Holding

Sections 499 and 500 of the Indian Penal Code and Section 199 of the Code of Criminal Procedure are constitutionally valid; the term ‘defamation’ in Article 19(2) includes criminal defamation, and the provisions constitute a reasonable restriction in the interest of protecting reputation, a facet of Article 21, without violating Articles 14 or 19.

Summary

The Supreme Court examined a batch of writ petitions challenging the constitutional validity of Sections 499 and 500 of the Indian Penal Code (criminal defamation) and Section 199 of the Code of Criminal Procedure. The petitioners argued that criminal defamation infringes the freedom of speech guaranteed under Article 19(1)(a) and the right to reputation under Article 21, and that Section 199 creates an arbitrary classification of public servants violating Article 14. After a detailed analysis of the meaning of "defamation" in Article 19(2), the doctrine of proportionality, the reasonableness test, and the various explanations and exceptions under Section 499, the Court held that criminal defamation is a permissible reasonable restriction aimed at protecting reputation, a component of personal liberty. Consequently, Sections 499, 500 IPC and Section 199 CrPC were declared constitutionally valid. The Court dismissed the writ petitions and granted a limited stay pending further challenges in the High Courts.

Issues considered

The scope of the term ‘defamation’ in Article 19(2) – whether it includes criminal defamation under Sections 499 and 500 IPC.
Whether Sections 499 and 500 IPC violate the freedom of speech and expression guaranteed by Article 19(1)(a).
Whether criminal defamation infringes the right to reputation under Article 21.
Whether Section 199 CrPC, especially the provision allowing a public prosecutor to file complaints against public servants, violates the equality principle under Article 14.
Whether the provisions are vague, arbitrary or disproportionate and thus violative of the doctrine of proportionality.

Legislation cited

Code of Criminal Procedure, 1973s. 199(1), s. 199(2), s. 199(3), s. 199(4), s. 199(5), s. 199(6)
Indian Penal Code, 1860s. 499, s. 500

Subjects

criminal defamationfreedom of speechArticle 19Article 21reasonable restrictionreputationSection 199 CrPCnoscitur a sociisproportionalityconstitutional validity

Judgment

[2016) 3 S.C.R. 865

SUBRAMANIAN SWAMY A
v.
UNION OF INDIA, MINISTRY OF LAW & ORS.
(Writ Petition (Crl.) No. 184 of2014)
MAY 13,2016 B

[DIPAK MISRA AND PRAFULLA C.-PANT, JJ.]
PENAL CODE, 1860:
ss.499, 500 - Constitutional validity of - Held: ls
constitutionally valid - The Preamble balances different and c
divergent rights - Keeping in view the constitutional value, the
legislature has not repealed s.499 and kept the same alive as a
criminal offence - It is not correct to hold that the existence of
criminal defamation is absolutely obnoxious to freedom of speech
and expression - It neither invites the frown of any of the Articles
D
of the Constitution nor its very existence can be regarded as an
unreasonable restriction - Code of Criminal Procedure, 1973 -
ss.199(1) to 199(4).
ss.499, 500 - Criminal defamation which is in existence in
the form of ss.499 and 500 is not a restriction on free speech that
can be characterized as disproportionate - Right to free speech E
cannot mean that a citizen can defame the ·other - Protection of
reputation is a fundamental right - It is also a human right -
Cumulatively it serves the social interest - Thus, it cannot be said
that provisions relating to criminal defamation are not saved by
doctrine of proportionality because it determines a limit which is F
not impermissible within the criterion of reasonable restriction.
CONSTITUTION OF INDIA:
Art.14 - Reasonable restriction - To treat a restriction
constitutionally permissible, it is necessary to scrutinize whether
the restriction or imposition of limitation is excessive or not - When G
a law limits a constitutional right which many laws do, such limitation
is constitutional if it is proportional - The law imposing restriction
is proportional if it is meant to achieve a proper purpose, and if the
measures taken to achieve such a purpose are rationally connected
to the purpose, and such measures are necessary - Such limitations H
865
866 SUPREME COURT REPORTS [2016] 3 S.C.R.

A should not be arbitrary or of an excessive nature beyond what is
required in the interest of the public - Reasonableness is judged
with reference to the Qbjective which the legislation seeks to achieve,
and must not be in excess of that objective - Further, the
reasonableness is examined in an objective manner from ihe stand
point of the interest of the general public and not from the point of
B
view of the person upon whom the restrictions are imposed or
abstract considerations.
Art.19(2) - Interpretation of term 'defamation' - Held: The
term 'defamation' as used in Art.19(2) not to be construed narrowly
- The word "defamation" as used in Article 19(2) has to be conferred
c an independent meaning, for it is incomprehensible to reason that
it should be read with the other words and expressions, namely,
"security of the State", 'friendly relations with foreign States",
"public order, decency or morality". '
Art.21 - Right to reputation, an essential component of Art.21
D - Held: It is an individuals fundamental right and, therefore,
balancilig offundamental right is imperative - In the name offreedom
of speech and expression, the right of another cannot be jeopardized
Reputation being aninherent component of Art. 21, it should
not be allowed to be sullied solely because another individual can
E have its freedom - Reputation of one cannot be allowed to be
crucified at the altar of others right of free speech.
Art.51-A (e) - Concept of fraternftY - Held: The c011cept of
fraternity under the Constitution expects every citizen to respect

F
the dignity of the other - Mutual respect is the jitlcrum offraternity
that assures dignity - It would not mean that there cannot be dissent
..
or difference or discordance or a different voice - One has a right
to freedom of speech and expression - One is also obliged under
the Constitution to promote the idea of fraternity - It is a
constitutional obligation - In the context of constitutional fraternity,
fundamental duties engrafted under Art. 51-A gain significance -
G The prismatic perception of sub-article (e) of Art. 51-A would reflect
that it is. the duty of every citizen of India to promote· harmony and
the concept of colllmon brotherhood alllongst all the people despite
lllany diversities -It is also.the duty of every citizen !&strive towards
excellence in all spheres of individual and collective activity.
H
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 867
LAW & ORS.

Code of Criminal Procedure, 1973: s.199 - Public servants A
whether amount to different class to enable them to file a case through
public prosecutor in the Court of Session - Held: A publ'ic servant
is entitled to file a complaint through public prosecutor in respect
of his conduct in discharge of public functions - The provision
gives them protection for their official acts - There cannot be
B
defamatory attacks on them because of discharge of their due
functions - In that sense, they constitute a different class.
Doctrines/Principles: Principle of Noscitur a soccis -
Applicability of - Held: lt is only when and where the intention of
the legislature in associating wider words with words of narrowest
significance is doubtful or otherwise not clear, that the rule of
c
noscitur a soccis is useful.
Disposing of the writ petition, the Court
HELD: 1.1 Noscitur <1 soccis is merely a rule of construction
and cannot prevail where it is clear that wider and diverse D
etymology is intentionally and deliberately used in the provision.
The term "defamation" as used is absolutely clear and
unambiguous. The said term was there at the time of
commencement of the Constitution. If the word "defamation" is
associated or is interpreted to take colour from the terms
"incitement to an offence'', it would unnecessarily make it a E
restricted one which even the founding fathers did not intend to
do. K_eeping in view the aid that one m_ay take from the
Constituent Assembly Debates and regard being had to the clarity
of expression, there is no warrant to apply the pri_!lciple of 11oscitur
a sociis to give a restricted meaning to the term "defamation" F
that it only includes a criminal action if it gives rise to incitement
to constitute an offence. The word "incitement" bas to be
understood in the context of freedom of speech and expression
.and reasonable restriction. The word "incitement" in criminal
jurisprudence has a different meaning. It is difficult to accede to
the submission that defamation can only get criminality ifit incites G
to make an offence. The word "defamation" has its own
independent identity and it stands alone and the law relating to
defamation has to be understood as it stood at the time when the
Constitution came into force. [Parns 70, 71) [946-D, E-H; 947-A-
B) .
H
868 SUPREME COURT REPORTS [2016] 3 S.C.R.

A 1.2 The word "defamation" as used in Article 19(2) has to
be conferred an independent meaning, for it is incomprehensible
to reason that it should be read with the other words and
expressions, namely, "security of the State", "friendly relations
with foreign States", "public order, decency or morality".
Defamation has been regarded as a crime in the IPC which is a
B
pre-constitutional law. Individuals constitute the collective. Law
is enacted to protect the societal interest. The law relating to
defamation protects the reputation of each individual in the
perception of the public at large. Protection of individual right
is imperative for social stability in a body polity and that is why
c the State makes laws relating to crimes. A crime affects the
society. It causes harm and creates a dent in social harmony.
There is a link and connection between individual rights and the
society; and this connection gives rise to community interest at
large. Therefore, when harm is caused to an individual, the
society as a whole is affected and the danger is perceived. [Para
D
75] (948-G-H; 949-A-E]
1.3 The concept of crime is essentially concerned with social
order. It is well known that man's interests arc best protected as
a member of the community. Everyone owes certain duties to his
fellow-men and at the same time has certain rights and privileges
E which he expects others to ensure for him. This.sense of mutual
respect and trust for the rights of others regulates the conduct of
the members of sociefy illter-se. Although most people believe in

F
the principle of 'live and let live', yet there arc a few who, for
some reason or the other, deviate from this normal behavioural
pattern and associate themselves with anti-social elements. This
..
obviously imposes an obligation on the State to maintain normalcy
in the society. This arduous task of protecting the law abiding
citizens and punishing the law breakers vests with the State which
performs it through the instrumentality of law. It is for this reason
that Salmond has defined law as a 'rule of action' regulating the
G conduct of individuals in society. The conducts which are
prohibited by the law in force at a given time and place arc known
as wrongful acts or crimes, whereas those which are permissible
under the law arc treated as lawful. [Para 82) [951-G; 952-A-D]

H
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 869
LAW & ORS.

R. Rajagopal alias R.R. Gopal and another v. State of A
T.N. and others 1994 (4) Suppl. SCR 353 : (1994) 6
sec 632; N. Ravi and others V. Union of India and
others (2007) 15 SCC 631; Jacob Mathell' le State of
Punjab and another 2005 (2) Suppl. SCR 307 : 2005
(6) SCC 1 ; Shreya Singhal v. Union of India 2015 (5)
B
SCR 963 : (2015) 5 SCC 1; Special Reference No. 1 of
1964 (1965) 1 SCR 413; Bata India Ltd. v. A.M Turaz
& Ors. 2013 (53) PTC 586; Pandey Surindra Nath
Sinha v. BaKeshwari Pd.. AIR 1961 Pat. 164; Hill v.
Church of Scientology of Toronto 1995 2 SCR 1130;
Board of Trustees of the Port of Bombay v. Dilipkumar c
Raghavendranath Nadkarni and others 1983 (1) SCR
828 : (1983) 1 SCC 124 ; Kiran Bedi v. Committee of
Inquiry and another 1989 (1) SCR 20 : (1989) 1 SCC
494; Gian Kaur v. State of Punjab 1996 (3) SCR 697:
(1996) 2 SCC 648; Mehmood Nayyar Azam v. State of
D
Chhatisgarh and others 2012 (8) SCR 651: (2012) 8
SCC 1 ; Vishll'anath Agrawal v. Sarai Vishwanath
Agrawal 2012 (7) SCR 607 : (2012) 7 SCC 288; Umesh
Kumar v. State of Andhra Pradesh and another 2013
(14) SCR 213 : (2013) 10 SCC 591; Kishore Samrite v.
State of Uttar Pradesh and others 2012 (9) SCR 733 : E
(2013) 2 SCC 398; Nilgiris Bar Association v. T.K.
Mahalingam and another.1991 (6) Suppl. SCR 246 :
(1998) 1 SCC 550 ; Om Prakash Chautala v. Kanll'ar
Bhan and others 2014 (1) SCR 939 : (2014) 5 SCC
417; State of Gujarat and another v. Hon 'ble High Court
F
of Gujarat 1998 (2) Suppl. SCR 31 : (1928) 7 SCC
392; State of Bihar i: Shailabala Devi AIR 1952 SC
329 : 1952 SCR 654; Br(j Bhushan v. State of Delhi
1952 SCR 654 : AIR 1950 SC 129; S.R. Chaudhuri v.
State of Pw?jab and others 2001 (1) Suppl. SCR 621 :
. (2001) 7 SCC 126; Special Reference No. 1 of 2002, /11 G
re (Gujarat Assembly Election matter) 2002 (3) Suppl.
SCR 366 : (2002) 8 SCC 237; His Holiness
Kesavananda Bharati Sripadagalvaru v. State of Kera/a
and another 1973 (0) Suppl. SCR 1: (1973) 4 SCC
225; Mano} Nant!a v. Union of India 2014 (9) SCR
H
870 .SUPREME COURT REPORTS [2016] 3 S.C.R .

A 965 : (2014) 9 SCC 1; Superintendent and
Remembrancer of Legal Affairs v. Corporation of
Calcutta AIR 1967 SC 997: 1967 (2) SCR 170; Ganga
Bai v. Vl}ay Kumar 1974 (3) SCR 882 : (1974) 2 SCC
393; State of Bombay v. Hospital Mazdoor Sabha AIR
1960 SC 610 : (1960) 2 SCI{ 866; Bank of India v.
B
Vl}ay Transport and nthers 1988 Supp SCC 47 : AIR
1988 SC 151 : 1988 SCR 96i; R.L. Arora.v. State of
Uttar Pradesh (1964) 6 SCR 784 : AIR 1964 SC 1230;
Godfrey Phillips India Ltd. and another v. State of U.P.
and others 2005 (1) SCR 732 : (2005) 2 SCC 515;
c Ahmedabad Pvt. Primary Teachers' Assn. v.
Administrative Officer and others 2004 (1) SCR 470 :
(2004) 1 SCC 755; K. Bhagirathi G Shenoy and others
v. K.P. Ballakuraya and another 1999 (2) SCR 438 :
(1999) 4 SCC 135; Reserve Bank of India v. Peerless
General Finance and Investment Co. Ltd. and others
D
1987 (2) SCR 1 : (1987) 1 SCC 424; State of
Maharashtra v. Sz!jay Mangesh Poyarekar 2008 (13)
SCR 750 : (2008) 9 SCC 475; Mohd. Shahabuddin v.
. Stale of Bihar and others 2010 (3) SCR 911 : (2010) 4
SCC 653 ; Vinay Devonna Nayak v. Ryot Sewa
E Sahakari Bank Ltd. 2007 (12) SCR 1134 : (2008) 2
SCC 305; R. Sai Bharathi v. J. Jayalalitha and others
2003 (6) Suppl. SCR 85 : (2004) 2 SCC 9 ; T.K. Gopal
alias Gopi v. State of Karnataka 2000 (3) SCR 1640 :
(2000) 6 SCC 168; Kartar Singh v. State of Punjab
1994 (2) SCR 375 : (1994) 3 SCC 569 ; Harpreet
F Kaur (Mrs) v. State of Maharashtra and another 1992
(1) SCR 234 : (1992) 2 SCC 177 ; State of Karnataka
v. Appa Batu Ingale and others 1992 (3) Suppl. SCR
284 :1995 Supp. (4) SCC 469 ; Vishaka and others v.
State of Rajasthan and others 1997 (3) Suppl. SCR 404
G : (1997) 6 SCC 241; Manisha Koirala v. Shashi Lal
Nair & Ors 2003 (2) Born CR 136 - referred to.
New York Times v. Sullivan 29 LED 2d 822 (1971);
Parmiter v. Coupland (1840) 6 MLW 105; Myroft v.
Sleight (1921) 37 TLR 646; Plato Films Ltd. v. Spiedel
(1961) 1 All. E.R. 876; Reynolds " Times Newspapers
H
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 871
LAW & ORS.

Ltd [20011 2 AC 127 at 201; Campbell v. MGN Ltd A
(2004) UKHL 22; Wisconsin " Constantineau 400 U.S.
433 (1971) ; Rosenblatt v. Baer 383 U.S. 75 (1966);
Khumalo v. Holomisa (2002] ZACC 12; 2002 (5) SA
401; Lindon v. France (2008) 46 E.H.R.R. 35; Chauvy
and Others v. France (2005) 41 EHRR 29; Abeberry v.
B
France and White v. Sweden (2007) EMLR I; Karak6
v. Hungary (2011) 52 E.H.R.R. 36; Axel Springer AG
, v. Germany (2012) 55 E.H.R.R. 6; D.F. Marion 1' Davis
55 ALR 171; Scoff v. Sampson (1882) QBD 491 -
referred to.
State of West Bengal v. Subodh Gopal Bose and others c
AIR 1954 SC 92 : 1954 SCR 587 - distinguished.
Salmond & Heuston on the Law of Torts, 20th Edn.; Winfield
& Jolowics on Torts (17'" Edn. 2006); .. The Law of Defamation"
Richard O'Sullivan, QC and Roland Brown; Carter- Ruck on Libel
and Slander - referred to. D
2. The right of freedom of expression in a poem, play or a
novel pertaining to fictional characters stand on a different footing
than defamation as the latter directly concerns the living or the
legal heirs of the dead and most importantly, having a known
identity. A person in reality is defamed contrary to a "fictional
character" being spoken of by another character or through any E
other mode of narrative. Liberty of freedom in that sphere is
fundamentally different than the arena of defamation. Therefore,
the decisions rendered in tlie said context are to be guardedly
studied, appreciated and applied. The freedom in the said sphere
is not totally without any limit or boundary. What could legally be F
permissible in the arena of fiction may not have that allowance in
reality. Freedom of speech and expression is a highly treasured
value under the Constitution and voice of dissent or disagreement
has to be respected· and regarded and not to be scuttled as
unpalatable criticism. Notwithstanding, the expansive and
sweeping and ambit of freedom of speech, as all rights, right to G
freedom of speech and expression is not absolute. It is subject
to imposition of reasonable restrictions. [Paras 114 and 115] (969- ·
D-H; 970-AJ
Bennett Coleman & Co. and others v. Union of India
and others 1973 (2) SCR 757 : (1972) 2 SCC 788; H
872 SUPREME COURT REPORTS [2016) 3 S.C.R.

A Secretary, Ministry of Information & Broadcasting,
Govt. of India and others v. Cricket Association of
Bengal and others 1995 (1) SCR1036 :(1995) 2 SCC
161; Union of India and others v. Motion Picture
Association and others 1999 (3) SCR 875 : (1999) 6
SCC 150; People'.\· Union for Civil Liberties (PUCL)
B
and another v. Union of India and another 2003 (2)
SCR 1136: (2003) 4 SCC 399 ; Union ofIndia l( Naveen
Jindal and another 2004 (1 ) SCR 1038 _: (2004) 2
SCC 510 ; Government of Andhra Pradesh and others
v. P. Laxmi Devi 2008 (3) SCR 330 : (2008) 4 SCC
c 720; S. Khushboo v. Kanniammal and another 2010
(5) SCR 322 : (2010) 5 SCC 600; Ramlila Maidan
Incident, !11 re 2012 (4) SCR 971 : (2012) 5 SCC 1;
Sahara India Real Estate Corporation Ltd. and others
l( Securities and Exchange Board of India and another

2012 (12) SCR 256 : (2012) 10 SCC 603; State of
D
Karnataka and another v. Associated Management of
English Medium Primary and Secondary Schools and
others (2014) 9 SCC 485; Devidas Ramachandra
Tuljapurkar v. State of Mahrashtra and others 2015
(7) SCR 853 : (2015) 6 SCC I; Odyssey
E Communications Pvt. Ltd. v. Lokvidayan Sanghatana
and others 1988 (1) Suppl. SCR 486 : (1988) 3 SCC .
410 - relied on.
Kameshwar Prasad v. State of Bihar 1962 ·Supp. (3)
SCR 369 : AIR 1962 SC 1166 ; Indian Express
F Newspapers (Bombay) Private Ltd. and others v. Union
of India and others 1985 (2) SCR 287 : (1985) 1 SCC
641; Ramesh Thappar v. State of Madras 1950 SCR
594 : AIR 1950 SC 124; Express Newspaper (Primte)
Ltd. and another v. Union of India and others AIR 1958
SC 578 : 1959 SCR 12; All India Bank Employees'
G Association v. National Industrial Tribunal (Bank
Dispute5), Bombay and others (1962) 3 SCR 269 : AIR
1962 SC 171 - referred to.
Speiser v. Randall (1958) 257 US 513 (530) ; fotes v.
US. (1958) 354 US 298 (344) ; Stromberg v. California
H (1931) 283 US 359 (369) ; Palko 1'. Connecticut (1937)
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 873
LAW & ORS.

302 US319 ; Abrams v. United States 250 US 616 :63 L A
Ed 1173 (1919) ; Whitney v. California 71 L Ed 1095
: 274 US 357 (1927) - referred to.
Sakal Papers (P) Ltd. v. Union of India (1962) 3 SCR
842 : AIR 1962 SC 305 - held inapplicable.
3. The legislation should not invade the rights and should B
not smack of arbitrariness. The test of reasonableness cannot be
determined by laying down any abstract standard or general
pattern. It would depend upon the nature of the right which has
been infringed or sought to be infringed. The· ultimate "impact",
that is; effect on the right has to be determined. The "impact c
doctrine" or the principle of "inevitable effect" or "inevitable
· consequence" stands in contradistinction to abuse or misuse of
a legislation or a statutory provision depending upon the
circumstances of the case. The prevailing conditions of the time
and' the principles of proportionality of restraint are to be kept in
mind by the court while adjudging the constitutionality of a D
provision regard being had to the nature of the right. The nature
of social control which includes public interest has a role. The
conception of social interest has to be borne in mind while
considering reasonableness of the restriction imposed on a right.
The social interest principle would include the felt needs of the E
society. The right to freedom of speech and expression is a right
that has to get ascendance in a democratic body polity, but at the
same· time the limit has to be proportionate and not unlimited.
(Para 125) (973-G; 974-A-E)
S. Rangarajan v. P. Jagjivan Ram and others 1989 (2)' F
SCR 204 :1989 (2) SCC 574 ; Ranjit D. Udeshi v. State
of Maharashtra AIR 1965 SC 881 : (1965) 1 SCR 65;
Chandrakant Kalyandas Kakodkar v. State of
Maharashtra 1970 (2) SCR 80 : (1969) 2 SCC 687;
K.A. Abbas v. Union ofIndia 1971 (2) SCR 446 : (1970)
2 SCC 780 ; Raj Kapoor v. State 1980 (1) SCR1081 : G
(1980) 1 SCC 43 ; Samaresh Bose v. Amal Mitra 1985
(3) Suppl. SCR 17 : (1985) 4 SCC 289 ; Directorate
General of Doordarshan v. Anand Patwardhan 2006
(5) Suppl. SCR 403 : (2006) 8 SCC .433 ; Ajay Gosll'ami
v. Union of India 2006 (10) Suppl. SCR 770 : (2007) 1
H
874 SUPREME COURT REPORTS [2016] 3 S.C.R.

A SCC 143; Bobby Art International v. Om Pal Singh Hoon
1996 (2) Suppl. SCR 136 ; (1996) 4 SCC 1; Aveek
Sarkar v. State of W.B. (2014) 4 SCC 257; Chintaman
Rao v. State of MP. AIR 1951 SC 118 : 1950 SCR
759; State of Madras v. V.G Row AIR 1952 SC 196 :
1952 SCR 597; Maneka Gandhi v. Union of India and
B
another (1978) 1 SCC 248 : AIR 1978 SC 597 : 1978
(2) SCR 621; R.C. Cooper v. Union of India 1971 (1)
SCR 512 : (1970) 2 SCC 298; Mis Laxmi Khandsari
and others v. State of U.P. and others 1981 (3) SCR 92
: (1981) 2 SCC 600 ; Dwarka Prasad Laxmi Narain v.
c State of U.P. AIR 1954 SC 224 :1954 SCR 803;
Bishambhar Dayal Chandra Mohan and others v. State
of Uttar Pradesh and others 1982 (1) SCR1137: (1982)
1 SCC 39; State of Bihar v. K.K. Misra ( 1969) 3 SCC
377; Dr. N.B. Khare v. The State ofDelhi (1952] S.C.R.
597; Papnasam Labour Union v. Madura Coats Ltd.
D
and another 1994 (6) Suppl. SCR 369 : (1995) 1 SCC
501; Francis Coralie Mullin v. Administrator, Union
Territory of Delhi and others 1981 (2) SCR 516 : (1981)
1 SCC 608; Chameli Singh and others v. State of U.P.
and another 1995 (6) Suppl. SCR 827 : (1996) 2 SCC
E 549; Siddharam Satlingappa Mhetre v. State of
Maharashtra 2010 (15 ) SCR 201 : (2011) 1 SCC 694;
Babu Singh and others v. State of U.P. 1978 (2) SCR
771 : (1978) 1 SCC 579; Haridas Das v. Usha Rani
Banik and others 2007 (8) SCR 365 : (2007) 14 SCC
1; S.P. Mittal v. Union of India and others (1983) 1
F sec 51 : AIR 1983 SC 1: 1983 (1) SCR 729 ; Charil
Khurana and others v. Union of India and oJhers 2014
(12) SCR 259 : (2015) 1 SCC 192 - referred to.
4. The right to reputation is a constituent of Article 21 of
the Constitution. It is an individual's fundamental right and,
G therefore, balancing of fundamental right is imperative. In the
name of freedom of speech and expression, the right of another
cannot be jeopardized. Reputation being an inherent component
of Article 21, it should not be allowed to be sullied solely because
another individual can have its freedom. It is not a r~striction
that has an inevitable consequence which impairs circulation of
H
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 875
LAW & ORS.

thought and ideas. In faft, it is control regard being had to another A
person's right to go to Court and state that he has been wronged
and abused .. He can take recourse to a procedure recognized
and accepted in law to retrieve and redeem his reputation.
Therefore, the balance between the two rights needs to be struck.
"Reputation" of one cannot be allowed to be crucified at the altar
B
of the other's right of free speech. Applying the doctrine of
balancing of fundamental rights, existence of defamation as a
criminal offence is not beyond the boundary of Article 19(2) of
the Constitution, especially when the word "defamation" has been
· used in the Constitution. [Paras 139, 140, 149} [982-C-D; 983-
B-C; 989-B-C] . c
Noise Pollution (V), In re 2005 (1) Suppl. SCR 624 :
(2005) 5 sec 733 - relied on.
Ramji Lal Modi v. State of U.P. AIR 1957 SC 620 :
1957 SCR 860 - distinguished ..
Acharya Maharajshri Narendra Prasadji D
Anandprasadji Maharashtra and others v. The State
of Gujarat and others 1975 (2) SCR 317 : (1975) 1
SCC 11; Delhi Transport Corporation v. D. T. C.
Mazdoor Conl{ress and others 1990 (1) Suppl. SCR
142 : 1991 Supp (1) SCC 600 ; St. Stephens ColleRe v.
E
University of Delhi 1991 (3) Suppl. SCR 121: (1992) 1
SCC 558 ; Mr X' v. Hospital 'Z' 1998 (1) Suppl. SCR
723 : (1998) 8 SCC 296 ; Post Graduate Institute of
Medical Education & Research, Chandigarh v. Faculty
"Association and others 1998 (2) SCR 8~5 : (1998) 4
SCC 1; Ram Jethmalani and others v. Union of India F
and others 2011 (8) SCR 725: (2011) 8 SCC 1; Mohd.
Arif alias Ashfaq v. Registrar, Supreme Court of India
and others 2014 (11) SCR 1009 : (2014) 9 SCC 737 -
ref~rred to.
--- ---- ---. =··-.,;!\..--
American Communications Assn. v. Douds 94 L Ed 925 G
: 339 US 382 (1950) - referred to.
5.1 Permissibility of criminal defamation can be tested on
the touchstone of constitutional fraternity and fundamental duty.
The term "fraternity" has a significant place in the history of
constitutional law. The Preamble states that it is a cons.titutional H
876 SUPREME COURT REPORTS [20 I 6] 3 S.C.R.

A duty to promote fraternity assuring the dignity of the individual.
Fraternity as a concept is characteristically different from the other
constitutional goals. It is a constitutional value which is. to be
cultivated by the people themselves as a part of their social
behavior. There are two schools of thought; one canvassing
individual liberalization and the other advocating for protection
8
of an individual as a member of the collective. The individual
should have all the rights under the Constitution but
simultaneously he has the responsibility to live upto the
constitutional values like essential brotherhood - the fraternity
- that strengthens the societal interest. Fraternity means
c brotherhood and common interest. Right to censure and criticize
does not conflict with the constitutional objective to promote
fraternity. Brotherliness does not abrogate and rescind the
concept of criticism. In fact, brothers can and should be critical.
Fault finding and disagreement is required even when it leads to
an individual disquiet or group disquietude. [Paras 150, 151,
D
154, 155) (989-C-F; 990-D, F-G)
5.2 The concept of fraternity under the Constitution expects
every citizen to respect the dignity of the other. Mutual respect
is the fulcrum of fraternity that assures dignity. It docs not mean
that there cannot be dissent or difference or discordance or a
E different voice. It does not convey that all should join the chorus
or sing the same song. One has a right to freedom of speech and
expression. One is also required to maintain the constitutional
value which is embedded in the idea of fraternity that assures the
dignity of the individual. One is obliged under the Constitution
F to promote the idea of fratern!ty. It is a constitutional obligation.
In the context of constitutional fratcmity, fundamental duties
engrafted under Article 51-A of the Constitution gain significance.
The prismatic perception of sub-article (e) of Article 51-A would
reflect that it is the duty of eY.ery citizen of India to promote
harmony and the concept of common brotherhood amongst all
G the people despite many diversities. It is also the duty of every
citizen to strive towai·ds excellence in all spheres of individual
and collective acti¥ity. [Paras 158, 159, 160) [992-B-D, F)
5.3. ·The individual interest of each individual -serves the
collective interest and correspondingly the collective interest
H · enhances the individual excellence. Action against the State is
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 877
LAW & ORS.

different than an action taken by one citizen against the other. A
The constitutional value helps in structuring the individual as
well as the community interest. Individual interest is strongly
established· when constitutional values are respected. The
Preamble balances different and divergent rights. Keeping in view
the constitutional value, the legislature has not repealed Section
B
499 and kept the same alive as a criminal offence. It is difficult to
hold that the existence of criminal defamation is absolutely
obnoxious to freedom of speech and expression. As a prescription,
it neither invites the frown of any of the Articles of the Constitution
nor its very existence can be regarded as an unreasonable
restriction. [Para 163] [993-H; 994-A-C] c
Indra Sawhney and ors. v. Union of India and ors. AIR
1993 SC 477 : 1992 (2) Suppl. SCR 454; 1992 Supp.
(3) SCC 217; AIIMS Students' Union v. A/IMS and
others 2001 (2) Suppl. SCR 79 : (2002) 1 SCC 428;
Raghunathrao Ganpatrao v. Union of India 1993 (1) D
SCR 480 : 1994 Supp. (1) SCC 191; PA. 111a111dar and
others v. State of Maharashtra and others 2005 (2)
Suppl. SCR 603 : (2005) 6 SCC 537 ; Jeffrey J.
Diermeier and anr. v. State of West BenRal and am: 2010
(7) SCR 128 : (2010) .6 SCC 243 - referred to. E
6.1. To constitute the offence of defamation, there has to
be imputation and it must have made in the manner as provided
in the provision with the intention of causing harm or having
reason to believe that such imputation will harm the reputation
of the person about whom it is made. Causing harm to the F
reputation of a person is the basis on which the offence is founded
and mens rea is a condition precedent to constitute the said offence.
The complainant has to show that the accused had intended or
known or had reason to believe,i.hat the imputation made by him
would harm the reputation of the complainant. The criminal offence
emphasizes on the intention or harm. Section 44 of IPC defines G
"injury". It denotes any harm whatever ille-gally caused to any
person, in body, mind, reputation or proper-ty. Thus, the word
"injury" encapsulates harm caused to the reputation of any person.
It also takes into account the harm caused to a person's body
and mind. [Para 165] [994-E-G]
H
878 SUPREME COURT REPORTS [2016] 3 S.C.R.

A State of Jammu and Kashmir v. Triloki Nath Khosa and
others 1974 (l)SCR 771 : (1974) 1 SCC 19 - referred
to.
6.2. Section 499 provides for harm caused to the reputation
of a person, that is, the complainant. There are four Explanations
B to the main provision and an Explanation has been appended to
the Fourth Exception. Explanation 4 needs to be explained first.
It is because the said Explanation provides the expanse and the
inherent control wherein what imputation has been regarded as
harm to a person's reputation and that an imputation can only be
treated as harm of a person's reputation if it directly or indirectly,
c in the estimation of others, lowers the mora• 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
D disgraceful. Explanation 1 stipulates that an imputation would
amount to defamation if it is done to a deceased person if the
imputation would harm the reputation of that person ifhe is living
and is intended to be harmful to the feelings of his family or other
near relatives. [Paras 165, 166, 167] [994-G-H; 995-C-E, G-H] ·
E Melepurath Sankuni Ezhuthassan v. Thekittil
Phytoplankton Nair 1985 (3) Suppl. SCR 805: (1986)
1 SCC 118 ; M Veerappa v. Evelyn Sequeira and others
1988 (2) SCR 606 : (1988) 1 SCC 556 - referred to.
6.3 The prosecution, as envisaged in Explanation 1, lays
two postulates, that is, (i) the imputation to a deceased person is
F
of such a nature that would have harmed the reputation of that
person if he was living and (ii) the said imputation must be
intended to be hurtful to the feelings of the family or other near
relatives. Unless the twin tests a'f satisfied, the complaint would.
not be entertained under Section 199 of CrPC. The said
G Explanation protects the reputation of the family or relatives.
The entitlement to damages for personal injury is in a different
sphere whereas a criminal complaint to be filed by the family
members or other relatives under twin tests being satisfied is in
a distinct compartment. It is more rigorous. The principle of
grant of compensation and the principle of protection of reputation
H
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 879
LAW & ORS.

of family or near relative cannot be equated. Explanation 2 deals A
with imputation concerning a company or an association or
collection of persons as such. Explanation 3 says that an
imputation in the form of l\n alternative or expressed ironically
may amount to defamation. Section 11 of IPC defines "person"
to mean a company or an association or collection of persons as
B
such or body of persons, .whether incorporated or not. The
inclusive nature of the definition indicates that juridical persons
can come within its ambit. [Paras 169, 170] [997-G; 998-A-D]
Sahib Singh Mehra v. State of Uttar Pradesh AIR 1965
SC 1451 : 1965 (2) SCR 823; G. Narasimhan, G.
Asterisk and K. Gopalan v. T. V. Chokkappa 1973 (2) c
SCR 40 : (1972) 2 SCC 680 ; Aneeta Hada v. Godfather
Travels & Tours (P) Ltd 2012 (5) SCR 503 : (2012) 5
sec 661 - referred to.
6.4 The First Exception stipulates that it is not defamation
to impute anything which is true concerning any person, if it be . D
for the public good that the imputation should be made or
published. "Public good" has to be treated to be a fact. Fifth
Exception stipulates that 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 party, witness or agent. E
The further stipulation is that the said opinion must .relate to the
character of said person, as far as his 'character appears in that
conduct. neither the main provision nor the Explanation nor the
Exceptions remotely indicate any vagueness. The provision along
with Explanations and Exceptions cannot be called unreasonable, F
for they are neither vague nor excessive nor arbitrary. There
can be no doubt that Court can strike down ·a provision, if it is
excessive, unreasonable or disproportionate, but the Court cannot
strike down if it thinks that the provision is unnecessary or
unwarranted. [Paras 173, 180, 183, 184] (999-H; 1000-A; 1003-
C-D; 1005-D, G~H; 1006-A] ' G
Harakchand Ratanchand Banthia & others v Union of
India and others 1970 (1) SCR 479 : (1969) 2 SCC
166 - distinguished.
Chaman Lal v. State of Punjab 1970 (3) SCR 913 :
(1970) 1 SCC 590; Arundhati Roy, In re 2002 (2) SCR H
880 SUPREME COURT REPORTS [2016] 3 S.C.R.

A 213 : (2002) 3 SCC 343; Harbhajan Singh v. State of
Punjab and another AIR 1966 SC 97 : 1965 SCR
235; Sukra Mahto v. Basdeo Kumar Mahto and another
1971 (0) Suppl. SCR 329 :1971 (1) SCC 885 ; Jatish
Chandra Ghosh v. Hari Sadhan Mukherjee (1961) 3
SCR 486; Kanll'al Lal v State of Punjab 1963 Supp (1)
B
SCR 479; MC. Verghese v. T.J. Poonan 1969 (2) SCR
692 : (1969) 1 SCC 37 ; Rajendra Kumar Sitaram Pande
v. Uttam 1999 (1) SCR 580 : (1999) 3 sec 134;
Sewakram Sobhani v. R.K. Karanjia 1981 (3) SCR 627
: (1981) 3 SCC 208; Om Kumar v. Union of India 2000
c (4) Suppl. SCR 693 : (2001) 2 SCC 386; Modern Dental
College & Research Centre and others v. State of
Madhya Pradesh and others 2016 (4) SCALE 478 -
referred to.
6.5 The law imposing restriction is proportional ifit is meant
D to achieve a proper purpose, and if the measures taken to achieve
such a purpose are rationally connected to the purpose, and such
measures are necessary. Such limitations should not be arbitrary
or of an excessive nature beyond what is required in the interest
of the public. Reasonableness is judged with reference to the
ob,jective which the legislation seeks to achieve, and must not
E be in excess of that objective. Further, the reasonableness is
examined in an objective manner form the stand point of the
interest of the general public and not from the point of view of
the person upon whom the restrictions arc imposed or abstract
considerations. The right to freedom of speech and expression
F is a highly valued and cherished right but the Constitution
conceives of reasonable restriction. In that context criminal
defamation which is in existence in the form of Sections 499 and
500 IPC is not a restriction on free speech that can be
characterized as disproportionate. Right to free speech cannot
mean that a citizen can defame the other. Protection of reputation
G is a fundamental right. It is also a human right. Cumulatively it
serves the social interest. Thus, it cannot be said that provisions
relating to criminal defamation are not saved by doctrine of
proportionality because it determines a limit which is not
impermissible within the criterion of reasonable restriction. [Paras
H 185, 186] (1006-F-G; 1007-A; 1008-B-C)
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 881
LAW & ORS. .

P.P. Enterprises v. Union of India 1982 (3) SCR 510 : A
(1982) 2 SCC 33; Mohd Hanif Quareshi. V. State of
Bihar AIR 1958 SC 731:1959 SCR 629 ; MRF Ltd. v.
Inspector, Kera/a Govt. 1998 (2) Suppl. SCR 632 :
(1998) 8 sec 227 ; D.C. Saxena (Dr) V. Hon 'ble The
Chief Justice of India 1996 (3) Suppl. SCR 677 : (1996)
B
5 sec 216 - relied on.
6.6 A public servant is entitled to file a complaint through
public prosecutor in respect of his conduct in discharge of public
functions. Public function stands on a different footing than the
private activities of a public servant. The provision gives them
protection for their official acts. There cannot be defamatory c
attacks on them because of discharge of their due functions. In
that sense, they constitute a different class. .However, criticism
is different than defamation. One is bound to tolerate criticism,
dissent and discordance but not expected to tolerate defamatory
attack. Sub-section (6) gives to a public servant what every citizen D
has as he cannot be deprived of a right of a citizen. There can be
cases where sanction may not be given by the State Government
in favour of a public servant to protect his right and, in that event,
he can file a case before the Magistrate. The provision relating
to engagement of public prosecutor in defamation cases in respect
of the said authorities is seriously criticized on the ground that it E
allows unnecessary room to the authorities mentioned therein
and the public servants to utilize the Public Prosecutor to espouse
their cause for vengeance. Once it is held that the public servants
constitute a different class in respect of the conduct pertaining
to their discharge of duties and functions, the engagement of Public F
Prosecutor cannot be found fault with. It is ordinarily expected
that the Public Prosecutor has a duty to scan the materials on the
basis of which a complaint for defamation is to be filed. He has a
duty towards the Court. When sufficient protection is given and
the right to appeal to the High Court is not curtailed as the CrPC
protects it, the submission does not really commend acceptation. G
In view thereof the said, there is no justification to declare the
provisions ultra vires. [Paras 192,193)[1013-E-H;1014-A-B,E-Fj
John Thomas v. Dr. K. Jaf{adeesan 2001 ( 3 ) SCR 934
: (2001) 6 SCC 30; MS. Jayaraj v. Co111m1: of Excise
(2000) 7 SCC 552; Special Courts Bill, 1978, /11 re 1979 H
882 SUPREME COURT REPORTS [2016] 3 S.C.R.

