, where Shaheda Madraswala is an associate.


Cecil Court, 4th Floor

MK Bhushan Road

Mumbai – 400 039


Contact details:

Tel: +91-22 2289 9300

Fax: +91-22 2282 3900