As per Black’s Law Dictionary, defamation means, the offence of injuring a person’s character, fame, or reputation by a false and malicious statement. In law, defamation is described as an attack on another person’s reputation by a false publication with the intent of bringing the person into disgrace by conveying the same to a third party. Defamation generally involves false publishing without the agreement of the purportedly defamed person. Defamation does not occur when simply one’s sentiments are hurt; there must also be a loss of reputation. The actual truth of the publication is usually a defence to a charge of defamation.

Defamation is of two types:

1.Libel: Representation in a permanent form, e.g., writing, printing, effigy, picture or statue.

2.Slander: Through words spoken or gestures.

The essentials of defamation are the statement made must be defamatory, the said statement must refer to the claimant, and it must be published.

Now I shall proceed to the topic in question which is, the constitutional validity of defamation law.

The decision of the Supreme Court in Subramanian Swamy v. Union of India put an end to concerns about defamation becoming a crime by upholding the legality of the contested clauses.

Subramanian Swamy filed a writ petition regarding the decriminalization of defamation. The two basic contentions of the seven issues raised in the writ petition Swamy were:

i. Declaring Sec. 499(defamation) and 500(punishment for defamation) of the Indian Penal Code, 1860 as unconstitutional.

ii. Declaring Sec. 199(2) of the Code of Criminal Procedure, 1973 (Cr PC) as unconstitutional.

According to the appellant, these provisions cast an unreasonable restriction on freedom of speech, one that falls beyond article 19(2) of the Constitution of India.

The counsel appearing for the State of Tamil Nadu submitted that Sec. 499 and 500 could not be said to travel beyond the reasonable limits on freedom of speech, because article 19(2) itself imposes such a restriction. Also, there has to be a debate with regard to the conceptual meaning of the term defamation used in article 19(2) of the Constitution and defamation in Sec. 499, IPC, 1860. It was also pointed out that the freedom of speech and expression has to be controlled and does not include the concept of defamation as defined under Sec. 499.

The bench raised a question that whether the abolition of criminal action in other countries could really have an effect when the court decides on the constitutionality of provision regard being given to India’s own written constitution.

Judgement: The division bench comprising of Dipak Mishra and Prafulla C. Pant JJ, wherein J. Mishra delivered the judgement, upholding the constitutional validity of Sec. 499, 500 of IPC, 1860 and 199 of Cr PC, 1973, pronounced that it is not necessary for all in the chorus to sing the same song. A magistrate should be extremely careful in issuing summons on a plea for the initiation of any criminal defamation case.

It is noteworthy to note that to justify the centre of the penal provision pronounced about the anarchical way of how Indian society works and opined about how criminal defamation deters people from practising freedom of speech and expression.

Another issue before the court was whether the reputation of another person is so transitory that criminal prosecution for defamation negates and violates the right to free speech and expression of opinion. To answer this, the SC goes into the interpretational analysis of freedom of speech and expression under Art. 19(1) (a), 19(2) and right to reputation under Art. 21. After detailed scrutiny, the court resorts to the rule of harmonious interpretation and adopts the doctrine of balancing fundamental rights. With regard to the permissibility of criminal defamation, the Court opines that it can be tested on the touchstone of constitutional fraternity (also enshrined in the preamble) and fundamental duty. 

It is said that the rights of one person end where the rights of another person start to apply. It means that the Constitution of India has given the citizens certain rights and they should use them in limit so that they should not hamper the rights of others. There is a limit to the right of freedom of speech and expression which is regulated by the provisions of defamation. With the court holding Dr Swamy liable to defame Mr Jethmalani, the court with many such cases proves that the provisions of defamations act as a check on Article 19 of the Constitution so as to protect the reputation of the people. Many controversies regarding press freedom and the offence of defamation arose, which are still a matter of debate. There is a need to improve this law and remove the arbitrariness leading to such controversies.



Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

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