A (2) SCR 476 : (1979) 1 SCC 380 ; Yogendra Kumar
Jaiswal & others v. State of Bihar and others (2016) 3
SCC 183 ; Ram KPishna Da/111ia v. S.R. Tendolkar AIR
1958 SC 538: 1959 SCR 279 ; Satyall'ati Sharma v.
Union of India 2008 (6) SCR 566 : (2008) 5 SCC 287
; Rehman Shagoo v. State of J&K AIR 1960 SC 1:
B
1960 SCR 680; C.I. Emden v. State of U.P. AIR 1960
SC 548: 1960 SCR 592 ; Baira111 Muralidhar v. State
of Chandra Pradesh 2014 (8) SCR 328 : (2014) 10
sec 380 - referred to.
7. Section 199 CrPC envisages filing of a complaint in court.
c In case of criminal defamation neither any FIR can be filed nor
can any direction be issued under Section· 156(3) CrPC. The
offence has its own gravity and hence, the responsibility of the
Magistrate is more. In a way, it is immense at the time of issue of
process. Issue of process, as has been held in Rajindra Nath
D Mahato is a matter of judicial determination and before issuing a
process, the Magistrate has to examine the complainant. In
matters of criminal defamation the heavy burden is on the
Magistracy 'to scrutinise the. complaint from all aspects. The
Magistrate has also to keep in view the language employed in
Section 202 CrPC which stipulates about the resident of the
E
accused at a place beyond the area in which the Magistrate
exercises his jurisdiction. He must be satisfied that ingredients
of Section 499 CrPC are satisfied. Application of mind in the
case of complaint is imperative. It is settled position of law that
those who plead Exception must prove it. It has been laid down
F in M.A. Rumugam that for the purpose of bringing any case within
the purview of the Eighth and the Ninth Exceptions appended to
Section 499 IPC, it would be necessary for the person who pleads
the Exception to prove it. He has to prove good faith for the
purpose of protection of the interests of the person making it or
any other person or for the public good. The said proposition
G would definitely apply to any Exception who wants to have the
benefit of the same. Therefore, the argument that. if the said
Exception should be taken into consideration at the time of the
issuing summons it would be contrary to established criminal
jurisprudef!ce and, therefore, the stand that it cannot be taken
H into consideration makes the provision unreasonable, is absolutely
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 883
LAW & ORS.

an unsustainable one and in a way, a mercurial one. (Paras 196, A
197, 198] 1015-H; 1016-A-B, F-G; 1017-A-C]
Rajindra Nath Mahato v. T. Ganguly, Dy. Superintendent
and another 1972 (2) SCR 671 : (1972) 1 SCC 450;
Punjab National Bank and others v. Surendra Prasad
Sinha 1992 (2) SCR 528 :1993 Supp. (1) SCC 499; B
Pepsi Foods Ltd. and another v. Special Judicial
Magistrate and others 1997 (5) Suppl. SCR 12 : (1998)
5 SCC 749; MA. Rumugam v. Kittu 2008 (15 ) SCR
642 : (2009) 1 sec 101 - relied on.
Case Law Reference c
1994 (4) Suppl. SCR 353 referred to Para2
(2007) 15 sec 631 referred to Para3
2005 (2) Suppl. SCR 307 referred to Para 13
2015 (5) SCR 963 referred to Para 16 D
(1965) 1 SCR 413 referred to Para 18
AIR 1961 Pat. 164 referred to Para 21
2003 (2) Born CR 136 referred to Para 21
1995 2 SCR 1130 referred to Para39 E

1983 (1) SCR 828 referred to Para 45
1989 (1) SCR 20 referred to Para 46
1996 (3) SCR 697 referred to Para 47
F
2012 (8) SCR 651 referred to Para 47
2012 (7) SCR 607 referred to Para 48
2013 (14) SCR 213 referred· to Para 48
2012 (9) SCR 733 referred to Para 49
G
1997 (6) Suppl. SCR 246 referred to Para 49
2014 (1) SCR 939 referred to Para 50
1998 (2) Suppl. SCR 31 referred to Para 51
1952 SCR 654 referred to Para 60
H
884 SUPREME COURT REPORTS [2016] 3 S.C.R.

A 1952 SCR 654 referred to Para 60
2001 (1) Suppl. SCR 621 referred to Para 61
2002 (3) Suppl. SCR 366 referred to Para 61
1973 (0) Suppl. SCR 1 referred to Para 61
B 2014 (9) SCR 965 referred to Para 62
.1?67 (2) SCR 170 referred to Para 64
.1?74 (3) SCR 882 referred to Para 65
(1960) 2 SCR 866 referred to Para 67
c 1988 SCR 961 referred to· Para 68
(1964) 6 SCR 784 referred to Para 68
2005 (1) SCR 732 referred to Para 69
2004 (1) SCR 470 referred to Para 70
D
1999 (2) SCR 438 referred to Para 73
1987 (2) SCR 1 referred to Para 73
2008 (13) SCR 750 referred to Para 84
.2!110 (3) SCR 911 referred to Para 84
E
2007 (12) SCR 1134 referred to Para 84
2003 (6) Suppl. SCR 85 referred to Para 85
2000 (3) SCR 1040 referred to Para 86
F 1?94 (2) SCR 375 referred to Para 86
1?92 (1) SCR 234 referred to Para 87
1992 (3) Suppl. SCR 284 referred to Para 87
1997 (3) Suppl. SCR 404 referred to Para 88
G 1954 SCR 587 distinguished Para 90
1962 Supp. (3) SCR 369 referred to Para 95
1?85 (2) SCR 287 referred to Para 95
1950 SCR 594 referred to Para 96
H 1959 SCR 12 referred to Para 97
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 885
LAW & ORS.

(1962) 3 SCR 269 referred to Para 98 A
(1962) 3 SCR 842 held inapplicable Para 99
1973 (2) SCR 757 relied on Para 100
1995 (1) SCR 1036 relied on Para 104
1999 (3) SCR 875 relied on Para 105 13
2003 (2) SCR 1136 relied on Para 105
2004 (1) SCR 1038 relied on Para 106
2008 (3) SCR 330 relied on Para 106
2010 (5) SCR 322 relied on Para 106 c
2012 (4) SCR 971 relied on Para 107
2012 (12) SCR 256 relied on Para 108
(2014) 9 sec 485 relied on Para 109
2015 (7) SCR 853 D
relied on Para 111
1988 (1) Suppl. SCR 486 relied on Para 112
1989 (2) SCR 204 referred to Para 112
(1965) 1 SCR 65 referred to Para 113
E
1970 (2) SCR 80 referred to Para 113
1971 (2) SCR 446 referred to Para 113
1980 (1) SCR 1081 referred to Para 113
1985 (3) Suppl. SCR 17 referred to Para 113
F
2006 (5) Suppl. SCR 403 referred to Para 113
2006 (IO) Suppl. SCR 770 referred to Para 113
1996 (2) Suppl. SCR 136 referred to Para 113
(2014) 4 sec 257 referred to Para 113 G
1950 SCR 759 referred to Para 116
1952 SCR 597 referred to Para 117
1978 (2) SCR 621 referred to Para 119
1971 (1) SCR 512 referred to Para 119 H
886 SUPREME COURT REPORTS [2016] 3 S.C.R.

A 1981 (3) SCR 92 referred to Para 120
1954 SCR 803 referred to Para 122
1982 (1) SCR 1137 referred to Para 123
(1969) 3 sec 377 referred to Para 123
B (1952) S.C.R. 597 referred to Para 123
1994 (6) Suppl. SCR 369 referred to Para 124
1981 (2 ) SCR 516 referred to Para 126
1995 (6) Suppl. SCR 827 referred to Para 126
c 2010 (15 ) SCR 201 referred to Para 126
1978 ( 2 ) SCR 777 referred to Para 126
2007 (8) SCR 365 referred to ·Para 126
1983 (1) SCR 729 referred to Para 126
D
2014 (12) SCR 259 referred to Para 127
1975 (2) SCR 317 referred to Para 131
1990 (1) Suppl. SCR 142 referred to Para 131
1991 (3) Suppl. SCR 121 referred to Para 131
E
1998 (1) Suppl. SCR 723 referred to Para 132
1998 ( 2) SCR 845 referred to Para 133
2011 (8) SCR 725 referred to Para 134

F 2014 (11) SCR 1009 referred to Para 139
2005 (1) Suppl. SCR 624 relied on Para 131
1957 SCR 860 distinguished Para 147
1992 ( 2 ) Suppl. SCR 454 referred to Para 155
G 2001 (2) Suppl. SCR 79 referred to Para 156
1993 (1) SCR 480 referred to Para 157
2005 (2) Suppl. SCR 603 referred to Para 161
2010 (7) SCR 128 referred to Para 165
referred to Para 166

'""
H 1974 (1) SCR 771

/
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 887
LAW & ORS.

1985 (3) Suppl. SCR 805 referred to Para 167 · A
1988 (2) SCR 606 referred to Para 168
1965 (2) SCR 823 referred to Para 170
1973 (2) SCR 40 referred to Para l71
2012 (5) SCR 503 referred to Para 172 B
1970 (3) SCR 913 referred to Para 173
1970 (1) SCR 479 distinguished Para 174
2002 (2) SCR 213 referred to Para 177
1965 SCR 235 referred to Para 177
c
1971 (0) Suppl. SCR 329 referred to Para 178
(1961) 3 SCR 486 referred to Para 178
1963 Supp (1) SCR 479 referred. to Para 180
D
1969 (2) SCR 692 referred to Para 181
1999 (1) SCR 580 referred to Para 181
1981 (3) SCR 627 referred to Para 182
2008 (15 ) SCR 642 relied on . Para 182
E
2000 (4) Suppl. SCR 693 referred to Para 184
2016 (4) SCALE 478 . referred to Para 184
1982 (3) SCR 510 relied on Para 185
1959 SCR 629 relied on Para 185 F
1998 (2) Suppl. SCR 632 relied on Para 185
1996 (3) Suppl. ~CR 677 relied on Para 186
2001 (3) SCR 934 referred to Para 189
c2000) 1 sec 552 referred to Para 189 G
1979 (2) SCR 476 referred to Para 190
(2016) 3 sec 183 referred to Para 191
1959 SCR 279 referred to Para 191
2008 (6) SCR 566 referred to Para 191 H
888 SUPREME COURT REPORTS [2016] 3 S.C.R.

A 1960 SCR 680 referred to Para 191
1960 SCR 592 referred to Para 191
2~14 (8) SCR 328 referred to Para 193
1972 (2) SCR 671 relied on Para 196
B 1,92 (2) SCR 528 relied on Para 196
1997 (5) Suppl. SCR 12 relied on Para 196
CRIMINAL ORIGINAL JURISDICTION Writ Petition
(Criminal) No. 184of2014
c WITH
W. P. (Crl.) Nos. 8, 19, 56, 64, 62, 63, 67, 79, 73, 82, 80, 77, 91, 98,
117, 118, 106, 121, 116, 119, 96, 1!0and120of2015
T. P. (Crl.) Nos. 102-105 and 94-101 of2015 ..

D Mukul Rohatgi, AG, P. S. Narasimha, ASG, K. Parasaran, T. R.
Andhyarujina, Sr. Advs., (A.C.), Sushi) Kumar Jain, P. P. Rao, Kapil
Sibal, H. P. Raval, Mrs. Mahalakshmi Pavani, Sanjay Hegde, Anup J.
Bhambani, Dr. Rajeev Dhavan, Mrs. V. Mohana, L. Nageswara Rao.
Subramonium Prasad, V. Shekhar, Sidharth Luthra, Dr. Abhishek Manu
Singhvi, M. N. Krishnamani, K. Radhakrishna, Sr. Advs., Nikhil Swami,
E Ms. Aditi Dani, Ashwin Kumar D. S., Ms. Gayathri, Yineet Pandey,
Mrs. Prabha Swami, G. S. Mani, P. K. Tripathy, M. M. Kashyap, Puneet
Jain, Pradeep Agarwal, Abhinav Gupta, Manu Maheshwari, Ms. Christi
Jain, Ms. Chhaya Kirti, Ms. Pratibha Jain, Chirag M. Shroff, Abhay A.
Jena, Ranjit B. Raut, Ms. Bina Gupta, Gautam Narayan, G. Balaji, K. C.
F Mittal, Santosh Krishnan, Ms. Tarannum Cheema, M/s. Karanjawala &
Co., Nikhil Goel, Ms. Naveen Goel, Marsook Bafaki, Sachin Patil, B. V.
Singh, Amit Kumar Pathak, Ms. Ruchi Kohli, Ram Sankar, Y. Lokesh,
R. V. Kameshwaran, Abhinav Mukerji, Lal it Kumar, Moh it Paul, Apar
Gupta, Dushyant Arora, Rizwan, Aruneshwar Gupta, D. K. Singh,
Pradeep Shukla, Abhijit Sengupta, Anil Kumar Mishra-I, Snehasish
G Mukherjee, Ms. Pooja Mehra Saigal, Ms. Khyati Sharma, Tara Chandra
Shanna, Ms. Madhavi Divan, Ms. Binu Tamta, Sridhar Potraju, B.
Ragunath, K. Parmeshwar, Gaichangpou, Gangmei, Arjun Singh,
Mukunda Rao Angara, Vishwajit Sadanand, Ms. I. Denning Shruti S.,
Ms. Sushma Suri, Gaurav Agrawal, P. N. Puri, M. Yogesh Kanna, Jayant
H
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 889
LAW & ORS.

Patel, Ashmeet Singh, Tarun Gupta, Ms. Supriya Juneja, Anandana Handa, A,.
Viraj Gandhi, Ms. Mehaak Jaggi, Vinay P. Tripathi, Saurabh Gupta, Ms.
Supriya Juneja, Bhakti Vardhan Singh, S. S. Shamshery, Anish Kumar
Gupta, Anand De, Merusagar Samantaray, Vishnu Shankar Jain, Santosh
Kumar, Pattabhi Ram, Ms. Apeksha Sharan, M/s. Corporate Law Group,
S.S. Rawat, Ajay Sharma, D.S. Mahra, S. Udaya Kumar Sagar, Krishna
B
Kumar Singh, Balbir Singh Gupta, Ms. Binu Tamta, Mansoor Ali, Ms.
Rubina Jawed, Ms. Mumtaz Bhalla, Abhay Kumar, K. V. Jagdishvaran,
Mrs. G. Indira, Sukumar Pattjoshi, Mahaling Pandarge, Prakash Gautam,
Nishant Katneshwarkar, Advs. for the ,appearing parties.
Subramanian Swamy, Petitioner-in-Person
c
The Judgment of the Court was delivered by
DIPAK MISRA, J. I. 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 ofan individual, D
exploring manifold and multi layered, 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 oflndia and the complainants is that tl1e reasonable
restrictions are based on the paradigms and parameters of the Constitution E
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 F
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 G
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 H
890 SUPREME COURT REPORTS [2016] 3 S.C.R.

A and dissent which are necessitous forthe 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
B Sections 499 and 500 of 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.
c Gopa/ anti anotlter v. State o/T.N. anti otlters which reads as follows:-
1

"In all this discussion, we may clarity, we have not gone into the
impact of Article 19(1 )(a) read with clause (2) thereofon Sections
499 and 500 of the Indian Penal Code. That may have to await a
proper case."
D
3. Dr. Swamy had also drawn our attention to the observations
made in N. Ravi mu/ otlters v. U11io11 of I11tlia anti otlters\ which are
to the following effect:-
"Strictly speaking on withdrawal of the complaints, the prayer
E about the validity ofSection 499 has also become academic, but
having regard to the importance of the question, we are of the
view, in 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
F
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. Andhyarujiua, learned senior counsel to assist the Court
and they have assisted with all the devotion and assiduousness at their
command.
G
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
1
{1994) 6 sec 632
H 2
(2001) 1s sec 63 I
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 891
LAW & ORS. [DIPAK MISRA, J.]

expression" and conception of "reasonable restrictions" under the A
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. 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.
B
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, c
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 D
to a deceased person, ifthe iinputation would harm the reputatioi1
of that person ifliving, and is intended to be hurtful to the feelings
of his family or other near relatives.
Explanation 2.-Jt may amount to defamation to 11rnke an
imputation concerning a company or an association or collection E
of persons as such.
Explanation 3 .-An imputation in the form of an alternative or
expressed ironically, may amount to defamation.
Explanation 4.-No irriputation is said to harm a ·person's
reputation, unless that imputatio1l directly or indirectly, in the F
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
caufies it io be believed that the body of that person is in a loathsome
state; or in a statege,nerally considered as disgraceful.
G
First Exception.-Jmputation of truth wliich. 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
thatthe imputation should be made or published. Whether or not it ·
is for the public good is a question of fact. ·
892 SUPREME COURT REPORTS [2016] 3 S.C.R.

A Second Exception.-Public conduct of public servants.-lt 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.
'
B Third Exception.-Conduct of any person touching any public
question.-lt is not defamation to express in good faith any opinion
whatever respecting the conductofany person touching any public
question, and respecting his character, so far as his character
appears in that conduct, and no further.

c Fourth Exception.-Publication of reports of proceedings of Courts
- It is not defamation to publish substantially true report of the
proceedings of a Com1 of Justice, or of the result of any such
proceedings.
Explanation.-A Justice of the Peace or other officer holding an
D inquiry in open Court preliminary to a trial in a Court of Justice, is
a Cou11 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
E case, civil or criminal, which has been decided by a Court of Jus-
tice, 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 defa-
F
mation to express in good faith any opinion respecting the merits
of any performance which its author has submitted to the judg-
ment 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
G
of the public expressly or by acts on the part of the author which
imply such submission to the judgment of the public.
Seventh Exception.-Censure passed in good faith by person
having lawful authority over another - It is not defamation in a
person having over another any authority, either conferred by law
H
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 893
LAW & ORS. [DIPAK MISRA, J.]

or arising out of a lawful contract made with mat other, to pass in A
good faith any censure on the conduct of that other in matters to
which such lawful authority relates.
Eighth Exception.-Accusation preferred in good faith to
authorised person - It is not defamation to prefer in good faith an
accusation against any person to any of those who have lawful B
authority over that person with respect to the subject-matter of
accusation.
Ninth Exception.-lmputatiqn made in good faith by person for
protection of his or other's interests- It is not defamation to make
an imputation on the character of another provided that the impu- C
tation be made in good faith for the protection of the interests of
the person making it, or of any other person, or for the public
good.
Tenth Exception.--Caution intended for good of person to whom
conveyed or for public good - It is not defamation to convey a D.
caution, in good faith, to one person against another, provided that
such caution be intended for the good of the person to whom it is
conveyed, or of some person in whom that person is interested, or
for the public good.
Section 500; Punishment for defamation.-Whoever defames , E
another shall be punished with simple imprisonment for a term
which may extend to two years, or with fine, or with both."
Section 199 CrPC proyjdes for prosecution for defamation. It .is
apposite to reproduce the said provision in entirety. It is as follows:-
"199. Prosecution for defamation.- F
( I) No Court shall take cognizance of an offence punishable un-
der Chapter XXI of the Indian Penal Code ( 45 of 1860)
except upon a complaint made by some person aggrieved by the
offence:
G
Provided that where such person is under the age of eighteen
years, or is an idiot or a lunatic, or is from sickness or infirmity
unable to make a complaint, oris a woman who, according to
·the local customs and manners, ought not to be compel led to
appear in pub\1c, some other person may, with the leave of the
. Court, make a complaint on his or her behalL H
894 SUPREME COURT REPORTS [2016] 3 S.C.R.

A (2) Notwithstanding anything contained in this Code, when any
offence falling under Chapter XXI of the Indian Penal Code
(45 of 1860) is alleged to have been committed against a person
who, at the time of such commission, is the President oflndia, the
Vice-President oflndia, the Government of a State, the Adminis-
trator ofa Union territory or a Minister of the Union or ofa State
B
or of a Union territory, or any other public servant employed in
connection with the affairs of the Union or of a State in respect of
his conduct in the discharge of his public functions a Court of
Session may take cognizance of such offence, without the case
being committed to it, upon a complaint in writing made by the
c Public Prosecutor.
(3) Every complaint referred to in sub-section (2) shall set forth
the facts which constitute the offence alleged, the nature of such
offence and such other particulars as are reasonably sufficient to
give notice to the accused of the offence alleged to have
D been committed by him.
(4) No complaint under sub-section (2) shall be made by the Pub-
lic Prosecutor except with the previous sanction-
(a) of the State Government, in the case of a person who is or
has been the Governor of that State or a Minister of that Gov-
E ernment;
(b) of the State Government, in the case of any other public
servant employed in connection with the affairs of the State;
(c) of the Central Government, in any other case.
F (5) No Court of Session shall take cognizance of an offence un-
der sub-section (2) unless the complaint is made within six months
from the date on which the offence is alleged to have been com-
mitted.
(6)Nothing in this section shall affect the right of the person against
G whom the offence is alleged to have been committed, to make a
complaint in respect of that offence before a Magistrate having
jurisdiction or the power of such Magistrate to take cognizance
of the offence upon such complaint."
It may be stated that the aforesaid provision came into existence
H in the present incarnation after introduction of Section 199(2) to (5) by
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 895
LAW &. ORS. [DIPAK MISRA, J.]
~-

the Code of Criminal Procedure (Amendment) Act, 1955 on I 0th August, A
1955.
7. The constitutionality of the aforesaid provisions have been
challenged on many a score and from many an angle by different counsel
appearing for the writ petitioners who belong to different walks of life.
First, we shall record the submissions in their essential facets of the 8
learned counsel for the petitioners, the contentions advanced by the
learned Attorney General and the Additional Solicitor General in defence
of the provisions and thereafter the arguments put forth by the learned
Amicus Curiae. We may immediately state that the effort would be to
record the submissions in fullest, may be sans elaborations and
individualistically crafted and sculptured nuances during the oral hearings. c
8. Submissions of Mr. P. P. Rao and Ms. Mahalakshmi
Pavani
i. The right t.o uninhibited freedom of speech conferred by A11icle
19( I )(a) is basic and vital for the sustenance of parliamentary democracy, D
which is a part of the basic structure of the Constitution. The "reasonable
restrictions" are those which are meant to prevent the expression of a
thought which is intrinsically dangerous to pub! ic ihterest and would not
include anything else. The enabling power in Article 19(2) to impose
reasonable restrictions on the right conforred by Article 19( J )(a) is
intended to safeguard the interests of the State and the general public E
and not of any individual, and, therefore, Article 19(2) cannot be regarded
as the source ofauthority for Section 499 off PC which makes defamation
of any person an offence. That apai1, Article 19(2), being an exception
to Article 19(1 )(a), needs to be construed narrowly and it cannot constrict
the liberal interpretation warranted to be placed on Article 19 ( 1)(a) of F
the Constitution. The schematic intendment in clause (2) of A1iicle 19 is
founded on the fundamental tenet of interests of the State and the pub Iic
in general· and hence, regard being had to the nature of fundamental
rights and scope of reasonable "restrictions to be imposed thereon, the .
exception has to be understood applying the principle ofnoscitur a sociis
and excluding criminal defamation. G
ii. It is to be borne in mind that defamation of an individual by
another individual is a civil wrong or tort, pure and simple for which the
common law remedy is an action for damages. ·It has to be kept in mind
that fundamental rights are conferred in the public interest and defamation
of any person by another person is unconnected with the fundamental H
896 SUPREME COURT REPORTS [2016] 3 S.C.R.

A right conferred in the public interest by Article 19( 1)(a) and, therefore,
Section 499 is outside the scope of Article 19(2) of the Constitution.
Right to one's reputation which has been held to be a facet of Article 21
is basically vis-a-vis the State, and hence, Article 19(2) cannot be invoked
to serve the private interest of an individual. That apart, crime means an
offence against the society of which the State is the custodian.
B
Considering the scope of Article 19(1 )(a) and Article 19(2), defamation
of any person by private person cannot be treated as a "crime", for it
does not subserve any public interest.
iii. Section 499 of !PC exfacie infringes free speech and it is a
serious inhibition on the fundamental right conferred by Article 19(1 )(a)
c and hence, cannot be regarded as a reasonable restriction in a democratic
republic. A restriction that goes beyond the requirement of public interest
cannot be considered as a reasonable restriction and would be arbitrary.
Additionally, when the provision even goes to the extent of speaking of
truth as an offence punishable with imprisonment, it deserves to be
D declared unconstitutional, for it defeats the cherished value as enshrined
under Article 51-A(b) which is associated with the national struggle of
freedom. The added requirement of the accused having to prove that
the statement made by him was for the public good is unwarranted and
travels beyond the limits of reasonableness because the words "public
good" are quite vague as they do not provide any objective standard or
E norm or guidance as a consequence the provisions do not meet the test
ofreasonable restriction and eventually they hav~ the chilling effect on
the freedom of speech.
iv. "Reasonableness" is not a static concept, and it may vary
from time to time. What is considered reasonable at one point of time
F may become arbitrary and unreasonable at a subsequent point of time.
The colonial law has become unreasonable and arbitrary in independent
India which is a sovereign, democratic republic and it is a well known
concept that provisions once held to be reasonable, become unreasonable
with the passage of time.
G v. The Explanations and Exceptions appended to the main
provision contained in Section 499 !PC, in case the constitutionality of
the said Section is upheld, are to be interpreted with contextual purpose
regard being had to the broad canvas they occupy and the sea change
· that has taken place in the society.
H v1. The words like "company", "association" or "collection of
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 897
LAW & ORS. [DIPAK MISRA, J.]

persons as such" as used in Explanation 2 should exclude each other A
because different words used in the Section must be given different
meanings and it is appropriate that they are not given meanings by which
an indefinite multitude can launch criminal cases in the name of class
action or common right to reputation.
vii. Section 199(2) CrPC provides a different procedure for certain B
category of person and Court of Session to be the Court of first instance,
and thereby it creates two kinds of procedures, one having the advantage
over the other. This classification is impermissible as it affects the equality
clause. That apart, it also uses the State machinery by launching of the
prosecution through the Public Prosecutor, which enables the State to
take a different route to curb the right of freedom of speech and
c
expression.
9. Contentions advanced by Dr. Rajeev Dhawan
i. Free Speech which is guaranteed by Article 19( 1)(a) and made
subject to certain limitations in Article 19(2) is essential to a democracy, D
for democracy is fundamentally based on free debate and open discussion,
and a citizen bas the right to exercise his right to free speech in a
de1nocracy by discerning the information and eventually making a choice
and, if it is curtailed by taking recourse to colonial laws of defamation,
the cherished value under the Constitution would be in peril and, therefore,
the provisions pertaining to criminal action which create a dent in free E
speech are unconstitutional.
ii. Free speech encapsulates the right to circulate one's
independent view and not to join in a chorus or sing the same song. It
includes the right of propagation of ideas, and the freedom of speech
and expression cannot brook restriction and definitely not criminal F
prosecution which is an anathema to free speech. Free speech has
priority over other rights and whenever and wherever conflict emerges
between the freedom of speech and other interest, the right of freedom
of expression can neither be suppressed nor curtailed unless such freedom
endangers community interest and that apart the said danger should have G
immediate and proximate nexus withJ:xpression.
iii. Reasonable restriction is founded on the princiP-le of
reasonableness which is an essential facet of constitutional law and one
of the structural principles oftheconstitution is that jfthe restriction
invades and infringes the fundamental right in an excessive manner, such
H
898 SUPREME COURT REPORTS [2016) 3 S.C.R.

A a restriction cannot be treated to have passed the test of reasonableness.
The language employed in Sections 499 and 500 IPC is clearly
demonstrative of infringement in excess and hence, the provisions cannot
be granted the protection of Article 19(2) of the Constitution. Freedom
of expression is quintessential to the sustenance of democracy which
requires debate, transparency and criticism and dissemination of
B
information and the prosecution in criminal law pertaining to defamation
strikes at the very root of democracy, for it disallows the people to have
their intelligent judgment. The intent of the criminal law relating to
defamation cannot be the lone test to adjudge the constitutionality of the
provisions and it is absolutely imperative to apply the "effect doctrine"
c for the purpose of understanding its impact on the right of freedom of
speech and expression, and if it, in the ultimate eventuality, affects the
sacrosanct right of freedom, it is ultra vires. The basic concept of
"effect doctrine" would not come in the category of exercise of power,
tb.at is, use or abuse of power but ·in the compartment of direct effect
and inevitable result of la»' that abridges the fundamental right.
D
' iv. Reasonable restriction cannot assume any disproportionate
characteristic in the name of reasonableness, for the concept of
reasonableness, as a constitutional vehicle, conceives of the doctrine of
proportionality. The Constitution requires the legislature to maintain a
balance between the eventual adverse effects and the purpose it intends
E to a\:hieve and as the provisions under assail do not meet the test of
proportionality or least restrictive measure, they do not withstand the
litmus test as postulated under Article 19(2) of the Constitution.
v. The provisions under assail being pre-constitutional, statutory
provisions are to be examined with deeper scrutiny and, therefore, when
F the freedom of speech is treated as a monumental socially progressive
value in a democratic set up at the international level, the restrictive
provisions deserve to be declared as unconstitutional as they create an
,lJ,11llcceptable remora in the growth of an individual. That apart, societal
perception having undergone a great change, the constitutional right has.
to be given a pietistic position and analysed in these parameters, the
G colonial law meant to invite people to litigate should be allowed a timely
extinction. ·
vL Section 199(2) to (4) Cr PC protects ciyil servants and creates :
a separate class and said classification has no rationale and th is distinction
has no basis to withstand the constitutional scrutiny. Differential treatment
H granted to them is an unacceptable discrimination and for the said reason,
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 899
LAW & ORS. [DIPAK MISRA, J.]

provisions contained in Section 199(2) to (4) CrPC are liable to be struck A
down.
·vii. Section 499 !PC read in conjunction with Explanation IV
provides a storehouse of criteria for judging reputation and it allows a
greater width and discretion without any guidance and hence, the provision
is arbitrary and unreasonable. There is no justification to enable a B
company or association or collection of persons to have the benefit of
defamation in the criminal law. Similarly, there is no justification for any
criminal defamation to save reputation of dead persons and for allowing
his legal heirs to prosecute on the ground that it is intended to be hurtful
to the feeli~gs of his family and other near relatives.
viii. The provision relating to defamation under Section 499 IPC
c
does not recognize truth as an absolute defence but qualifies that if
anything is imputed which is even true concerning any person, it has to
be for the "public good". If a truthful statement is made and truth being
the first basic character ofjustice, to restrict the principle of truth only to
public good is nothing but an irrational restriction on the free speech. D
The concept of"good faith" has been made intrinsic to certain Exceptions
and that really scuttles the freedom of speech and freedom of thought
and expression and thereby it invites the discomfort to Article 19( I )(a).
The words "good faith" and "public good" have to meet ti1e test of
reasonableness and proportionality which would i11clude honest opinion
with due care and attention and the concept of reasonable restriction E
has to be narrowed to the sphere of ma/a fide and reckless disregard.
When the concept of defamation is put in the compartment of criminal
offence by attributing a collective colour to it, it stifles the dissenting
voices and does not tolerate any criticism that affects the foundation of
popular and vibrant democracy which is a basic feature of the F
Constitution. Quite apart from that, the concepts of information, ideas,
criticisms and disclosures are not only the need of the hour but also have
imperatives; and in such a climate, to retain defamation as a criminal
offence will tantamount to allow a hollowness to remain which will
eventually have a chilling effect on the freedom of speech and expression
that shall lead to a frozen democracy. G

I 0. Arguments of Mr. Datar, learned Senior Counsel
i. Freedom of thought and expression includes a dissent because
disagreement or expression of a contrary opinion has significant
constitutional value which is engrafted under Article I 9(1 )(a) and also is H
900 SUPREME COURT REPORTS [20 I 6] 3 S.C.R.

A an acceptable pillar for a free and harmonious society.
ii. Control of free speech by the majority is not an acceptable
principle and, therefore, the provision pertaining to defamation is
fundamentally a notion of the majority to arrest and cripple freedom of
thought and expression which makes the provision unconstitutional.
B Criminal prosecution as envisaged under Section 499 Cr.P.C. cannot be
based on the principle of the State to take appropriate steps when an
offence of this nature is committed, for an offence of this nature is really
not an offence against the State, because it does not encompass the
ultimate facet of criminal prosecution which is meant for "protection of

c
a
the society a.s whole".
iii. Reputation at its best can be equated with an element of personal
security or a significant part of one's life and unification of virtues which
makes the person proud to protect such private interest but that cannot
be regarded as a justification to whittle down freedom of speech and
expression which subserves the public interest. The language in which
D Section 499 IPC is couched does not incorporate the seriousness test
which has the potentiality of provoking breach of peace by instigating
people as a consequence of the public interest is endangered but, on the
contrary, it subserves only the private interest and as it caters to individual
revenge or acrimony which in the ultimate eventuate, makes imposed
E silence to rule over eloquent free speech.
iv. Though reputation has been treated to be a facet of Article 21
of the Constitution, yet the scheme of the said Article is quite different
and a distinction is required to be drawn for protection of reputation
under A1ticle 21 and enabling the private complainant to move the criminal
F comt for his sense of self-worth. The individual reputation can very well
be agitated in a civil comt. But fear ofa complainant who on the slightest
pretext, can file criminal prosecution, that too, on the base of subjective
notion, the fundamental value of freedom of speech and expression gets
paralysed and the resultant effect is that Sections 499 and 500 !PC
cause unnecessary discomfort to Article 19(1 )(a) and also to Article 14
G of the Constitution.
v. The purpose of criminal prosecution is not concerned with
repairing individual injury, especially, reputation or vindicating or protecting
the reputation of an individual. The purpose of such law has to be the
ultimate protection of the society. Quintessentially, the provision cannot
H cater to individual whims and notions about one's reputation, for it is
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 901
LAW & ORS. [DIPAK MISRA, J.]

done at the cost of freedom of speech in the society which is A
impermissible. The restriction as engrafted under Article 19(2) has to be
justified on the bedrock of necessity of the collective interest. The nature
of Exceptions carved out and the manner in which they are engrafted
really act as obstruction and are an impediment to the freedom of speech
and expression and such hindrances are inconceivable when appreciated
B
and tested on the parameters of international democratic values that
have become paramount as a globally accepted democratic culture.
11. Arguments on behalf of Mr. Aruneshwar Gupta
i. Defamation is injury or damage to reputation which is a
metaphysical property. Criminal prosecution was entertained in c
defamation cases because of the erroneous doctrine of'malice in law or
intended imputation or presumption by law of the existence of malice',
when the said doctrine has been kept out of criminal jurisprudence, the
enactments based on the said doctrine cannot be allowed to survive.
Once there is no presumption of malice by law, the thought, idea and
concept of 'per se malicious or per se defamatory', and the basis and D
foundation of defamation becomes non-existent and is eroded and the
criminal content in defamation in Article 19(2) has to be severed from
the civil content in it.
ii. The reputation of every person does not have any specific
identifiable existence for it is perceived differently, at different times, by E
different persons associated, related, concerned for affected by it, who,
in turn, are acting with their multi-dimensional personality for multiple
reasons and prejudices and as such, they are bereft of any social impact
or criminal element in it.
iii. On a reading of Sections 499 & 500 !PC and Section 199 F
CrPC, it is. manifest that there is presumption of facts as a matter oflaw
and that alone makes the provision arbitrary and once the foundation is
unreasonable and arbitrary, the provisions deserve to be declared ultra
vires A1ticles 14, 19 and 21 of the Constitution.
12. Submissions of Mr. Anup J. Bhambhani G
i. The restrictions imposed under Article 19(2) on the fundamental
rightto free speech and expression as contained in Article l 9(l)(a) should
be reasonable in substance as well as in procedure. The procedural
provisions applicable to complaints alleging criminal defamation under
Sections 499 and 500 !PC do not pass the test of reasonableness as H
902 SUPREME COURT REPORTS [2016] 3 S.C.R.

·A envisaged under Article 19(2) of the Constitution. That apart, in the
absence of any definition of the crime of defamation in a precise manner,
it is hit by the principle of"void for vagueness", for the Constitution of
India does not permit to include all categories of situations for constituting
offence without making it clear what is prohibited and what is permitted.
B ii. The procedural safeguards can only stand the test of
reasonableness if the Exceptions to Section 499 IPC are taken into ·
consideration at the time of summoning of the accused and if it is ensured
that all material facts are brought on record at that stage. But on a plain
reading of the provision that is not permissible and hence, the provision
is ultra vires as the procedure enshrined affects the basic marrow of the
c fundamental right pertaining to freedom of speech and expression.
iii. Section 199( I) CrPC which is intended to be a restriction on
who may file a criminal complaint under Section 499/500 IPC has to be
narrowly construed so as to confer a meaning to the words "person
aggrieved" that would not in its width, include a person other than the
D victim, for that indirectly would affect the procedural safeguard which
eventually affects the substantive right.
iv. The essential ingredients of the offence under Section 499
!PC which include making or publishing any imputation concerning any
person and that the said imputation must have been made with an intention
E to harm or having reason to believe that the imputation will harm the
reputation of a person should not be allowed to have a free play to
permit multiple points of territorial jurisdiction for the prosecution ofa
single offensive matter as that would place an unreasonable fetter on
the exercise of right of free speech and expression of a person by
oppressive litigation. ·
F
13. Arguments of Mr. Sanjay R. Hcgcle
i. The architecture of the Section as envisioned by its draftsmen
criminalises speech that harms reputation and then provides Exceptions
to such speech in certain specific circumstances. The concept of
defamation as a crime remained unchallenged even during the drafting
G
of the constitutional guarantees of free speech. In fact, the Parliament
further re-affirmed its intent, when the First Constitutional Amendment
Act was passed, priinarily to overcome judgments of this Court that
provided expansive definitions of the fundamental rights of free speech
and property. With the passage of time, the manner of transmission of
H speech has changed with the coming of modern means of communication
SUBRAMANIAN SWAMY v. UNION OF !NOIA, MINISTRY OF 903
LAW & ORS. [DIPAK MiSRA, J.]

and the same is not under the speaker's control. The provisions when A
judged on the touchstone of Articles 14 and 19(2) do not meet the test
inasmuch as they are absolutely vague and unreasonable. Section 499
!PC, as it stands, one may consider an opinion, and, another may call it
defamation and, therefore, the word "defamation" is extremely wide.
which makes it unreasonable.
B
ii. Section 199(2) by which a "Court of Session may take
cognizance of such offence, without the case being committed to it upon
a complaint in writing made by the Public Prosecutor'', when any offence
falling under Chapter XX! ofthe !PC is alleged to have been committed
against ''any other public servant employed in co1111ection with the affairs
of the Union or of a State in respect of his conduct in the discharge of . C
his public functions", if appositely appreciated deprives the accused of
an appeal to the Court of Session and brings in the State machinery to
prosecute a grievance which would be otherwise personal to the
concerned public servant.
iii. In terms of the press, criminal defamation has a chilling effect D
which leads to suppress a permissible canipaign. The threat of
prosecution alone is enough to stippress the truth being published, and
also the investigatingjournalism which is necessary in a ~emocracy.
iv. lfthe Court is not inclinedto strike down Section 499 IPC, at
least in relation to criminal complaints'arisingout of media report where
E
the members of the media are prosecuted, a procedure akin to the decision
in Jacob Mathew v. State of Punjab and anotlier' should be adopted.
To elaborate, a similar mechanism may be devised for media professional,
either through statutory bodies like the Press Council of India or non-
statutory bodies like the News Broadcasting Standards Authority which
may be given the power to recommend prosecutions in cases of grossly F
negligent or malicious reporting made with ulterior motives.
PROPONEMENTS IN OPPUGNATION
1.4. Submissions of Mr. Mukul Rohatgi, learned Attorney
General for India
G
i. Article 19(2) must be read as a part of the freedom of speech
and expression as envisaged under Article 19(1 )(a), for the freedom of
speech as a right cannot be ui1derstood in isolation. The freedom of
speech is a robust right but nonetheless, not unrestrieted or heedless.
Even though the Courts have often drawn the difference between free
'2005 (6) sec 1 H
-.
904 SUPREME COURT REPORTS [20 I 6] 3 S.C.R.

