Declining to de-criminalise defamation, a penal offence punishable with two years in jail and a monetary penalty, the Supreme Court Friday said that “right to free speech cannot mean that a citizen can defame the other”.
A bench of Justices Dipak Misra and P C Pant approved the Constitutional validity of sections 499 and 500 (criminal defamation) in the Indian Penal Code, underlining that an individual’s fundamental right to live with dignity and reputation “cannot be sullied solely because another individual can have his freedom”.
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“Protection of reputation is a fundamental right. It is also a human right. Cumulatively, it serves the social interest…it is not a restriction that has an inevitable consequence which impairs circulation of thought and ideas. In fact, it is control regard being had to another person’s right to go to court and state that he has been wronged and abused. He can take recourse to a procedure recognised and accepted in law to retrieve and redeem his reputation,” said the bench.
Ratifying the validity of the penal provisions, the apex court also paved the way for the prosecution of Congress vice-president Rahul Gandhi, BJP MP Subramanian Swamy and Delhi Chief Minister Arvind Kejriwal, who had sought de-criminalisation of defamation by filing petitions separately.
The politicians had been issued summons on complaints accusing them of criminal defamation. Subsequently, they moved the top court, claiming the law unreasonably constricted the freedom of speech and that defamation had to be only a civil law remedy. The bench had stayed their prosecution.
On Friday, it vacated the restraint order and said that the leaders will have eight weeks to challenge the summons in accordance with the existing legal regime after which the trial courts could go ahead with their prosecution.
Disagreeing with their argument that criminal defamation must be struck down because it curtailed their right to free speech, the bench said that reputation of a person could not be allowed to be crucified at the altar of the other’s right of free speech.
“Right to freedom of speech and expression is not absolute. It is subject to imposition of reasonable restrictions…there is a correlative duty not to interfere with the liberty of others. Each is entitled to dignity of person and of reputation. Nobody has a right to denigrate others’ right to person or reputation…the legislature in its wisdom has not thought it appropriate to abolish criminality of defamation in the obtaining social climate,” it said.
Underscoring that criticism was not defamation, the bench accepted their plea that a trial court must be “very careful” in scrutinising a complaint before issuing summons in a criminal defamation case. But it held that defamation would, in fact, be a form of “reasonable restriction” on one’s right of free speech.
“One is bound to tolerate criticism, dissent and discordance but not expected to tolerate defamatory attack…liberty to have a discordant note does not confer a right to defame the others. The dignity of an individual is extremely important,” said the court, adding the concept of fraternity under the Constitution expected every citizen to respect the dignity of the other.
It also rejected an argument that defamation could become a criminal offence only if it incited to make an offence. It said that defamation had its own independent identity, which has enabled the state to maintain a balance between fundamental rights.
The court also pointed out the distinction between sections 499 and 500 on one hand and section 66A (prosecution for obscene social posts) of the Information Technology Act on the other, saying the latter was struck down by the apex court on the ground of vagueness and procedural unreasonableness.
“Once we have held that reputation of an individual is a basic element of Article 21 of the Constitution and balancing of fundamental rights is a constitutional necessity and further the legislature in its wisdom has kept the penal provision alive, it is extremely difficult to subscribe to the view that criminal defamation has a chilling effect on the freedom of speech and expression,” it said.