A man’s reputation is property more valuable than other property. Every man has the right to
protection of his reputation. Injury to one’s reputation has been termed as defamation. In
India, defamation can both be a civil wrong and a criminal offence. The difference between
the two lies in the objects they seek to achieve. Section 499 of the IPC defines what amounts
to criminal defamation and Section 500 stipulates an imprisonment of up to two years, with
or without fine, for someone held guilty of criminal defamation.
Article 19(1)(a) of the Constitution secures to every citizen the right to freedom of speech
and expression but at same time this right is not absolute or uncontrolled as it can be curtailed
by laws made or to be made by the state to the extent mentioned in clause (2) of Article 19.
Eventually though ‘defamation’ is one of the ground on which the freedom of speech and
expression may be restricted but Article 19(2) is vague about whether ‘defamation’ includes
both civil and criminal defamation and also the Constitution does not define the expression
“reasonable restrictions”. Nor can an abstract standard or general pattern of reasonableness be
laid down for all cases and situations. The test may vary from right to right restricted by the
impugned law.
Right here raises the question whether criminal defamation a threat to freedom of speech or
not. Many petitions had moved the Supreme Court, challenging the constitutional validity of
the law on criminal defamation arguing that it impinges upon the fundamental right to
freedom of speech and expression and that civil defamation is an adequate remedy against
such wrongs. The main contention of the writ petition of Subramaniam Swamy v. Union of
India 1 , was that the criminalization of a private wrong is disproportionate and therefore
imposes unreasonable restriction upon free speech.
Disagreeing with their argument that criminal defamation must be struck down because it
curtailed the right to free speech, A bench of Justices Dipak Misra and P.C Pant approved
the Constitutional validity of sections 499 and 500 (criminal defamation) of the Indian Penal
Code, underlining that an individual’s fundamental right to live with dignity and reputation
“cannot be sullied solely because another individual can have his freedom”. The Apex
Court somehow managed to strike a balance between Article 21 under “Right to Reputation”
and “Freedom of Speech and Expression” under Article 19(1)(a) and upholding the following
things -
One is bound to tolerate criticism, dissent and discordance but not expected to tolerate
defamatory attack so a person’s right to freedom of speech has to be balanced with
person’s right to reputation.
Reputation of one cannot be allowed to be crucified at the altar of the other’s right of
free speech, hence, notwithstanding the expansive and sweeping ambit of freedom of
speech, as all rights, right to freedom of speech and expression is not absolute. It is
subject to imposition of reasonable restrictions.
Defamation does not have any ‘chilling effect’ on right to freedom of speech and
expression.
