AI Drafter 
TaxTMI 
TaxTMI 
2016 (5) TMI 1478
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....the paradigms and parameters of the Constitution that are structured and pedestalled 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 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 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 m....
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....eme 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. 6. Sections 499 of the Indian Penal Code provides for defamation and Section 500 Indian Penal Code 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, 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 to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives. Explanation 2.--It may amount to defamation to make an ....
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....racter of such person, as far as his character appears in that conduct, and no further. Sixth Exception. --Merits of public performance-It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment 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 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 or arising out of a lawful contract made with mat other, to pass in 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 authority over that person wi....
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....t in writing made by the 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 been committed by him. (4) No complaint Under Sub-section (2) shall be made by the Public 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 Government; (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. (5) No Court of Session shall take cognizance of an offence 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. (6) Nothing in this Section shall affect the right of the person against whom the offence is alleged to have been committed, to make a complaint in respect of that offence before a Magistrate ....
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....ciple of noscitur a sociis and excluding criminal defamation. 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 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-à-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. 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 Indian Penal Code ex facie infringes free speech and it is a serious inhibition on the fundamental right conferred ....
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....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 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, for democracy is fundamentally based on free debate and open discussion, and a citizen has the right to exercise his right to free speech in a democracy 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 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 re....
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....trictive 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 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 unacceptable 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 colonial law meant to invite people to litigate should be allowed a timely extinction. vi. Section 199(2) to (4) Code of Criminal Procedure protects civil servants and creates a separate class and said classification has no rationale and this distinction has no basis to withstand the constitutional scrutiny. Differential treatment granted to them is an unacceptable discrimination and for the said reason, provisions contained in Section 199(2) to (4) Code of Criminal Procedure are liable to be st....
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....ludes a dissent because disagreement or expression of a contrary opinion has significant constitutional value which is engrafted Under Article 19(1)(a) and also is 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. Criminal prosecution as envisaged Under Section 499 Code of Criminal Procedure. 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 the society as a 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 speec....
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....e 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 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 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 Indian Penal Code and Section 199 Code of Criminal Procedure, it is manifest that there is presumption of facts as a matter of law and that alone makes the provision arbitrar....
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.... exercise of right of free speech and expression of a person by oppressive litigation. 13. Arguments of Mr. Sanjay R. Hegde 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 of the constitutional guarantees of free speech. In fact, the Parliament further re-affirmed its intent, when the First Constitutional Amendment Act was passed, primarily 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 speech has changed with the coming of modern means of communication and the same is not under the speaker's control. The provisions when 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 Indian Penal Code, as it stands, one may consider an opinion, and, another may call it defamation and, therefore, the word "defamation" is extremely wide which....
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....for the legislature to determine the restrictions to impose and the courts have been entrusted with the task of determining the reasonableness and in the present case, the right to free speech Under Article 19(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 criminal defamation, and there is nothing to suggest its exclusion. Article 19(2) has to be 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 of individuals and no 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....
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....nce, the provisions pertaining to defamation under the Indian Penal Code do not cause any kind of discomfort to 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 comatosing 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. Even if reputation is thought 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 obtaining a decree from the civil court is not justified and regard being had to that, criminal defamation is constitutionally permissible. vii. The State is under an obligation to protect human dignity of every individual....
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...., i.e., Section 499 of Indian Penal Code was already an existing law. The wisdom of the founding fathers is quite demonstrable inasmuch as at the time of drafting of the Constitution, the only statutory law on defamation was Section 499 of Indian Penal Code providing for criminal defamation and, therefore, it stands to reason that the framers always contemplated criminal defamation to fall within the ambit of the word "defamation" occurring in Article 19(2). ii. The argument that the word "defamation" 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 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 the word "defamation" in ....
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....ts 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 interpret rights, especially horizontal application of rights. 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 of India. The rights enshrined in Part III 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, 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 of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women". In fact, this ....
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....riminal law are not identical. Section 499 Indian Penal Code 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 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 Indian Penal Code is also incorporated in Section 499. Moreover, harm to reputation and mind is treated as injury along with the injury to body and property Under Section 44 of Indian Penal Code. 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 from its purview speech that advances public good and demarcates what is acce....
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....e argument that the law of criminal defamation protects the interests only of an 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 part of Article 21 and, therefore, any interpretation of freedom of speech Under Article 19(1)(a) which defeats the right to reputation Under Article 21 is untenable. The freedom of speech and expression Under Article 19(1) (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 liberty guaranteed 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 ....
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....used or abused would not make the provisions unconstitutional if they are otherwise reasonable. v. Section 499 Indian Penal Code defines the offence of defamation with specificity and particularity and enumerates ten broad Exceptions when statements against a person will 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 Indian Penal Code, there are three essential ingredients which make it specific and further Explanation 4 to Section 499 Indian Penal Code 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 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 re....