A speech under the U.S. Constitution and that under the Indian Constitution,
yet even in the United States, where free speech is regarded as the
most robust, it is not absolute. The restrictions have not been left to the
courts to carve out but have been exhaustively set out in Article 19(2).
It is for the legislature to determine the restrictions to impose and the
courts have been entrusted with the task of determining the
B
reasonableness and in the present case, the right to free speech under
Article I 9( 1)(a) is itself conditioned/qualified by the restrictions contained
in Article 19(2) which includes "defamation" as one of the grounds of
restriction and the term "defamation" has to include criininal defamation,
and there is nothing to suggest its exclusion. Article 19(2) has to be
c perceived as an integral part of the right to free speech as Article 19( 1)(a)
is not a standalone right and, therefore, it cannot be said that there is an
unbridled right to free, much less defamatory speech.

ii. The submission that defamation being only protective of
individual cases between two individuals or a group ofindividuals and no
D State action is involved, cannot be elevated to the status of a fundamental
right, is without much substance inasmuch as Article 19(2) represents
varied social community interest. That apart, contextual meaning of the
term "defamation"; and if the grounds of exception under Article 19(2)
are analysed, each of them represent a public interest and so does
defamation, for its principal object is to preserve reputation as a shared
E
value of the collective.

iii. The stand that criminal defamation under Section 499 IPC
smothers the freedom of speech and expression or is a threat to every
dissent and puts private wrong at the level of public wrong, is totally
F incorrect. The legal theorists and thinkers have made a subtle distinction
between private and public wrong and it has been clearly stated that
public wrong affects not only the \ ictim but injures the public and
ultimately concerns the polity as ;1 whole and tested on that count,
criminalization of defamation or damag.: to reputation is meant to subserve
basic harmony in polity.
G
iv. Right to reputation is an in segregable part of Article 21 of the
Constitution. A person's reputation i,; an inseparable element of an
individual's personality and it cannot he allowed to be tarnished in the
name ofright to freedom uf spec:c'.h a11d expression because right to free
speech does not mean rif!lit l\l Pl knd. Hc:putation of a person is neither
H
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 905
LAW & ORS. [DIPAK MISRA, J.]

metaphysical nor a property in terms of mundane assets but an integral A
part of his sublime frame and a dent in it is a rupture of a person's
dignity, negates and infringes fundamental values of citizenry right. Thus
viewed, the right enshrined under Article 19( I )(a) cannot allowed to
brush away the right engrafted under Article 21, but there has to be
balancing of rights.
B
v. In many a c;ountry, criminal defamation does not infringe the
freedom of speech. The submission that protection of reputation can be
sufficiently achieved by taking recourse to civil law cannot be a ground
to declare Section 499/500 !PC as unconstitutional. It is to be borne in
mind that the criminal law and the civil law operate in different spheres
and aspects and in societal connotations have different perceptions. c
Monetary damage in civil law cannot be said to be the only panacea;
and permitting an individual to initiate criminal action.as provided under
the law against the person making a defamatory remark does not affect
the constitutional. right to freedom of speech and in no case ushers in
anarchy. That apart, mitigation of a grievance by an individual can be D
provided under a valid law and the remedy under the civil law and criminal
law being differe11t, both are constitutionally permissible and hence, the
· provisions pertaining to defamation under the IPC. do not cause any kind
of discomfortto any of the provisions of the Constitution. In addition to
this, it can be said that civil remedy for defamation is not always adequate.
The value of freedom of speech cannot be allowed to have the coma~osing E
effect on individual dignity, which is also an integral part under Article 21
of the Constitution.
vi. It is a misconception that injury to reputation can adequately
be compensated in monetary terms. Reputation which encapsules self.
respect, honour and dignity can never be compensated in terms of money. F
Even if reputation is thougnt of as a form of property, it cannot be
construed solely as property. Property is not.a part of individual
personality and dignity, whereas reputation is, and, therefore, the stand
that the damage caused to a person's reputation should be compensated
by money and that the same is realizable by way of obtaini1ig a decree
from the civil court is not justified and regard being had to that, criminal ·G
defamation is constitutiorally permissible.
vii. The State is under an obligation to protect human dignity of
every individual.Simultaneously, freedom of speech has its constitutional
sanctity; and in such a situation, balancing of rights is imperative and,
H
906 SUPREME COURT REPORTS [2016] 3 S.C.R.

A therefore, the Court should not declare the law relating to criminal
defamation as unconstitutional on the ground of freedom of speech and
expression as it is neither an absolute right nor can·it confer allowance
to the people to cause harm to the reputation of others. The apprehension
of abuse of law, or for that matter. abuse of a provision of law would not
invalidate the legislation. Possibility ofabuse, as is well settled, does not
B
offend Article 14 of the Constitution. A distinction has to be drawn
between the provision in a statute and vulnerability of the action taken
under such a provision.
viii. The provisions have stood the test of time after the Constitution
has come into existence and the concept ingrained in the term "reputation"
c has not been diluted but. 011 the contrary, has become an essential
constituent of Article 2 I. That apart, the ten Exceptions provide
reasonable safeguards to the provision and, therefore, it can never be
said that the provision suffers from lack of guidance thereby inviting the
frown of Article 14 oft he Constitution.
D ix. The words "some person aggrieved" used in Section 199( I)
CrPC deserve a strict construction so as to prevent misuse oftl1e law of
criminal defamation. lt slmuld be the duty of the cou11 taking cognizance
to ensure that .the complainant is the person aggrieved. The court may
refer to earlier authoriti..:s and clarify the concept of "some person
E aggrieved" and explain the words in the present context. Similarly, the
grievance that the provisiuns gi\c room for filing of multiple complaints
at various places is not ccirn:ct as the concept ofterritorialjurisdiction is
controlled by CrPC.
15. Sulnnissions In Mr. P.S. ~arsimha, !carried Additional
Solicitor c;eneral
F
i. The submissiun that the word "defamation" occurring in Article
19(2) is confined only to civil defamation and not criminal defamation
cannot be countenanced Oil the basis of our constitutional history. The
Constitutional debates amply clarify the position that when the Constituent
Assembly debated about the inclusion of defamation as a ground for
G imposing restrictions on !he freedom of speech and expression. the
statutory provision for dt:fomation, i.e .. Section 499 ofIPC was already
an existing law. The wisdom of the founding fathers is quite demonstrable
inasmuch as at the !im..: oi'dralting of the Constitution, the only statutory
law on defamation was Sc·dion 499 of !PC providing for criminal
H defamation and, thcn.:l(>l"l'. it sl:mds to reason that the framers always
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 907
LAW & ORS. [DIPAK MISRA, J.]

contemplated criminal defamation to fall within the ambit of the word A
"defamation" occurring in A11icle 19(2).
ii. The argument that the word ''defamatiun" occurring in Article
19(2) must be read in the light of the other grounds mentioned therein by
applying the rule of noscitur a sociis is not correct, for the said rule has
a very limited application. The word "defamation" is clearly not B
susceptible to analogous meaning with the other grounds mentioned
therein. The word "defamation", in fact, has a distinct meaning as
compared to the other grounds and it does not stand to reason that the
word "defamation" will take colour from terms like "security of the
State", "friendly relations with a foreign state", ''public order", "decency
and morality" and the like thereby restricting and narrowing the ambit of c
the word "defamation" in Article I 9(2). Defamation ofan individual or
collection of persons serves public interest 11 hich is the basic parameter
ofrestrictions under Article 19(2) and, therefore. it can never be perceived
as individual interest in a narrow compartment.
iii. The contention that the fundamental rights are matters between D
the State and the citizens and not between private individuals per se is
untenable because it has been already recogniLed that it is the duty of
the State is to protect the fundamental rights of citizens inter se other
citizens and many a legislation do so project. In fact, the State is indeed
obligated to enact laws to regulate fundamental rights of individuals vis-
a-vis other individuals. E
iv. The stand of direct effect test or, t<' put it differently, "direct
and inevitable impact test" is concerned with incidentally creating a dent '
in the freedom of speech and expression but has no nexus with the
content of the free speech per se. A distinctit1n has to be drawn between
the external constraints on free speech and the direct assault on the free F
speech. The "subject matter test" can have direct and inevitable impact
on the right, but the "regulation test by law" has a different connotation.
v. The object of guaranteeing constitut iuna I protection to freedom
of speech and expression is to advance pub Ii..: dehate and discourse.
However, speech laden with harmful inlt:nt ur J..nowlcdgc of causing
G
harm or made with reckless disregard i;, nut entitled to the protection of
Article 19( I )(a) since it does not serve Hll) <>t. the purposes mentioned
above. Such speech has no social value cxcl'.pt in cases where it i~ a
truthful statement meant for the public good or where it is made in good
faith, in which case it is protected by the l·:xcc:ptions in Section 499 IPC
and is not criminalized. H
908 SUPREME COURT REPORTS [2016] 3 S.C.R.

A vi. The Preamble to the Constitution plays an important role in
interpreting the freedoms mentioned in Article 19. The ideals mentioned
in the Preamble cannot be divorced from the purpose and objective of
conferring the rights. The freedom of speech and expression under
Article 19( I )(a) must take colour from the goals set out in the Preamble
and must be read in the light of the principles mentioned therein. The
B
Preamble seeks to promote "Fraternity assuring the dignity of the
individual and the unity and integrity of the Nation". In its widest meaning
and amplitude, fraternity is understood as a common feeling of
brotherhood. While justice, liberty and equality have been made justiciable
rights under the Constitution, the idea of fraternity has been used to
c interpret rights, especially horizontal application ofrights. The Preamble
consciously chooses to assure the dignity of the individual, in the context
of fraternity, before it establishes the link between fraternity and unity
and integrity oflndia. The rights enshrined in Part Ill have to be exercised
by individuals against the backdrop of the ideal of fraternity, and viewed
in this light, Article 19(2) incorporates the vision of fraternity. Hence,
D
the restriction imposed by the statutory provision satisfies the content of
constitutional fraternity. The fraternal ideal finds resonance also in Part
IVA of the Constitution. Article 51-A of the Constitution, which deals
with the fundamental duties of a citizen, makes it a duty "to promote
harmony and the spirit of common brotherhood amongst all the people
E of India transcending religious, linguistic and regional or sectional
diversities; to renounce practices derogatory to the dignity of women".
In fact, this Comt has held that Part IVA could be used as an interpretative
tool while assessing the constitutional validity oflaws, especially in the
context of restrictions imposed on rights. Judged on the anvil of the
aforesaid constitutional norms, the provisions pertaining to criminal
F defamation withstand scrutiny. The principal objective of the law of
defamation, civil or criminal, is to protect the reputation and dignity of
the individual against scurrilous and vicious attacks. Section 44 oflPC
defines injury as "any harm whatever illegally ·caused to any person, in
body, mind, reputation or property." The said section demonstrates that
G the harm caused to the mind and reputation of a person, protected by the
right to dignity, is also treated as injury in the eyes oflaw, along with the
harm caused to body and property. From the Preamble to the provisions
in Part HI, it is clear that the aim of the Constitution has been to protect
and enhance human dignity. Reputation in general, and dignity in
particular, are enablers ofrights which make the exercise of other rights·
H
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 909
LAW & ORS. [DIPAK MISRA, J.]

guaranteed in the Constitution more meaningful. Dignity of a person is A
an affirmation ofhis/herconstitutional identity and the individual reputation
is constitutionally protected as a normative value of dignity. Laws relating·
to initiation of civil as well as criminal action are, therefore, permissible
and withstand assail on their constitutionality.
vii. The international human right treaties explicitly provide for B
the right to reputation as well as right to free speech and expression.
The Universal Declaration on Human Rights, 1948 in Article 12 clearly
stipulates that no one shall be subjected to attack on his honour and
reputation. Scrutinising on this score, it cannot be said that reputation
should be allowed backseat whereas freedom of speech and expression
should become absolutely paramount. Though certain countries have c
kept the remedy under common law and have decriminalized defamation,
yet it does not mean that where the law criminalizing defamation is
maintained, the said law is unreasonable and, therefore, unconstitutional.
The right to protection of reputation and the right to freedom of speech
and expression are seemly balanced. D
viii. The criminal law of defamation is neither vague nor ambiguous.
That apart, the content restrictions in civil law and criminal law are not
identical. Section 499 IPC read with the Exceptions incorporates all the
three classical elements of a crime while penalizing certain forms of
speech and expression. The provision criminalizes only that speech which
is accompanied by malicious intention to harm or with knowledge that E
harm will be caused or with reckless disregard. The requirement of
guilty intention, knowledge or proof of recklessness (absence of good
faith) that form the bedrock of various provisions of IPC is also
incorporated in Section 499. Moreover, harm to reputation and mind is
treated as injury along with the injmy to body and property under Section F
44 ofIPC. Therefore, the same standards applicable to the injury caused
to body and property are applicable to the injury caused to the mind and
reputation under Section 499 which makes the axis of provision certain,
definite and unambiguous. That apart, each of the Exceptions marks the·
contours of the section amply clear and provides an adequate warning
of the conduct which may fall within the prescribed area. It excludes G
from its purviewspeech that advances public good and demarcates what
is accepted speech and what is proscribed speech. Hence, it cannot be
said that the said Section is vague and that it leads to uncertainty. First
Exception to Section 499 which does not make truth an absolute defense
has a very relevant purpose. In fact, this Exception is meant to ensure H
910 SUPREME COURT REPORTS [2016] 3 S.C.R.

A that the defense is available only in cases where the expression of truth
results in 'public good'. Thus, the right to privacy is respected, and will
give way only in case the truthful disclosure, albeit private, is meant for
public good.
ix. There is an intelligible d!!Jerentia between the complaint of
B the individual alleging defamation ofhimselfand that ofan official in the
context of his governmental functions. This intelligible d!!Jerentia has
a rational nexus to the object that the Parliament has sought to achieve,
i.e., there must be credibility in the functioning of the Government and
that it must protect its functioning through its officers discharging their
duty from malicious disrepute. There is no justification to assume that
c the Government grants sanction under Section 199(4) without due
application of mind. In fact, it is a safety valve to protect a citizen
against a government official filing complaints on behalf of the
Government. A public prosecutor is a responsible officer and this Court
has held in a number of cases that he acts independently and with
D responsibility. The fact that the prosecution is by the public prosecutor
goes to show that the proceedings will be conducted with objectivity and
without any personal bias.
16. Submissions by Ur. Abhishek Mann Singhvi:
i. !tis fallacious to argue that fundamental rights are fetters only
E on State action and that A1iicle 19(2) is intended to safeguard the interests
6t' the State and the general public and not of any individual. The
exception to this fetter is that the State can make laws under Article
19(2) which are reasonable restrictions on the right under Article 19(1 )(a).
Laws constitute State action, whatever their subject matter. Laws
restricting obscenity or offences against public order or sovereignty of
F the State, for example, are just as much State action as a law making
defamation of a pe.rson a criminal offence. Therefore, it cannot be said
that Article 19(2) is intended to safeguard only the interests of the State
and that of the general public and not of any individual. The argument
that the law of criminal defamation protects the interests only of an
G individual and not the public in general is incorrect inasmuch as defamation
cannot be understood except with reference to the general public. The
law of criminal defamation protects reputation which is the estimation of
a person in the eyes of the general public. That apart, the criminal law
of defamation is necessary in the interests of social stability.
ii. Articles 14 and 19 have now been read to be a pait of A1ticle
H
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 911
LAW & ORS. [DIPAK MISRA, J.]

21 and, therefore, any interpretation of freedom of speech under A
Article 19( 1)(a) which defeats the right to reputation under Article 21 is
untenable. The freedom of speech and expression under A1iicle 19( I )(a)
is not absolute but is subject to constrictions under Article 19 (2).
Restrictions under Article 19(2) have been imposed in the larger interests
of the community to strike a proper balance between the 1iberty guaranteed
B
and the social interests specified under Article 19(2). One's right must
be exercised so as not to come in direct conflict with the right of another
citizen. The argument of the petitioners that the criminal law of defamation
cannot be justified by the right to reputation under A1iicle 21 because
one fundamental right cannot be abrogated to advance another. is not
sustainable. It is because (i) the right to reputation is not just embodied c
in Article 21 but also built in as a restriction placed in Article 19(2) on the
freedom of speech in Arti.cle 19(1 )(a); and (ii) the right to reputation is
no less important a right than the right to freedom of speech.
iii. A11icle 19(2) enumerates certain grounds on which the right to
free speech and expression can be subjected to reasonable restrictions
D
and one such· ground is defamation. Althou'gh .. libel" and .. slander'' were
included in the original Constitution, yet the same were deleted by the
First Amendment, whereas defamation continues to be a part of the
Constitution. Therefore, it is fallacious to argue that defamation under
Article 19(2) covers only civil defamation when at the time of the
enactment of the Constitution, Section 499 !PC was the only provision E
that defined defamation and had acquired settled judicial meaning as it
had been on the statute book for more than 90 years.
iv. Septions 499 and 500 of!PC continue to serve a public purpose
by defining a public wrong so as to protect the larger interests of the
society by providing reasonable restrictions under Article 19(2) of the
Constitution. It is incorrect to suggest that the purpose, logic and rationale
of criminal defamation no longer subsists in the modern age, and the la\y
having served its goal, it must be struck down as violative of Article 14.
Arguably, in the modern age, the need for the law is evc11 stronger than
it was in the 19th century. The constitutional validity ofa statute would
have to be determined on the basis of its provisions and on the ambit of G
its operation as reasonably construed as has been held in S/ireya Singlwl
v. U11io11 ofIndilr. Moreover, given the presumption of constitutionality,
it has also been held by this Court that in judging the reasonableness of
restrictions, the Cou11 is fully entitled to take into consideration matters
'(20I5J s sec 1 H
912 SUPREME COURT REPORTS [2016) 3 S.C.R.

A ofcommon report, history of the times and matters of common knowledge
and the circumstances existing at the time of legislation. The concept
reasonable restriction conveys that there should not be excessive or
disproportionate restriction. Merely because law of criminal defamation
is misused or abused would not make the provisions unconstitutional if
they are otherwise reasonable.
B
v. Section 499 !PC defines the offence of defamation with
specificity and pmiicularity and enumerates ten broad Exceptions when
statements against a person wi 11 not be considered defamatory, and by
no stretch of imagination it can be termed as vague. That apart, for the
offence of defamation as defined under Section 499 1PC, there are three
c essential ingredients which make it specific and further Explanation 4 to
Section 499 IPC also limits the scope of the offence of defamation
contained in the Section. It makes only such imputation punishable which
lowers a person's reputation in the estimation of others, and if the
imputation does not lower the moral or intellectual character or a person's
D character in respect of his caste or calling or his credit, it would not be
defamatory. The concepts like "in good faith" or "for the public good"
are the mainstay of the Exceptions available to the accused, which, if
proved to the extent of preponderance of probability, enable him to avoid
conviction, and these facets make the provision reasonable and definitely
not vague. Truth ought not to be an absolute defence because it can be
E misutilised to project a negative image to harm the reputation of a person
without any benefit to the public at large.
vii. The argument that protection for "legitimate criticism" or
"fair comment" on a question of public interest is only available in the
civil law of defamation and is not covered by any of the Exceptions to
F Section 499 IPC is not tenable. Exceptions 2, 3, 5, 6 and 9 of Section
499 IPC provide protection akin to the defence of fa'ir coniment in the
civil law of defamation.
viii. Section 199(1) CrPC safeguards the freedom of speech by
placing the burden on the complainant to pursue the criminal complaint
G without involving the State prosecution machinery. This itself filters out
many frivolous complaints as the complainant should.be willing to bear
burden and pain of pursuing the criminal complaint for defamation only
when he has a clear case. Under the aforesaid provision, the cognizance
of an offence, which pertains to defamation, cannot be taken except
upon a complaint made by "some person aggrieved by the offence".
H
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 913
LAW & ORS. [DIPAK MISRA, J.]

This Section carves out an exception to the general rule of criminal A
jurisprudence that any person can set the law in motion. Under Section
199 CrPC, a complaint can be filed only by "by some person aggrieved".
The contention of the petitioners that "some person aggrieved" in Section
199( I) Cr PC is vague and opens floodgate for frivolous litigation is
misconceived and has no basis in law. The phrase "some person
8
aggrieved" is neither vague nor is it unreasonably wide.
17. Submissions of Mr. M.N. Krishnamani, Mr. Siddharth
Luthra and Mr. Satish Chandra Mishra, in person
i. The power to create an offence being an essential legislative
function, there is nothing inherently wrong with Section 499 !PC. The c
contention that the word "defamation" in Article 19(2) has to be read
down not to include criminal defamation in it so that it is confined to civil
defamation alone is not permissible, for the principle ofreading down a
provision is inapplicable to constitutional interpretation. The words in the
Constitution are to be understood in their literal dictionary meaning and
in any case not to be narrowly construed as suggested. The term D
"defamation" is neither indefinite nor ambiguous to invite an interpretative
process for understanding its meaning.
ii. Misuse of a provision or its possibility of abuse is no ground to
declare Section 499 IPC as unconstitutional. If a provision of law is
misused or abused, it is for the legislature to amend, modify or repeal it, E
if deemed necessary. Mere possibility of abuse ofa provision cannot be
a ground for declaring a provision procedurally or substantively
unreasonable.
iii. The law relating to defamation was enacted regard being had
to the diversity in the society and it also, as on today, acts as a reasonable
F
restriction and fulfils the purpose behind Section 44 IPC. The issue of
free speech and right to reputation and the arguments regarding the
constitutional validity of the provision must be considered in the context
of the social climate of a country. The social climate takes in its sweep
the concept of social stability.
iv. The term "harm" is not defined in the !PC and must be given G
its ordinary dictionary meaning, but what is important is that it must be
illegally caused. There is no distinction in the !PC between harm to
body, mind, reputation or property. When the legislature has treated
defamation as an offence regard being had to the social balance, there is
no justification to declare it ultra vires. H
914 SUPREME COURT REPORTS (2016] 3 S.C.R.

A v. The mere fact that the offence U1ider Section 499 !PC is non-
cognizable or that the complainant can only be "some person aggrieved"
does not create an arbitrary distinction of it being an offence of a private
character as opposed to an offence against society. There are numerous
offences which are not congnizable but that does not i11ean that the said
category of offences are private acts, for harm being caused to a person
B
is the subject of focus of offences under the Penal Code.
vi. Section 199 CrPC adds a restriction limiting filing ofa complaint
by "some person aggrieved" and ''a person aggrieved" is to be determined
by the Courts in each case according to the fact situation. The words
"some person aggrieved" and Exception Il has been the subject of much
c deliberation by the Courts and it is not a vague concept. Section 199
CrPC mandates that the Magistrate can take cognizance of the offence
only upon receiving a complaint by a person who is aggrieved. This
limitation on the power to take cognizance of defamation serves the
purpose of discouraging filing of frivolous complaints which would
D otherwise clog the Magistrate ·s Courts. The "collection of persons" is
not a vague concept. Th.; said body has to be an identifiable group in the
sense that one could, 1Yith certainty, say that a group of particular people
has been defamed as cl istinguished from the rest of the community.
Establishment of identity oft he collection of people is absolutely necessa1y
in relation to the dcfomatory imputations and hence, it is reasonable.
E
vii. Article 19( I )(a) guarantees freedom of speech and expression,
and fr<:edom of press is included therein. This freedom is not absolute
but it is subjected to reasonable restrictions as provided in A11icle l 9(2)
of the Constitution. The freedom of speech and expression as guaranteed
by the Constitution docs not confer an absolute right to speak or publish
F whatever one chooses and it is not an unrestricted or unbridled licence
that mny give immunity and pn:vcnt punishment for abuse of the freedom.
The right has its own natural limitation.
viii . .Journalists are in no better position than any other person.
They have nu grc:iter freedom than others to make any imputations or
G allegations sufficient to ruin the reputation ofa citizen. Even truth of an
allegation docs not pcr111 it aj ustification under the First Explanation unless
it is proved to be in the pub Iic good. A news item has the potentiality of
bringing dooms day for an individual. Editors have to take the responsibility
of everything they publish and to maintain the integrity of published
records. It can cause far reaching consequences in an individual and
H
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 915
LAW & ORS. [D!PAK MISRA, J.]

country's life. Section 7 of the Press and Registration Books Act, 1867 A
makes the declarations to be prima fucie evidence for fastening the
liability in any civil or criminal proceedings on the Editor. The press has
great power in impressing minds of people and it is essential that persons
responsible for publishing.anything in newspapers should take good care
before publishing anything which tends to harm the reputation of a person.
B
Reckless defamatory comments are unacceptable.
18. Submissions of learned Amicus Curiae
Mr. K. Parasaran, Sr. Advocate
i. There has to be a harmonious interpretation of Article 19( 1)(a)
read with Articles 19(2) and 21. This has to be done by adve1ting to c
Articles 13(3 ), 366(10), 3 72 (Explanations I and II), and also Article 14,
the Preamble, Part Ill and Part IV of the Constitution.· There is a need
to interpret Article 19(2) by considering as to whether it includes: a)
Defamation as an offence with punishment of imprisonment and/or fine
on being proved guilty, or; b) Defamation as a civil wrong with liability
D
for damages for the injury caused to reputation, or; c) both of the above.
The word "defamation" in A1ticle 19(2) includes defamation as an offence
as well as a civil wrong. The above two cannot be considered in isolation
while interpretingA1ticle 19(2).
ii. The question for determination is whether the word
E
"defamation" used in A1ticle 19(2) has reference to the Indian Penal
Code (statutory law) as an indictment. or tort of the work "defamation"
after "contempt of cou1t" (which includes criminal contempt) and before
the phrase "incitement to an offence", both being penal in nature. Applying
the principle of 'noscitur a sociis', the word '·defamation·· is not to be
interpreted only as civil defamation. Applying the principle of 'nomen F
;uris' the word "defamation" must necessarily refer only to IPC, since
there is no other statute in existence that defines "defamation".

iii. The Preamble to the Constitution opens with the word' Justice'.
It is the ccincept of Dharma. The fou11dation of administration of Justice
after the advent of the Constitution is the motto ')Jato dharmastato G
;uyaha'. Judge-made law. insofar as the right to life is concerned, is to
protect the inherent right to reputation as part of the right to life. No one .
can be deprived of that right except according to the procedure established
by law. The word "law" in Article 21 has to necessarily bear
interpretation that it is procedure established by plenary legislation only.
H
916 SUPREME COURT REPORTS [2016) 3 S.C.R.

A Whenever any right conferred by Part Ill is abridged or restricted or
violated by "law", as widely defined in Article 13 for the purposes of
that Article, are rendered void. Right to reputation is an inherent right
guaranteed by Article 21. Duty not to commit defamation is owed to the
community at large, because the right to reputation is a natural right.
The personality and dignity of the i:~ciividual is integral to the right to life
B
and liberty and fraternity assuring dignity of an individual is part of the
Preamble to the Constitution. The right to life or personal liberty includes
dignity of individuals which is so precious a right that it is placed on a
higher pedestal than all or any of the fundamental rights conferred by
Part III. The right to reputation is an inherent right guaranteed by Article
c 21 and hence, the right to freedom of speech and expression under Article
19(1)(a) has to be balanced with the right under Article 21 and cannot
prevail over the right under A11icle 21.
iv. The test ofreasonableness has been invariably applied when
deciding the constitutionality of a plenary legislation. As Article 19(2)
D itself uses the words "existing laws" and "defamation", and as the
offence of defamation is defined in Section 499, it must be held to have
been incorporated in the Constitution at least to the extent it is defined in
Section 499 ('1ro111e11juris.'). It is, thus, not open to challenge as being
an unreasonable restriction for there is no other law that defihed
"defamation".
E
v. The test ofreasonableness cannot be a principle in abstraction.
A general pattern cannot be conceived to be made applicable to all cases
because it will depend upon the nature ofright infringed or violated and
the underlying purpose of the imposition ofrestrictions. The evil thought
to be remedied and the prevailing conditions of the time are to be kept in
F view while judging proportionality of the restriction. Being a part of the
original Constitution, the penal provision as to defamation having been
approved by the constituent power when Article 19(2) was enacted, it
cannot now be held to be unreasonable. If defamation as an offence is a
reasonable law for the purposes of Article 19(2), it has to be equally a
G · reasonable law for the purposes of Article 14. The principle of a law
being worn out by passage oftime and the principle of 'CessanteRatione
Legis Cessat lpsa Lex' cannot be applied to. a constitutional provision
like Article 19(2) or to procedural laws. Section 500 IPC does not impose
any mandatory minimum punishment and when a penal law does not
mandate a minimum sentence but provides only for simple imprisonment
H
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 917
LAW & ORS. [DIPAK MISRA, J.]

with discretion vested in the Court, the provision will not be struck down A
as arbitrary or unreasonable.
vi. Right to life and liberty is an inherent right and natural right
and not a right conferred by the Constitution but recognized and protected
by it. Judge-made law is meant to protect fundamental rights and not to
impose restrictions on the fundamental rights. The constitutional courts B
are assigned the role ofa "Sentinel on the qui vive". In the said bedrock,
the right to life which includes right to reputation has to be protected and
respected and cannot be allowed to succumb to the right to freedom and
expression.
vii. The inherent right to life or personal liberty recognized by c
Article 21, the fundamental right of freedom of speech conferred by
Article 19( I )(a) read with A1ticle 19(2) and Article 194 dealing with the
Powers, Privileges etc. of the Houses of Legislature and of the Members
and Committees thereof (Article I 05 also corresponds to this Article)
were considered and harmoniously interpreted and applied in Special
Reference No 1 of 1964' wherein this Court also observed that if a D
citizen moves the High Court on the ground that his fundamental right
under Article 21 has been contravened, the High Court would be entitled
to examine his claim, and that itself would introduce some limitation on
the extent of the powers claimed by the House. Thus, balancing of
rights is a constitutional warrant. E
Mr. T. R. Andhyaruiina, Sr. Advocate
i. Freedom of speech and expression in India is not absolute but
subject to various restrictions mentioned in the Constitution itself. Article
19( I )(a) is subject to the restrictions prescribed by Article 19(2) of the
Constitution. The protection given to criticism of public officials even if F
not true, as in the case of New York Times v. Sullivm1 6 , is not protected
by A1ticle 19(1)(a) as this Cou11 has noted that there is a difference
between Article 19(1 )(a) and the First Amendment to the US Constitution
ii. A law of defamation protects reputation of a person. Reputation
is an integral and important part of the dignity of the individual and when G
reputation is damaged, society as well as the individual is the loset.
· Protection of reputation is conducive to the public good. Therefore,
freedom of expression is not an absolute right.

' ( 1965) I SCR 413
6
29 LED 2d 822 ( 1971) H
918 SUPREME COURT REPORTS [2016] 3 S.C.R.

A iii. While the freedom of speech and expression is, no doubt,
extremely relevant and requires protection as a fundamental right, at the ·
same time, it is necessary that the reputation of individuals requires to be
protected from being unnecessarily tarnished. Reputation is an element
of personal security and is protected as a fundamental right under Article
21 of the Constitution and requires equal protection. The right to freedom
8
of expression under A1iicle 19 is subject to the right to reputation. It is
to be noted that civil action for defamation would not be a satisfactory
remedy in many cases as the author of the defamation may not be able
to compensate the person defamed.
iv. The prosecution of a person for defamation under Sections
c 499 and 500 off PC is not absolute. The crime is subject to ten Exceptions
in favour of the author of the imputation. The most relevant is First
Exception which protects the author it the imputation is true ai1d made
forthe public good. Even with the Exceptions in Section 499 IPC, there
remains the problem of whether criminal prosecution for defamation
D under Section 499 and Section 500 IPC acts as a ''chilling effect" on the
freedom of speech and expression or a potential for harassment,
particularly, of the press and media. Fair comment on a matter of public
· interest is not actionable in civil action for defamation. This right is one
of the aspects of the funda1i1ental principles of freedom of expression
and the courts are zealous to preserve it unimpaired; and the said principle
E
has been stated in Salmon mu/ lleuston on Law of Torts, 25th Ed., p.
138.
v. In a prosecution for defamation under Section 499 IPC, fair
comment which is not covered by the Exceptions would not be protected.
The prospect of punishment may sometimes act as a deterrent on the
F freedom of speech. Section 199(2) CrPC may also give an unfair
disadvantage to have a public prosecutor in cases of a libel against a
Minister or a public servant. These factors need to be considered for
safeguarding the freedom of speech. Section 499 IPC be read to provide
that imputation and criticism or fair comment even if not true but made
G in good faith and in the public interest would not invite criminal
prosecution. Such and other qualifications may be considered as.
necessai·y to retain criminal defamation as a reasonable restriction on
the freedom of speech and expression. Hence, there may be a need to
have a proper balancil1g between the freedom of speech and the necessity
of criminal defamation.
H
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 919
LAW & ORS. [DIPAK MISRA, J.]

19. We have studiedly put forth the submissions of the learned A
counsel for the parties. They have referred to various authorities and
penetratingly highlighted on numerous aspects to which we shall advert
to at the appropriate stage. Prior to that, we intend to, for the sake of
clarity and also keeping in view the gravity of the issue, dwell upon
certail) aspects.
B
20. First, we shall expatiate on the concepts of"defamation" and
"reputation". The understanding of the term ''defamation" and
appreciation of the fundamental concept of"reputation" are absolutely
necessitous to understand the controversy.
21. Meaning of the term "defamation" c
i. Salmond & /Ieuston on the L((W of Torts, 201/i Ed11. 7 define
a defamatory statement as under:-
"A defamatory statement is one which has a tendency to injure
the reputation of the person to whom it refers; which tends, that is
to say, to lower him in the estimation of right -thinking members D
of society generally and in particular to cause him to be regarded
with feelings of hatred. contempt, ridicule, fear, dislike, or
disesteem. The statement is judged by the standard of an ordinary,
right- thinking member of society ... "
ii. Halsburys Laws of England, Fourth Edition, Vol. 28, defines E
'defamatory statement' as under:-
"A defamatory statement is a statement which tends to lower a
person in the estimation of right thinking members of the society
generally or to cause him to be shunned or avoided or to expose
him to hatred, contempt or ridicule, or to convey an imputation on
F
him disparaging or injurious to him in his office, profession, calling
trade or business."
iii. The definition of the term has been given by Justice Cave in
the case of Scott v. Sm11pson 8 as a "false statement about a man to his
discredit."
G
iv. Defamation, according to C/wmhers Twentieth Century
Diction((ry, means to take away or destroy the good fame or reputation;
to speak evil of; to charge falsely or to asperse. According to Salmond:-
- Bala India lrd. v. A.M. Turaz & Ors. 2013 (53) PTC 586: Pande.)· Surindra .\"ath Sinha
v. Bageshwari Pd. AIR 1961 Pat. 16-1
' (1882) QBD 491 H
920 SUPREME COURT REPORTS [2016] 3 S.C.R.

A "The wrong of defamation, consists in the publication of a false and
defamatory statement concerning another person without lawful
justification. The wrong has always been regarded as one in which the
Court should have the advantage of the personal presence of the parties
ifjustice is to be done. Hence, not only does an action of defamation not
survive for or against the estate of a deceased person, but a statement
B
about a deceased person is not actionable at the suit of his relative" 9 •
v. Winfield & Jo/owics on Torts 10 defines defamation thus:-
"Defamation is the publication of a statement which tends to lower
a person in the estimation of right thinking members of society
c generally; or which tends to make them shun or avoid that person.
vi. In the book "Tlte Law ofDe(a111"tio11" 11 , the term defamation
has been defined as below:-
"Defamation may be broadly defined as a false statement of which
the tendency is to disparage the good name or reputation of another
D person."
vii. In Parmiter v. Couplmu/ 2, defamation has been described
1

as:-
'A publication, without justification or lawful excuse, which is
calculatep to injure the reputation of another, by exposing him to
E hatred, contempt, or ridicule."
viii. The definition of defamation by Fraser was approved by Mc
Cardie Jin Myroji v. Sleiglit 13 • It says:-
"a defamatory statement is a statement concerning any person
F which exposes him to hatred, ridicule or contempt or which causes
him to be shunned or avoided or which has a tendency to injure
him in his office, profession or trade."

ix. Carter- Ruck 011 Libel ({Ill/ S/a11der 1• has carved out some

'' Ga!ley's Libel and Slander, 6th edition, 1960 also Odger's Libel and Slander 6'i. Ed.
G 1929
1'1 (17 1' Edn. 2006)

11 Richardo· Sullivan. QC and Roland Brown

"(1840)6 MLW 105
"(1921) 37 TLR 646
"Manisha Koirala v. Shashi Lal Nair & Ors .. 2003 (2) Bom CR 136
H
SUBRAMANIAN SWAMY v. UNION OF INDIA, _MINISTRY OF 921
LAW & ORS. [DIPAK MISRA, J.]

of the tests as under: - A

"(!)a statement concerning any person which exposes him to
hatred, ridicule, or contempt, or which causes him to be shunned
or avoided, or which has a tendency to injure him in his office,
professional or trade.
B
(2) a false statement about.a man to his discredit.

(3) would the words tend to lower the plaintiff in the estimation of
right thinking members of society generally"
22. We have noted the aforesaid definitions, descriptions and
analytical perceptions only to understand how the concept has been
c
extensively dealt with regard being had to its ingredients and expanse,
and clearly show the solemnity of 'fame' and its sapient characteristics.
Be.it stated, Section 499 !PC defines fame and covers a quite range of
things but the reference to the term 'fame' is to ostracise the saying that
"fame is a food that dead men eat". D
23. CONCEPT OF REPUTATION
Having dealt about "defamation", we would like to refer to the
intrinsic_ facets of "reputation" and what constitutes reputation. The
allusions would clearly exposit the innate universal value of"reputation"
and how it is a ·cherished constituent of lifoand not limited or restricted E
by time. The description may be different, but the crucial base is the
same.
Vision of the Ancients
i. In Bhagawad Gita, it has been said :- F

The English translation of the· aforequoted shloka is: G
"Non-violence in thought, word and deed, truthfulness and
geniality of speech, absence of anger even on provocation,
disclaiming doership in respect of actions, quietude or composure
of mind. Abstaining from malicious gossip; compassion towards
H
922 SUPREME COURT REPORTS [2016] 3 S.C.R.

