Judgment in Plain English

Defamation as a Criminal Offence

Judgement in Plain English: 13 May 2016

In 2014, Dr. Subramanium Swamy made corruption allegations against Ms. Jayalathitha, the then Tamil Nadu Chief Minister. In response, Tamil Nadu State Government filed defamation cases against Dr. Swamy.


Dr. Swamy, joined by prominent politicians such as Rahul Gandhi and Arvind Kejriwal, filed a writ petition challenging the constitutionality of the Criminal Defamation law in India, i.e., Sections 499 and 500 of the Indian Penal Code (IPC). A two-judge bench of the Supreme Court comprising of Justices Dipak Misra and P.C. Pant decided the matter.


Section 499 IPC defines defamation. Section 500 IPC prescribes the punishment for defamation.


The challenge before the court was twofold – first, whether criminalising defamation is an excessive restriction on freedom of speech, and second, whether the criminal defamation law under Sections 499 and 500 is vaguely phrased and hence arbitrary.


The court has held that Section 499 is not an excessive restriction under Article 19(2). The society is a collection of individuals, and what affects individuals also affects the society as a whole. Hence, it is valid to treat defamation as a public wrong.


Further, criminal defamation is not a disproportionate restriction on free speech, because the protection of reputation is a fundamental right as well as a human right. The Court relied on judgments from the UK, USA, Canada, etc. and reaffirmed the right to reputation as a part of the Article 21 right to life.


Using the principle of ‘balancing of fundamental rights’, the court held that the right to freedom and speech and expression cannot be “allowed so much room that even reputation of an individual which is a constituent of Article 21 would have no entry into that area”.  Criminal defamation laws safeguard the constitutional values of human dignity flowing from the Preamble and the Fundamental Duties.


The court rejected the argument that the sections are vaguely worded and ambiguous. Using the Constituent Assembly Debates to understand what the framers of the Constitution meant by the word “defamation” in Article 19(2), the court held that the word has its own independent identity.  It stands alone and defamation laws have to be understood as they were when the Constitution came into force.