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....rued as suggested. The term "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 Indian Penal Code as unconstitutional. If a provision of law is misused or abused, it is for the legislature to amend, modify or repeal it, if deemed necessary. Mere possibility of abuse of a 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 restriction and fulfils the purpose behind Section 44 Indian Penal Code. 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 Indian Penal Code and must be given its ordinary dictionary meaning, but what is important is that it must be illegally caused....
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.... has its own natural limitation. viii. Journalists are in no better position than any other person. They have no greater freedom than others to make any imputations or allegations sufficient to ruin the reputation of a citizen. Even truth of an allegation does not permit a justification under the First Explanation unless it is proved to be in the public 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 country's life. Section 7 of the Press and Registration Books Act, 1867 makes the declarations to be prima facie 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. Reckless defamatory comments are unacceptable. 18. Submissions of learned Amicus Curiae Mr. K. Parasaran, Sr. Advocate i. ....
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.... and dignity of the individual is integral to the right to life 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 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 Article 21. iv. The test of reasonableness has been invariably applied when deciding the constitutionality of a plenary legislation. As Article 19(2) 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 ('nomen juris'). It is, thus, not open to challenge as being an unreasonable restriction for there is no other law that defined "defamation". v. The test of reasonableness cannot b....
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....he 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. Mr. T.R. Andhyarujina, 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(1)(a) is subject to the restrictions prescribed by Article 19(2) of the Constitution. The protection given to criticism of public officials even if not true, as in the case of New York Times v. Sullivan 29 LED 2d 822 (1971), is not protected by Article 19(1)(a) as this Court 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 reputation is damaged, society as well as the individual is the loser. Protection of reputation is conducive to the public good. Therefore, freedom of expression is not an absolute right. iii. While the freedom of speech and expression is, no doubt, ex....
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....on on the freedom of speech and expression. Hence, there may be a need to have a proper balancing between the freedom of speech and the necessity of criminal defamation. 19. We have studiedly put forth the submissions of the learned 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 certain aspects. 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" i. Salmond & Heuston on the Law of Torts, 20th Edn.1 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 of society generally and in particular to cause him to be regarded with....
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....21) 37 TLR 646. It says: a defamatory statement is 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, profession or trade. ix. Carter Ruck on Libel and Slander5 has carved out some of the tests as under: (1) 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. (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 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 Indian Penal Code defines fame and covers a quite range of things but the reference to the term 'fame' is to ostracise the ....
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....ts of the creative writers and thinkers 24. William Shakespeare in Othello 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; 'T was 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 individual reputation, achieved his creative heights, and the result in the ultimate is the following passage: The purest Treasure mortal times afford Is spotless reputation; that away, Men are but gilded loam or painted clay. 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: 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,....
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....s; (b) For the protection of national security or of public order (order public), or of public health or morals. 31. Articles 8 and 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) provide: Article 8. Right to respect for private and family life 1. 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 national security, public safety or the economic wellbeing of the country 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 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcas....
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....." 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 of a man that "He has always "borne a good character," 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 is held by others who know him and are in a position to judge his worth. A man can sue for damage to his character in this sense, even though he is little known to the outside world. If it were said of Robinson 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 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 of a reputation which is built upon the estimate of those who know him. No other r....
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....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 qualify the one right in order to protect the underlying value which is protected by the other. And the extent of the qualification must be proportionate to the need. ... See: Sedley LJ in Doughlas v. Hellol Ltd. [2001] QB 967. View of the Courts in United States 37. In Wisconsin v. Constantineau 400 U.S. 433 (1971) it has been observed 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 Wisconsin Act may to some be merely the mark of illness, to others it is a stigma, an official branding of a person. The label is a degrading one. Under the Wisconsin Act, a resident of Hartford is given no process at all. This appellee was not afforded a chance to defend herself. She may have been the victim of an official's caprice. ....
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....ignitas 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 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 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.. 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 S....
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....ity 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. Germany (2012) 55 E.H.R.R. 6 it has been ruled: [T]he right to protection of reputation is a right which is 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 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 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 wit....
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....66 that 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 annexed to the person, jura personarum, and acquired rights in external objects, jura rerum; and in the former 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 of himself, as his body and limbs are, and reputation is a sort of right to enjoy the good opinion of others, 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 importance to security from violence. According to Chancellor Kent as a part of the rights of personal security, the preservation of every person's good name from the vile arts of detraction is justly included. The laws o....
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....". The spark of life gets more resplendent when man is treated with 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 Vishwanath Agrawal v. Saral Vishwanath Agrawal: (2012) 7 SCC 288 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 Umesh Kumar v. State of Andhra Pradesh and Anr. (2013) 10 SCC 591 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 the Constitution equally with the right to the enjoyment of life, 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 othe....