A al 1creatures, absence of attachment to the objects of senses even
during their contact with the senses, mildness, a sense of shame
in transgressing against the scriptures or usage, and abstaining
from frivolous pursuits."
ii. In Subhashitratbhandagaram, it has been described:-
B "Sa jeevti yas/10 yashya kirtiyashya sa jeevti,
Ayasl10kirtism1yukto jeevannipe mritoopamma"
Translated into English it is as follows:
"One who possesses fame alone does live. One who has
c good praise does alone live. Who has no fame and negative praise
is equal to one who is dead while alive."
iii. The English translation of Surah 49 Aayaat 11 of the Holy
Quran reads as follows:-
"Let not some men among you laugh at others: it may be that the
D
(latter) are better than the (former): nor defame nor be sarcastic
to each other, nor call each other by (offensive) nicknames, i11-
seeming is a name connoting wickedness, (to be used of one)
after he has believed: and those who do not desist are (indeed)
doing wrong."
E
iv. Proverb 15 of the Holy Bible reads as under:-
"A soft answer turns away wrath,
but a harsh word stirs up anger.
The tongue of the wise dispenses
knowledge,
F but the mouths of fools pour out
folly.
The eyes of the LORD are in evety
place,
keeping watch on the evil and the good.
G A gentle tongue is a tree of life,
but perverseness in it breaks the spirit."
Though 'the aforesaid sayings have different contexts, yet they
lay stress on the reputation, individual honour and also the need of
gentleness of behavior on the part of each one.
H
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 923
LAW & ORS. [DIPAK MISRA, J.]

Thoughts of the creative writers and thinkers A
24. William Shakespeare in Othe.lo expressed his creative
thoughts on character by the following expression:-
"Good name in man and woman, my dear lord,
is the immediate jewel of their souls
Who steals my purse steals trash; 'tis something, nothing; . B
'Twas mine, 'tis his, and has been slave to thousands;
But he that filches from me my good name
Robs me of that which not enriches him,
And makes me poor indeed,"
25. The said author in Richard II, while enhancing the worth of c
individual reputation, achieved his creative heights, and the result in the
ultimate is the following passage:-
"The purest Treasure mortal times afford
ls spotless reputation; that away,
Men are but gilded loam or painted clay.
D
A jewel in a ten-times-barr'd-up chest
Is a bold spirit in a loyal breast.
Mine honour is my life, both grow in one;
Take honour from me and my life is done."
26. The famous Greek philosopher and thinker Socrates taught:-
E
"Regard your good name as the richest jewel you can possibly be
possessed of-for credit is like fire; when once you have kindled
it you may easily preserve it, but if you once extinguish it, you will
find it an arduous task to rekindle it again. The way to gain a good
reputation is to endeavour to be what you des.ire to appear.''
F
27. The philosopher. in Aristotle inspired him ~o speak:-
"Be studious to preserve your reputation·; if that be once lost, you
are like a cancelled writing, of no value, and at best you do but
survive your own funeral":
28. While' speaking about reputation, William Hazlitt had to say:- G
"A man's reputation is not in his own keeping, but lies atthe mercy
of the profligacy of others. Calumny requires no proof. The
throwing out of malicious imputations against any character leaves
a stain, which no after-refutation can wipe out. To create an
H
924 SUPREME COURT REPORTS [2016] 3 S.C.R.

A unfavourable impression, it is not necessary that certain things
should be true, but that they have been said. The imagination is of
so delicate a texture that even words wound it."
The International Covenants
29. Various International Covenants have stressed on the
B significance ofreputation and honour in a person's life. The Universal
Declaration 011 Hunum Rights, 1948 has explicit provisions for both,
the right to free speech and right to reputation. Article 12 of the said
Declaration provides that:-
"No one shall be subjected to arbitrary interference with his
c privacy, family, home or correspondence, nor to attacks upon his
honour and reputation. Everyone has the right to the protection
of the law against such interference or attacks." "
30. The l11ternational Covenant 011 Civil mu/ Political Rights
(CICCPR) contains similar provisions. Article 19 of the Covenant
D expressly subjects the right of expression to the rights and reputation of
others. lt reads thus:-
" 1. Everyone shall have the right to hold opinions without
interference.
2. Everyone shall have the right to freedom of expression; this
E
right shall iliclude freedom to seek, receive and impart informa-
tion and ideas of all kinds, regardless of frontiers, either orally, in
writing or imprint, in the form of art, or through any other media
of his choice.
3. The exercise of the rights provided for in paragraph 2 of this
F article carries with it special duties and responsibilities. It may
therefore be subject to certain restrictions, but these shall only be
such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;

G (b) For the protection of national security or of public order (or-
der public), or of public health or morals''.
31. Articles 8 and I 0 of the European Convention for the
Protection of Human Rights mu/ Fundamental Freedoms (ECHR)
provide:-
H
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 925
LAW & ORS. [DIPAK MISRA, J.)

"Article 8. Right to respect for private and family life A
\. Everyone has the right to respect for his private and family
life, his home and his correspondence.
2. There shall be no interference by a public authority with the
exercise of this right except such as is in accordance with the law
and is necessary in a democratic society in the interests of na- B
tional security, public safety or the economic wellbeing of the coun-
try for the prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and freedoms
of others"
"Article 10. :Freedom of expression c
1. Everyone has the right to freedom of expression. This right
shall incfode freedom to hold opinions and to receive and impart
information and ideas without interferenceby public authority and
regardless of frontiers. This article shall not prevent States from
requiring the licensing of broadcasting, television or cinema D
enterprises.
2. The exercise of these freedoms, since it carries with it duties
and responsibilities, maybe subject to such formalities, conditions,
restrictions or penalties as are prescribed by law and are necessary
in a democratic society, in the interests of national security,
territorial integrity or public safety, for the prevention of disorder E
or crime, for the protection of health or morals, for the protection
of the reputation or rights of others, for preventing the disclosure
of information received in confidence, or for maintaining the
authority and impatiiality of the judiciary."
32. The reference to international covenants has a definitive F
purpose. They reflect the purpose and concern and recognize reputation
as an inseparable right of an individual. They juxtapose the right to
freedom of speech and expression and the right of reputation thereby
accepting restrictions, albeit as per law and necessity. That apart, they
explicate that the individual honour and reputation is of great value to
G
human existence being attached to dignity and all constitute an inalienable
part of a complete human being. To put it differently, sans these values,
no person or individual can conceive the idea of a real person, for absence
of these aspects in life makes a person a non-person and an individual to
be an entity only in existence perceived without individuality.
H
926 SUPREME COURT REPORTS [2016) 3 S.C.R.

A Perception of the Courts in United Kingdom as regards
Reputation
33. Now, we shall closely cover the judicial perception of the
word "reputation" and for the said purpose, we shall first refer to the
view expressed by other Cou1ts and thereafter return home for the
B n~cessary survey.

34. Lord Denning explained the distinction between character
and reputation in Plato Films Ltd. v. Spiedel 15 in a succinct manner.
We quote:-
"A man's "character," it is sometimes said, is what he in fact is,
c whereas his "reputation" is what other people think he is. If this
be the sense in which you are using the words, then a libel action
is concerned only with a man's reputation, that is, with what people
think of him: and it is for damage to his reputation, that is, to his
esteem in the eyes of others, that he can sue, and not for damage
D to his own personality or disposition. That is why Cave J. spoke
of "reputation" rather than "character."
The truth is that the word "character" is often used, and quite
properly used, in the same sense as the word "reputation." Thus,
when I say ofa man that "He has always "borne a good character,"
E I mean that he has always been thought well of by others: and
when I want to know what his "character" is, I write, not to him,
but to others who know something about him. In short, his
"character" is the esteem in which he i~ held by others who know
him and are in a position to judge his worth.A man can sue for
damage to his character i11 this sense, even though he is little
F known to the outside world. If it were said of Ro.Pinson Crusoe
that he murdered Man Friday, he would have a cause of action,
even though no one had ever heard of him before. But a man's
"character," so understood, may become known to others beyond
his immediate circle. In so far as the estimate spreads outwards
from those who know him and circulates among people generally
G
in an increasing range, it becomes his "reputation," which is entitled
to the protection of the law just as much as his character. But
here I speak only ofa reputation which is built uppn the estimate
of those who know him. No other reputation is of any worth. The

H 1' ( 1961) I All. E.R. 876

""'---
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 927
LAW & ORS. [DIPAK MISRA, J.]

law can take no notice of a reputation which has no foundation A
except the gossip and rumour of busybodies who do not know the
man. Test it this way. Suppose an honourable man becomes the
victim of ground less rumour. He should be entitled to damages
without having this wounding gossip dragged up against him. He
can call people who know him to give evidence of his good
B
character. On the other hand, suppose a ·'notorious rogue"
manages to conceal his dishonesty from the world at large. He
should not be entitled to damages on the basis that he is a man of
unblemished reputation. There must, ones would think, be people
who know him and can come and speak to his bad character."
35. In regard to the importance of protecting an in~ividual's
c
reputation Lord Nicholls of Birkenhead observed in Rey110/ds v. Times
Newspapers Ltd 16 :-
'Reputation is an integral and important part of the dignity of the
individual. It also forms the basis of many decisions in a democratic
society which are fundamental to its well-being: whom to employ D
or work for, whom to promote, whom to do business with or to
vote for. Once besmirched by an unfounded allegation in a national
newspaper, a reputation can be damaged forever, especially if
there is no opportunity to vindicate one's reputation. When this
happens, society as well as the individual is the loser. For it should E
not be supposed that protection of reputation is a matter of
importance only to the affected individual and his family. Protection
of reputation is conducive to the public good. lt is in the public
interest that the reputation of public figures should not be debased
falsely. In the political field, in order to make an informed choice,
the electorate needs to be able to identify the good as w~ll as the F
bad. Consistently with these considerations, human rights
· conventions recognise that freedom ofexpression is not an absolute
right. Its exercise may be. subject to such restrictions as are
prescribed by law and are necessary in a democratic society for
the protection of the reputations of others." G
36. While deliberating on possible balance between the right to
reputation and freedom of expression, in Campbell v. MGN Ltd17 , it
has been stated:-
"' [2001] 2AC 127 at201
17
(200.J) UKHL 22 at para 55 H
928 SUPREME COURT REPORTS [2016] 3 S.C.R.

A "Both reflect impo1iant civilized values, but, as often happens,
neither can be given effect in full measure without restricting the
other, How are they to be reconciled in a particular case? There
is in my view no question of automatic priority. Nor is there a
presumption in favour of one rather than the other. The question
is rather the extent to which it is necessary to quality the one right
B
in order to protect the underlying value which is protected by the
other. And the extent of the qualification must be propo1iionate to
the need .... " See : Sed/ey LJ in Doug/Jlas v. Hello/ Ltd. [200 I]
QB 967
View of the Courts in United States
c
37. In Wiscom'i11 v. Co11stm1ti11ea11 18 it has beenobserved that:-
"Where a person's good name, reputation, honor, or integrity is at
stake because of what the government is doing to him, notice and
an opportunity to be heard are essential. ''Posting" under the
D Wisconsin Act may to some be merely the mark of illness, to
others it is a stigma, an official branding ofa person. The label is
a degrading one. Under the Wisconsin Act, a resident of Hartford
a
is given no process at all. This appellee was not afforded chance
to defend herself. She may have been the victim of an official's
caprice. Only when the whole proceedings leading 10 the pinning
E of an unsavory label on a person are aired can oppressive results
be prevented."
38. In Rosenblatt V; Baer 10 Mr. Justice Stewart observed that:-
"The right of a man to the protection of his own reputation from
unjustified invasion and wrongful hu11 reflects no more than our
F
basic concept of the essential dignity and worth of every human
being -- a concept at the root of any decent system of ordered
libe1iy."
Outlook of the Courts in Canada
G 39. Hill v. Church<~{ Scientology of Toro11to' 0
"(ii) The Reputation of the Individual

".\00 U.S. 433 (1971)
1
• 383 U.S. 75 ( 1966)
H '" 11995) 2 SCR 1130
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 929
LAW & ORS. [DIPAK MISRA, J.]

I 07 The other value to be balanced in a defamation action is the A
protection of the reputation of the individual. Although much has
very properly been said and written about the importance of
freedom of expression, little has been written of the importance
of reputation. Yet, to most people, their good reputation is to be
cherished above all. A good reputation is closely related to the
B
innate worthiness and dignity of the individual. It is an attribute
that must, just as much as freedom of expression, be protected by
society's laws. In order to undertake the balancing required by
this case, something must be said about the value of reputation.
108 · Democracy has always recognized and cherished the
fundamental importance of an individHal. That importance must,
c
in turn, be based upon the good repute of a person. It is that good
repute which enhances an individual's sense of worth and value.
False allegations ca11 so very quickly and completely destroy a
good reputation. A reputation tarnished by libel can seldom regain
its former lustre. A democratic society, therefore, has an interest D
in ensuring that its members can enjoy and protect their good
reputation so long as it is merited."
Opinion of the Courts in South Africa
40. In the approach of the South African Com1s, "human dignity"
is one of the founding values of the South African Constitution (Clause E
I). The Constitution protects dignity (clause 7), privacy (clause 14) and
freedom of expression (clause 16). In Khumalo v. Ilolo111isac the Com1
1

said:-
"27. Inthe context of the actio injuriarum, our common law has
separated the causes of action for claims for injuries to reputation F
(fama) and dignitas. Dignitas concerns the individual's own sense
of self worth, but included in the concept are a variety of personal
rights including, for example, privacy. In our new constitutional
order, no sharp line can be drawn between these injuries to
personality rights. The value of human dignity in our Constitution
G
is not only concerned with an individual's sense of self-worth, but
constitutes an affirmation of the worth of human beings in our
society. It includes the intrinsic worth of human beings shared by
all people as well as the individual reputation of each person built
"[2002] ZACC 12; 2002 (5) SA 401
H
930 SUPREME COURT REPORTS [2016] 3 S.C.R.

A upon his or her own individual achievements. The value of human
dignity in our Constitution therefore values both the personal sense
of self-worth as well as the public's estimation of the worth or
value of an individual. It should also be noted that there is a close
. link between human dignity and privacy in our constitutional order.
[a footnote here in the judgment reads: "See National Coalition ..
B
at para 30: "The present case illustrates how, in particular
circumstances, the rights of equality and dignity are closely related,
as are the rights of dignity and privacy."] The right to privacy,
entrenched in section 14 of the Constitution, recognises that human
beings have a right to a sphere of intimacy and autonomy that
c should be protected from invasion ... This right serves to foster
human dignity. No sharp lines then can be drawn between
reputation, dignitas and privacy in giving effect to the value of
human dignity in our Constitution ....
28. The law of defamation seeks to protect the legitimate interest
D individuals have in their reputation. To this end, therefore, it is
one of the aspects ofour law which supports the protection of the
value of human dignity. When considering the constitutionality of
the law of defamation, therefore, we need to ask whether an
appropriate balance is struck between the protection of freedom
of expression on the one hand, and the value of human dignity on
E the other."
Perception of the European Court of Human Rights
41. In Lindon v. France", Judge Loucaides, in his concurring
opinion, held:-
"Accepting that respect for reputation is an autonomous human
F right, which derives its source from the Convention itself, leads
inevitably to a more effective protection of the reputation of
·individuals vis-a-vis freedom of expression."
42. In the said case, the Court has. expressly recognised that
protection offeputation is a right which is covered by the scope of the
G right to respect for one's private life under Article 8 of the Convention.
In course of deliberations reference has been made to Clumvy and
Otfters. v. Francec 3 , Abeberry v. France (dee.), no. 58729/00, 21
September 2004; and Wflite v. Sweden'".
22 (2008) 46 E.H.R.R. 35

" (2005) 41 EHRR 29
H " [2007) EMLR I
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 931
LAW & ORS. [DIPAK MISRA, J.]

43. In Kamk6 v. Hungary 25 the Court has opined that:- A
"24. The Court reiterates that paragraph 2 of Article I 0 recognises
that freedom of speech may be restricted in order to protect
reputation (see paragraph 16 above). In other words, the
Convention itself announces that restrictions on freedom of
expression are to be determined within the framework of Article B
I 0 enshrining freedom of speech.
25. The Court is therefore satisfied that the inherent logic ofArticle
I 0, that is to say, the special rule contained in its second paragraph,
precludes the possibility of conflict with Article 8. In the Court's
view, the expression "the rights of others" in the latter provision c
encompasses the right to personal integrity and serves as a ground
for limitation of freedom of expression in so far as the interference
designed to protect private life is proportionate."
44. In Axel Springer AG v. Gernumy26 it has been ruled:-
" ... [T]he right to protection of reputation is a right which is D
protected by Article 8 of the Convention as part of the right to
respect for private life ... In order for Article 8 to come into play,
however, an attack on a person's reputation must attain a certain
level of seriousness and in a manner causing prejudice to personal
enjoyment of the right to respect for private life ... The Court has E
held, moreover, that Article 8 cannot be relied on in order to
complain of a loss of reputation which is the foreseeable
consequence of one's own actions such as, for example, the
commission of a criminal offence ...
When examining the necessity of an interference in a democratic
F
society in the interests of the "protection of the reputation or rights
of others", the Court may be required to verify whether the
domestic authorities struck a fair balance when protecting two
values guaranteed by the Convention which may come into conflict
with each other in certain cases, namely, on the one hand, freedom
of expression protected by Article I 0 and, on the other, the right G
to respect for private life enshrined in A1ticle 8."
The perspective of this Court
45. In Board of Trustees of the Port of Bdi11hay v. Dilipkumar
"(2011) 52 E.1-1.R.R.36
"' (2012) 55 E.1-1.R.R.6 H
932 SUPREME COURT REPORTS [2016] 3 S.C.R.

A Ragllavendranatlt Nadkarni and otl1ers~ 1 , the Court has opined that
expression "Life" does not merely connote animal existence or a continued
drudgery through life. Further, it proceeded to state thus:-
" ... The expression "life" has a much wider meaning. Where
therefore the outcome of a departmental enquiry is likely to
B adversely affect reputation or livelihood of a person, some of the
finer graces of human civilization which make life worth living
would be jeopardised and the same can be put in jeopardy only by
law which inheres fair procedures. In this context one can recall
the famous words of Chapter II of Bhagwad-Gita:
'"Sambhavitasya Cha Kirti Marnadati Richyate"
c 46. In Kiran Bedi v. Committee of Inquiry and anotlter 8 a
three-Judge Bench, while dealing with the petition for quashing of the
inquiry report against the petitioner therein, referred to Section 8-B of
the Commissions of Inquiry Act, 1952 and opined that the importance
has been attached with regard to the matter of safeguarding the reputation
D of a person being prejudicially affected in clause (b) of Section 8-B of
the Commissions oflnquiry Act. It is because reputation of an individual
is a very ancient concept. The Court referred to the words of caution
uttered by Lord Krishna to Arjun in Bhagwad Gita with regard to dishonour
or loss ofreputation; and proceeded to quote:- ·
""Akirtinchapi bhutani kathaishyanti te-a-vyayam,
E
Sambha-vitasya Chakirtir maranadatirichyate. (2.34)
(Men will recount thy perpetual dishonour, and to one
highly esteemed, dishonour exceedeth death.)"
Thereafter, the Court referred to Blackstone's Comme/1/ary of
the Laws of England, Vol. I, 4th Edn., wherein it has been stated that
F
the right of personal security consists in a person's legal and uninterrupted
enjoyment of his life, his limbs, his body, his health and his reputation.
Thereafter, advertence was made to the statement " made .m Corpus
Juris Secundum, Vol. 77 at p. 268 which is to the following effect:-
"lt is stated in the definition Person, 70 C.J.S. p. 688 note 66 that
G legally the term "person" includes not only the physical body and
members, but also every bodily sense and personal attribute, among
which is the reputation a man has acquired. Blackstone in his
Commentaries classifies and distinguishes those rights which are
21 (1983) 1 sec 124
H ~, ( 1989) 1 sec 494
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 933
LAW & ORS. [DIPAK MISRA, J.]

annexed to the person, jura personarum, and acquired rights in A
external objects,jura rerum; and in the fonner he includes personal
security, which consists in a person's legal and uninterrupted
enjoyment of his life, his limbs, his body, his health, and his
reputation. And he makes the corresponding classification of
remedies. The idea expressed is that a man's reputation is a part
B
of himself, as his body and limbs are, and reputation is a sort of
right to enjoy the good opinion ofothers, and it is capable of growth
and real existence, as an arm or leg. Reputation is, therefore, a
personal right, and the right to reputation is put among those
absolute personal rights equal in dignity and imp011ance to security
from violence. According to Chancellor Kent as a part of the c
rights of personal security, the preservation of every person's good
name from the vile arts of detraction is justly included. The laws
of the ancients, no less than those of modern nations, made private
reputation one of the objects of their protection.
The right to the enjoyment of a good reputation is a valuable
D
privilege, of ancient origin, and i1ecessary to human society, as.
stated in Libel and Slander Section 4, and this right is within the
constitutional guaranty of personal security as stated in
Constitutional Law Section 205, and a person may not be deprived
of this right through falsehood and violence without liability for
the injury as stated in Libel and Slander Section 4. E
Detraction from a man's reputation is an injury to his personality,
and thus an injury to reputation is a personal injury, that is, an
injury to an absolute personal right".
Be it noted a passage from D.F. Marion v. Davis 29 , was
reproduced with approval:-
"The right to the enjoyment of a private reputation, unassailed by
F
malicious slander is of ancient origin, and is necessary to human
society. A good reputation is an element of personal security, and
is protected by the Constitution equally with the right to the
enjoyment oflife, liberty, and property."
47. In Gia11 Kaur v. State of Pu11jab 30 , this CoU11 observed that G
the right to reputation is a natural right. In Melmuwd Nayyar Awm v.
State of Cltlwtisgarlt am/ otlters 31 , while discussing the glory of
honourable life, the CoUI1 observed:-
''' 55ALR171
'" ( 1996) 2 sec 648
"(2012) s sec 1 H
934 SUPREME COURT REPORTS [2016] 3 S.C .R.

A "Albert Schweitzer, highlighting on the Glory of Life, pronounced
with conviction and humility, "the reverence of life offers me my
fundamental principle on morality". The aforesaid expression may
appear to be an individualistic expression of a great personality,
but, when it is understood in the complete sense, it really denotes,
in its conceptual essentiality, and connotes, in its macrocosm, the
B
fundamental perception of a thinker about the respect that life
commands. The reverence of life is insegregably associated with
the dignity of a human being who is basically divine, not servile."
Elucidating further, the Court observed:-
" A human personality is endowed with potential infinity and it
c blossoms when dignity is sustained. The sustenance of such dignity
has to be the superlative concern of every sensitive soul. The
essence of dignity can never be treated as a momentary spark of
light or, for that matter, "a brief candle", or "a hollow bubble".
The spark of life gets more resplendent when man is treated with
D dignity sans humiliation, for every man is expected to lead an
honourable life which is a splendid gift of"creative intelligence".
When a dent is created in the reputation, humanism is
paralysed .... "
48. In Visltwanatlt A1:rawal v. Sarai Visltwanatlt A1:rawaP~
E this Court observed that reputation which is not only the salt of life, but
also the purest treasure and the most precious perfume of life. It is a
revenue generator for the present as well as for the posterity. In Umeslt
Kumar v. State ofAmlltra Pradeslt mu/ anotlter33 the Court observed
that personal rights of a human being include the right of reputation. A
good reputation is an element of personal security and is protected by
F the Constitution equally with the rightto the enjoyment oflife, liberty and
property and as such it has been held to be a necessary element in
regard to right to life of a citizen under Article 21 of the Constitution.
The International Covenant on Civil and Political Rights, 1966 recognises
right to have opinions and right to freedom of expression under Article
19 is subject to the right of reputation of others.
G
49. In Kislwre Samrite v. State<~( Uttar Pradeslt and others",
while dealing with the term "person" in the context of reputation, the

"(2012)7 SCC288
"(2013) 10 sec 591
H 3
'(2013)2SCC398
SUBRAMANIAN SWAMY v. UNION OF INDIA. MINISTRY OF 935
LAW & ORS. [DIPAK MISRA. J.]

Court after referring to the authorities in Kira11 Bedi (supra) and Nilgiris A
Bar Association v. T.K. A1alwli11ga111 mul mwtlier35 held that:-
"The term "person" includes not only the physical body and
members but also every bodily sense and personal attribute among
which is the reputation a man has acquired. Reputation can also
be defined to be good name, the credit, honour or character which B
is derived from a favourable public opinion or esteem, and character
by report. The right to enjoyment of a good reputation is a valuable
privilege of ancie11t origin and necessary to human society.
"Reputation'' is an element of personal security and is protected
by the Constitution equally with the right to enjoyment of life,
liberty and property. Although ·'character" and "reputation" are
c
often used synonymously, but these terms are distinguishable.
"Character'' is what a man is and "reputation" is what he is
supposed to be in what people say he is. ·'Character" depends on
attributes possessed and "reputation" on attributes which others
believe one to possess. The former signifies reality and the latter D
merely what is accepted to be reality at present. ... "
50. In Om Prakash Clwutala v. Kanwar B/11111 and otlters 36 it
has been held that reputation is fundamentally a glorious amalgam and
unification ofviltues which makes a man feel proud-of his ancestry and
satisfies him to bequeath it as a part of inheritance on posterity. It is a E
nobility in itself for which a conscientious man would never barter it with
all the tea of China or for that matter all the pearls of the sea. The said
virtue has both horizontal and vertical qualities. When reputation is hurt,
a man is half-dead. It is an honour which deserves to be equally preserved
by the downtrodden and the privileged. The aroma of reputation is an
excellence which cannot be allowed to be sullied with the passage of F
time. It is dear to life and on some occasions it is dearer than life. And
that is why it has become an inseparable facet of Article 21 of the
Constitution. No one would like to have his reputation dented, and it is
perceived as an honour rather than popularity.
51. In State (Jf G1~iarat mu/ auotlter v. IJ011'ble High Court of G
Gujaraf7, the court opined:-

" ( 1998) 1 sec sso
_,,, (2014)s sec 417
· " ( 1998) 1 sec 392 H
936 SUPREME COURT REPORTS [2016] 3 S.C.R.

A "An honour which is a lost or life which is snuffed out cannot be
recompensed"
52. We have dwelled upon the view of this Court as regards
value ofreputatio11 and importance attached to it. We shall be obliged,
as we are, to advert to some passages from the aforementioned authorities
B and also from other pronouncements to understand the Court's "accent"
on reputation as an internal and central facet of right to life as projected
under A11icle 21 of the Constitution at a later stage.
53. Having reconnoitered the assessment of tho;: value of reputation
and scrutinised the conceptual meaning of the term "reputation", we are
c required to weigh in the scale of freedom of speech and expression,
especially under our Constitution and the natttre oftb democratic polity
the country has.
Right of the Freedom of Speech and Ex1>rrssion
54. To appreciate tht: rang,e and dep1h of the said right, it is essential
D to understand the anatomy of Articles 19(1 )(a) and I 9(2) of the
Constitution. Be it noted here that Article I 9(2) was amended by the I st
Amendment to the Consti;ution on 18th June, I 95 i w.e.f. 26.0 I .1950.
Article I 9(1 )(a) has remained its original form. It reads as under:-
"! 9. (I) All citizens shall have th;: right-
E (a) To freedom of speech and expression;

55. Article I 9(2) prior to the amendment was couched in the
fqllowinp; words:-
F "Nothing in sub-clause (a) ofCl.(J) shall affect the operation of
any existing law in so far as it relates to, o,· prevents the state
from making any lawn latingto, libel, slander, defamation, contempt
of Court or any matter which offends against de~ency or morality
or which undermines the security ot: or tends to overthrow, the
State."
G
56. Afier the amendment, the new incarnatio;1 is as follows:-
"(2) Nothing in sub-clause (a) of clause (I) shall affect the
operation of any existing law, or prevent the State from making
any law, in so far as such law imposes reasonable restrictions on
the exercise of the right conferred by the said sub-clause in the
H
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 937
LAW & ORS. [DIPAK MISRA, J.]

interests·ofthe security of the State, friendly relations with foreign A
States, public order, decency or morality; or in relation to contempt
of Court, defamation or incitement to an offence.''
57. Learned counsel appearing for some of the petitioners, apart
from addressing at length on the concept of reasonable restriction have
also made an effort, albeit an Everestian one. pertaining to the meaning
B
of the term "defamation" as used in Article I 9(2). In this regard, four
aspects, namely, (i) defamation, however extensively stretched, can only
include a civil action but not a criminal_ proceeding, (ii) even if defamation
is conceived of to include a criminal offence, regard being had to its
placement in Article .19(2), it has to be understood in associa{ion of the
words, "incitemen_t to an offence", for the principle of noscitur a sociis c
has to be made applicable, then only the cherished and natural right of
freedom of speech and expression which has been recognized under
Article 19(1 )(a) would be saved from peril, (iii) the intention of clause
(2) ofArticle 19 is to include a pub Iic law remedy in respect of a grievance
that has a collective impact but not to take in its ambit an actionable
D
claim under the common law by an individual and (iv) defamation of a
person is mostly relatable to assault on reputation by another individual
and such an individual cavil cannot be thought of being pedestalled as
fundamental right and, therefore, the criminal defamation cannot claim
to have its source in the word "defamation" used in Article 19(2) of the
Constitution. E
58. To appreciate the said facets of the submission, it is necessary
to appreciate ambit and purport of the word "defamation". To elaborate,
whether the word "defamation" includes both civil and criminal
defamation. Only after we answer the said question. we shall proceed
to advert to the aspect of reasonable restriction on the right of freedom F
of speech and expression as engrafted under Article 19( I )(a). Mr.
Rohtagi. learned Attorney General for India has canvassed that to
understand the ambit of the word '·defamation" in the context of the
language employed in Article 19(2). it is necessary to refer to the
Constituent Assembly debates. He has referred to certain aspects of
the debates and we think it appropriate to reproduce the relevant parts:- G
"The Honourable Dr. B.R. Ambedkar: Sir. this article is to be
read along with article 8.
Article 8 says ·-·
"All laws in force immediately befoi·e the co111111cncc111ent of this H
938 SUPREME COURT REPORTS [2016) 3 S.C.R.

A Constitution in the territory of India, in so far as they are
inconsistent with the provision of this Part, shall. to the extent of
such inconsistency be void."
And all that this article says is this, that all laws, which relate to
libels. slander, defamation or any other matter which offends
B against decency or morality or undermines the security of the
State shall not be affected by miicle 8. That is to say, they shall
continue to operate. If the words "contempt of coud' were not
there, then to any law relating to contempt of court article 8 would
apply, and it would stand abrogated. It is prevent that kind of
situation that the words "contempt of court" are introduced, and
c there is, therefore, no difficulty in this amendment being accepted.
Now with regard to the point made by Friend Mr. Santhanam, it is
quite true that so far as fundamental rights are concerned, the
word "State" is used in a double sense, including the Centre as
well as the Provinces. But I think he will bear in mind that
D notwithstanding this fact, a State may make a law as well as the
Centre may make a law. some of the heads mentioned here such
as libel, slander. defamation, security of State, etc., are matters
placed in the Concurre1it list so that if there was any very great
variation among the laws made, relating to these subjects, it will
E be open to the Centre to enter upon the field and introduce such
uniformity as the Centre thinks it necessary for this purpose".
"Mahaboob Ali Baig Sahib Bahadur ...
Then, Sir, it is said by Dr. Ambedkar in his introductory speech
that fundamental rights are not absolute. Of course, they are not;
F they are always subject to the interests of the general public and
the safety of the State, but the question is when a certain citizen
oversteps the limits so as to endanger the safety of the State, who
is to judge? According to me, Sir. and according to well recognized
canons, it is not the executive or the legislature, but it is the
G independent judiciary of the State that has to judge whether a
certain citizen has overstepped the limits so as to endanger the
safety of the State. This distinction was recognized by the framers
of the American Constitution in that famous Fourteenth
Amendment which clearly laid down that no Congress can make
any law to prejudice the freedom of speech. the freedom of
H association and the freedom of the press. This was in 1791. and
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 939
LAW & ORS. [DIPAK MISRA, J.]

if the American citizen transgressed the limits and endangered A
the State, the judiciary would judge him and not the legislature or
the executive."
The following speech from the Constituent Assembly Debates of
Shri. K. Hanumanthaiya (Mysore) is extremely significant:
B
"The question next arises whether this limiting authority should be
the legislature or the court. That is a very much debated question.
Very many people, very conscientiously too, think that the
legislature or the executive should not have anything to do with
laying down the limitations for the operation of these fundamental
rights, and that it must be entrusted to courts which are free from c
political influences. which are independent and which can take an
impartial view. That is the view taken by a good number of people
and thinkers. Sir, I for one, though I appreciate the sincerity with
which this argument is advanced, fail to see how it can work in
actual practice. Courts can, after all, interpret the law as it is.
Law once made may not hold good in its true character for all D
time to come. Society changes; Government change; the temper
and psychology of the people change from decade to decade if
not from year to year. The law must be such as to automatically
adjust itself to the changing conditions. Courts cannot, in the very
nature of things, do legislative work: they can only interpret. E
Therefore. in order to see that the law automatically adjusts to the
conditions that come into being in times to come, this power of
limiting the operation of the fundamental rights is given to the
legislature. After all, the legislature does not consist of people
who come without the sufferance of the people. The legislature
consists ofreal representatives of the people as laid down in this F
Constitution. If, at a particular time the legislature thinks that
these rights ought to be regulated in a certain manner and in a
particular method. there is nothing wrong in it. nothing despotic
about it, nothing derogatory to these fundamental rights. I am
indeed glad that this right of regulating the exercise offundamental G
rights is given to the legislature instead of to the courts."
59. In this regard, excerpts from speech from Prof. K.T. Shah
are also noteworthy:-
" ... my purpose in bringing forward this amendment is to point
out that, if all the freedoms enumerated in this a1iicle are to be in H
940 SUPREME COURT REPORTS [2016] 3 S.C.R.

A accordance with only the provisions of this article, or are to be
guaranteed subject to the provisions of this article only, then they
would amount more to a negation of freedom than the promise or
assurance of freedom, because in eve1yone of these clauses the
exceptions are much more emphasised than the positive provision.
In fact, what is given by one right hand seems to be taken away
B
by three or four or five left hands; and thei·efore the article is
rendered negatory in any opinion.
I am sure that was not the intention or meaning of the draftsmen
who put in the other aiiicles also. I suggest therefore that instead
of making it subject to the provisions of this article, we should
c make it subject to the provisions of this Constitution. That is to
say, in this Constitution this article will remain. Therefore if you
want to insist upon these exceptions, the exceptions will also
remain. But the spirit of the Constitution, the ideal under which
this Constitution is based, will also come in, which I humbly submit,
D would not be the case, if you emphasise only this article. If you
say merely subject to the provisions of this article, then you veey
clearly emphasise and make it necessary to read only this article
by itself, which is more resti'ictive than necessary....
. . . The freedoms are curtly enumerated in 5, 6 or 7 items in one
E sub-clause of the article. The exceptions are all separately
mentioned in separate sub-clauses. And their scope is so widened
that I do not know what cannot be included as exception to these
freedoms rather than the rule. In fact. the freedoms guaranteed
or assured by this aiiicle become so elusive that one would find it
necessary to have a microscope to discover where these freedoms
F are. whenever it suits the State or the authorities running it to
deny them. I would, therefore, repeat that you should bring in the
provisions of the whole Constitution, including its Preamble and
including all other articles and chapters where the spirit of the
Constitution should be more easily and fully gathered than merely
G in this aiiicle, which, in my judgment, runs counter to the spirit of
the Constitution ....
I also suggest that it would not be enough to enumerate these
freedoms, and say the citizen shall have them. I would like to add
the words also that by this Constitution these freedoms arc
guaranteed. That is to say. any exception which is made, unless
1-1
SUBRAMANIAN SWAMY v. UNION OF INDIA. MINISTRY OF 941
LAW & ORS. [DIPAK MISRA, J.]

justified by the spirit of the Constitution, the Constitution as a whole A
and every part of it included, would be a violation of the freedoms
guaranteed hereby."
Relying on the said debates, it is urged by Mr. Rohatgi that
the founding fathers had no intention to confer a restricted 111eaning
on the term "defamation". B
60. After this debate, Article 19(2) came in its original shape.
Thereafter, the First Amendment to the Constitution, passed in June,
1951 which empowered the State to impose "reasonable restrictions"
on the freedom of speech and expression "in the interests of the security
of the State 33 , friendly relations with foreign States, public order, decency
or morality, or in relation to contempt of court, defamation, or incitement
c
to an offence". The words "libel" and "slander" were dropped.
"Incitement to an offence" was added as a response to the rulings in
State t~f Bilwr v. Sflailaba/a DevP 9 am/ Brij Bii us/um v. State of
Delhi'°. The restrictions were qua Iified by prefixing the word
"reasonable''. The 16th Amendment to the Constitution in 1963 added D
the power to impose restrictions on the freedom of speech and expression
in the interests of"sovereignty and integrity of India".
61. We may state with profit that the debates of the Constituent
Assembly can be taken aid of for the purpose of understanding the
intention of the framers of the Constitution. In S.R. Clwudfluri v. E
State of Punjab and others• 1 a three-Judge Bench has observed that
Constitutional provisions are required to be understood and interpreted
with an object-oriented approach. A Constitution must not be construed
In a narrow and pedantic sense. The words used may be general in
terms but, their full import and true meaning, has to be appreciated
considering the true context in which the same are used and the purpose F
which they seek to achieve. While so observing, the Court proceeded to
state that it is a settled position that debates in the Constituent Assembly
may be relied upon as an aid to interpret a constitutional provision because
it is the function of the court to find out the intention of the framers of
the Constitution. It was also highlighted that the Constitution is not just a G
document in solemn form, but a living framework for the Government of
the people exhibiting a sufficient degree of cohesion and its successful
" Replacing the words "tends to overthrmr the State".
"AIR 1952 SC 329
''' 1952 SCR 654 : AIR 1950 SC 129
'
1
<2001>1sec126 H
942 SUPREME COURT REPORTS [2016] 3 S.C.R.

