Analysis of subramanian swamy vs union of india

This case is known as one of the most significant free speech cases till date because it was the first time that the Supreme Court was dealing with a direct challenge to the constitutionality of the provisions of criminal defamation. It must be noted that this case specifically was against criminal defamation. Defamation has two forms i.e., civil defamation and criminal defamation, and the constitutionality of civil defamation had been the subject of discussion in the past in the case of R. Rajagopal v State of Tamil Nadu[1] in which the Supreme Court had recognised that the laws under civil defamation placed an unreasonable restriction on free speech.

The judgement in the case of R. Rajagopal v State of Tamil Nadu brought about changes in the laws relating to civil defamation and set down new standards for the same, however, with respect to criminal defamation, the judgement had stated that the case had not decided the constitutionality of criminal defamation and it would require a proper case in order to discuss the constitutionality. This case of R Rajagopal was one of the two cases that the appellant Dr. Subramanian Swamy had brought the attention of the Supreme Court. The case provided a good precedent for the claims of the Appellant. Another case that the appellant made reference to was the case of N Ravi v Union of India[2] in which the observation was made that the validity of Section 499 is an aspect that needs to be examined as it has not been given enough screening. These two references made by the Appellant gave him a strong foundation to start the case on as they both were important precedents regarding the matter being dealt with in the current case.

A very important argument made in the case is the explanation of how Section 499 of the IPC is outside the scope of Article 19(2) and hence its constitutionality is questionable. It was stated that the right to unrestricted freedom of speech guaranteed by Article 19(1)a is essential for the survival of a parliamentary democratic structure. Section 499 of the Indian Penal Code infringes on this right and is an impediment to the expression of free speech and also since Article 19(2) is meant to impose restrictions to safeguard the interests of the State and not of a private individual and hence it cannot be a source of authority for Section 499 of the IPC since this Section is outside the scope of Article 19(2). They emphasized on the absence of public interest and quality of crime in defamation by making it clear that ‘Crime’ is an offence against society and therefore defamation of another citizen by a private individual cannot be considered a crime as it does not subserve any public interest. It was put forward that free speech is which is guaranteed by Article 19(1)(a) has certain restrictions to it under Article 19(2) which is essential but however when a restriction is placed on the same free speech by the colonial laws of defamation, then the value of this free speech as provided by the Constitution is diminished and harmed thereby making the provision of defamation as a method to curtail free speech unconstitutional. This was however contended in a very logical manner in which the respondents put forward the following arguments. They made it clear that Article 19(1)(a) did not provide a completely unrestrained right to free speech and that is why Article 19(2) is an integral part of it covering defamatory speech under the term ‘defamation’ which includes both civil and criminal defamation in order to ensure maximum efficiency of the restriction. The main behind this is to protect the collective shared reputation of society. The contention that defamation cannot be considered a crime and that this Section essentially puts a private wrong at the same level of a public wrong was resolved by making it clear that defamation was an act that would affect basic harmony that is required in a polity hence it can be considered as a crime. Their most important point was that the value of free speech cannot be allowed to have a detrimental effect on individual dignity which is an integral right provided to people under Article 21.

Another interesting aspect during this case was the explanation of free speech which has been carried on and referenced in cases to come. It was put forward that Free Speech in its essence encapsulates the right to circulate one’s independent view on any matter without having to join a chorus singing the same opinion. Free speech included the right of propagation of ideas and this freedom to speech cannot be restricted by criminal prosecution which would be a contradiction to free speech. Free speech has priority over rights and whenever and wherever conflict emerges between the freedom of speech and other interest, the right to freedom of speech can neither be supressed nor curtailed unless such freedom endangers community interest and that apart the said danger must have immediate and proximate nexus. This statement when read completely can be considered as an unreasonable one. It is not taken into consideration while making this statement that there can be statements made which may not endanger community interest immediately but may do so over a period of time and such statements need to be curtailed and cannot be given priority over the rights in this situation.

Another important aspect of this case was the way the matter dealing with Section 199 of the CrPC was handled. It was put forward by the petitioners that this Section provided a different procedure for certain category of people and also laid down that the Court of Session would be the court of first instance. This classification was objected to because it was said to be against the equality clause in the constitution. It also is using the Public Prosecutor to launch the prosecution thereby enabling the State to take a different route to suppress the right of freedom of speech and expression by preventing the accused an appeal to the Court of Sessions.

There was in essence differential treatment being provided to a certain class of people which is the reason the petitioners wanted these sections to be struck down as unconstitutional. It was also put forwards that this Section which is in essence intended to be a restriction on who can file a criminal complaint under the Sections 499 and 500 of the Indian Penal Code needs to be narrowly construed so as to understand the meaning of the words “person aggrieved”, that in its width would not include a person other than the victim. This issue was further discussed wherein it was stated that the words “some person aggrieved” used in Section 199 need to be strictly constructed to avoid any ambiguity and misuse of law.

The Solicitor General defended the creation of the separate procedure by Section 199(2) to Section 199(4) of the CrPC by stating that there is a very evident difference between a complaint of alleged defamation from an ordinary individual and that of an official in relation to his governmental duties. This difference has a connection to the final goal the Parliament hopes to achieve i.e., prevention of malicious disrepute to the officials in order to protect the credibility of the government and its functioning and keeping this in mind Section 199(2) to Section199(4) was formulated and it can also be seen as a safety valve to protect a citizen against a government official filing a complaint on behalf of the government.

He also cleared up on the issue about the filing of a complaint by the Public Prosecutor by stating that the Public Prosecutor is a responsible officer of the Court and he/she has been involved in a number of cases that were dealt with responsibly and this should make it clear that the prosecution by the Public Prosecutor goes to show that the proceedings will be conducted with objectivity and without any personal bias. Another important defence that was put forward was in reference to the claims of ambiguity in the Section 199(1) of CrPC that allowed for frivolous complaints. It was put forward that Section 199(1) of CrPC is a safeguard for the freedom of speech because it places the burden on the complainant to pursue the criminal complainant without the involvement of the State machinery.

This itself is an effective method of filtering the frivolous complaints because the complainant needs to be willing to bear the burden of pursuing the criminal complaint for defamation and if it is a frivolous claim then there is no clear case or benefit for the complainant. The contention of the petitioners about the vague meaning of the words “some person aggrieved” was said to be as misconceived and had according to the respondents no basis of law. It was also stated that the Section 199 CrPC created a difference between “some person aggrieved” and “a person aggrieved” in order to make it easier for the complainant who may be unable to file a complaint to get it done through another and the validity of such claim will be decided by the Court itself therefore reducing the possibility of frivolous claims from non-aggrieved parties.

The Court after considering all the arguments was faced with the problem of whether the right to free speech had greater importance than the right to individual dignity. The Court however struck a balance between the two and in their judgement upheld the validity of those sections whose validity was contended making it clear that both rights are of equal importance and the right to free speech cannot be given greater importance over the right to individual dignity


[1] 1994 6 SCC 632

[2] 2007 15 SCC 631

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