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No.184 of 2014 Subramanian Swam

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No.184 of 2014 Subramanian Swam 1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION WRIT PETITION (CRIMINAL) NO.184 OF 2014 SUBRAMANIAN SWAMY …PETITIONER(S) VERSUS UNION OF INDIA, MINISTRY OF LAW & ORS. …RESPONDENT(S) WITH WRIT PETITION (CRIMINAL) NO. 8 OF 2015 WRIT PETITION (CRIMINAL) NO. 19 OF 2015 WRIT PETITION (CRIMINAL) NO. 56 OF 2015 WRIT PETITION (CRIMINAL) NO. 64 OF 2015 WRIT PETITION (CRIMINAL) NO. 62 OF 2015 WRIT PETITION (CRIMINAL) NO. 63 OF 2015 WRIT PETITION (CRIMINAL) NO. 67 OF 2015 WRIT PETITION (CRIMINAL) NO. 79 OF 2015 WRIT PETITION (CRIMINAL) NO. 73 OF 2015 Page 1 2 WRIT PETITION (CRIMINAL) NO. 82 OF 2015 WRIT PETITION (CRIMINAL) NO. 77 OF 2015 WRIT PETITION (CRIMINAL) NO. 91 OF 2015 WRIT PETITION (CRIMINAL) NO. 98 OF 2015 WRIT PETITION (CRIMINAL) NO. 106 OF 2015 WRIT PETITION (CRIMINAL) NO. 96 OF 2015 WRIT PETITION (CRIMINAL) NO. 110 OF 2015 WRIT PETITION (CRIMINAL) NO. 121 OF 2015 WRIT PETITION (CRIMINAL) NO. 120 OF 2015 WRIT PETITION (CRIMINAL) NO. 117 OF 2015 WRIT PETITION (CRIMINAL) NO. 118 OF 2015 WRIT PETITION (CRIMINAL) NO. 116 OF 2015 WRIT PETITION (CRIMINAL) NO. 119 OF 2015 TRANSFER PETITION (CRIMINAL) NOS. 102-105 OF 2015 TRANSFER PETITION (CRIMINAL) NOS. 94-101 OF 2015 Page 2 3 J U D G M E N T Dipak Misra, J. This batch of writ petitions preferred under Article 32 of the Constitution of India exposits cavil in its quintessential conceptuality and percipient discord between venerated and exalted right of freedom of speech and expression of an individual, exploring manifold and multilayered, limitless, unbounded and unfettered spectrums, and the controls, restrictions and constrictions, under the assumed power of “reasonableness” ingrained in the statutory provisions relating to criminal law to reviver and uphold one’s reputation. The assertion by the Union of India and the complainants is that the reasonable restrictions are based on the paradigms and parameters of the Constitution that are structured and pedestaled on the doctrine of non-absoluteness of any fundamental right, cultural and social ethos, need and feel of the time, for every right engulfs and incorporates duty to respect other’s right and ensure mutual compatibility and conviviality of the individuals based on collective harmony and conceptual grace of eventual social Page 3 4 order; and the asseveration on the part of the petitioners is that freedom of thought and expression cannot be scuttled or abridged on the threat of criminal prosecution and made paraplegic on the mercurial stance of individual reputation and of societal harmony, for the said aspects are to be treated as things of the past, a symbol of colonial era where the ruler ruled over the subjects and vanquished concepts of resistance; and, in any case, the individual grievances pertaining to reputation can be agitated in civil courts and thus, there is a remedy and viewed from a prismatic perspective, there is no justification to keep the provision of defamation in criminal law alive as it creates a concavity and unreasonable restriction in individual freedom and further progressively mars voice of criticism and dissent which are necessitous for the growth of genuine advancement and a matured democracy. 2. The structural architecture of these writ petitions has a history, although not in any remote past, but, in the recent times. In this batch of writ petitions, we are required to dwell upon the constitutional validity of Sections 499 and 500 of Page 4 5 the Indian Penal Code, 1860 (for short, ‘IPC’) and Sections 199(1) to 199(4) of the Code of Criminal Procedure, 1973 (for short, “CrPC”). It is necessary to note here that when the Writ Petition (Crl) No. 184 of 2014 was taken up for consideration, Dr. Subramanian Swamy, the petitioner appearing in-person, had drawn our attention to paragraph 28 of the decision in R. Rajagopal alias R.R. Gopal and another v. State of T.N. and others1 which reads as follows:- “In all this discussion, we may clarify, we have not gone into the impact of Article 19(1)(a) read with clause (2) thereof on Sections 499 and 500 of the Indian Penal Code. That may have to await a proper case.” 3. Dr. Swamy had also drawn our attention to the observations made in N. Ravi and others v. Union of India and others2, which are to the following effect:- “Strictly speaking on withdrawal of the complaints, the prayer about the validity of Section 499 has also become academic, but having regard to the importance of the question, we are of the view, in 1 (1994) 6 SCC 632 2 (2007) 15 SCC 631 Page 5 6 agreement with the learned counsel for the petitioners, that the validity aspect deserves to be examined. In this view, we issue rule, insofar as prayer (a) is concerned.” 4. On the aforesaid plinth, a mansion of argument was sought to be built, and that is why we have used the term ‘history’. Regard being had to the importance of the matter, we had asked Mr. K. Parasaran and Mr. T.R. Andhyarujina, learned senior counsel to assist the Court and they have assisted with all the devotion and assiduousness at their command. 5. We feel obliged to state at the beginning that we shall refer to the provisions under challenge, record the submissions of the learned counsel for the parties, dwell upon the concepts of ‘defamation’ and ‘reputation’, delve into the glorious idea of “freedom of speech and expression” and conception of “reasonable restrictions” under the constitutional scheme and x-ray the perception of the Court as regards reputation, and appreciate the essential anatomy of the provisions and thereafter record our conclusions. Page 6 7 Despite our commitment to the chronology, there is still room for deviation, may be at times being essential in view of overlapping of ideas and authorities. 6. Sections 499 of the IPC provides for defamation and Section 500 IPC for punishment in respect of the said offence. The said provisions read as follows:- “Section 499. Defamation.— Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes 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, is said, except in the case hereinafter expected to defame that person. Explanation 1.—It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives. Explanation 2.—It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. Explanation 3.—An imputation in the form of an alternative or expressed ironically, may amount to defamation. Explanation 4.—No imputation is said to harm a person’s reputation, unless that imputation Page 7 8 directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful. First Exception.—Imputation of truth which 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 whatever 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 whatever 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 report of the proceedings of a Court of Justice, or of the result of any such proceedings. Explanation.—A Justice of the Peace or other officer holding an inquiry in open Court Page 8 9 preliminary to a trial in a Court of Justice, is a Court within the meaning of the above section. 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 partly, 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. Explanation.—A performance may be substituted to the judgment of the public expressly or by acts on the part of the author which imply such submission to the judgment of the public.
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