A work; Jg depends upon the democratic spirit underlying it being respected
in letter and in spirit. In Special Reference No. 1 of 2002, 111 re
(Guj;~rat Assembly Election matter)"', the issue of relying on the
Constituent Assembly Debates again came up for consideration. Khare,
J. (as His Lordship then was) referred to HIS Ho/i11ess Kesavmumtla
Blwrati Sripada!(alvaru v. State <~{Kem/a mu/ another, and held:-
B
"ConstituentAssembly Debates although not conclusive. yet show
the intention of the framers of the Constitution in enacting provisions
of the Constitution and the Constituent Assembly Debates can
throw light in ascertaining the intention behind such provisions."

c 62. Recently, in Ma110.i Narula v. U11io11 Qf India"" the majority
in th~ context of understanding the purpose of Article 75 of the
Const,itution referred to the Constituent Assembly debates.
'63. We have referred to the aforesaid aspect only to high Iight the
intention of the founding fathers and also how contextually the word
D "defamation" should be understood. At this stage, we may state that in
the course of hearing, an endeavour was made even to the extent of
stating that the word "defamation" may not even call for a civil action in
the absence of a codified law. In this regard, we may usefully refer to
M.C. Setalvad's Hamlyn Lectures (Twelfth Series) ''The Common Law
of India" wherein India's first Attorney General expressed that:-
E
"an impo11ant branch of law which has remained uncodified in
India is the law relating to civil wrongs.
Some of the most impo11ant rights of a person which the law
protects from injury are rights to the security .of his person, his
domestic relations and his property and reputation ... (page I 08)
F
One of the outstanding fact of English legal history for the last
three centuries is the development of the law of torts from small
beginnings to its present dimensions as a separate branch of law.
The action for damages as a remedy for violations of rights and
duties has been fashioned by lawyers.judges and juries of England
G
as an instrument for making people adhere to standards of
reasonable behavior and respect the rights anc! interest of cne
another. A body of rules has grown and is constantly growing in
"(2002) s sec 237
" ( 1973) 4 sec 225
H "(2014) 9 sec 1
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 943
LAW & ORS. [DIPAK MISRA, J.]

response to new concepts of right and duty and new needs and A
conditions of advancing civilization. The principles which form
the foundation of the law of torts are usually expressed by saying
the injuria sine damno is actionable but damnu111 sine (or
absque) injuria is not . ... "(page I 09)
64. The common law of England was the prevalent law being B
adopted before the Constitution came into force and it is declared as a
law in force under Article 372 of the Constitution of India by a larger
Bench decision in S11peri11te11de11t and Remembrancer ofLegal Affairs
v. Corporation of Calcutta"'.
65. The position has further become clear in Ganga Bai v. Vijay c
K1111wr"6 wherein this Court has ruled thus:-
"There is an inherent right in every person to bring a suit of a civil
nature and unless the suit is barred by statue one may, at one's
peril, bring a suit one's choice. It is no answer to a suit, howsoever
frivolous the claim, that the law confers no such right to sue. A D
suit for its maintainability requires no authority of law and it is
enough that no statute bars the suit."
66. We have referred to this aspect only to clarify the position
that it is beyond any trace of doubt that civil action for which there is no
codified law in India, a common law right can be taken recourse to E
under Section 9 of the Code of Civil Procedure, 1908, unless there is
specific statutory bar in that regard.
67. The other aspect that is beingJ1ighlighted in the context of
Article l 9(2)(a) is that defamation even is conceived of to include a
criminal offence, it must have the potentiality to "incite to cause an
F
offence". To elaborate, the submission is the words "incite to cause an
offence'' should be read to give attributes and characteristics oferiminality
to the \vord "defamation". It must have the potentiality to lead to breach
of peace and public order. It has been urged that the intention ofdause
(2) of Attic le 19 is to include a public law remedy in respect ofa grievance
that has a collective impact but not as an actionable claim under the G
common law by an individual and, therefore, the word "defamation" has
to be understood in that context, as the associate words are "incitement
to an offence" would so warrant. Mr. Rao, learned senior counsel,
4
; AIR 1967 SC 997 = I 967 (2) SCR 170
'" ( t9N) 2 sec 393 H
944 SUPREME COURT REPORTS [2016) 3 S.C.R.

A astutely canvassed that unless the word "defamation" is understood in
this manner applying the principle of noscitur a sociis, the cherished and
natural right of freedom of speech and expression which has been
recognized under Article 19( I )(a) would be absolutely at peril. Mr.
Narsimha, learned ASG would contend that the said rule of construction
would not be applicable to understand the meaning of the term
B
"defamation". Be it noted, while construing the provision of Article 19(2),
it is the duty of the Court to keep in view the exalted spirit, essential
aspects, the value and philosophy of the Constitution. There is no doubt
that the principle of noscitur a sociis can be taken recourse to in order to
understand and interpret the Constitution but while applying the principle,
c one has to keep in mind the contours and scope of applicability of the
said principle. In State of Bombay v. Hospital Mtizdoor Sab/w 41 , it
has been held that it must be borne in mind that noscitur a sociis is
merely a rule of construction and it cannot prevail in cases where it is
clear that wider words have been deliberately used in order to make the
scope of the defined word correspondingly wider. It is only where the
D
intention of the legislature in associating wider words with words of
narrower significance is doubtful, or otherwise not clear that the said
rule of construction can be usefully applied. It can also be applied where
the meaning of the words of wider import is doubtful; but, where the
object of the legislature in using wider words is clearand free of ambiguity,
E the rule of construction in question cannot be pressed into service.
68. In Ba11k of India v. Vijay Tra11sport a11d otlters" 8, the Cou11
was dealing with the contention that a literal interpretation is not always
the only interpretation of a provision in a statute and the court has to look
at the setting in which the wo1 Is are used and the circumstances in
F which the law came to be passed to decide whether there is something
implicit behind the words actually used which would control the literal
meaning of the words used. For the said purpose, reliance was placed
on R.L. Arora v. State of Uttar Pradesh"9 • Dealing with the said aspect,
the Court has observed thus:-

G " ... It may be that in interpreting the words of the provision of a :
statute, the setting in which such words are.placed may be taken
into consideration, but that does not mean that even though the

"AIR 1960 SC 610; (1960) 2 SCR 866 ·
"1988 Supp sec 47 ;AIR 1988 SC 151
H "' ( 1964) 6 SCR 784 ;AIR 1964 SC 1230
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 945
LAW & ORS. [DIPAK MISRA, J.]

words which are to be interpreted convey a clear meaning, still a A
different interpretation or meaning should be given to them because
of the setting. In other words, while the setting of the words may
sometimes be necessary forthe interpretation of the words of the
statute, but that has not been ruled by this Court to be the only and
the surest niethod of interpretation .... "
B
69. The Constitution Bench, in Godfrey Phillips India Ltd. and
cmother v. State of U.R and others 50 , while expressing its opinion on
the aforesaid rule of construction, opined:-
'·8 J. We are aware that the maxim of noscitur a sociis may be a
treacherous one unless the "societas" to which the "soc ii" belong, c
are known. The risk may be present when there is no other factor
except contiguity to suggest the "societas". But where there is,
as here, a term of wide denotation which is not free from ambiguity,
the addition of the words such as "including" is sufficiently
indicative of the societas. As we have said, the word "includes"
in the present context indicates a commonality or shared features D
or attributes of the including word with the included.
x x x x
83. Hence on an application of general principles of interpretation,
we would hol.d that the word "luxuries" in Entry 62 of List II E
means the activity of enjoyment of or indulgence in that which is
costly or which is generally recognised as being beyond the
necessary requirements of an average member of society and
not articles of luxury."
70. At this juncture, we may note that in Ahmedahad Pvt.
F
Prinwry Teachers' A.\·s11. v. Administrative Officer and others 5'. it
has been stated that noscitur a sociis is a legitimate rule of construction
to construe the words in an Act of the Parliament with reference to the
words found in immediate connection with them. In this regard, we
may refer to a passage from Justice G.P. Singh, Principles of Statutory
lnterpretatfon 5 ~ where the learned filiihor has referred to the lucid G
explanation· given by Gajendragadkar, J. We think it appropriate to
reproduce the passage:·-

'" (2005) 2 sec 51.5..
'' (2004) 1 sec 755
'' 13th Edn. WI 2 p. 509 H
946 SUPREME COURT REPORTS [2016) 3 S.C.R.

A '•Jt is a rule wider than the rule of ejusdem generis; rather the
latter rule is only an application of the former. The rule has been
lucidly explained by GA.I ENDRAGADKAR. J. in the following
words: "This rule, according to MAXWELL 5\ means that when
two or more words which are susceptible of analogous meaning
are coupled together. they are understood to be used in their
B
cognate sense. They take as it were their colour from each other.
that is, the more general is restricted to a sense analogous to a
less general.''
Learned author on further discussion has expressed the view that
meaning of a word is to be judged from the company it keeps, i.e.,
c reference to words found in immediate connection with them. It applies
when two or more words are susceptible of analogous meanings are
coupled together, to be read and understood in their cognate sense. 5•
Noscitur a soccis is merely a rule of construction and cannot prevail
where it is clear that wider and diverse etymology is intentionally and
D deliberately used in the provision. It is only when and where the intention
of the legislature in associating wider words with words of narrowest
significance is doubtful or otherwise not clear. that the rule of 11oscitur a
.wccis is useful.
71. The core issue is whether the said doctrine of noscitur u
E soccis should be applied to the expression "'incitement of an offence"
used in Article 19(2) of the Constitution so that it gets associated with
the term "defamation". The term •'defamation" as used is absolutely
clear and unambiguous. The meaning is beyond doubt. The said term
was there at the time of commencement of the Constitution. If the word
"defamation" is associated or is interpreted to take colour from the terms
F .. incitement to an offence". it would unnecessarily make it a restricted
om: which even the founding fathers did not intend to do. Keeping in
view the aid rhat one may take from the Constituent Assembly Debates
and regard being had to the clarity of expression. we are of the considered
opinion that there is no warrant to apply the principle of 11oscitur a
G sociis to give a restricted meaning to the term "defamation" that it only
includes a criminal action if it gives rise to incitement to constitute an
offence. The word "incitement" has to be understood in the context of
freedom of speech and expression and reasonable restriction. The word
3
' Ma:rn·ell: Interpretation of" Statutes. 11th Edition. p. 321
"Principles of Statutory Interpretations b: Ci.I'. Singh. Eighth Edition. p.379
H
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 947
LAW & ORS. [DIPAK MISRA, J.]

"incitement" in criminal jurisprudence has a different meaning. It is A
difficult to accede to the submission that defamation can. only get
criminality ifit incites to make an offence. The word ''defamation" has
its own independent identity and it stands alone and the law relating to
defamation has to be understood as it stood at the time when the
Constitution came into force.
B
72. The submission is that Sections 499 and 500 of !PC are not
confined to defamation of the State or its components but include
defamation of any private person by another private person totally
unconnected with the State. In essence, the proponement is that the
defamation of an individual by another individual can be a civil wrong
but it cannot be made a crime in the name of fundamental right as c
protection of private rights qua private individuals cannot be conferred
the status of fundamental rights. If, argued the learned counsel, SLtch a
pedestal is given, it would be outside the purview of Part Ill of the
Constitution and run counter to Articles 14, 19 and 21 of the Constitution.
It is urged that defamation of a private person by another person is D
unconnected with the fundamental right conferred in public interest by
A11icle 19( I )(a); and a fundamental right is enforceable against the State
but cannot be invoked to serve a private interest of an individual.
Elucidating the same, it has been propounded that defamation of a private
person by another person cannot be regarded as· a 'crime' under the
constitutional framework and hence, what is permissible is the civil wrong E
and the remedy under the civil law. Section 499 !PC, which ~tipulates
defamation ofa private person by another individual, has no nexus with
the fundamental right conferred under A11icle 19( I )(a) of the Constitution,
for Article 19(2) is meant to include the public interest and not that of an
individual and, therefore, the said constitutional provision cannot be the F
source of criminal defamation. This argument is bu iIt up on two grounds:
(i) the common thread that runs through the various grounds engrnfted
under Artie le 19(2) is relatable to the protection of the interest of the
State and the public in general and the word "defamation" has to be
understood in the said context. and (ii) the principle ofnoscitur a sociis,
when applied, "defamation" remotely cannot assume the character of G
public interest or interest of the crime inasmuch a crime remotely has
nothing to do with the same.
73. We have already stated about the doctrine of noscitur a sociis
with regard to 'incitementofan offence'. Mr. Rao, learned senior counsel,
H
948 SUPREME COURT REPORTS [2016] 3 S.C.R.

A has emphasized on public interest relying on the said principle and in that
context has commended us to the decisions in K. Blwgiratlti G Sltenoy
and otlters v. K.P. Bal/akuraya and another5 5 , Reserve Bank of India
v. Peerless General Finance and Investment Co. Ltd. and otlters 56 •
In Peerless General Finance and /11vest111e11t Co. Ltd. (supra),
Chinnappa Reddy, J. speaking for the Court, has observed that:-
B
"Interpretation must depend on the text and the context. They are
the bases of interpretation. One may well say if the text is .the
texture, context is what gives the colour. Neither can be ignored.
Both are important. That interpretation is best which makes the
textual interpretation match the contextual."
c
74. In K. Blwgirathi (supra), it has been held that:-
"lt is not a sound principle in interpretation of statutes to lay
emphasis on one word disjuncted from its preceding and succeeding
words. A word in a statutory provision is to be read in collocation
D with its companion words. The pristine principle based on the
maxim noscitur a sociis (meaning of a word should be known
from its accompanying or associating words) has much relevance
in understanding the import of words in a statutory provision."
75. The decision in Peerless General Finance and Investment
E Co. Ltd. (supra) relates to the principles to be adopted for understanding
the statute. In K. Blwgirathi (supra), the Comt has referred to the
principle having regard to the statutory context. We have already referred
to the decision in Hospital Mazdoor Sublla (supra) wherein it has been
ruled that the principle of noscitur a sociis is merely a rule of construction
and it cannot be allowed to prevail in a case where it is clear that wider
F words have been deliberately used in order to make the scope of the
defined word correspondingly wider. The term "defamation" as used in
Article 19(2) should not be narrowly construed. The conferment of a
narrow meaning on the word would defeat the very purpose that the
founding fathers intei1ded to convey and further we do not find any
justifiable reason to constrict the applicatiot1,The word "defamation" as
G
used in Article 19(2) has to be conferred an independent meaning, for it
is incomprehensible to reason that it should be read with the other words
and expressions, namely, "security of the State", "friendly relations with

"(1999) 4 sec 135
H "' ( 1987) 1 sec 424
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 949
LAW & ORS. [DIPAK MISRA, J.]

foreign States", "public order, decency or morality". The submission is A
based on the premise that "defamation" is meant to serve private interest
of an individual and not the larger public interest. Both the aspects of
the said submission are interconnected and interrelated. Defamation has
been regarded as a crime in the !PC which is a pre-constitutional law. It
is urged that such kind of legal right is unconnected with the fundamental
B
right conceived ofunder Article 19( I )(a) of the Constitution. Additionally,
it is canvassed that reputation which has been held to be a facet of
Article 21 in Dilipkuniar Ra~Jwvemlrana(lt Nadkami (supra),
Me/mzood Nayyar Azam (supra), and Umesh Kumar (supra), is against
the backdrop where the State has affected the dignity and reputation of
an individual. This aspect of the submission needs apposite understanding. c
Individuals constitute the collective. Law is enacted to protect the societal
interest. The law relating to defamation protects the reputation of each
individual in the perception of the public at large. It matters to an individual
in the eyes of the society. Protection of individual right is imperative for
social stability in a body polity and that is why the State makes laws
D
relating to crimes. A crime affects the society. It causes harm and
creates a dent in social harmony. When we talk of society, it is not an
, abstract idea or a thought in abstraction. There is a link and connect
between individual rights and the society; and this connection gives rise
to community interest at large. It is a concrete and visible phenomenon.
Therefore, when harm is caused to an individual, the society as a whole E
is affected and the danger is perceived.
76. In this context, it is necessary to understand the basic concept
of crime. In Halsbury's, 41h Edition, "Principles of Criminal Liability" it
has been described thus:-
"There is no satisfactory definition of crime which will embrace F
the many acts and omissions which are criminal, and which will at
the same time exclude all those acts and omissions which are not.
Ordinarily a crime is a wrong which affects the security or well-
being of the public generally so that the public has an interest in its
suppression. A crime is frequently a moral wrong in thatit amounts G
to conduct which is inimical to the general moral sense of the
community. It is, however, possible to instance many crimes which
exhibit neither of the foregoing characteristics. An act may be
made criminal by Parliament simply because it is criminal process,
rather than civil, which offers the more effective means of
H
950 SUPREME COURT REPORTS [2016] 3 S.C.R.

A controlling the conduct in question."
77. In Kenny's Outlines of Criminal Ia~v. 19'h Edition, 1966 by
J.W. Cecil Turner, it has been stated that:-
"There is indeed no fundamental or inherent difference between
a crime and a to11. Any condl!::t which harms an individual to
B some extent harms society, since society is made up of individuals;
and therefore although it is true to say of crime that is an offence
against society, this does not distinguish crime from tort. The
difference is one of degree only, and the early history of the
common law shows how words which now suggest a real
c distinction began rather as symbols of emotion than as terms of
scientific classification."
And, again :-
''So long as crimes continue (as would seem inevitable) to be
created by government policy the nature of crime will elude true
D definition. Nevertheless it is a broadly accurate description to
say that nearly every instance of crime presents all of the three
following characteristics: (I) that it is a harm, brought about hy
human conduct, which the sovereign power in the State desires to
prevent: (2) that among the measures of prevention selected is
the threat of punishment; (3) that legal proceedings of a special
E
kind are employed to decide whether the person accused did in
fact cause the harm, and is, according to law, to be held legally
punishable for doing so.''
78. Stephen defines a Crime thus:-
F "a crime is an unlawful act or default which is an offence against
the public, rendering the person guilty of such act or default liable
to legal punishment. The process by which such person is punished
for the unlawful act or default is carried on in the name of the
Crown; although any private person, in the absence of statutory
provision to the contrary, may commence a criminal prosecution.
G Criminal proceedings were formerly called pleas of the crown,
because the King, in whom centres the majesty of the whole
community, is supposed by the law to be the person injured by
every infraction of the public rights belonging to that community.
Wherefore he is, in all cases, the proper prosecutor for every
H
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 951
LAW & ORS. [DIPAK MISRA, J.]

public offence". 57 A
79. Blackstone, while discussing the general nature of crime, has
defined crime thus:-
" A crime, or misdemeanour, is an act committed or omitted, in
violation of a public law, either forbidding or commanding it. This
general definition comprehends both crimes and misdemeanours; B
which, properly speaking, are mere synonyms terms: though, in
common usage, the word 'crimes' is made to denote such offences
as are of a deeper and more atrocious dye; while smaller faults,
and omissions ofless consequence, are comprised under the gentler
name of 'misdemeanours' only." 58
c
80. The distinction of public wrongs from private, of crimes and
misdemeanours from civil injuries, seems principally to consist in this:
that private wrongs or civil injuries are an infringement or privation of
the civil rights which belongs to individuals, considered merely as
individuals; public wrongs or crimes and misdemeanours are a breach
and violation of the public rights and duties due to the whole community D
in its social aggregate capacity. 5" In all cases the crime includes i11jury;
every public offence is also a private wrong, and somewhat more. It
affects the individual, and it li~ewise affects the commu1iity. 60
8 l. The constituents of crime in general has been enumerated in
Halsbury's Laws of England as "a person is not to be convicted of a E
crime unless he has, by ~oluntary conduct, brought about those elements
which by common law or statute constitute that crime. In general a
person does not incur criminal liability unless he intended to bring about,
or recklessly brought about, those elements which constitute the crime.
The foregoing concepts are traditionally expressed in maxim "actus 11011
F
facit reum nisi mens sit rea" 61 • Enforcement of a right and seeking
remedy are two distinct facets. It should not be confused.

82. The concept of crime is essentially concerned with social
order. It is well known that man's interests are best protected as a member
of the community. Everyone owes certain duties to his fellow-men and G
" Stephen's : New Commentaries on the Laws of England. Ed 17. Vol.4. Chap I. p. 1-2.
" Blackstone's : Commentaries on the Laws of England: Edited by Wayne Morrison.
Vol. 4, p.5
" Ibid. p. 5
'"Ibid. p. 6
''' Halsbury's Laws of England: Edition 4. Vol.2. Para 4. p.12
H
952 SUPREME COURT REPORTS [2016) 3 S.C.R.

A at the same time has certain rights and privileges which he expects
others to ensure for him. This sense of mutual respect and trust for the
rights of others regulates the conduct of the members of society inter-
se. Although most people believe in the principle of'live and let live', yet
there are a few who, for some reason or the other, deviate from this
normal behavioural pattern and associate themselves with anti-social
8
elements. This obviously imposes an obligation on the State to maintain
normalcy in the society. Th is arduous task of protecting the law abiding
citizens and punishing the law breakers vests with the State which
performs it through the instrumentality of law. It is for this reason that
Salmond has defined law as a 'rule of action' regulating the conduct of
c individuals in society. The conducts which are prohibited by the law in
force at a given time and place are known as wrongful acts or crimes,
whereas those which are permissible under the law are treated as lawful.
The wrongdoer committing crime is punished for his guilt under the law
of crime."'
D 83. Mr. Rohtagi has referred to the Blackstone's definition crimes
and laid emphasis on the statement of Antony Duff who has lucidly
observed that "we should interpret a 'public' wrong, not as a wrong that
injures the public, but as one that properly concerns the public i.e. the
polity as a whole". In this regard, he has drawn our attention to a passage
E from Duff and Marshall which state that public wrongs are wrongs
which village the shared values that normatively define the political
community in which fellow citizens are participants. The impact of such
wrongs are shared by both the victims and fellow citizens and in this
sense, such wrongs, concern the public at large- the polis, the state and
fellow citizens. It is because of the "public" element that it is the State
F rather than the victim who is principally in-charge of the legal process.
It is the pol ice who investigates the case, it is the State that brings the
charges and whether charges are brought, how far the case proceeds is
up to the prosecution - it is not for the victim to decide the course of the
case. On the other hand, in the civil process it is the affected private
G individual who is primarily in-charge of the legal process and it is for
such individual to take the case to its logical conclusion or to drop it ifhe
so chooses -there is no duty on him to bring the case at all.

'''Criminology and Penology by Dr. N.V. Pranjape. 15th Edition. 2012 p. I
H
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 953
LAW & ORS. [DIPAK MISRA, J.]

84. In this context, reference to certain authorities that deliberated A
the conception of crime in the societal context would be apt. In State of
Maltaraslttra v. Sujay Mangeslt Poyarekar63 , this Court has held that
every crime is considered as an offence against the society as a whole
and not only against an individual even though it is an individual who is
the ultimate sufferer. It is, therefore, the duty of the State to take
8
appropriate steps when an offence has been committed. Yet again, in
Moltd. S/ia/iabuddin v. State of Bilrnr and otliers64, it has been
observed that every criminal act is an offence against the society. The
crime is a wrong done more to the society than to an individual. It
involves a serious invasion of rights and liberties of some other person or
persons. In Vinay Devanna Nayak v. Ryot Sewa Sallakari Bank c
Ltcl. 6;, the Court, while deliberating on the issue of compromise in a
criminal case, has noted that it is no doubt true that every crime is
considered to be an offence against the society as a whole and not only
against an individual even though an individual might have suffered
thereby. It is, therefore, the duty of the State to take appropriate action
D
against the offender. It is equally the duty of a court of law administrating
criminal justice to punish a criminal. The stress is on the duty of the
State in taking action against the violator of law.
85. In R. Sai Blwratlti v. J. Jayalalitlw aiul otlters66, while
opining about crime, it has been observed as under:-
E
"56. Crime is applied to those acts, which are against social order
and are worthy of serious condemnation. Garafalo, an eminent
criminologist, defined "crime" in terms of immoral and anti-social
acts. He says that:-
"crime is an immoral and harmful act that is regarded as F
criminal by public opinion because it is an injury to so
much of the moral sense as is possessed by a community - /
a measure which is indispensable for the adaptation of
the individual to society".
The authors of the Indian Penal Code stated that:
G
" ... We cannot admit that a Penal Code is by any means to be

"(2008) 9 sec 475
M (2010) 4 sec 653
"(2008) 2 sec 305
"' (2004) 2 sec 9 H
954 SUPREME COURT REPORTS [2016) 3 S.C.R.

A considered as a body of ethics, that the legislature ought to punish
acts merely because those acts are immoral, or that, because an
act is not punished at all, it follows that the legislature considers
that act as innocent. Many things which are not punishable are
morally worse than many things which are punishable. The man
who treats a generous benefactor with gross ingratitude and
B
insolence deserves more severe reprehension than the man who
aims a blow in passion. or breaks a window in a frolic; yet we
have punishment for assault and mischict~ and none for ingratitude.
The rich man who refuses a mouthful of rice to save a fellow
creature from death may be a far worse man thai1 the starving
c wretch who snatches and devours the rice; yet we punish the
latter for theft, and we do not punish the former for hard-
heartedness."
86. l n T. K. Gopal alia.\· Gopi v. State 1~{ Kllr1111t11kll 61 •
deliberating on the definition of crime. the Court ruled that crime can be
D defined as an act that subjects the doer to legal punishment. It may also
be defined as commission of an act specifically forbidden by law; it may
be an offence against morality or social order". In Kllrlur Si11glt 1••
. State of P1111jah 68 , this Cou1t observed that:-
"446. What is a crime in a given society at a particular time has a
E wide connotation as the concept of crime keeps on changing with
change in political, economic and social set-up of the country. ·
Various legislatioiis dealing with economic offences or offences
dealing with violation of industrial activity or breach of taxing
provision are ample proofofit. The Constitution-makers foresaw
the eventuality, therefore they conferred such powers both on
F Central and State Legislatures to make laws in this regard. Such
right includes power to define a crime and provide for its
punishment. Use of the expression, "including all matters included
in the Indian Penal Code at the commencement of the
Constitution"' is unequivocal indication of comprehensive nature
G of this entry. It further empowers the legislature to make laws not
01ily in respect of matters covered by the Indian Penal Code but
any other matter which could reasonably and justifiably be
considered to be criminal in nature."

'" (2000) 6 sec 168
H ,,, <1994) 3 sec 569
SUBRAMANIAN SWAMY v. UNION OF INDIA. MINISTRY OF 955
LAW & ORS. [DIPAK MISRA, J.]

87. In Harpreet Kaur (Mrs) 1•. State of Malrnrashtra mu/ A
<mother"°, the Court, though in a different context. opined that crime is
a revolt against the whole society and an attack on the civilisation of the
day. In their essential qua Iity, the activities which affect' law and order'
and those which disturb 'public order' may not be different but in their
potentiality and effect upon even tempo of the society and public tranquility
B
there is a vast difference. In State of Kamataka v. Appa Balu I11ga/e
a11d others' 0 it has been observed that criminal law primarily concerns
with social protection, prescribes rules of behavior to be observed by all
persons and punishes them for deviance. transgression or omission.
88. From the aforesaid discussion, it is plain as day that the
contention that the criminal offence meant to sub serve the right of inter c
se private individuals but not any public or collective interest in totality is
sans substance. In this regard, we may take note of the submission put
forth by Mr. Narsimha, learned Additional Solicitor General, that Articles
17, 23 and 24 which deal with abolition ofuntouchability and prohibit
trafficking in human beings and forced labour and child labour respectively D
are rights conferred on the citizens and they can be regarded as
recognition of horizontal rights under the Constitution. He has referred
to certain legislations to highlight that they regulate rights of individuals
inter se. Mr. Narsimha ,has drawn immense inspiration from Vislwka
and others v. State of R<~iastlu111 and others" where the Court has
framed guidelines to protect the rights of individuals at their work place. E
It ultimately resulted in passing of the Sexual Harassment of Women at
Workplace (Prevention, prohibition and Redressal) Act, 2013 which
empowered individuals to protect their fundamental right to dignity against
other citizens. Similarly, legislations like the Child Labour (Prohibition &
Regulation) Act, 1986, the Scheduled Castes and the Scheduled Tribes· F
(Prevention of Atrocities) Act, 1989, Protection of Civil Rights Act, 1955,
Press Council Act, 1978, the Noise Pollution (Regulation and Control)
Rules, 2000 under the Environment (Protection) Act. 1986 regulate the
fundamental rights of citizens vis-a-vis other citizens.
89. We have referred to this facet only to show that the submission G
so astutely canvassed by the learned counsel for the petitioners that
treating defamation as a criminal offence can have no public interest
,,., (1992)2 sec 111
,., 1995 Supp. <4l sec 469
11
<1997) 6 sec 241
H
956 SUPREME COURT REPORTS [2016] 3 S.C.R.

A and thereby it does not serve any social interest or collective value is
sans substratum. We may hasten to clarify that creation of an offence
may be for some different reason declared unconstitutional but it cannot
be stated that the legislature cannot have a law to constitute an act or
omission done by a person against the other as a crime. It depends on
the legislative wisdom. Needless to say, such wisdom has to be in accord
B
with constitutional wisdom and pass the test of constitutional challenge.
lfthe law enacted is inconsistent with the constitutional provisions, it is
the duty of the Court to test the law on the touchstone of Constitution.
90. It is submitted by Mr. Rao, learned senior counsel, that the
object of Part III of the Constitution is to provide protection against the
c State action and, therefore, the criminal defamation which is basically a
dispute between two private individuals cannot become a facet of the
term criminal defamation as used in Article 19(2) of the Constitution, for
there cannot be a constitutional protection for such an action. For the
said purpose, he has placed reliance on the authority in State of West
D Bengal v. Suhod/i'Gopal Bose and others7'. On a perusal of the said
decision, we find that it has been rendered in a quite different context
and not with regard to an individual act becoming an offence in the
criminal law and hence, the said decision is remotely not applicable to
such a situation. Therefore, we conclude and hold that the restricted
meaning sought to be given to the term "defamation" is unacceptable
E and insuppmiable.
Sanctity and significance of Freedom of Speech and
Expression in a democracy
91. Freedom of speech and expression in a spirited democracy is
F a highly treasured value. Authors, philosophers and thinkers have
considered it as a prized asset to the individuality and overall progression
of a thinking society, as it permits argument, allows dissent to have a
respectable place, and honours contrary stances. There are proponents
who have set it on a higher pedestal than life and not hesitated to barter
death for it. Some have condemned compelled silence to rnthless treatment.
G William Dougles has denounced regulation of free speech like regulating
diseased cattle and impure butter. The Court has in many an authority
having realized its precious nature and seemly glorified sanctity has put
it in a meticulously structured pyramid. Freedom of speech is treated as
the thought of the freest who has not mortgaged his ideas, may be wi Id,
H "AIR 1954 SC 92 : [ 1954] SCR 587
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 957
LAW & ORS. [DIPAK MISRA, J.]

to the artificially cultivated social norms; and transgression thereof is not A
perceived as a folly. Needless to emphasise, freedom of speech has to
be allowed specious castle, but the question is should it be so specious or
regarded as so righteous that it would make reputation of another individual
or a group or a collection of persons absolutely ephemeral, so as to hold
that criminal prosecution on account of defamation negates and violates
B
right to free speech and expression of opinion. Keeping in view what
we have stated hereinabove, we are required to see how the constitutional
conception has been understood by the Court where democracy and
rule oflaw prevail.
92. Bury in his work History of .Freedom of Thought
( 1913) has observed that freedom of expression is
c
''a supreme condition of mental and moral progress" [p.239]. In the
words of American Supreme Court, it is "absolutely indispensible for the
preservation of a free society in which government is based upon the
consent of an informed citizenry and is dedicated to the protection of the
rights of all, even the most despised minorities•· (See Speiser v. D
Ramlall''). In Yttte.5 v. U.S. 7" the court held that '"the only kind of
security system that can preserve a free Government - one that leaves
the way wide open for people to favor discuss, advocate, or incite causes
and doctrines however obnoxious and antagonistic such views may be
to the rest of us." In Stromberg v. Cal[fornia 75 the Court remarked
"The maintenance of the opportunity for free political discussion to the E
end that government may be responsive to the will of the people and that
changes may be obtained by lawful means ... is a fundamental principle
of our constitutional system." In Palko v. Co1111ectic11t76 the right to
freedom of speech and expression has been described as the "touchstone
of individual liberty" and "the indispensable condition of nearly every F
form of freedom."
93. Apart from the aforesaid decisions, we may refer to the
dissenting opinion of Holmes J. in !lbmms v. United States 77 • thus:-
..... But when men have realised that time has upset many fighting
faiths, they may come to believe even more than they believe the G
very foundations of their own conduct that the ultimate good
" ( 1958) 257 us 513 (530)
" ( 1958) 354 us 298 (344)
" ( 1931) 283 us 359 (369)
7
"(1937)302US319
77
250 US 616: 63 L Ed 1173 (1919) H
958 SUPREME COURT REPORTS [2016) 3 S.C.R.

A desired is better reached by free trade in ideas-that the best test
of truth is the power of the thought to get itself accepted in the
competition of the market; and that truth is the only ground upon
which their wishes safely can be carried out. That at any rate, is
the theory of our Constitution."
B 94. In the concurring judgment Brandeis. J. in Whitney v.
Califomia 78 , stated that:-
"Those who won our independence believed that the final end of
the State was to make men free to develop their faculties, and
that in its Government the deliberative forces should prevail over
c the arbitra1y. They valued liberty both as an end and as a means.
They believed liberty to be the secret of happiness and courage to
be the secret of libe11y. They believed that freedom to think as
you will and to speak as you think are means indispensable to the
discovery and spread of political truth; that without free speech
and assembly discussion would be futile; that with them, discussion
D affords ordinarily adequate protection against the dissemination
of noxious doctrine; that the greatest menace to freedom is an
inert people; that p,1blic discussion is a political duty; and that this
should be a fundamental principle of the American Government.
They recognised the risks to which all human institutions are
E subject. But they knew that order cannot be secured merely
through fear of punishment for its infraction; that it is hazardous
to discourage thought, hope and imagination; that fear breeds
repression; that repression breeds hate; that hate menaces stable
Government; thatthe path of safety Iies in the opportunity to discuss
freely supposed grievances and proposed remedies; and that the
F fitting remedy for evil counsels is good ones. Believing in the power
of reason as applied through public discussion, they eschewed
silence coerced by law-the argument of force in its worst form.
Recognising the occasional tyrannies of governing majorities, they
amended the Constitution so that free speech and assem~ly should
G be guaranteed.
Fear of serious injury cannot alone justify suppression of free
speech and assembly. Men feared witches and burnt women. It
is the function of speech to free men from the bondage of irrational
fears. To iust(fy suppression of.free speech there must be

1-1 "L Ed 1095: 274 US 357 ( 1927)
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 959
LAW & ORS. [DIPAK MISRA, .I.]

reasonable ground to .feur that serious evil will result iffree A
speech is practiced. There must be reasonable ground to believe
that the danger apprehended is imminent. There must be
reasonable ground to believe that the evil to be prevented is a
serious one. Every denunciation of existing law tends in some
measure to increase the probability that there will be violation of
B
it. Condonation ofa breach enhances the probability. Expressions
of approval add to the probability. Propagation of the criminal
state of mind by teaching syndicalism increases it. Advocacy of
law-breaking heightens it still further. But even advocacy of
violation, however reprehensible morally, is not a justification for
denying free speech where the advocacy falls short of incitement c
and there is nothing to indicate that the advocacy would be
immediately acted on. The wide difference between advocacy
and incitement, between preparation and attempt. between
assembling and conspiracy. must be borne in mind. In order to
suppo1t a finding of clear and present danger it must be shown
D
either that immediate serious violence was to be expected or was
advocated, or that the past conduct furnished reason to believe
that such advocacy was then contemplated."
(Emphasis supplied)
95. Be it stated, the dissenting opinion of Holmes, J. and the
concurring opinion of Brandeis have been quoted in Shrey" Si11glu1/ E
(supra). We have only referred to these decisions as immense emphasis
has been laid on the freedom of speech and expression and in a way
propositions have been propounded that it can have no boundary in a
growing democracy if democracy is expected to thrive. In Shrey"
Sing/wt (supra). the Court has drawn a difference between the US
First Amendment and Article 19( I )(a) read with Article 19(2). The
Court has drawn four differences. We need not advert to the same.
However, the Court has also opined that American judgments have great
persuasive value on the content of freedon1 of speech and expression
and the tests laid down for its infringement but it is only when it comes to
subserving the general public interest that there is the world of difference. G
In the said judgment, a passage has been quoted from K"meshw"r
Pr(ll'ftd v. St(lte of Bi!Ulr79 wherein it has been held that the resultant
flexibility of the restrictions that could be validly imposed renders the
American decisions inapplicable to and without much use for resolving
"'1962 Supp. (3) SCR 369: AIR 1962 SC 1166 H
960 SUPREME COURT REPORTS [2016] 3 S.C.R.

A the questions arising under Article 19( I )(a) or (b) of our Constitution
wherein the grounds on which limitations might be placed on the
guaranteed right are set out with definiteness and precision. The Court
has also referred to a passage from Indian Express Newspapers
(Bombay) Private Ltd. mu/ others v. Union of India and others 80
wherein the Court has opined that while examining constitutionality ofa
B
law which is alleged to contravene Article 19(1 )(a) of the Constitution,
the Court cannot, no doubt, be solely guided by the decisions of the
Supreme Court of the United States of America. But in order to
understand the basic principles of freedom of speech and expression
and the need for that freedom in a democratic country, the Court may
c take them into consideration. We will be referring to Shreya Si11glwl
(supra) in detail at a later stage as the learned counsel for the petitioners
have submitted with immense vigour that the principles stated in Shreya
Singlwl (supra) would squarely apply to the concept of defamation and
application of the said principles would make Section 499 !PC
unconstitutional.
D
96. In Rome.~'1 Tlwppar v. State<~{Madras 8 ' the nrnjority opined
that freedom of speech and of the press lay at the foundation of all
democratic organisations, for without free political discussion no public
education, so essential for the proper functioning of the processes of
popular Government, is possible. A freedom of such amplitude might
E involve risks of abuse. But the Framers of the Constitution may well
have reflected with Madison who was 'the leading spirit in the preparation
of the. First Amendment of the Federal Constitution', that' it is better to
leave a few of its noxious branches to their luxuriant growth, than, by
pruning them away, to injure the vigour of those yielding the proper fruits'
F (Near v. Minnesota"~. L Ed p. 1368.).
97. In Expre~·s Newspaper (Private) Ltd. and another v. Union
of /11dia and othersS! the Court referred to the decision in Romesll
Tlmppar (supra), noted a few decisions of the Court which involved
with the interpretation of Article 19( l )(a) that they only lay down that
G the freedom of speech and expression includes freedom of propagation
of ideas by which freedom is ensured; emphasized on liberty of the
press as it is an essential part of the right to freedom of speech and
"' ( I985 l 1 sec 64 I
" 1950 SCR 594 : AIR 1950 SC 12,1
"283 U.S. 607. AT 717-8
H "AIR 1958 SC 578: 1959 SCR 12
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 961
LAW & ORS. [DIPAK MISRA; J.]

expression and further stated that liberty of the press consists in allowing A
no previous restraint upon publication. Thereafter the Court referred to
number of authorities of the United States ofAmerica and culled out the
principles from the American decisions to the effect that in the United
States of America (a) the freedom of speech comprehends the freedom
of press and the freedom of speech and press are fundamental personal
B
rights of the citizens; (b) that the freedom of the press rests on the
assumption that the widest possible dissemination of information from
diverse and antagonistic sources is essential to the welfare of the public;
(c) that such freedom is the foundation of free Government of a free
people; ( d) that the purpose of such a guarantee is to prevent pub Iic
authorities from assuming guardianship of the public mind, and (e) that c
freedom of press involves freedom of employment or non-employment
of necessary means of exercising this right or in other words, freedom
from restriction in respect of employment in the editorial force and
eventually ruled thus:-
"This is the concept of the freedom of speech and expression as D
it obtains in the United States of America and the necessary
corollary thereof is that no measure can be enacted which would
have the effect of imposing a pre-censorship, curtailing the
circulation or restricting the choice of employment or un-
employment in the editorial force. Such a measure would certainly
tend to infringe the freedom of speech and expression and would, E
therefore, be liable to be struck down as unconstitutional."
98. In All llldia Ba11k Employees' Associmio11 v. Natio11a/
l11dustrial Trihu11a/ (Bank Disputes), Bombay mu/ ot!ter~- 8~ it has
been held that "freedom of speech" means freedom to speak so as to be
heard by others, and, therefore, to convey one's ideas to others. Similarly F
the very idea of freedom of expression necessarily connotes that what
one has a right to express may be communicated to others; and that
includes right to freedom of circulation of ideas.
99. In Sakal Papers (P) Ltd. v. U11io11 of /m/ia 8 ; it has been
held that it must be borne in mind that the Constitution must be interpreted G
in a broad way and not in a narrow and pedantic sense. Certain rights
have been enshrined in our Constitution as fundamental and, therefore,
while considering the nature and content of those rights the Court must
" ( I 962) 3 SCR 269 : A IR I 962 SC 171
"(1962)3 SCR842=AJR 1962 SC 305 H
962 SUPREME.COURT REPORTS [2016] 3 S.C.R.

A not be too astute to interpret the language of the Constitution in so Iiteral
a ~ense as to whittk: them down. On the other hand. the Court must
interpret the Constitution in a manner which would enable the citizen to
enjoy the rights guaranteed by it in the fullest measure subject, of course,
to permissible restrictions. The Court further observed that the right to
freedom of speech and expression carries with it the right to publish and
B circulate one's ideas. opinions and views with complete freedom and by
resorting to any available means of publication, subject again to such
restrictions as could be legitimately imposed under clause (2) of Article
19. Be it stated here that in flldia11 Express Newspapers (supra). this
Court referring to earlier decisions had accepted that freedom of speech
c and expression includes within its scope freedom of press, for the said
freedom promises fre.:dom of propagation of ideas which freedom is
assured by the freedom of circulation. Liberty of the press has been
treated as inseparable and essential for the right to freedom of speech
and expression.
D I00. The Court in Be1111ett Coleman & Co. awl others v. Union
o/1mlw and otlten 8 " referring to Sakal Papers case opined that in the
~aid case the Court has held that freedom of speech would not be restricted
for the purpose of regulating the commercial aspects of activities of the
newspapers. Similarly, it referred to the authorities in l11dia11 Express
Newspapers (supra) and stated that if a law were to single out the
E press for laying down prohibitive burdens on it, that would restrict
circulation and eventually violate Article 19( 1)(a) and wou Id fall outside
the protection afforded by Article 19(2). Elaborating the idea further, the
nu~jority ruled:-

"The faith of a citizen is that political wisdom and vi11uc will sustain
themselves in the free market of ideas so long as the channels of
communication arc left open. The faith in the popular Government
rests on the old dictum, "let the people have the truth and the
freedom to discuss it and all will go well." The liberty of the press
remains an ·'Art of the Covenant" in every democracy. Steel will
G yield products of steel. Newsprint will manifest whatever is thought
of by man. The newspapers give ideas".
10 I. In the said case, the Com1 referred to William Blackstone's
commentaries:-

"' ( t 972) 2 sec 788
H
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 963
LAW & ORS. [DIPAK MISRA. J.]

"Every free man has n undoubted right to lay what sentiments A
he pleases before the public: to forbid this is to destroy the freedom
of the press: but ifhe publishes what is improper, mischievous or
illegal, he must take the consequence of his own temerity."
102. Mathew, J.• while otherwise dissenting, accepted the
protection of freedom of speech in the following words:- B
" .... Free expression is necessary ( 1) for individual fulfilment, (2)
for attainment of truth, (3) for participation by members of the
society in political or social decision-making. and (4) for maintaining
the balance between stability and change in society. In the
traditional theory, freedom of expression is not only an individual c
good, but a social gnod. It is the best process for advancing
knowledge and discovering truth. The theory contemplates more
than a process of individual judgment. It asserts that the process
is also the best method to reach a general or social judgment. ln a
democracy the theory is that all men are entitled to participate in
I)
the process of formulating common decisions. [See Thomas I.
Emerson: Toward a General Theory of First Amendment]. The
crucial point is not that freedom of expression is politically useful
but that it is indispensableto the operation of a democratic system.
In a democracy the basic premise is that the people are both the
governors and the governed. In order that governed may form E
intelligent and wise judgment it is necessary that they must be
appraised of all the aspects of a qt1estion on which a decision has
to be· taken so that they might arrive at the truth''.
We have reproduced the said passage to appreciate the height to
which the freedom of speech and expression has been elevated by this F
Cotui regard being to the democratic and constitutional goals.
103. In llldia11 Express Newspapers (supra). a three-Judge
Rench was again concerned with the importance of freedom of press in
a democratic society. Venkataramiah. J. speaking for the C'ourt opined
thatfreedom of press is the heart and soul and political intercourse and
G
it has assumed the role of public educator nwking formal and non-formal
education possible in a large scale particularly in the developing world.
The Court further observed that the purpose of the press is to advance
the public interest by publishing facts and opinions without which a
democratic electorate cannot make responsible judgments. In this
backdrop, it was emphatically stated it is the primary duty of the courts H
964 SUPREME COURT REPORTS [2016) 3 S.C.R.

A to uphold the said freedom and invalidate all laws or administrative actions
which interfere with it, contrary to the constitutional mandate.
104. In Secret"ry, Mi11istry of li1fornwtio11 & Bro(l</C(ISti11g,
Govt. of India and otlters v. Cricket Association of Bengal am/
otlters 87 , it has been ruled that the freedom of speech and expression
B includes right to acquire information and to disseminate it; and freedom
of speech and expression is necessary, for self-expression which is an
important means of free conscience and self-fulfilment. The Court further
observed that it enables people to contribute to debates on social and
moral issues and it is the best way to find a truest model of anything,
since it is only through it that the widest possible range of ideas can
c circulate. Emphasis has been laid on freedom of the press and freedom
to communicate or circulate one's opinion without interference.
I 05. The Court in Union of Indi" "nd others v. Motio11 Picture
Association and otlters88 explaining the significance of free speech has
observed that free speech is the foundation of a democratic society and
D a free exchange of ideas, dissemination of information without restraints,
dissemination of knowledge, airing of differing viewpoints, debating and
forming one's own views and expressing them, are the basic indicia of a
free society. It has been further stated that freedom alone makes it
possible for people to formulate their own views and opinions on a proper
E basis and to exercise their social, economic and political rights in a free
·society in an informed manner and, therefore, restraints on this right
have been jealously watched by the courts. Article 19(2) spells out the
various grounds on which this right to free speech and expression can
be restrained. Reddi J. in his concurring opinion in People's Union for
Civil Liberties (PUCL) and another v. Union of India and mwtl1er89 ,
F has explained the nature of freedom of speech and expression by
elucidating that just as the equality clause and guarantee of life and
liberty, has been very broadly construed by this Court freedom of speech
and expression has been variously described as a "basic human right'',
"a natural right" and the Iike. The learned Judge has observed that the
importance our Constitution-makers wanted to attach to this freedom is
G
evident from the fact that reasonable restrictions on that right could be
placed by law only on the Iimited grounds specified in Article 19(2), not
to speak of inherent limitations of the right.
"(1995)2 sec 161
"'< 1999) 6 sec 1so
H ,., (2003) 4 sec 399
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 965
LAW & ORS. [DIPAK MISRA, J.]

106. In Union of India v. Naveen Jindal and <mother90 , the A
·Court has laid down that freedom of expression is a cornerstone of
functioning of the democracy and there is a constitutional commitment
to free speech. In Gover11me11t of Andhm Pradesh mu/ others v. P.
Laxmi Devi9', it has been ruled that freedom and liberty is essential for
progress, both economic and social and without freedom to speak,
B
freedom to write, freedom to think, freedom to experiment, freedom to
criticise (including criticism of the Government) and freedom to dissent
there can be no progress. In S. Khushboo v. Kallltiamnutl am/
anot!ter9 ~, it has been laid down that even though the constitutional
freedom of speech and expression is not absolute and can be subjected
to reasonable restrictions on grounds such as 'decency and morality' c
among others, stress must be laid on the need to tolerate unpopular views
in the socio-cultural space. The framers of our Constitution recognised
the importance of safeguarding this right since the free flow of opinions
and ideas is essential to sustain the collective life of the citizenry. While
an informed citizenry is a pre-condition for meaningful governance in
D
the political sense, it is the duty of everyone to promote a culture of open
dialogue when it comes to societal attitudes.
I 07. The significance of freedom of speech has been accentuated
in Ramlila Maidan Incident, In re93 by observing that the freedom of
speech is the bulwark of a democratic Government. This freedom is
essential for proper functioning of the democratic process. The freedom E
of speech and expression is regarded as the first condition of liberty. It
occupies a preferred position in the hierarchy ofliberties, giving succour
and protection to all other liberties. It has been truly said that it is the
mother of all other liberties. Freedom of speech plays a crucial role in
the formation of public opinion on social, political and economic matters. F
It has been described as a "basic human right", "a natural right" and the
like.
I 08. The observations in Salum1 India Real Estate Corporation
Ltd. and others v. Securities (l/U/ Exchange Board of India and
anotlzer94 being extremely significant in the present context are extracted G
below:-
"" (2004)2 sec s10
"' (2008) 4 sec no
s
"(201 o) sec 600
"'<2012) s sec 1
., (2012) 10 sec 603 H
966 SUPREME COURT REPORTS [2016) 3 S.C.R.

A ·'Freedom of expression which includes freedom of the press has
a capacious content and is not restricted to expression of thoughts
and ideas which are accepted and acceptable but also to those
which offend or shock any section of the population. It also includes
the right to receive information and ideas ofall kinds from different
sources. In essence, the freedom of expression embodies the right
B
to k110w. However, under our Constitution no right in Part III is
absolute. Freedom of expression is not an absolute value under
our Constitution. It must not be forgotten that no single value, no
matter exalted, can bear the full burden of upholding a democratic
system of government."
c [Emphasis added]
I 09. In Swte of Karnataka mul a11otlter v. Associated
J)fmiageme11t of E11glislt Medium Prinwry mul Secondary Sc/tools
and otlters95 , while dealing with the freedom under A11icle 19(1 )(a), the
Constitution Bench opined:-
D "36. The word 'freedom' in A11icle 19 of the Constitution means
absence of control by the State and A11icle 19( 1) provides that
the State will not impose controls on the citizen in the matters
mentioned in sub-clauses (a), (b), (c), (d), (e) and (g) of Article
19(1) except those specified in clauses (2) to (6) of Article 19 of
the Constitution. In all matters specified in clause (I) of Article
E
19, the citizen has therefore the liberty to choose, subject only to
restrictions in clauses (2) to (6) of Article 19."
110. The Court referred to the famous essay 'on liberty' by
John Stuart Mill and reproduced a passage from A Grammer of Politics
by Harold J. Laski and then ruled that:-
F
"Freedom or choice in the matter of speech and expression is
absolutely necessary for an individual to develop his personality in
his own way and this is one reason, if not the only reason, why
under Article 19( I )(a) of the Constitution every citizen has been
guaranteed the right to freedom of speech and expression."
G
111. Recently in Devitfas Ra111ac/u11ulm Tuljapurkar i•. State
of Maltraslitra anti otlters9'' the court relying upon various judgments
has ruled that:-

'" (2014) 9 sec 485
H "''(2015)6SCC I
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY -OF 967
LAW & ORS. [DIPAK MISRA, J.]

" ... There can be no doubt that there has been an elevation of the A
concept in a different way, but it cannot form the foundation or
base to sustain the argument of Mr Subramanium that the freedom
has to be given absolute and uncurtailed expanse without any
boundaries of exceptions. We accept the proposition that there
should not be a narrow or condensed interpretation of freedom of
B
speech and expression, butthat does not mean that there cannot
be any limit."
112. While discussing about importance of freedom of speech
and expression which includes freedom to express, we feel it necessary
to dwell upon the JibertY or freedom to express one's ideas through various
medium like writing, printing or making films, etc. Dr. Dhawan, learned c
senior counsel, has commended us to the authorities in Odyssey
Cvmmwtications Pvt. Ltd. v. Lokvidayan Sanglwtmw and otlters97
and S. Rangar<~imt v. P. Jagjivmt Ram and otlters 98 • In Odyssey
Communications Pvt. Ltd. (supra), a public interest litigation was filed
before the High Court for restraining the authorities from telecasting a D
serial film Honi-Anhoni on the plea that it had the potential to spread
false or blind beliefs and superstition amongst the members of the public.
The High Court by an interim order had restrained the authorities from
telecasting the film. This Court allo»'ed the appeal and observed that
right of a citizen to exhibit films on the Doordarshan subject to the terms
and conditions to be imposed by the Doordarshan is a part of the E
fundamental right of freedm:n of expression guaranteed under Article
19(1 )(a) and can be curtailed only under circumstances enshrined in
Article 19(2) and by no other measure. In S. Rm1garajm1 (supra) the
Court was required to consider whether the High Court was justified in
revoking the 'U Certificate' issued to a Tamil film 'Ore Oru Gramathile'
for public viewing. The principal point that was argued before this Com1
was based on right to freedom of speech and expression under Article
19(1 )(a). The Court after referring to earlier decisions opined thus:-
"The High Court, however, was ofopinion thafpublic reaction to
the film, which seeks to change the system of reservation is bound G
to be volatile. The High Court has also stated that people ofTamil
Nadu who have suffered for centuries will not allow themselves
to be deprived of the benefits extended to them on a particular
97
<1988) 3 sec 41 o
'"<I 989) 2 sec 574 H
968 SUPREME COURT REPORTS [20 I 6] 3 S.C.R.

A basis. It seems to us that the reasoning of the High Court runs
afoul of the democratic principles to which we have pledged
ourselves in the Constitution. In democracy it is not necessary
that everyone should sing the same song. Freedom of expression
is the rule and it is generally taken for granted. Everyone has a
fundamental right to form his own opinion on any issue of general
B
concern. He can form and inform by any legitimate means."
I 13. Recently, in Devidas Ranutclumdra Tuljapurkar (supra)
a two-Judge Bench was dealing with the issue ofobscenity in a poem in
a different context. Various judgments of the United States of America,
the United Kingdom and European Cou1ts were referred to. There was
c also reference to the authorities of this Court in the context of Section
292 IPC which included Ranjit D. Udeslti v. State of Malwraslttra 99,
Clwmlrakm1t Kalymul"s Kakodkar v. State of Mll1Utr"slllr" 100 , K.A.
Abbas v. Union of l11dia' 0 '. R<{i Kapoor v. State' 0\ Sanwreslt Bose
v. Am"/ Mitra' 0 3, Directorate General of Doordars/1m1 v. Ammd
D Patward/l(ln' 0·1, Ajay Goswami v. Union of India' 05, Bobby Art
Internati01wl v. Om Pal Singlt Hoon'°" and Aveek Sarkar v. St"te of
W.B. '01 and observed that factum of obscenity has to be judged by applying
the contemporary community standards test. However, the Court held
that when name of Mahatma Gandhi is used as a symbol speaking or
using obscene words, the concept of 'degree' comes in. We think it
E appropriate to reproduce the said passage:-
"When the name of Mahatma Gandhi is alluded or used as a
symbol, speaking or using obscene words, the concept of"degree"
comes in. To elaborate, the "contemporary community standards
test" becomes applicable with more vigour, in a greater degree
F and in an accentuated manner. What can otherwise pass of the
contemporary community standards test for use of the same
language, it would not be so, ifthe name of Mahatma Gandhi is
used as a symbol or allusion or surrealistic voice to put words or
w AIR 1965 SC 881: (1965) I SCR 65
G ''"' <1969) 2 sec 687
'"' <1970) 2 sec 780
'"' <19SOJ 1 sec 43
'"' <1985) 4 sec 289
'"' <2006) s sec 433
'"' (2007) 1 sec J 43
'"'(1996)-lSCC I
H ''" <20 J.1 H sec 2s1
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 969
LAW & ORS. [DIPAK MISRA, J.)

to show him doing such acts which are obscene. While so A
concluding, we leave it to the poet to put his defence at the trial
explaining the manner in which he has used the words and in
what context. We only opine that view of the High Court pertaining
to the framing of charge under Section 292 IPC cannot be flawed."
114. We have referred to a series of judgments on freedom of 8
speech and then referred to Devit/as Ramclum<lra Tuljapurkar (supra)
which dealt with Section 292 IPC solely for the purpose that test in
respect of that offence is different. That apart, constitutional validity of
Section 292 has been upheld in Ranjit D. U<leslti (supra). It is to be
noted that all the cases, barring Odyssey Communication Pvt. Lill.
(supra) and Bobby Art International (supra) [Bandit Queen case], all c
others are in the fictional realm. We are disposed to think that the right
of expression with regard to fictional characters through any medium
relating to creation of a fiction would be somewhat dissimilar for it may
not have reference to an individual or a personality. Right of expression
in such cases is different, and be guided by provisions of any enactment D
subject to constitutional scrutiny. The right of freedom of expression in
a poem, play or a novel pettaining to fictional characters stand on a
different footing than defamation as the latter directly concerns the living
or the legal heirs of the dead and most importantly, having a known
identity. A person in reality is defamed contrary to a "fictional character"
being spoken of by another character or through any other mode of E
narrative. Liberty of freedom in that sphere is fundamentally different
than the arena of defamation. Therefore, the decisions rendered in the
said context are to be guardedly studied, appreciated and applied. It
may be immediately added here that the freedom in the said sphere is
nottotally without any limit or boundary. We have only adverted to the F
said aspect to note that what could legally be permissible in the arena of
fiction may not have that allowance in reality. Also, we may state in
quite promptitude that we have adverted to this concept only to have the
completeness with regard to precious value of freedom of speech and
expression and the limitations perceived and stipulated thereon.
G
115. Be that as it may, the aforesaid authorities clearly lay down
that freedom of speech and expression is a highly treasured value under
the Constitution and voice of dissent or disagreement has to be respected
and regarded and not to be scuttled as unpalatable criticism. Emphasis
has been laid on the fact that dissonant and discordant expressions are
to be treated as view-points with objectivity and such expression of views H
970 SUPREME COURT REPORTS [2016] 3 S.C.R.

A and ideas being necessary for growth of democracy are to be zealously
protected. Notwithstanding, the expansive and sweeping and ambit of
freedom of speech, as all rights, right to freedom of speech and expression
is not absolute. It is subject to imposition ofreasonable restrictions.
Reasonable Restrictions
8 116. To appreciate the compass and content of reasonable
restriction, we have to analyse nature of reasonable restrictions. Article
19(2) envisages "reasonable restriction". The said issue many a time
has been deliberated by this Court. The concept of reasonable restriction
has been weighed in numerous scales keeping in view the strength of
c the right and the effo11 to scuttle such a right. In Cltintanum Rao v.
State of M.P. 108 , this Court, opined as under:-
"The phrase "reasonable restriction" connotes that the limitation
imposed on a person in enjoyment of the right should not be
arbitrary or of an excessive nature, beyond what is required in the
D interests of the public. The word "reasonable" implies intelligent
care and deliberation, that is, the ch-0ice of a course which reason
dictates. Legislation which arbitrarily or excessively invades the
right cannot be said to contain the quality ofreasonableness and
unless it strikes a proper balance between the freedom guaranteed
in article 19 (I) (g) and the social control permitted by clause (6)
E of article 19, it must be held to be wanting in that quality."
117. In State of Madras v. V.G Row 109 , the Court has ruled that
the test of reasonableness, wherever prescribed, should be applied to
each individual statute impugned and no abstract standard, or general
pattern of reasonableness can be laid down as applicable to all cases.
F The nature of the right alleged to have been infringed, the underlying
purpose of the restrictions imposed, the extent and urgency of the evil
sought to be remedied thereby, the disproportion of the imposition, the
prevailing conditions at the time, should all enter into the judicial verdict.
118. In Bennett Co/e111a11 & Co. (supra) while dealing with the
G concept of reasonable restriction, th is Court has held that the law which
lays excessive and prohibitive burden which would restrict the circulation
of a newspaper will not be saved by Article 19(2), for the freedom of a
newspaper to pub Iish any number of pages or to circulate it to any number
'"'AIR 1951SC118
H ""AIR 1952 SC 1%
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 971
LAW & ORS. [DIPAK MISRA, J.]

of persons is an integral part of the freedom of speech and expression A
and said freedom is violated by placing restraints upon it or by placing
re.straints upon something which is an essential part of that freedom.
119. In Mmieka Gandhi v. U11io11 of bulia and <1110tller 110
Bhagwati, J. referred to the authority in R.C. Cooper v. U11io11 of/11dia'''
and the principles stated in Bennett Co/e111a11 & Co. (supra) and opined B
that:-
"It may be recalled that the test formulated in R.C. Cooper case
(supra) merely refers to "direct operation" or 'direct consequence
and effect' of the State action on the fundamental right of the
petitioner and does not use the word "inevitable" in this connection. c
But there can be no doubt, on a reading of the relevant observations
of Shah, J ., that such was the test really intended to be laid down
by the Cow1 in that case. If the test were merely of direct or
indirect effect, it would be an open-ended concept and in the
absence of operational criteria for judging "directness", it would
give the Court an unquantitiable discretion to decide whether in a D
given case a consequence or effect is direct or not. Some other
concept-vehicle would be needed to quantify the extent o(
directness or indirectness in order to apply the test. And that is
supplied by the criterion of "inevitable" consequence or effect
adumbrated in the Express Newspapers case. This criterion helps E
to quantify the extent of directness necessary to constitute
infringement of a fundamental right. Now, if the effect of State
action on fundamental right is direct and inevitable, then a fortiori
it must be presumed to have been intended by the authority taking
the action and hence this doctrine of direct and inevitable effect
has been described by some jurists as the doctrine of intended F
and real effect. ... "
120. In Mis Laxmi Klumdsari mu/ others v. State of U.P. am/
others"~ the Court has observed that imposition ofreasonable restrictions
and its extent would depend upon the object which they seek to serve.
The Court has observed that it is difficult to lay down any hard and fast G
rule of universal application but in imposing such restrictions the State
must adopt an objective standard amounting to a social control by

"" ( 1978) 1 sec 248 : AIR 1978 SC 597
111
<1970) 2 sec 298
' (1981)2 sec 600
11
H
972 SUPREME COURT REPORTS [2016] 3 S.C.R.

A restricting the rights of the citizens where the necessities of the situation
demand and in adopting the social control one of the primary
considerations which should weigh with the court is that as the directive
principles contained in the Constitution aim at the establishment of an
egalitarian society so as to bring about a welfare State within the
framework of the Constitution. That apart, restrictions may be partial,
B
complete, permanent or temporary but they must bear a close nexus
with the object in the interest of which they are imposed. Another
important consideration is that the restrictions must be in public interest
and are imposed by striking a just balance between deprivation ofright
and danger or evil sought to be avoided.
c 121. In Ramlila Maidmt l11cide11t, 111 re (supra), this Court
opined that a restriction imposed in any form has to be reasonable and to
that extent, it must stand the scrutiny of judicial review. It cannot be
arbitrary or excessive. It must possess a direct and proximate nexus
with the object sought to be achieved. Whenever and wherever any
D restriction is imposed upon the right to freedom of speech and expression,
it must be within the framework of the prescribed law, as subscribed by
Article 19(2) of the Constitution. Thereafter, it has been laid down that
associating police as a prerequirement to hold such meetings, dharnas
and protests, on such large scale, would not infringe the fundamental
rights enshrined under Articles 19( I )(a) and 19(1 )(b) of the Constitution
E as this would squarely fall within the regulatory mechanism ofreasonable
restrictions, contemplated under Articles 19(2) and 19(3). Furthermore,
it would help in ensuring due social order and would also not impinge
upon the rights of the others, as contemplated under Atiicle 21 of the
Constitution oflndia. Emphasis was laid on the constitutional duties that
all citizens are expected to discharge.
F
122. In Sahara l11dia Real Estate Corponttio11 Ltd. (supra),
this Couii reiterated the principle of social interest in the context of
Article 19(2) as a facet of reasonable restriction. In Dwarka Prasad
Laxmi Narain v. State of U.P. 11 3, while deliberating upon "reasonable
restriction" observed that it connotes that the limitation imposed upon a
G person in enjoyment of a right should not be arbitrary or of an excessive
nature beyond what is required in the interest of the public. It was also
observed that to achieve quality of reasonableness a proper balance
between the freedom guaranteed under Atiicle 19( I )(g) and the social
control permitted by clause (6) of Article 19 has to be struck.
H 11
·' AIR 1954 SC 224
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 973
LAW & ORS. [DIPAK MISRA, J.]

123. In Bisl/(fmhll(lr Dayal Clumdra Moh"" ttnd others v. A
State of Uttar Pradesh and others''", this Court ruled that the expression
"reasonable restriction" signifies that the limitation imposed on a person
in enjoyment of the right should not be arbitrary or of an excessive nature,
beyond what is required in the interests of the public. The test of
reasonableness, wherever prescribed, should be applied to each individual
B
statute impugned, and no abstract standard, or general pattern of
reasonableness can be laid down as applicable in all cases. In Sf(lfe of
Bi/l(lr v. K.K. Mism 115 , the Court, after referring to Dr. N.B. Khare v.
The State of Delhi' 16 and V.G Row (supra), ruled that it is not possible
to formulate an effective test which would enable the court to pronounce
any particular restriction to be reasonable or unreasonable per se. All c
the attendant circumstances must be taken into consideration and one
cannot dissociate the actual contents of the restrictions from the manner
of their imposition or the mode of putting them into practice.
124. In Pap1wsa111 Labour Union v. Madura Coats Ltd. and
another 111 the Court on the base of earlier authorities summed up that D
when the constitutionality of a statutory provision is challenged on the
ground of reasonableness of the restriction, the Court should evaluate
whether the restriction is excessive in nature, existence of the reasonable
nexus between restriction imposed and the object sought to be achieved,
quality ofreasonableness, felt need of the society and the complex issues
facing the people which the legislature intends to solve, protection of E
social welfare prevailing within the social values, its consistency and
accord with Article 14 of the Constitution. Additionally, the Court also
observed that in judging the reasonableness of the restriction imposed
by clause (6) of A1iicle 19, the Court has to bear in mind the Directive
Principles of State Policy and any restriction so imposed which has the F
effect of promoting or effectuating a directive principle can be presumed
to be a reasonable restriction in public interest.
125. The principles as regards reasonable restriction as has been
stated by this Court from time to time are that the restriction should not
be excessive and in public interest. The legislation should not invade the G
rights and should not smack of arbitrariness. The test ofreasonableness

"' ( 1982) 1 sec 39
'" ( 1969) 3 sec 377
'"' [1952] S.C.R. 597
"'(1995) 1 sec soi H
974 SUPREME COURT REPORTS [2016] 3 S.C.R.

A cannot be determined by laying-down any abstract standard or general
pattern. It would depend upon the nature of the right which has been
infringed or sought to be infringed. The ultimate"impact'', that is, effect
on the right has to be determined. The "impact doctrine" or the principle
of "inevitable effect" or "inevitable consequence" stands in
contradistinction to abuse or misuse of a legislation or a statutory provision
B
depending upon the circumstances of the case. The prevailing conditions
of the time and the principles of proportionality ofrestraint are tci be kept
in mind by the court while adjudging the constitutionality of a provision
regard being had to the nature of the right. The nature of social control
which includes public interest has a role. The conception of social interest
c has to be borne in mind while considering reasonableness of the restriction
imposed on a right. The social interest principle would include the felt
needs of the society. As the submissions would show, the stress is given
on the right to freedom of speech and expression in the context of
individual growth, progress of democracy, conceptual respect for a voice
of dissent, tolerance for discordant note and acceptance of different
D
voices. Right to say what may displease or annoy others cannot be
throttled or garroted. There can never be any cavi I over the fact that
the right to freedom of speech and expression is a right that has to get
ascendance in a democratic body polity, but at the same time the limit
has to be proportionate and not unlimited. It is urged that the defamation
E has been described as an offence under Section 499 IPC that protects
individual's perception of his own reputation which cannot be elevated
to have the status of public interest. The argument is that to give a
remedy by taking recourse to criminal jurisprudence to curb the
constitutional right, that is, right to freedom of speech and expression, is
neither permissible nor justified. The provision possibly could have met
F the constitutional requirement has it been associated with law and order
or breach of peace but the same is not the position. It is also canvassed
that in the colonial era the defamation was conceived of to keep social
peace and social order but with the changing climate of growing
democracy, it is not permissible to keep alive such a restriction.
G 126. The principles being stated, the attempt at present is to
scrutinize whether criminalization of defamation in the manner as it has
been done under S. 499 IPC withstands the said test. The submission of
the respondents is that right to life as has been understood by this Court
while interpreting Article 21 of the Constitution covers a wide and varied
H spectrum. Right to life includes the right to life with human dignity and
....
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 975
LAW & ORS. [DIPAK MISRA, J.]

all that goes along with it, namely, the bare necessities of life such as A
nutrition, clothing and shelter and facilities for reading, writing and
expressing oneself in diverse forums, freely moving about and mixing
and commingling with fellow human beings and, therefore, it is a precious
human right which forms the arc of all other rights [See : Francis Coralie
Mullin v. Administrator, Union Territory of Delhi lllUI others 118 ]. It
B
has also been laid down in the said decision that the right to life has to be
interpreted in- a broad and expansive spirit so as to invest it with
significance and vitality which may endure for years to come and enhance
dignity of an individual and w01th of a human being. In Clwmeli Singh
anti others v. State of U.P. am/ ll/Wther' 19 , the Court has emphasized
on social and economic justice which includes the right to shelter as an c
inseparable component of meaningful right to life. The respect for life,
property has been regarded as essential requirement of any civilized
society in Siddlwram Sutlinguppa Mltetre v. State ofMalwraslttra 120 •
Deprivation of life, according to Krishna Iyer, J. in Babu Singh mu/
ot[iers v. State o(U.P. 111 has been regarded as a matter of grave concern.
Personal liberty, as used in Article 21, is treated as a composition of
D
rights relatable to various spheres of life to confer the meaning to the
said ri'ght. Thus perceived, the right to life under.Article 21 is equally
expansive and it, in its connotative sense, carries a collection or bouquet
of rights. In the case at hand, the emphasis is on right to reputation
which has been treated as an inherent facet of Article 21. In Haridas E
Das v. Usha Rani Banik and otlters 122 , it has been stated that a good
name is better tlian good riches. In a different context, the majority in
S.P. Mittal v. Union of India and otlters 12', has opined that man, as a
rational being, endowed with a sense of freedom and responsibi Iity, does
not remain satisfied with any material existence. He has the urge to
indulge in creative activities and effort is to realize the value of life in F
them. The said decision lays down that the value of life is
incomprehensible without dignity.
127. In Cllaru Klturana lllU/ others v. Union of btdia and
otllers 12 ;, it has been ruled that dignity is the quintessential quality of a
G
"' (1981) 1sec608
"" l 1996) 2 sec 549
"" <2011) 1sec694
· "' (1978) 1 sec 579
'" (2007) 14 sec 1
1
" (1983) 1sec51: AIR 1983 sc 1
1
" (2015) 1 sec 192 H
976 SUPREME COURT REPORTS [2016] 3 S.C.R.

A personality, for it is a highly cherished value. Thus perceived, right to
honour, dignity and reputation are the basic constituents ofright under
Article 21. Submission of the learned counsel for the petitioners is that
reputation as an aspect of Article 21 is always available against the
highhanded action of the State. To state that such right can be impinged
and remains unprotected inter se private disputes pertaining to reputation
B
would not be correct. Neither this right be overridden and blotched
notwithstanding malice, vile and venal attack to tarnish and destroy the
reputation of another by stating that curbs and puts unreasonable
restriction on the freedom of speech and expression. There is no
gainsaying that individual rights form the fundamental fulcrum of collective
c harmony and interest of a society. There can be no denial of the fact
that the right to freedom of speech and expression is absolutely sacrosanct.
Simultaneously, right to life as is understood in the expansive horizon of
Article 21 has its own significance. We cannot forget the rhetoric
utterance of Patrick Henry:-

D "ls life so dear, or peace so sweet, as to be purchased at the price
of chains and slavery? Forbid it, Almighty God! r know not what
course others may take, but as for me, give me liberty, or give me
death!"' 25
128. In this context, we also think it apt to quote a passage from
E Edmund Burke:-
" Men are qualified for civil liberty, in exact proportion to their
disposition to put moral chains upon their own appetites; in
proportion as their love to justice is above their rapacity; in
proportion as their soundness and sobriety of understanding is
F above their vanity and presumption; in propo1tion as they are more
disposed to listen to the counsel of the wise and good, in preference
to the flattery of knaves. Society cannot exist unless a controlling
power upon will and appetite be placed somewhere and the less
of it there is within, the more there must be without. lt is ordained
in the eternal constitutionofthingsthat men of intemperate minds
G cannot be free. Their passions forge their fetters 126 ."
129. The thoughts of the aforesaid two thinkers, as we understand,
are not contrary to each other. They relate to different situations and

'"Patrick Henry. Speech in House of Burgesses on 23.3.1775 (Virginia)
"''Alfred Howard. The Beauties of Burke (T. Davison. London) 109
H
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 977
LAW & ORS. [DIPAK MISRA, J.]

conceptually two different ideas; one speaks of an attitude of A
compromising libe1ty by accepting chains and slavery to save life and
remain in peace than to death, and the other view relates to "qualified
civil libe1ty" and needed control for existence of the society. Contexts
are not different and reflect one idea. Rhetorics may have its own place
when there is disproportionate restriction but acceptable restraint
B
subserves the social interest. In the case at hand, it is to be seen whether
right to freedom and speech and expression can be allowed so much
room that even reputation of an individual which is a constituent ofArticle
21 would have no entry into that area. To put differently, in the name of
freedom of speech and expression, should one be allowed to mar the
other's reputation as is understood within the ambit of defamation as c
defined in criminal law.
Balancing of :Fundamental Rights
130. To appreciate what we have posed hereinabove, it is
necessary to dwell upon balancing the fundamental rights. It has been
argued by the learned counsel for the petitioners that the right conferred D
under Article 19(1 )(a) has to be kept at a different pedestal than the
individual reputation which has been recognized as an aspect of Article
21 of the Constitution. In fact the submission is that right to freedom of
speech and expression which includes freedom of press should be given
higher status and the individual's right to have his/her reputation should E
yield to the said right. In this regard a passage from Sakal Papers (P)
Ltd. (supra) has been commended us. It says:-
" ...... Freedom of speech can be restricted only in the interests of
the security of the State, friendly relations with foreign State, public
order, decency or morality or in relation to contempt of com1,
F
defamation or incitement to an offence. It cannot, Iike the freedom
to carry on business, be curtailed in the interestof the general
public. If a law directly affecting it is challenged, it is no answer
that the restrictions enacted by it are justifiable under clauses (3)
to (6). For, the scheme of Article 19 is to enumerate different
freedoms separately and then to specify the extent of restrictions G
to which they may be subjected and the objects for securing which
this could be done. A citizen is entitled to enjoy each and eve1y
one of the freedoms together and clause ( 1) does not prefer one
freedom to another. That is the plain meaning of this clause. It
follows from this that the State cannot make a law which directly
1-1
978 SUPREME COURT REPORTS [2016] 3 S.C.R.

A restricts one freedom even for securing the better enjoyment of
another freedom."
[Emphasis supplied]
13 1. Having bestowed our anxious consideration on the said
passage, we are disposed to think that the above passage is of no
assistance to the petitioners, for the issue herein is sustenance and
B
balancing of the separate rights, one under Article 19(l)(a) and the other,
under Article 21. Hence, the concept of equipose and counterweighing
fundamental rights of one with other person. It is not a case of mere
better enjoyment of another freedom. In Aclwrya Malutrajs/iri
Naremlra Prasadji Anmufprasadji Maharaj amt others v. The
c State of Gu]arat mu/ otlters' 27 , it has been observed that a particular
fundamental right cannot exist in isolation in a watertight compartment.
One fui1damental right of a person may have to co-exist in harmony
with the exercise of another fundamental right by others and also with
reasonable and valid exercise of power by the State in the light of the
Directive Principles in the interests of social welfare as a whole. The
D
Court's duty is to strike a balance between competing claims of different
interests. In Delhi Transport Corporation v. D. T.C. Mauloor
Congress mu/ otlters" 8 the Cou11 has ruled that Articles relating to
fundamental rights are all parts of an integrated scheme in the Constitution
and their waters must mix to constitute that grand fiow of unimpeded
E and impartial justice; social, economic and political, and of equality of
status and opportunity which imply absence of unreasonable or unfair
discrimination between individuals or groups or classes. In St. Stephen's
Colle1:e v. University ofDelhi 129 this Court while emphasizing the need
for balancing the fundamental rights observed that it is necessary to
mediate between Article 29(2) and Article 30( 1), between letter and
F spirit of these ai1icles, between fraditions of the past and the convenience
of the present, between society's need for stability and its need for
change."
132. In Mr 'X' v. Hospital 'Z'' 30 this Cow1 stated that, where
there is a clash of two Fundamental Rights, the right to prii;·acy as part
G of right to life and Ms 'Y's right to lead a healthy life which is her
Fundamental Right under Article 21, the right which would advance the
1
" (1975) 1sec11
'" 1991 Supp (I) sec 600
"'<I 992J 1 sec 558
H "" (1998) 8 SCC296
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 979
LAW & ORS. [DIPAK MfSRA, J.]

public morality or public interest, would alone be enforced through the ·A
process of court, for the reason that moral considerations cannot be
kept at bay and the Judges are not expected to sit as mute structures of
clay in the hall known as the courtroom, but have to be sensitive, "in the
sense that they must keep their fingers firmly upon the pulse of the
accepted morality of the day". (See: Allen: Legal Duties). That apart,
B
we would also add that there has to be emphasis on advancement of
pubI ic or social interest.
133. In Post Graduate Institute of Medical Education &
Research, Chandigarh v. Faculty Association and others 131 while
emphasizing the need to balance the fundamental rights, this Court held
that:-
c
" ... It is to be appreciated that Article 15(4) is an enabling provision
like Article 16(4) and the reservation under either provision should
not exceed legitimate limits. In making reservations for the
backward classes, the State cannot ignore the fundamental rights
of the rest of the citizens. The special provision under Article D
15(4) [sic 16(4)] must therefore strike a balance between several
relevant considerations and proceed objectively".
134. In Ram Jetlmutfani and others v. Union of /11</ia a11<1
others 13 ~ it has been held that the rights of citizens, to effectively seek
the protection of fundamental rights have to be balanced against the E
rights of citizens and persons under Article 21. The latter cannot be
sacrificed on the anvil offervid desire to find instantaneous solutions to
systemic problems through defamation speech, for it would lead to
dangerous circumstances and anarchy may become the order of the
. day. F
135. In Sahara In<lia Real Estate Corporation Ltd. (supra)
while describing the role of this Court in balancing the fundamental rights,
the Constitution Bench observed that the Supreme Court is not only the
sentinel of the fundamental rights but also a balancing wheel between
the rights, subject to social control. The larger Bench further observed G
that:-
"Freedom of expression is not an absolute value under our
Constitution. It must not be forgotten that no single value, no matter
'" (1998H sec 1
'" (2011) s sec 1 H
980 SUPREME COURT REPORTS [2016] 3 S.C.R.

A exalted, can bear the full burden ofupholding a democratic system
of govemment. Underlying our constitutional system are a number
of important values, all of which help to guarantee our liberties,
but in ways which sometimes conflict. Under our Constitution,
probably, no values are absolute. All important values, therefore,
must be qualified and balanced ;;gain st other important, and often
B
competing, values. This orocess of definition, qua) ification and
balancing is as much required with respect to the value of freedom
of expression as it is for other values".
136. In Mm1eka Gandhi (supra), it has been held:-

c "5 .... It is indeed difficult to see on what principle we can refuse
to give its plain natural meaning to the expression 'personal liberty'
as used in Article 21 and read it in a narrow and restricted sense
so as to exclude those attributes of personal liberty which are
specifically dealt with in Article 19. We do not think that this would
be a correct way ofinterpreting the provisions of the Constitution
D conferring fundamental rights. The attempt of the Court should
be to expand the reach and ambit of the fundamental rights rather
than attenuate their meaning and content by a process of judicial
construction. The wavelength for comprehending the scope and
ambit of the fundamental rights has been set by this Court in R.C.
E Cooper case (supra) and our approach in the interpretation of
the fundamental rights must now be in tune with this wavelength.
We may point out even at the cost ofrepetition that this Court has
said in so many terms in R.C. Cooper case (supra) that each
freedom has different dimensions and there may be overlapping
between different fundamental rights and therefore it is not a valid
F argument to say that the expression 'personal liberty' in Article
21 must be so interpreted as to avoid overlapping between that
article and A1ticle 19(1 )."
137. Krishna Iyer, J., in his concurring opinion, has observed
thus:-
G
"96. . ...... the law is now settled, as I apprehend it, that no
article in Part Ill is an island but part of a continent, and the
conspectus of the whole part gives the direction and correction
needed for interpretation of these basic provisions. Man is not
dissectible into separate limbs and, likewise, cardinal rights in an
H organic constitution, which make man human have a synthesis.
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 981
LAW & ORS. [DIPAK MISRA, J.]

The proposition is indubitable that A11icle 21 does not, in a given A
situation, exclude A11icle 19 if both rights are breached.
97. We may switch to A11icle 19 very briefly and travel along
another street for a while. Is freedom of extra-territorial travel to
assure which is the primary office of an Indian passport, a facet
of the freedom of speech and expression, of profession or vocation B
under Article 19? My total consensus with Shri Justice Bhagwati
jettisons from this judgment the profusion of precedents and the
mosaic of many points and confines me to some fundamentals
confusion on which, with all the clarity on details, may mar the
conclusion. It is a salutary thought that the summit Court should
not interpret constitutional rights enshrined in Part Ill to choke its C
life-breath or chill its elan vital by processes oflegalism, overruling
the enduring values burning in the bosoms of those who won our
independence and drew up our founding document. We must also
remember that when this Court lays down the law, not ad hoc
tunes but essential notes, not temporary tumult but transcendental 0
truth, must guide the judicial process in translating into authoritative
notation and mood music of the Constitution."
138. Beg, J. has stated that:-
"A11icles dealing with different fundamental rights contained in
Part lil of the Constitution do not represent entirely separate E
streams ofrights which do not mingle at many points. They are all
parts of an integrated scheme in the Constitution. Their waters
must mix to constitute that grand flow of unimpeded and impai1ial
Justice (social, economic and political), ..... "
139. In Moltd. Arif alias Aslifaq v. Registrar, Supreme Court
F
of India and otllers 133 , wherein the majority in the Constitution Bench
has observed that the fundamental right to life among all fundamental
rights is the most precious to all human beings. The aforementioned
authorities clearly state that balancing of fundamental rights is a
constitutional necessity. It is the duty of the Court to strike a balance so
that the values are sustained. The submission is that continuance of G
criminal defamation under Section 499 IPC is constitutionally
inconceivable as it creates a serious dent in the right to freedom of
speech and expression. It is urged that to have defamation as a component
of criminal law is an anathema to the idea of free speech which 1s
'" <20I4J 9 sec 737 H
982 SUPREME COURT REPORTS [2016] 3 S.C .R.

A recognized under the Constitution and, therefore, criminalization of
defamation in any form is an unreasonable restriction. We have already
held that reputation is an inextricable aspect of right to life under Article
21 of the Constitution and the State in order to sustain and protect the
said reputation of an individual has kept the provision under Section 499
IPC alive as a part oflaw. The seminal point is permissibility of criminal
B
defamation as a reasonable restriction as understood under Article 19(2)
of the Constitution. To elucidate, the submission is that criminal
defamation, a pre-Constitution law is totally alien to the concept of free
speech. As stated earlier, the right to reputation is a constituent of Article
21 ofthe Constitution. It is an individual's fundamental right and, therefore,
c balancing of fundamental right is imperative. The Court has spoken about
synthesis and overlapping of fundamental rights, and thus, sometimes
conflicts between two rights and competing values. In the name of
freedom of speech and expression, the right of another cannot be
jeopardized. In this regard, reproduction of a passage from Noise
Pollution (V), In rei"3• would be apposite. It reads as follows:-
D
" ... Undoubtedly, the freedom of speech and right to expression
are fundamental rights but the rights are not absolute. Nobody
can claim a fundamental right to create noise by amplifying the
sound ofhis speech with the help of loudspeakers. While one has
a right to speech, others have a right to listen or decline to listen.
E Nobody can be compelled to listen and nobody ca!lclaim that he
has a right to make his voice trespass into the ears or mind of
others. Nobody can indulge in aural aggression. If anyone
increases his volume of speech and that too with the assistance
ofartificial devices so as to compulsorily expose unwilling persons
F to hear a noise raised to unpleasant or obnoxious levels, then the
person speaking is violating the right of others to a peaceful,
comfortable and pollution-free life guaranteed by Article 21. Article
19( I )(a) cannot be pressed into service for defeating the
fundamental right guaranteed by Article 21. We need not further
dwell on this aspect. Two decisions in this regard delivered by the
G High Courts have been brought to our notice wherein the right to
live in an atmosphere free from noise pollution has been upheld as
the one guaranteed by Article 21 of the Constitution. These
decisions are Free Legal Aid Cell Shri Sugan Chand Aggarwal

H '" <2005) s sec 733
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 983
LAW & ORS. [DIPAK MISRA, J.]

v. Govt. of NCT of Delhi 13 ; and P.A. Jacob v. Supdt. of · A
Police 136 • We have-carefully gone through the reasoning adopted
in the two decisions and the principle oflaw laid down therein, in
particular, the exposition of Article 21 of the Constitution. We find
ourselves in entire agreement therewith."
J 40. We are in respectful agreement with the aforesaid enunciation B
oflaw. Reputation being an inherent component of Article 21, we do not
think it should be allowed to be sullied solely because another individual
can have its freedom. 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
c
procedure recognized and accepted in law to retrieve and redeem his
reputation. Therefore, the balance between the two rights needs to be
struck. "Reputation" of one cannot be allowed to be crucified at the
altar of the other's right.of free speech. The legislature in its wisdom
has not thought it appropriate to abolish criminality of defamation in the D
obtaining social climate. In this context, the pronouncement in Sltreya
Sing/ta/ (supra) becomes significant, more so, as has been heavily relied
upon by the learned counsel for the petitioners. In the said case,
constitutional validity of Section 66-A and ancillary thereto Section 69-A
of the Information Technology Act, 2000 was challenged on the ground
that they infringe the fundamental right to free speech and expression E
and are not saved by any of.the eight subjects covered in Article 19(2).
The two-Judge Bench has expressed the view that both U.S. and India
permit freedom of speech and expression as well as freedom of the
press. So far as abridgement and reasonable restrictions are concerned,
both the U.S. Supreme Court and this Court have held that a restriction F
in order to be reasonable must be narrowly tailored or narrowly interpreted
so as to abridge or restrict only what is absolutely necessary. The Court
has observed that only when it comes to the eight subject matters in
Article 19(2) that there is vast difference. The Court has further observed
thus:-
G
" ... In the US, if there is a compelling nece,ssity to achieve an
important governmental or societal goal, a law abridging freedom
of speech may pass muster. But in India, such law cannot pass

"'AIR 2001 Del 455: (::iOOI) 93 DLT 28 (DB)
"' AIR 1993 Ker I H
984 SUPREME COURT REPORTS [2016] 3 S.C.R.

A muster if it is in the interest of the general public. Such law has to
be covered by one of the eight subject-matters set out under Article
19(2). If it does not, and is outside the pale of Article 19(2), Indian
courts will strike down such law."
141. The Court has referred to the decisions rendered in
B Kamesltwar Prasad (supra) and Indian Express Newspapers
(Bombay) (P) Ltd. (supra) to understand the great persuasive value of
the American judgments. There has been a reference to the observations
of Jackson, J. in American Co111111u11icatio11s Assn. v. Douds 131 which
are to the following effect:-
C " ... Thought control is a copyright of totalitarianism, and we have
no claim to it. It is not the function of our Government to keep the
citizen from falling into error; it is the function of the citizen to
keep the Government from falling into error. We could justify any
censorship only when the censors are better shielded against error
than the censored."
D
J42. There has been reference to many other pronouncements
relating to reasonable restrictions and public order. The Court has
reproduced a passage from S. Rm1garaja11 (supra) and thereafter
adverted to the pronouncement in Slwilabal<t Devi (supra) and opined
that:-
E
"Viewed at, either by the standpoint of the clear and present danger
test or the tendency to create public disorder, Section 66-A would
not pass muster as it has no element of any tendency to create
public disorder which ought to be an essential ingredient of the
offence which it creates."
F
143. It is interesting to note that the Court referred to "defamation"
as defined in Section 499 IPC and stated thus:-
"lt will be noticed that for something to be defamatory, injury to
reputation is a basic ingredient. Section 66~A does not concern
itself with injury to reputation. Something may be grossly offensive
G
and may annoy or be inconvenient to somebody without at all
affecting his reputation. It is clear, therefore, that the section is
not aimed at defamatory statements at all."
144. The aforesaid paragraph makes it absolutely clear that the

H m 94 LEd 925 : 339 US 382 ( 1950)
,:-::,

SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 985
LAW & ORS. [DIPAK MISRA, J.]

Court has observed that Section 66-A did not concern itself with A
injury to reputation. Thereafter, the Court proceeded to analyse
the provision under challenge from the point of vagueness. It is
apposite to quote:- ·"
"90. That the content of the right under Article 19( I )(a) remains
the same whatever the·means of communication including internet
B
communication is clearly established by Reno case 138 and by
Ministry of Information & Broadcasting, Govt. of India v.
Cricket Assn. of Bengal (supra), SCC at para 78 already referred
to. It is thus clear that not only are the expressions used in Section
66-A expressions of inexactitude but they are also over broad and
would fall foul of the repeated injunctions of this Court that c
restrictions on the freedom of speech must be couched in the
narrowest possible terms. For example, see, Kedar Nath Singh
v. State ofBihar 139 , SCR at pp. 808-09. In point of fact, judgments
ofthe Constitution Bench of this Court have struck down sections
which are similar in nature. A prime example is the section struck
D
down in the first Rah1 Manohm: Lohia case 1 ~0 , namely, Section
3 of the U .P. Special Powers Act, where the persons who
"instigated" expressly or by implication any person or class of
persons not to pay or to defer payment of any liability were
·punishable. This Court specifically held that under the section a
wide net was cast to catch a variety of acts of instigation ranging E
from friendly advice to systematic propaganda. It was held that in
its wide amplitude, the section takes in the innocent as well as the
guilty, bona fide and mala fide advice and whether the person be
a legal adviser, a friend or a well-wisher of the person instigated,
he cannot escape the tentacles of the section. The Court held that
F
it was not possible to predicate with. som~ kind of precision the
different categories ofinstigation falling within or without the.field
of constitutional prohibitions. It further held that the section must
be declared unconstitutional as the offence made out would depend
upon factors which are uncertain.
x x x x x G
94. These two Constitution Bench decisions bind us and would
apply directly on Section 66-A. We, therefore, hold that the section

"'Reno v. Amerkan CivilLiberties Union. 521 US 844: 138 L Ed 2d 874 ( 1997)
139
1962 Supp (2) SCR 769 : AIR 1962 SC.955
'"'Supt., Central Prison v. Ram Manohar Lohia, ( 1960) 2 SCR.821 : AIR 1.960 SC. 633 H
986 SUPREME COURT REPORTS [2016] 3 S.C.R.

A is unconstitutional also on the ground that it takes within its sweep
protected speech and speech that is innocent in nature and is
liable therefore to be used in such a way as to have a chilling
effect on free speech and would, therefore, have to be struck
down on the ground of overbreadth ."
B 145. We have referred to the aforesaid authority in extenso a's it
has been commended to us to pyramid the submission that it lays the
foundation stone for striking down Sections 499 and 500 !PC because
existence of defamation as a criminal offence has a chilling effect on
the right to freedom of speech and expression. As we understand the
decision, the two-Judge Bench has neither directly nor indirectly laid
c down such a foundation. The analysis throughout the judgment clearly
pertains to the vagueness and to an act which would make an offence
dependent on uncertain factors billowed i11 inexcactitude and wide
amplitude. The Court has ruled that Section 66-A also suffers from vice
of procedural unreasonableness. The judgment drew distinction and
D observed defamation was different. Thus, the canvas is different. Once
we have held that reputation of an individual is a basic element ofArticle
. 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 subscrib~ to the view
that criminal defamation.has a chilling effect on the freedom of speech
E and expression.

146. We have been diligently commended to the following passage
from S. Ra11garaja11 (supra):-
"The problem of defining the area of freedom of expression when
F it appears to conflict with the various social interests enumerated
under Article 19(2) may briefly be touched upon here. There does
indeed have to be a compromise between the interest of freedom
of expression and special interests. But we cannot simply balance
the two interests as if they are of equal weight. Our commitment
of freedom of expression 'demands' that it cannot be suppressed
G unless the situations created by allowing the freedom are pressing
and the community interest is endangered. The anticipated danger
should not be remote, conjectural or far-fetched. It should have
proximate and, direct nexus with the expression. The expression
of thought should be intrinsically dangerous to the public interest.
In other words, the expression should be inseparably locked up
H
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 987
LAW & ORS. [DIPAK MISRA, J.]

with the action contemplated like the equivalent of a "spark in a A
power keg".
147. The said paragraph has also been reproduced in Slireya
Sing/ta/ (supra) wliile dealing with the principle of"tendency to affect".
In the said context, the two-Judge Bench in Slireya Singlwl (supra)
had analysed how Sections 124A and 295A !PC were treated to be B
constitutional by this Court in R"mji Lal Modi v. State of U.P. 1"' and
Kedar Nath Singh (supra). We think it appropriate for the sake of
completeness to reproduce the analysis made in S/irey" Singlwl (supra):-
"43. In Ramji Lal Modi v. State of UP (supra), SCR at p. 867,
this Court upheld Section 295-A of the Penal Code only because c
it was read down .to mean that aggravated forms of insults to
religion must have a tendency to disrupt public order. Similarly, in
Kedar Nath Singh v. State of Bihar (supra) Section 124-A of
the Penal Code, 1860 was upheld by construing it narrowly and
stating that the offence would only be complete if the words
complained of have a tendency of creating public disorder by D
violence. It was added that merely creating disaffection or
creatingfeelings ofenmity in certain people was not good enough
or else it would violate the fundamental right of free speech under
Article 19( 1)(a). Again, in Ramesh Yesh1ra11t Prabhoo v.
Prabhakar Kashinath Kunte 142 , Section 123(3-A) of the E
Representation of the People Act was upheld only ifthe enmity
or hatred that was spoken about in the section would tend to create
immediate public disorder and not otherwise."
148. The two-Judge Bench in paragraph 44 has reached the
followingconclusion:- F
"Viewed at, either by the standpoint of the clear and present danger
test or the tendency to create public disorder, Section 66-A would
not pass muster as it has no element of any tendency to create
public disorder which ought to be an essential ingredient of the
offence which it creates." G
149. The analysis therein would show that tendency to create
public disorder is not evincible in the language employed in Section 66-
A. Section 66-A dealt with punishment for certain obscene messages

'" AIR 1957 SC 620
'" (1996) 1 sec 130 H
988 SUPREME COURT REPORTS [2016] 3 S.C. R.

A through communication service, etc. A new offence had been created
and the boundary of the forbidding area was not clearly marked as has
been held in Kedar Nath Singh (supra). The Court also opined that the
expression used in Section 66-A having not been defined ~nd further the
provision having not used the expression that definitions in IPC will apply
to the Information Technology Act, 2000, it was vague. The decision in
B
Shreya Sing/ta/ (supra) is placed reliance upon to highlight that a
restriction has to be narrowly tailored but criminal defamation is not a
narrowly tailored concept. We have early opined that the word
"defamation" is in existence from the very beginning of the Constitution.
Defamation as an offence is admittedly a pre-constitutional law which
c was in existence when the Constitution came into force. To interpret
thatthe word "defamation" occurring in Article 19(2) would not include
"criminal defamation" or it should have a tendency to cause public disorder
or incite for an offence, would not be in consonance with the principle of
interi}retation pertaining to the Constitution. It may be noted here that
the decisions rendered in Ramji Lal Modi (supra) and Kellar Nath
D
Singlt (supra) where constitutional validity of Sections I 24A and 295A
!PC had been upheld subject to certain limitations. But inspiration cannot
be drawn from the said authorities that to argue that they convey that
defamation which would include criminal defamation must incorporate
public order or int~ntion of creating public disorder. The said decisions
E relate to a different sphere. The concept of defamation remains in a
different area regard being had to the nature of the offence and also the
safeguards provided therein which we shall advert to at a later stage.
The passage which we have reproduced from S. Rangarajan (supra),
which has also been referred to in Sltreya Singlu1/ (supra), has.to be
understood in the context in which ·it is stated having regard to the facts
F
of the case. The said decision was rendered in the backdrop that the
Tamil film 'Ore Oru Gramathile' which was given "U-Certificate" was
revoked by the High Court observing that the certificate given to the
movie was bound to invoke reactions which are bound to be volatile.
This Court observed that alt that film seems to suggest is that existing
G method of reservation on the basis of caste is bad and reservation on the
basis of economic background is better and also the film deprecated the
exploitation of people on caste considerations. In that context, the Court
- observed, as has been stated earlier, in-a democracy it is not necessary
that everyone shoul.d sing the same song; freedom of expression is the
rule, and it is generally taken for granted. Criticism and commentary on
H
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 989
LAW & ORS. [DIPAK MISRA, J.]

policies, enactments or opinions do not remotely constitute defamation. A
Disapproval is not defamation. The argument ignores the scope and
ambit of the contours of what is criminal defamation. Bearing in mind
the factual scenario, the Court has discussed about balancing of freedom
of expression and "special interest". The Court was not concerned with
balancing ofArticle 19(1 )(a) and the facet ofArticle 21 of the Constitution.
B
Therefore, in the ultimate conclusion, we come to hold that applying the
doctrine of balancing of fundamental rights, existence of defamation as
a criminal offence is not beyond the boundary of Article 19(2) of the
Constitution, especially when the word "defamation" has been used in
the Constitution.
Appreciation in the backdrop of constitutional fraternity and
c
fundamental duty
150. Permissibility of criminal defamation can be tested on the
touchstone ofconstitutional fraternity and fundamental duty. It is submitted
·by Mr. Narsimha, learned Additional Solicitor General that right to
reputation being an inseparable component of Article 21 deserves to be D
protected in view of Preambular concept. Learned Additional Solicitor
General has referred to the Preamble to the Constitution which provides
for" ... to promote among them all Fraternity assuring the dignity of the
individual ... "
151. The term "fraternity" has a significant place in the history of E
constitutional law. It has, in fact, come into prominence after French
Revolution. The motto of Republican France echoes:-' Liberte, egalite,
fraternite', or 'Liberty, equality, fraternity'. The,term "fraternity" has
an animating effect in the cqnstitutioral spectrum. The Preamble states
that it is a constitutional duty to promote fraternity assuring the dignity of F
the individual. Be it stated that fraternity is a perambulatory promise.
Dr. B.R. Ambedkar in the Constituent Assembly spoke:-
"The principles of liberty, equality and fraternity are not to be
treated as separate entities but in a trinity. They form the union
and trinity in the sense that to divorce one from the other is to G
defeat the very purpose of democracy ... Without fraternity, liberty
and equality would not become natural course of things. Courts,
as sentinel on the qui vive, therefore must strike a balance between
the changing needs of the society for peaceful transformation
with orders and protection of the rights of the citizens."
H
990 SUPREME COURT REPORTS [2016) 3 S.C.R.

A I 52. In the Preamble to the Constitution oflndia, fraternity has
been laid down as one of the objectives. Dr. 8.R. Ambedkar inserted
the sam.e in the Draft Constitution stating "the need for fraternal concord
arid goodwill in Indja was never greater than now, .and that this particular
aim of the new Constitution should be emphasized by special mention in
the Preamble." Fraternity, as a constitutional concept, is umbilically
8
connected withjustice, equality and liberty.
153. American scholarship tends to be in agreement with this
precept. Morris Abram expresses this in even more emphatic terms
when he treats it as essential to achieving liberty and equality, and vice
versa. According to him:-
c "In America, we have learned that the elements of the plea are
interdependent: that liberty of itself may not bring about fraternity
and equality ... Permit me to observe that the converse is also
true: merely by possessing fraternity and equality man will not
thereby automatically achieve liberty.' 143
D 154. Fraternity as a concept is characteristically different from
the other constitutional goals. It, as a constitutional concept, has a keen
bond of sorority with other concepts. And hence, it must be understood
in the breed of homogeneity in a positive sense and not to trample dissent
and diversity. It is neither isolated nor lonely. The idea of fraternity is
recognised as a constitutional norm and a precept. It is a constitutional
E
virtue.that is required to be sustained and nourished.
155. It is a constitutional value which is to be cultivated by the
people themselves as a part of th.eir social behavior. There are two
schools of thought; one canvassing individual liberalization and the other
advocating for protection of an individual as a member of the collective.
F The individual should have ·all the rights under the Constitution but
simultaneously he has the responsibility to live upto the constitutional
values like essential brotherhood - the fraternity-that strengthens the
societal interest. Fraternity means brotherhood and common interest.
Right to censure and criticize does not conflict with the constitutional
G objective to promote fraternity. Brotherliness does not abrogate and
rescind the concept of critic!sm. In fact, brothers can and should be
critical. Fault finding and disagreement is required even when it leads to
an individual disquiet or group disquietude. Enemies Enigmas Oneginese

w Morris B Abram, 'Libeny. Fraternity and Equality - One or Two Alone are not

1-1 Enough' ( 1967) 16 Journal of Public Law 3. 8.
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 991
LAW & ORS. [DIPAK MISRA, J.]

on the part of some does not create a dent in the idea of fraternity but, a A
significant one, liberty to have a discordant note does not confer a right
to defame the others. The dignity of an ihdividual is extremely important.
In Indra Sawlmey and ot/.l_ers v. Union of India and otlters 1""· the
Court has deliberated UJJOn as to how reservation connects equality and
fraternity with social, e;onomic and political justice as it can hamper
8
fraternity and liberty if perpetuated for' too long. Jeevan Reddy, J. has
opined that "Fraternity assuring the dignity of the individual has a special
relevance in the Indian context .... " Sawant, J., in a separate but
concurring opinion, stated:-
"Inequality ill-favours fraternity, and unity remains a dream without
fraternity. The goal enumerated in the preamble of the Constitution, c
of fraternity assuring the dignity of the individual and the unity
and integrity of the nation must, therefore, remain unattainable so
long as the equality of opportunity is not ensured to all.' 1• 5
156. This principle was reiterated in the case of AIIMS Students'
Union v. AIIMS and otlters 1" 6 where reservation for post graduate D
students was held unconstitutional as it went against the objective of
attaining fraternity. In Indian Medical Association v. Union oflndia 147
exemptions granted to a private non-aided educational institution to only
admit wards of army personnel was challenged. Among the various tests
to detennine the constitutionality the Court focused on fraternity by stating E
"in the absence of substantive equality or equality of means to access
resources, various social groups could never achieve the requisite dignity
necessary for the promotion of fraternity." 1" 8
157. In Raglumatltrao Ganpatrao v. Union of India 149 where
the 26th Amendment to the Constitution which abolished the privileges
given to former rulers oflndia was in question, the Court held it to be a F
positive step towards achieving the objective of fraternity. The Court
adverted to the statements of Dr. B.R. Ambedkar during the Constitution
Assembly debates and stated th~t:-
"ln a country such as India, with several disruptive forces, such
G
'"AIR 1993 SC 477: 1992 Supp. (3) sec 217
"'Id. para 514.
'" (2002) I sec 428
'"Indian Medical Association V. Union oflndia, Civil Appeal No. 8170 Of2009 & Writ
Petition (Civil) Nos. 320 Of2009 & 192 Of2010
'" Id.
"" 1994 supp. (1) sec 191 H
992 SUPREME COURT REPORTS [2016] 3 S.C.R.

A as religion, caste and language, the idea of fraternity is imperative
to ensure the unity of the nation through a shared feeling ofcommon
brotherhood." 150
158. The concept of fraternity under the Constitution expects
every citizen to respect the dignity of the other. Mutual respect is the
B fulcrum of fraternity that assures dignity. It does not mean that there
cannot be dissent or difference or discordance or a different voice. It
does not convey that all should join the chorus or sing the same song.
Indubitably not. One has a right to freedom of speech and expression.
One is also required to maintain the constitutional value which is embedded
in the idea of fraternity that assures the dignity of the individual. One is
c obliged under the Constitution to promote the idea of fraternity. It is a
constitutional obligation.
159. In the context of constitutional fraternity, fundamental duties
engrafted under Article 51-A of the Constitution gain significance. Sub-
articles (e) and (j) of Article 51-A of the Constitution read as follows:-
D "Article 51-A.(e) to promote harmony and the spirit of common
brotherhood amongst all the people oflndia transcending religious,
linguistic and regional or sectional diversities; to renounce practices
derogatory to the dignity of women;
x x x x x
E
U) to strive towards excellence in all spheres of individual and
collective activity so that the nation constantly rises to higher levels
of endeavour and achievement;"
160. The prismatic perception of sub-article (e) would reflect
that it is the duty of every citizen of India to promote harmony and the
F
concept of common brotherhood amongst all the people despite many
diversities. It is also the duty of every citizen to strive towards excellence
in all spheres ofindividual and collective activity. In this regard, a passage
from AllMS Students' Union (supra) would be apt to refer. It reads as
follows:-
G " ... Fundamental duties, though not enforceable by a writ of the
com1, yet provide a valuable guide and aid to interpretation of
constitutional and legal issues. In case of doubt or choice, peoples
wish as.manifested through Article 51 A, can serve as a guide not
only for resolving the issue but also for constructing or moulding
H i~n Id.
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 993
LAW & ORS. [DIPAK MISRA; J.]

the relief to be given by the courts. Constitutional enactment of A
fundamental duties, if it has to have any meaning, must be used
by courts as a tool to tab, even a taboo, on State action drifting
away from constitutional values."
161. In P.A. lnamdar mu/ others v. State of Mitlwraslitra and
others' 5 ' ·it has been observed that:- B
"Fundamental duties recognized by Attic le 51 A include, amongst
others, (i) to develop the scientific temper, humanism and the spirit
of inquiry and reform; and (ii) to strive towards excellence in all
spheres of individual and collective activity so that the nation
constantly rises to higher levels of endeavour and achievement. C
None can be achieved or ensured except by means of education.
It is well accepted by the thinkers, philosophers and academicians
thafif JUSTICE, LIBERTY, EQUALITY and FRATERNITY,
including social, economic and political justice, the golden goals
set out in the Preamble to the Constitution of India are to be
achieved, the Indian polity has to be educated and educated with . D
excellence. Education is a national wealth which must be distributed
equally and widely, as far as possible, in the interest of creating an
egalitarian society, to enable the country to rise high and face
global competition ... "
162. In Ramlila Maidan Incident, In re (supra), the Court had
E
opined that:-
" ... a common thread runs through Parts Ill, IV and IVA of the
Constitution oflndia. One Part enumerates the fundamental rights,
the second declares the fundamental principles of governance and
the third lays down the fundamental duties of the citizens. While
interpreting any of these provisions, it shall always be advisable to F
examine the scope and impact of such interpretation on all the
three constitutional aspects emerging from these parts."
163. We have referred to two concepts, namely, constitutional
fraternity and the fundamental duty, as they constitute core constitutional
· values. Respect tor the dignity of another is a constitutional norm. It G
would not amount to an overstatement if it is said that constitutional
fraternity and the intr.insic value inhered in fundamental duty proclaim
the constitutional assurance of mutual respect and concern for each
other's dignity.. The individual interest of each i.ndividual serves the
"' (2005J 6 sec 537 H
994 SUPREME COURT REPORTS [2016] 3 S.C.R.

A collective interest and correspondingly the collective interest enhances
the individual excellence. Action against the State is different than an
action taken by one citizen against the other. The constitutional value
helps in structuring the individual as well as the community. interest.
Individual interest is strongly established when constitutional values are
respected. The Preamble balances different and divergent rights. Keeping
B
in view the constitutional value, the legislature has not repealed Section
499 and kept the same alive as a criminal offence. The studied analysis
from various spectrums, it is difficult to come to a conclusion that the
existence of criminal defamation is absolutely obnoxious to freedom of
speech and expression. As a prescription, it neither invites the frown of
c any of the Articles of the Constitution nor its very existence can be
regarded as an unreasonable restriction.
Anatomy of the provision and its field of operation
164. Having dealt with thi,s facet, now we shall focus on whether
Section 499 ofIPC either in the substantive sense or procedurally violates
D the concept of reasonable restriction. We have to examine whether it is
vague or arbitrary or disproportionate.
165. For the aforesaid purpose,' it is imperative to analyse in detail
what constitutes the offence of"defamation" as provided under Section
499 of!PC. To constitute the offence, there has to be imputation and it
E must have made in the manner as provided in the provision with the
intention of causing harm or having reason to believe that such imputation
will harm the reputation of the person about whom it is made. Causing
harm to the reputation of a person is the basis on which the offence is
founded and mens rea is a condition precedent to constitute the said
offence. The complainant has to show that the accused had intended or
F
known or had reason to believe that the imputation made by him would
harm the reputation of the complainant. The criminal offence emphasizes
on the intention or harm. Section 44 ofIPC defines "injury". It denotes
any harm whatever ille-gally caused to any person, in body, mind,
reputation or proper-ty. Thus, the word "injury" encapsulates harm
G caused to the reputation of any person. It also takes into account the
harm caused to a person's body and mind. Section 499 provides for
hann caused to the reputation of a person, that is, the complainant. In
Jeffrey J. Diermeier and another v. State of West Bengal and
anotlter' 51 , a two~Judge Bench deliberated on tht aspect as to what
H '" (20 IOJ 6 sec 243
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRYOF 995
LAW & ORS. [DI PAK MISRA, J .]

constitutes defamation under Section 499 of !PC and in that context, it A
held that there must be an imputation and such iniputation must have
been made with the intention ofhanning or knowing or having reason to
believe that it will harm the reputii.tion of the person about whom it is
made. In essence, the offence of defamation is the harm caused to the
reputation of a person. It would be sufficient to show that the accused
B
intended or knew or had reason to believe that the imputation made by
him would harm the reputation of the complainant, irrespective of whether
the complainant actually suffered directly or indirectly from the imputation
alleged.
166. Having dwelt upon the ingredients, it is necessary to
appreciate the Explanations appropriately. There are four Explanations c
to the main provision and an Explanation has been appended to the Fourth
Exception. Explanation 4 needs to be explain.ed first. It is because the
said Explanation provides the expanse and the inherent control wherein
whatimputation has been regarded as harm to a person's reputation and
that an imputation can only be treated as harm of a person's reputation D
if it 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 ofhis 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. It is
submitted by Dr. Dhaw~n, learned senior counsel, that Explanation 4 E
has many a distinction and covers a number of criteria which can be
used widely. He has commended us to a passage from State of Jammu
and Kashmir v. Triloki Natlt Kflosa and others' ;3 solely for the purpose
thatthe Explanation 4 engulfs micro-distinctions which is impermissible.
To appreciate manifold submissions urged by the learned counsel for the F
petitioners, it is seemly to refer to how these Explanations have been
understood by the Court. We are conscious that we are dealing with the
constitutional validity of the provision and the decisions relate to
interpretation. But the purpose is to appreciate how the Explanations
11ave been understood by this Court. ·
G
167. Explanation 1 stipulates that an imputation would amount to
defamation if it is done to a deceased person if the imputation would
harm the reputation of that person if he is living and is intended to be
harmful to the feelings of his family or other near relatives. It is submitted

''' (1974) 1sec19 H
996 SUPREME COURT REPORTS [2016] 3 S.C.R.

A by the learned counsel for the petitioners thatthe width of the Explanation
is absolutely excessive as it enables the family members to prosecute a
criminal action ..yhereas they are debarred to initiate civil action for
damages. According to the learned counsel for the petitioners,
Explanation I is anomalous and creates a piquant situation which can
effortlessly be called unreasonable, for when a civil suit cannot be
B
entertained or allowed to be prosecuted by the legal heirs.or the legal
representatives, how could they prosecute criminal offence by filing a
complaint. On a first blush, the aforesaid submission looks quite attractive,
but on a keener scrutiny, it loses its significance. In Melepuratlt Sm1kuni
Ezftutltassan v. Tltekittil Geopalankutty Nair 15\ a suit for damages
c was dismissed by the trial court but on an appeal being preferred, the
same was allowed. In second appeal, the High Court reversed the decree
of the appellate court and dismissed the cross objections of the respondent
therein. The appellant preferred an appeal by special leave before this
Court and during the pendency before this Court, he died. His surviving
legal heirs came to be brought on record to prosecute the appeal. The
D
issue that arose before this Court was whether the appeal should abate.
The Court posed the question whether in a defamation action, the right
to sue survives if the plaintiff dies. The Court referred to the Common
Law principle and the maxim action persona/is 11101'itur cum persona
(a personal action dies with the person) and thereafter referred to Section
E 306 of the Indian Succession Act, 1925 as to which causes of action
survive and which shall abate. The Court in that context opined thus:-
"Where a suit for defamation is dismissed and the plaint,iff has
filed an appeal, what the appellant-plaintiffis seeking to enforce
in the appeal is his right to sue for damages for defamation and as
F this right does not survive his death, his legal representative has
no right to be brought on the record of the appeal in his place and
stead if the appellant dies during the pendency of the appeal. The
position, however, is different where a suit for defamation has
resulted in a decree in favour of the plaintiff because in such a
case the cause of action has merged in the decree and the decretal
G debt forms part of his estate and the appeal from the decree by
the defendant becomes a question of benefit or detriment to the
estate of the plaintiff respondent which his legal ·representative is
entitled to uphold and defend and is, therefore, entitled to be
substituted in place of the deceased respondent plaintiff'.
H '"<1986) 1sec11s
SUBRAMANIAN SWAMY v. UNION Of INDIA, MINISTRY OF 997
LAW & ORS. [DIPAK MISRA. J.]

168. In M. Veemppa v. Evely11 Sequeira and others' 55 , a two- A
Judge Bench distinguh;l1ed the authority in Melepurath Sankuni
Ezhuthassan (supra) as there was a subsisting decree and came to
hold thus:-
"The maxim "actio persona/is c11111 moritur persona" has been
applied not only to those cases where a plaintiff dies during the B
pendency of a suit filed by him for damages for personal injuries
sustained by him but also to cases where a plaintiff dies during
the pendency of an appeal to the appellate court, be it the first
appellate court or the second appellate court against the dismissal
of the suit by the trial court and/or the first appellate court as the
case may be. This is on the footing that by reason of the dismissal
c
of the suit by the trial court or the first appellate court as the case
may be, the plaintiff stands relegated to his original position before
~

the trial court.
Andagain:-
D
"The inaxim of actio personalis cum moritur persona has been
held inapplicable only in those cases where the injury caused to
the deceased person has tangibly affected his estate or has caused
an accretion to the estate of the wrong-doer vide Rus10111ji
Dorabji v. W.H Nurse 156 and Ratanlal v.. Baboolal' 57 as well
as in those cases where a suit for damages for defamation, assault E
or other personal injuries sustained by the plaintiff had resulted in
a decree in favour of the plaintiff because iu such a case the
cause of action becomes merged in the decree and the decretal
debt forms part of the plaintiff's estate and the appeal from the
decree by the defendant becomes a question of benefit or detriment F
to the estate of the plaintiff which his legal representatives are
entitled to uphold and defend (vide Gopal 1i Ramchandra 158 and
Melepurath Sankunni v. Thekittil)".
169. The aforesaid enunciation of law makes it clear how and
when the civil action is not maintainable by the legal heirs. The
G
prosecution, as envisaged in Explanation I, lays two postulates, that is,
(i) the imputation to a deceased person is of such a nature that would

"' t 1998) 1 sec 556
"'· !LR 44 Mad 357
17
' AIR 1960 MP 200
'" ILR 26 Bom 597 H
998 SUPREME COURT REPORTS [2016] 3 S.C.R.

A have harmed the reputation of that person ifhe was living and (ii) the
said imputation must be intended to be hurtful to the feelings of the
family o·r other near relatives. Unless the twin tests are satisfied, the
· complaint would not be entertained under Section 199 of CrPC. The
said Explanation protects the reputation of the family or relatives. The
entitlement to damages for personal injury is in a different sphere whereas
B
a criminal complaint to be filed by the family members or other relatives
under twin tests being satisfied is in a distinct compartment. It is more
rigorous. The principle of grant of compensation and the principle of
protection of reputation of family or near relative cannot be equated.
Therefore, we do not find any extra mileage is given to the legal heirs of
c a deceased person when they have been made eligible to initiate a
criminal action by taking recourse to file a criminal complaint.
170. Explanation 2 deals with imputation concerning a company
or an association or collection of persons as such. Explanation 3 says
that an imputation in the form of an alternative or expressed ironically
may amount to defamation. Section 11 of!PC defines "person" to mean'
a company or an association or collection of persons as such or body of
persons, whether incorporated or not. The inclusive nature of the
definition indicates that juridical persons can come within its ambit. The
submission advanced on behalf of the petitioners is that collection of
persons or, for that matter, association, is absolutely vague. More than
E five decades back, the Court, in Sahib Si11glt Meltra v. State of Uttar
Prades/i 159 while being called upon to decide whether public prosecutor
would constitute a class or come within the definition of "collection of
persons" referred to Explanation 2 to Section 499 of!PC, and held that
collection of persons must be identifiable in the sense that orie could,
with certainty, say that this group of particular people has been defamed,
F
as distinguished from the rest of the community. The Court, in the facts
of the case, held that the prosecuting staff of Aligarh or, as a matter of
fact, the prosecuting staff in the State of Uttar Pradesh, was certainly
such an identifiable group or collection of persons, and there was nothing
indefinite about it. Thus, in the said authority, emphasis is laid on the
G concept of identifiability and definitiveness as regards collection of_
persons.
171. In G Narasimlum, G Kasturi flll{/ K. Gopala11 v. T. V.
Cltokkappa 160 , the Court dealt with the applicability of the said
'''AIR 1965 SC 1451 : 1965 (2) SCR823
H '''" <1972) 2 sec 680
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 999
LAW & ORS. [DIPAK MISRA, J.]

Explanation as regards "association" or "collection of persons" and ruJed A
that a collection of persons must be an identifiable body so that it is
possible to say with definiteness that a group of particular persons, as
distinguished from the rest of the community, was defamed. Therefore,
in a case where Explanation 2 is resorted to, the identity of the company
or the association or the collection of persons must be established so as
B
to be relatable to the defamatory words or imputations. Where a writing
weighs against mankind in general, or against a particular order of men,
e.g., men of gown, it is no libel. It must descend to particulars and
individuals to make it a libel. Thus, the accentuatioi1 is on 'partipulars'_.
In S. Kliusliboo (supra), it has been ruled that though the Expla11ation is
wide yet in order to demonstrate the offence of defamation, such a c
collection of persons must be an identifiable body so that it is possible to
say with precision that a group of particular persons, as distinguished
from the rest of the community, stood defamed. Jn case the identity of
the collection' of persons is not established so as to be relatable to the
defamatory words or imputations, the complaint is not maintainable. It
D
has been fmther opined that in case a class is mentioned, if such a class
is indefinite, the complaint cannot be entertained and furthermore, ifit is
not possible to ascertain the composition of such a class, tlie criminal
prosecution cannot proceed. _
l 72. The aforesaid enunciation of law clearly lays stress on
determinate and definite body. It also lays accent on identifiable body E
and identity of the collection of persons. It also significantly states about
the test of precision so that the collection of persons have a distinction.
Thus, it is fallacious to contend that it is totally vague and can, by its
inclusiveness, cover an indefinite multitude. The Court has to understand
the concept and appositely apply the same. There is no ambiguity. Be it F
noted that a three-Judge Bench, though in a different context, in A11eeta
Hada v. Godfather Travels & Tours (P) Ltd 161 has ruled that a
company has its own reputation. Be that as it may, it cannot be said that
the persons covered under the Explanation are gloriously vague.
Exceptions and understanding of the same G
173. Having dealt with the four Explanations, presently, we may
analyse the Exceptions and note certain authorities with regard to the
Exceptions. It is solely for the purpose of appreciating how the Cou1t
has appreciated and applied them. The First Exception stipulates that it
"'' (2012) 5 sec 661 H
moo SUPREME COURT REPORTS (2016) 3 S.C.R.

A is not defamation to Impute anything which is true concerning any person,
ifit be for the public good thatthe imputation should be made or published.
"Public good" has to be treated to be a fact. In Cflaman Lal v. State of
Punjab 162 , the Court has held that in order to come within the First
Exception to Section 499 of the Indian Penal Code it has to be established
that what has been imputed concerning the respondent is true and the
B
publication of the imputation is forthe public good. The onus of proving
these two ingredients, namely, truth of the imi't1tation and the publication
of the imputation for the public good, is on the accused.
174. It is submitted by Dr. Dhawan, learned senior counsel for
the petitioners that if the imputation is not true, the matter would be
c different. But as the Exception postulates that imputation even if true, if
it is not to further public good then it will not be defamation, is absolutely
irrational. and does not stand to reason. It is urged that truth is the basic
foundation of justice, but. this Exception does not recognize truth as a
defence and, therefore, it deserves to be struck down.
D 175. Ithas been canvassed by Mr. Rao, learned senior counsel,
that the term "public good" is a vague concept and to bolster the said
submission, he has placed reliance upon Harakclumd Rata11clu11u/
Bantliia & others v Union of India and others' 63 to highlight that in
the said case, it has been held that "public interest" do not provide any
E objective standard or norm. The context in which the said decision was
rendered has to be appreciated. In the said case, the Court was dealing
with the constitutional validity of the Gold Control Act, 1968. Section 27
of the said Act related to Iicensing of dealers. It was contended that the
conditions imposed by sub-section (6) of the Act for grant or renewal of
licences were uncertain, vague, unintelligible and consequently wide and
F unfettered power was conferred upon the statutory authorities in the
matter of grant or renewal of licence. The Court expressed the view
that the contention was well founded. Further analyzing, the Court
e;wressed that:-
" ... The expression "anticipated demand" is a vague expression
G which is not capable of objective assessment and is bound to lead
to a great deal ofuncertainty. Similarly the expression "suitability
of the applicant" in Section 27(6)(e) and "public interest" in Section
27(6)(g) do not provide any objective standard or norm or guidance.
,,,, <1910) 1 sec 590
H
11
·' (1969)2 sec 166
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 1001
LAW & ORS. [DIPAK MISRA, J.]

For these reasons it must be held that clauses (a),(d),(e) and (g) A
of Section 27(6) impose unreasonable restrictions on the
fundamental right of the petitioner to carry on business and are
constitutionally invalid ... "
176. As we perceive, the factual score and the provision under
challenge was totally different. It has been stated in the backdrop of the B
power conferred on an administrative authority for the purpose of renewal
of licence, and in that context, the Court opined that the criterion of
"public interest" did not provide objective standard. The Court, on. analysis
ofthe provision from a manifold angle, opined thatthe provision proposed
unreasonable restriction. The context and the conferment of power
makes a gulf of difference and, therefore, the said authority has to be
c
considered on its own facts. It cannot be ruled that it lays down as a
principle that "public interest" is always without any norm or guidance
or has no objective interest. Ergo, the said decision is distinguishable ..
177. In Arutullutti Roy, /11 re 164 , this Court, referring to Second
. Exception, observed that even a person claiming the benefit of Second D
Exception to Section 499 of the Indian Penal Code, is required to show
that the opinion expressed by him was in good faith which related to 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.
Third Exception states about conduct of any person touching any public E
question and stipulates that it is not defamation to express in good faith
any opinion whatever respecting the conduct of any person touching
any pu~lic question and respecti1}-g his character, so far as his character
appears in that conduct. The said Exception uses the words "good faith"
and particularizes conduct of any person relating to any public question
and the Exception, as is perceptible, gives stress on good faith. Third F
Exception comes into play when some defamatory remark is made in
good faith as held in Sahib Si11gh Mehm (supra). The Court has clarified
that if defamatory remarks are made after due care and attention, it will
be regarded as made in good faith. In the said case, the Court also
adverted to Ninth Exception which gives protection to imputation made G
in good faith for the protection of the interest of the person making it or
of any other person or for the public good. A three-Judge Bench in
Harbhajan Singh v. State of Punjab a11d a11ot/ler 16; has opined that

''" 12002) 3 sec 343
'"' AIR 1966 SC 97 H
1002 SUPREME COURT REPORTS [2016) 3 S.C.R.

A where the accused invokes Ninth Exception to Section 499 lPC, good
faith and public good are both to be satisfied and the failure of the appellant
to prove good faith would exclude the application ofNinth Exception in
favour of the accused even ifrequirement of public good is satisfied.
The Court has referred to Section 52 IPC which defines "good faith"
that requires the element of honesty. It is necessary to note here that the
B
three-Judge Bench has drawn a distinction between the First Exception
and the Ninth Exception to opine that the proof of truth which is one of
the ingredients of the First Exception is not an ingredient of the Ninth
Exception and what the Ninth Exception requires an accused person to
prove is that he made the statement in good faith. Proceeding further,
c the Court has stated that in dealing with the claim of the accused under·
the Ninth Exception, it is not necessary and, in a way, immaterial, to
considerwhether he has strictly proved the truth of the allegations made
by him.
178. In Sukru M"llfo v. B"sdeo Kumar M"llto and mwther 160
D the Court has opined that the ingredients of Ninth Exception are first
that the imputation must be made in good faith; secondly, the imputation
must be protection of the interest of the person making it or of any other
person or for the public good. The Court further opined that good faith
and public good are questions of fact and emphasis has been laid on
making enquiry in good faith and due care and attention for making the
E in:iputation. In Jatislt C/wmlra Ghosh v. H"ri Sad/um Mukherjee 161 ,
the Constitution Bench dealt with appellant's claim of absolute privilege
as a Member of the West Bengal Legislative Assembly which was not
accepted by the High Court of Judicature at Calcutta. The appellant
therein was facing a prosecution under Section 500 !PC. The larger
F Bench referred to Section 499 IPC and observed that:-
"In this connection, it is also relevant to note that we are concerned
in this case w.ith a criminal prosecution for defamation. The Jaw
of defamation has been dealt with in Sections 499 and 500 of the
Indian Penal Code. Section 499 contains a number of exceptions.
Those specified exceptions lay down what is not defamation. The
G
fourth exception says that it is not defamation to pub Iish a
substantially true report of the proceedings of a court of justice,
but does not make any such concession in respect of proceedings
of a House of Legislature or Parliament. The question naturally
o
""' 1911 l sec sss
H ,,;, (1961) 3 SCR 486
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 1003
LAW & ORS. [DIPAK MISRA; J.]

arises how far the rule in Wason case' 68 can be applied to criminal A
prosecutions in India, but as this aspect of the controversy was
not canvassed at the Bar, we need not say anything about it, as it
is not necessary for the decision of this case."

179. After so stating, the Court further opined that the proceedings
did not deserve to be quashed as there was no such absolute privilege in B
the facts of the case. Being of this view, the Court opined that the
accused appellant must take his trial and enter upon his defence such as
he may have. We have referred to the said decision only to highlight
that the Court has clarified publishing of substantial true. report of
proceedings of a Court of Justice. . c
180. Fifth Exception stipulates that 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 party, witness or agent. The
further stipulation is that the said opinion must relate to the character of D
said person, as far as his character appears in that conduct. In Km1wal
Lal v. State of Punjab' 69 the Court, while dealing with the Eighth
Exception, has opined that in order to establish a defence under this
Exception the accused would have to prove that the person io whom the
complaint was made had lawful authority over the person complained
against, in respect of the subject-matter of the accusation. E
181. Again in M.C. Verghese v. T.J. Poom111 110 , it has been
ruled that a person making libellous statements in his complaint filed in
Cow1 is not absolutely protected in a criminal proceeding for defamation,
for under the Eighth Exception and the illustration to Section 499 the
statements are privileged only when they are made in good faith. There F
is, therefore, authority forthe proposition that in determining the criminality
of an act under the Indian Penal Code the Courts will not extend the
scope of special exceptions by resorting to the rule peculiar to English
common law that the husband and wife are regarded as one. In Clmnum
. Lal (supra) this Court has opined that the Eighth Exception to Section G
499 of the Indian Penal Code indicates that accusation in good faith
against the person to any of those who have lawful authority over.that

'"' Wason v. Walter, ( 1868) 4 QB 73
"'' 1963 Supp (I) SCR 479
"" (1969) 1sec37
H
1004 SUPREME COURT REPORTS [2016] 3 S.C.R.

A person is not defamation. In Rajentlra Kumar Sitaram Pantle v.
Uttam 171 , it has been observed that Exception 8 to Section 499 IPC
clearly indicates that it is not a defamation to prefer in good faith an
accusation against any person to any of those who have lawful authority
over that person with regard to the subject-matter of accusation. In the
said case the report of the Treasury Officer clearly indicated that pursuant
B
to the report made by the accused persons against the complainant, a
departmental enquiry had been initiated and the complainant was found
to be guilty. Under such circumstances the fact that the accused persons
had made a report to the superior officer of the complai11ant alleging that
he had abused the Treasury Officer in a drunken state which was the
c gravamen of the complaint, would be ·covered by Exception 8 to
Section 499 of the Indian Penal Code.
182. In Clumum Lal (supra) the Court has opined that good
faith requires care and caution and prudence in the background of context
and circumstances. The position of the persons making the imputation
D will regulate the standard of care and caution. In Sukra Malt to (supra),
emphasis has been laid on protection of the interest of the person making
it or of any other person or for the public good. Reference has been
made to Harbhajan Singh case (supra) to stress on due care and
attention. In Sewakram Soblrnni v. R.K. Karanjiam, it has been
observed that the ingredients of the Ninth Exception are __that ( 1) the
E Imputation must be made in good faith, and (2) the imputation inust be
for the protection of the interests of the person making it or of any other
person or for the public good, and the imputation made must be in good
faith for the public good. In M.A. Rumugam v. Kittu 173 , it has been
held that forthe purpose of bringing t_he case within the purview of the
F Eighth and the Ninth Exception appended to Section 499 of the Penal
Code, it would be necessary for the accused to prove good faith for the
protection of the interests of the person making it or of any other person
or for the public good. This Court, in Jeffrey J. Diermeier (supra), has
observed thus:-
"3 7. It is trite that where to the charge of defamation under Section
G 500 IPC the accused invokes the aid ofTenth Exception to Section
499 IPC, "good faith" and "public good" have both to be established
by him, The mere plea that the accused believed that what he had
-----
(1999J 3 sec 134
171

'" (1981J 3 sec 208
H "'(2009J 1sec101
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 1005
LAW & ORS. [DIPAK MISRA, J.]

stated was in "good faith" is not sufficient to accept his defence A
and he must justify the same by adducing evidence. However, he
is not required to discharge that burden by leading evidence to
prove his case beyond a reasonable doubt.
38. It is well settled that the degree and the character of proof
which an accused is expected to furnish in suppo11 of his plea B
cannot be equated with the degree of proof expected from the
prosecution in a criminal trial. The moment the accused succeeds
in proving a preponderance of probability, onus which lies on him
in this behalf stands discharged. Therefore, it is neither feasible
nor possible to lay down a rigid test for deciding whether an
accused person acted in "good faith" and for "public good" under
c
the said Exception."
183. The detailed discussion made hereinabove do clearly reveal
that neither the main provision nor the Explanation nor the Exceptions
remotely indicate any vagueness. It is submitted that the ·Exceptions
make the offence more rigorous and thereby making the concept of D
criminal defamation extremely unreasonable. The criticism advanced
pertain to truth being not a defence, and unnecessary stress on 'public
good'. The counter argument is that ifa truthful statement is not made
for any kind of public good but only to malign a person, it is a correct
principle in law that the statement or writing can amount to defamation. E
Dr. Singhvi, learned senior counsel' for some of the respondents has
given ce11ain examples. The exainples pertain to an imputation that a
person is an alcoholic; an imputation that two family members are involved
in consensuafincest; an imputation that a person is impotent; a statement
is made in pubic that a particular person suffers from AIDS; an imputation
that a person is a victim of rape; and an imputation that the child of a F
lnarried couple is not fathered by the husband but born out of an affair
with another man. We have set out the examples cited by the learned
senior counsel only to show that there can be occasions or situations
where truth may not be sole defence. And that is why the provision has
given emphasis on public good. Needless to say, what is public good is G
a question off.act depending on the facts and circumstances of the case.
184. From the analysis we have made it is clear as day that the
provision along with Explanations and Exceptions cannot be called
unreasonable, for they are neither vague nor excessive nor arbitrary.
There can be no doubt that Court can strike down a provision, if it is H
1006 SUPREME COURT REPORTS [2016] 3 S.C.R.

A excessive, unreasonable or disproportionate, but the Court cannot strike
down if it thinks that the provision is unnecessary or unwarranted. Be it
noted that it has also been argued that the provision is defeated by doctrine
of proportionality. It has been argued that existence of .criminal
defamation on the statute book and the manner in which the provision is
engrafted suffers from disproportionality because it has room for such
B
restriction which is disproportionate. In Om Kumar v. U11ion ofIndia 17',
the Court has observed that while regulating the exercise of fundamental
rights it is to be seen whether the legislature while exercising its choice
has infringed the right excessively. Recently, the Constitlltion Bench in
Modern De11tal College & Researcft Ce11tre am/ otfters v. State of
c Madhya Pradesft and otflers 175 , explaining the doctrine of proportionality
has emphasized that when the Court is called upon to decide whether a
statutory provision or a rule amounts to unreasonable restriction, the
exercise that is required to be unde11aken is the balancing of fundamental
rights on the one hand and the restrictions imposed on the other. Emphasis
is _on recognition of affirmative constitutional rights along with its
D
limitations. Limitations, save certain interests and especially public or
social interests. Social interest takes in its sweep to confer protection to.
rights of the others to have social harmony founded on social values. To
treat a restriction constitutionally permissible it is necessary to scrutinize
whether the restriction or imposition of limitation is excessive or not.
E The proportionality doctrine recognizes balancing of competing rights
and the said hypothesis gains validity if it subserves the purpose it is
meant for.
185. Needless to emphasise that whe1i a law limits a constitutional
right which many laws do, such limitation is constitutional if it is
F proportional. The law imposing restriction is proportional ifit is meant to
achieve a proper purpose, and if the measures taken to achieve such a
purpose are rationally connected to the purpose, artd such measures are
necessary. Such limitations should not be arbitrary or of an excessive
nature beyond what is required in the interest of the public.
Reasonableness is judged with reference to the objective which the
G legislation seeks to achieve, and must not be in excess of that objective
(see: P.P. Enterprises v. Union of/ndia 176 ). Fu11her, the reasonableness
is examined in an objective manner form the stand point of the interest
1
"' <2001 J 2 sec 386
"'2016 (4) SCALE 478
H 176
(1982 J 2 sec 33
SUBRAMANIAN SWAMY v. UNION OF INDIA. MINISTRY OF 1007
LAW & ORS. [DIPAK MISRA, J.]

of the general public and not from the point of view of the person upon A
whom the restrictions are imposed or abstract considerations (see : Mohd
Hanif Quareshi. V. State of Bihar 177 ). The judgment refers to and
approves guidelines propounded in MRF Ltd. v. Inspector, Kera[(I
Govt. 118 for examining reasonableness of a statutory provision. In the
said decision the Constitution Bench while discussing about the doctrine
B
of proportionality has observed:-
"54. Modern theory of constitutional rights draws a fundamental
distinction between the scope of the constitutional rights, and the
extent of its protection. Insofar as the scope of constitutional rights
is concerned, it marks the outer boundaries of the said rights and
defines its contents. The extent of its protection prescribes the c
limitations on the exercises of the rights within its scope. In that
sense, it defines the justification for limitations that can be imposed .
· O!) such a right.

55. It is now almost accepted that there are no absolute
constitutional rights 14 and all such rights are related. As per the D
analysis of Aharon Barak 179, two key elements' in developing the
modern constitutional theory ofrecognising positive constitutional
rights along with its limitations are the notions of democracy and
the rule of law. Thus, the requirement of proportional limitations'
of constitutional rights by a sub-constitutional law, i.e. the statute,
E
is derived from an interpretation of the notion of democracy itself.
Insofar as Indian Constitution is concerned, democracy is treated
as the basic feature of the Constitution and is specifically accorded
a constitutional status that is recognised in the Preamble of the
Constitution itself. It is also unerringly accepted that this notion of
democracy includes human rights which is the corner stone of F
Indian democracy. Once we accept the aforesaid theory (and
there cannot be any denial thereof), as a fortiori, it has also to be
accepted that democracy is based on a balance between
constitutionalrights and the public interests. In fact, such a provision
in Article 19 itself on the one hand guarantee"S some· certain
G
freedoms in clause (I) of Article 19 and at the same time empowers
the State to impose reasonable restrictions on those freedoms in
177
AIR 1958 SC 731
11
' s sec 221
<1998)
17
" Proportionality : Constitutional Rights and Their Limitation by Aharon Brarak,
Cambridge University Press. 2012 H
1008 SUPREME COURT REPORTS [2016] 3 S.C.R.

A public interest. This notion accepts the modern constitutional theory
that the constitutional rights are related .... "
186. One cannot be unmindful that right to freedom of speech
and expression is a highly valued and cherished right but the Constitution
conceives of reasonable restriction. In that context criminal defamation
B which is in existence in the form of Sections 499 and 500 !PC is not a
restriction on free speech that can be characterized as disproportionate.
Right to free speech cannot mean that a citizen can defame the other.
Protection of reputation is a fundamental right. It is also a human right.
Cumulatively it serves the social interest.' Thus, we are unable to accept
that provisions relating to criminal defamation are not saved by doctrine
c of proportionality because it determines a Iim it which is not impermissible
within the criterion of.reasonable restriction. It has been held in D. C.
Saxena (Dr) v. Hon'ble The Chief Justice of1mlia' 80 , though in a
different context, that if maintenance of democracy is the foundation for
free speech, society equally is entitled to regulate freedom of speech or
D expression by democratic action. The reason is obvious, viz., that society
accepts free speech and expression and also puts limits on the right of
the majority. Interest of the people involved in the acts of expression
should be looked at not only from the perspective of the speaker but also
the place at which he speaks, the scenario, the audience, the reaction of
the publication, the purpose of the speech and the place and the forum in
E
which the citizen exercises his freedom of speech and expression. The
Court had further observed that the State has legitimate interest, therefore,
to regulate the freedom of speech and expression which liberty represents
the limits of the duty of restraint on speech or expression not to utter
defamatory or libellous speech or expression: There is a correlative duty
F 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.
187. The submission of Mr. Datar, learned senior counsel is that
defamation is fundamentally a notion of the majority meant to cripple the
G freedom of speech and expression. It is too broad a proposition to be
treated as a guiding principle to adjudge reasonable restriction. There is
a distinction between social interest and a notion of the majority. The
legislature has exercised its legislative wisdom and it is inappropriate to
say that it expresses the notion of the majority. It has kept the criminal

H ""(1996)5 SCC216
SUBRAMANIAN SWAMY v. UNION Of INDIA, MINISTRY OF 1009
LAW & ORS. [DJPAK MISRA, J.]

defamation on the statute book as in the existing social climate it subserves A
the collective interest because reputation of each is ultimately inhered in
the reputation of all. The submission that imposition of silence will rule
over eloquence of free speech is a stretched concept inasmuch as the
said proposition is basically founded on the theory of absoluteness of the
fundamental right of freedom of speech and expression which the
B
Constitution does not countenance.
188. Now, we shall adve11 to Section 199 of CrPC, which pro-
vides for prosecution for defamation. Sub-section (1) of the said section
stipulates that no court shall take cognizance of an offence punishable
under Chapter XX! of the Indian Penal Code (45of1860) except upon
a complaint made by some person aggrieved by, the offence; provided
c
that where such person is under the age of eighteen years, or is an idiot
or a lunatic, or is from sickness or infirmity unable to make a complaint,
or is a woman who, according to the.local customs and manners, ought
not to be compelled to appear in public, some other person may, with the
leave of the court, make a complaint on his or her behalf. Sub-section D
(2) states that when any offence is alleged against a person who is the
President of India, the Vice-President of India, the Government of a
State, the Administrator of a Union territory or a Minister of the Union
or of a State or of a Union territory, or any other public servant employed
in connection with the affairs of the Union or of a State in respect of
his conduct in the discharge of his public functions, a Court of Session E
may take cognizance· of such offence, without the case being commit-
ted to it, upon a complaint in writing made by the Public Prosecutor.
Sub-section 3 states that every complaint referred to in sub-section (2)
shall set forth the facts which constitute the offence alleged, the nature
of such offence and such other particulars as are reasonably sufficient F
to give notice to the accused of the offence alleged to have
been committed by him. Sub-section mandates that no complaint under
sub-section (2) shall be made by the Public Prosecutor except with the
previous sanction of the State Government, in the case of a person who
is or has been the Governor of that State or a Minister of that Govern-
ment or_ any other public servant employed in connection with the af- G
fairs of the State and of the Central Government, in any other case.
Sub-section 5 bars Court of Session from taking cognizance of an of-
fence under sub-section (2) unless the complaint is made within six months
from the date on which the offence is alleged to have been committed.
Sub-section (6) states that nothing in this section shall affect the right of H
1010 SUPREME COURT REPORTS [2016] 3 S.C.R.

A the person against whom the offence is alleged to have been committed,
to make a complaint in respect of that offence before a Magistrate hav-
ing jurisdiction or the power of such Magistrate to take cognizance of
the offence upon such complaint.
· 189-. The said provision is criticized on the ground that "some
B person aggrieved" is on a broader spectrum and that is why, it allows all
kinds of persons to take recourse to defamation. As far as the concept
of"some person aggrieved" is concerned, we have referred to plethora
of decisions in course of our deliberations to show how this Court has
determined the concept of "some person aggrieved". While dealing
with various Explanations, it has been clarified about definite identity of
c the body of persons or collection of persons. In fact, it can be stated
that the "person aggrieved" is to be determined by the courts in each
case according to the fact situation. It will require ascertainment on due
deliberation of the facts. In Joltn Tltomas v. Dr. K. Jagadeesan' 8 '
while dealing with "person aggrieved", the Court opined that the test is
D whether the complainant has reason to feel hurt on account of publication
is a matter to be determined by the court depending upon the facts of
each case. In S. Kltusltboo (supra), while dealing with "person
aggrieved", a three-Judge Bench has opined that the respondents therein
were not "person aggrieved" within the meaning of Section 199( I) Cr PC
as there was no specific legal injury caused to any of the complainants
E since the appellant's remarks were not directed at any individual or readily
identifiable group of people. The Court placed reliance on M.S. Jayaraj
v. Commr. of Excise'"c and G Narasimlum (supra) and observed that
if a Magistrate Were to take cognizance of the offence of defamation on
a complaint filed by one who is not a "aggrieved person", the trial and
F conviction of an accused in such a case by the Magistrate would be void
and illegal. Thus, it is seen that the words "some person aggrieved" are
dete1mined by the courts depending upon the facts of the case. Therefore,
the submission that it can include any and everyone as a "person
aggrieved" is too spacious a submission to be accepted.
190. It has als9 been commented upon that by giving a benefit to
G public servant employed in connection with the affairs of the Union or of
a State· in respect of his conduct in the discharge of public functions to
file the case through public prosecutor, apart from saving his right under
sub-section (6) of Section 199 CrPC, the provision becomes

"' (2001 J 6 sec 30
H '" (2000J 7 sec ss2
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 1011
LAW & ORS. [DIPAK MISRA, J.]

discriminatory. In this regard, it is urged that a public servant is treated A
differently than the other persons and the classification invites the frown
ofArticle 14 of the Constitution and there is no base for such classification.
Thus, the attack is on the base ofArticle 14 of the Constitution. In Speci"/
Courts Bill, 1978, In re 183 Chandrachud, CJ, speaking for the majority
of the Constitution Bench after referring to series of judgments of this
B
Court, culled ·Out certain principles. We may refer to a few of them:-
"(1) x x x x x
(2) The State, in the exercise of its governmental power, has of
necessity to make laws operating differently on different groups
or classes of persons within its territory to attain particular ends in
giving effect to its policies, and it must possess for that purpose c
large powers of distinguishing and classifying persons or things to
be subjected to such laws.
(3) The constitutional command to the State to afford equal
protection of its laws sets a goal not attainable by the invention
and application of a precise formula. Therefore, classification need D
not be constituted by an exact or scientific exclusion or inclusion
of persons or things. The comis should not insist on delusive
exactness or apply doctrinaire tests for detennining the validity of
classification in any given case. Classification is justified if it is
not palpably arbitrary.
E
(4) The principle underlying the guarantee of Article 14 is not that
the same rules of law should be applicable to all persons within
the Indian territory or that the same remedies should be made
available to them irrespective of differences of circumstances. It
only means that all persons similarly circumstanced shal I be treated
alike both in privileges conferred and liabilities imposed. Equal f
laws would have to be applied to all in the same situation, and
there should be no discrimination between one person and another
if as regards the subject-matter of the legislation their position is
substantially the same.
(5) By the process of classification, the State has the power of G
determining who should be regarded as a class for purposes of
legislation and in relation to a law enacted on a particular subject.
This power, no doubt, in some degree is likely to produce some
inequality; but if a law deals with the liberties of a number of well-

'" ( 1979) 1 sec 380 H
1012 SUPREME COURT REPORTS [2016) 3 S.C.R.

A defined classes, it is not open to the charge of denial of equal
protection on the ground that it has no application to other persons.
Classification-thus means segregation in classes which have a
systematic relation, usually found in common properties and
characteristics. It postulates a rational basis and does not mean
herding together of certain persons and classes arbitrarily.
B
(6) x x x x x
(7) The classification must not be arbitrary but must be rational,
that is to say, it must not only be based on some qualities or
characteristics which are to be found in all the persons grouped
together and not in others who are left-out but those qualities or
c characteristics must have a reasonable relation to the object of
the legislation. In order to pass the test, two conditions must be
fulfilled, namely, (I )that the classification must be founded on an
intelligible differentia which distinguishes those that are grouped
together from others, and (2) that differentia must have a rational
relation to the object sought to be achieved by the Act.
D
(8) x x x x x
(9) x x x x x
(10) x x x x x
( 11) Classification necessarily implies the making of a distinction
or discrimination between persons classified and those who are
E not members of that class. It is the essence of a classification that
upon the class are cast duties and burdens different from those
resting upon the general public. Indeed, the very idea of
classification is that of.inequality, so that it goes without saying
thatthe mere fact of inequality in no manner detei;mines the matter
of constitutionality."
F
191. Recently, in Yogemlra Kunwr Jaisw({/ & otlters v. State
of Bilwr and otlters 184 , the Court, after referring to Ram Krisllna
Dalmia v. S.R. Tendo/k({r 185 , S({tyuw({ti Sfl({rm({ v. Union of bu/i<l 186 ,
Reitman Slta1:00 v. State of J&K 181 and C./. Emden v. State of U.P. 188
in the context of challenge to the constitutional validity of the Orissa
G Special Courts Act, 2006 and the Bihar Special Courts Act, 2009, repelled
the contention that there was no justification for trial of offence under
'" (2016) 3 sec 183
'"AIR 1958 SC 538
"" (2008) 5 sec 287
"'AIR 1960 SC I
H '"'AIR 1960 SC 548
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 1013
LAW & ORS. [DIPAK MISRA, J.]

Section 13(1)(e) and the rest of the offences enumerated in Section 13 A
in different Act and ultimately opined:-
" ... Section 13( I)(e) targets the persons who have disproportionate
assets to their known sources of income. This conceptually is a
period offence, for it is not incident-specific as such. It does not
require proof of corruption in specific acts, but has reference to B
assets accumulated and known sources of income in a particular
period. The test applicable and proof required is different. That
apart, in the context of the present Orissa Act it is associated with
high public office or with political office which are occupied by
people who control the essential dynamics of power which can
be a useful weapon to amass wealth adopting illegal means. In c
such a situation, the argument that they being put in a different
class and tried in a .separate Special Court solely because the
alleged offence, if nothing else, is a self-defeating one. The
submission that there is a sub-classification does not remotely
touch the boundaries of Article 14; and certainly does not encroach D
thereon to invite the wrath of the equality clause."
192. Be it stated that learned counsel for the petitioners stated
that there can be no cavil about_the President oflndia, the Vice-President
oflndia, the Governor of a State, the Administrator of a Union territory
but about others whose names find mention in the provision there is no
justification to put them in a different class to enable them to file a case E
through the public prosecutor in the Court of Session. A studied scrutiny
of the provision makes it c;lear that a public servant is entitled to file a
complaint through public prosecutor in respect of his conduct in discharge
of public functions. Public function stands on a different footing than
the private activities of a public servant. The provision gives them F
protection for their official acts. There cannot be defamatory attacks on
them because of discharge of their due functions. In that sense, they
constitute a different class. Be it clarified here that criticism is different
than defamation. One is bound to tolerate criticism, dissent and
discordance but not expected to tolerate defamatory attack.
193. Sub-section (6) gives to a public servant what every citizen G
has as he cannot be deprived of a right of a citizen. There can be cases
where sanction may not be given by the State Government in favour of
a public servant to protect his right and, in that event, he can file a case
before the Magistrate. The provision relating to engagement of public
prosecutor in defamation cases in respect of the said authorities is seriously H
1014 SUPREME COURT REPORTS [2016] 3 S.C.R.

A criticized o.n the ground that it allows unnecessary room to the authorities
mentioned therein and the public servants to utilize the Public Prosecutor
to espouse their cause for vengeance. Once it is held that the public
servants constitute a different class in respect of the conduct pertaining
to their discharge of duties and functions, the engagement of Public
Prosecutor cannot be found fault with. It is ordinarily expected that the
B
Public Prosecutor has a duty to scan the materials on the basis of which
a complaint for defamation is to be filed. He has a duty towards the
Court. This Court in Bairam Mura/idlwr. v. State of Amlltra
Prades/i 189 while deliberating on Section 321 CrPC has opined that the
Public Prosecutor cannot act like the post office on behalf of the State
c Government. He is required to act in good faith, peruse the materials on
record and form an independent opinion. It further observed that he
cannot remain oblivious to his lawful obligations under the Code and is
required to constantly remember his duty to the court as well as his duty
to the collective. While filing cases under Sections 499 and 500 lPC, he
is expected to maintain that independence and not act as a machine.
D
The other ground of attack is that when a complail1t is ti led in a Court of
Session, right or appeal is curtailed. The said submission suffers f.rom a
basic fallacy. Filing of a complaint before the Court of Session has three
safeguards, namely, (i), it is filed by the public prosecutor; (ii) obtaining
of sanction from the appropriate Government is necessary, and (iii) the
E Court of Session is a superior court than the Magistrate to deal with a
case where a public servant is defamed. In our considered opinion, when
sufficient protection is given and the right to appeal to the High Court is
not curtailed as the CrPC protects it, the submission does not really
commend acceptation. In view of the aforesaid, we do not perceive any
justification to declare the provisions ultra rires.
F
194. On behalf of petitioner-Foundation of Media Professionals,
Mr. Bhambhani, learned senior counsel has submitted that the operation
of the Press and Registration of Books Act, 1867 (for short" 1867 Act")
must necessitate a Magistrate to accord due consideration of the provision
of the 1867 Act before summoning the accused. Attention has been
G drawn to the Sections 3, 5, 6 and 8 of the 1867 Act and it is submitted
that only person recognized under the said Act as editor, publisher, printer
and owner could be summoned in the proceeding under Section 499
Indian Penal Code (IPC), apart from the author or person who has made
the offending statements. The submission of the petitioner, Mr.

H '" (2014) 10 sec Jso
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 1015
LAW & ORS. [DIPAK MISRA, J.]

Bhambhani, learned senior counsel is that in all the proceedings under A
Section 499 of IPC against a newspaper the accused must be confined
to those who are identifiable to be responsible under Section 5 of the
1867 Act. In our considered opinion that the said aspects can be
highlighted by an aggrieved perso1leither in a challenge for quashing of
the complaint or during the trial. There is no necessity to deal with the
B
said facet while deliberating upon the constitutional validity of the
provisions.
195. In the course of hearing, it has been argued that the multiple
complaints are filed at multiple places and there is abuse of the process
of the court. In the absence of any specific provisions to detennine the
place of proceedings in a case of defamation, it shall be governed by the c
provisions of Chapter Xlll of the CrPC - Jurisdiction of the Criminal
Courts in Inquiries and Trials. A case is ordinarily tried.where the Offence
is committed (Section 177). The expression used in Section 177 is "shall
ordinarily be inquired and tried" by a court within whose jurisdiction it
was committed. Whereas "shall" brings a mandatory requirement, the
D
word "ordinarily" brings a situational variation which results in an
interpretation that the case may be tried as per the further provisions of
the Chapter. In case the place of committing the offence is uncertain,
the case may also be tried where the offence was partly committed or
continues to be committed (Section 178). The case may also be tried
where the consequence of the act ensues (Section 179). The other E
provisions in the chapter also deal with regard to certain specific
circumstances. Section 186 CrPC gives the High Com1 powers to
determine the issue if two or more courts take cognizance of the same
offence. If cases are filed in two or more courts in different jurisdictions,
then the Jurisdiction to determine the case lies with the High Court under
whose jurisdiction the first complaint was filed. Upon the decision 9f
F
the High Court regarding the place of trial, the proceedings in all other
places shall be discontinued. Thus, it is again left to the facts and
circumstances of each case to determine the right forum for the trial of
case of defamation. Thus, CrPC governs the territorial jurisdiction and
needless to say, ifthere is abuse of the said jurisdiction, the person grieved G
by the issue of summons can take appropriate steps in accordance with
law. But. that cannot be a reason for declaring the provision
unconstitutional.
196. Another aspect reqLiires to be addressed pertains to issue of
summons. Section 199 CrPC envisages filing of a complaint in court. ln
H
1016 SUPREME COURT REPORTS [2016] 3 S.C.R.

A case of criminal defamation neither any FIR can be filed nor can any
direction be issued under Section 156(3) CrPC. The offence has its
own gravity and hence, the responsibility of the Magistrate is more. In a
way, it is immense at the time of issue of process. Issue of process, as
has been held in Rlljim/ra Nllth Mlllwto v. T. Ganguly, Dy.
Superi11tentle11t am/ lllwther 190 , is a matter of judicial determination
B
and before issuing a process, the Magistrate has to examine the
con~plainant. In Put!illb Nlltionlll Bunk"'"' others v. Suremlra Prasad
Sin/rn 191 it has been held that judicial process should not be an instrument
of oppression or needless harassment. The Court, though in a different
context, has observed that there lies responsibility and duty on the
c Magistracy to find whether the concerned accused should be legally
responsible for the offence charged for. Only on satisfying that the law
casts liability or creates offence against the juristic person or the persons
impleaded then only process would be issued. At that stage the court
would be circumspect and judicious in exercising discretion and should
take all the relevant facts and circumstances into consideration before
D
issuing process lest it would be an instrument in the hands of the private
complaint as vendetta to harass the persons needlessly. Vindication of
majesty of justice and maintenance of law and order in the society are
the prime objects of criminal justice but it would not be the means to
wreak personal vengeance. In Pepsi Foods Ltd. wul another v. Special
E Judicial MaJ?istrate mu/ ot/1ers 19' a two-Judge Bench has held that
. summoning of an accused in a criminal case is a serious matter and
criminal law cannot be set into motion as a matter of course.
197. We have referred to these authorities to highlight that in
matters of criminal defamation the heavy burden is on the Magistracy to
F scrutinise the complaint from all aspects. The Magistrate has also to
keep in view the language employed in Section 202 CrPC which stipulates
about the resident of the accused at a place beyond the area in which
the Magistrate exercises his jurisdiction. He must be satisfied that
ingredients of Section 499 CrPC are satisfied. Application of mind in
the case of complaint is imperative.
G
198. We will be failing in our duty if we do not take note of
submission of Mr. Bhambhani, learned senior counsel. It is submitted by
the learned senior counsel that Exception to Section 499 are required to
1
sec 450
~· (1972) 1
'" 1993 Supp. ( 1l sec 499
H ,.,, <199&) s sec 749
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 1017
LAW & ORS. [DIPAK MISRA, J.]

be considered at the time of summoning of the accused but as the same A
is not conceived in the provision, ibs unconstitutional. It is settled position
of law that those who plead Exception must prove it. It has been laid
down in M.A. Rumug<m1 (supra) that for the purpose of bringing any
case within the purview of the Eighth and the Ninth Exceptions appended
to Section 499 IPC, it would be necessary forthe person who plead.s the
Exception to prove it. He has to prove good faith for the purpose of
protection of the interests of the person making it or any other person or
for the public good. The said proposition would definitely apply to any
Exception who wants to have the benefit of the same. Therefore, the
argument that ifthe said Exception should be taken into consideration at
the time of the issuing summons it would be contrary to established . C
criminal jurisprudence and, therefore, the stand that it cannot be taken
into consideration makes the provision unreasonable, is absolutely an
unsustainable one and in a way, a mercurial one. And we unhesitatingly
repel the same.·
199. In view of the aforesaid analysis, we uphold the constitutional D
validity of Sections 499 and 500 of the Indian Penal Code and Section
199 of the Code of Criminal Procedure. During the pendency of the
Writ Petitions, this Court had directed stay of further proceedings before
the trial court. As we declare the provisions to be constitutional, we
observe that it will be open to the petitioners to challenge the issue of
summons before the High Court either under Article 226 of the E
Constitution of India or Section 482 CrPC, as advised and seek
appropriate relief and forthe said pui'pose, we gr~nt eight weeks time to
the petitioners. The interim. protection granted by this Court shall remain
in force for a period of eight weeks. However, it is made clear that, if
any of the petitioners has already approached the High Court and also F
become unsuccessful before this Court, he shall face trial and put forth
his defence in accordance with law.
200. The Writ Petitions and the Transfer Petitions are disposed
of accordingly. All pending criminal miscellaneous petitions also stand
disposed of. There shall be no order as to costs. G

Devika Gujral Writ Petitions and Transfer Petitions disposed of.