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....98) 7 SCC 392, the court opined: 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 of reputation and importance attached to it. We shall be obliged, as we are, to advert to some passages from the aforementioned authorities 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 Article 21 of the Constitution at a later stage. 53. Having reconnoitered the assessment of the value of reputation and scrutinised the conceptual meaning of the term "reputation", we are required to weigh in the scale of freedom of speech and expression, especially under our Constitution and the nature of the democratic polity the country has. Right of the Freedom of Speech and Expression 54. To appreciate the range and depth of the said right, it is essential to understand the anatomy of Articles 19(1)(a) and 19(2) of the Constitution. Be it noted here that Article 19(2) was amended by the 1st Amendment to the Constitution on 18th June, 1951 w.e.f. 26.01.1950. Article 19(1)(a) has remained its or....
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....tion cannot claim to have its source in the word "defamation" used in Article 19(2) of the Constitution. 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 of speech and expression as engrafted Under Article 19(1)(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: 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 before the commencement of this 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 v....
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....ure or the executive. The following speech from the Constituent Assembly Debates of Shri. K. Hanumanthaiya (Mysore) is extremely significant: 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 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 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 na....
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....tly enumerated in 5, 6 or 7 items in one 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 Article become so elusive that one would find it necessary to have a microscope to discover where these freedoms 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 in this article, 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 are guaranteed. That is to say, any exception which is made, unless justified by the spirit of the Constitution, the Constitution as a whole and every part of it ....
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....irit. In Special Reference No. 1 of 2002, In re (Gujarat Assembly Election matter) (2002) 8 SCC 237, the issue of relying on the Constituent Assembly Debates again came up for consideration. Khare, J. (as His Lordship then was) referred to His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and Anr. (1973) 4 SCC 225 and held: Constituent Assembly 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. 62. Recently, in Manoj Narula v. Union of India (2014) 9 SCC 1 the majority in the context of understanding the purpose of Article 75 of the Constitution referred to the Constituent Assembly debates. 63. We have referred to the aforesaid aspect only to highlight the intention of the founding fathers and also how contextually the word "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. ....
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....Civil Procedure, 1908, unless there is specific statutory bar in that regard. 67. The other aspect that is being highlighted in the context of Article 19(2)(a) is that defamation even is conceived of to include a criminal offence, it must have the potentiality to "incite to cause an offence". To elaborate, the submission is the words "incite to cause an offence" should be read to give attributes and characteristics of criminality to the word "defamation". It must have the potentiality to lead to breach of peace and public order. It has been urged that the intention of Clause (2) of Article 19 is to include a public law remedy in respect of a grievance that has a collective impact but not as an actionable claim under the 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, 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(1)(a) would be absol....
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....e given to them because of the setting. In other words, while the setting of the words may sometimes be necessary for the interpretation of the words of the statute, but that has not been ruled by this Court to be the only and the surest method of interpretation. . 69. The Constitution Bench, in Godfrey Phillips India Ltd. and Anr. v. State of U.P. and Ors. (2005) 2 SCC 515, while expressing its opinion on the aforesaid Rule of construction, opined: 81. We are aware that the maxim of noscitur a sociis may be a treacherous one unless the "societas" to which the "socii" belong, 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 or attributes of the including word with the included. xxxx 83. Hence on an application of general principles of interpretation, we would hold that the word "luxuries" in Entry 62 of List II mean....
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....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 restricted one which even the founding fathers did not intend to do. Keeping in view the aid that 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 noscitur a 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 "incitement" in criminal jurisprudence has a different meaning. It is difficult to accede to the submission that defamation can only get criminality if it 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. 72. The submission is that Sections 499 and 50....
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....lakuraya and Anr.: (1999) 4 SCC 135, Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. and Ors. (1987) 1 SCC 424. In Peerless General Finance and Investment Co. Ltd. (supra), Chinnappa Reddy, J. speaking for the Court, has observed that: 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. 74. In K. Bhagirathi (supra), it has been held that: It 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 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 Co. Ltd. (supra) relates to the principles to be adopte....
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....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 is affected and the danger is perceived. 76. In this context, it is necessary to understand the basic concept of crime. In Halsbury's, 4th Edition, "Principles of Criminal Liability" it has been described thus: There is no satisfactory definition of crime which will embrace 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 that it amounts 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 th....
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....forbidding or commanding it. This general definition comprehends both crimes and misdemeanours; 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 of less consequence, are comprised under the gentler name of 'misdemeanours' only.11 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 in its social aggregate capacity.12 In all cases the crime includes injury; every public offence is also a private wrong, and somewhat more. It affects the individual, and it likewise affects the community.13 81. 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 crime unless he has, by vo....
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....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 rather than the victim who is principally in-charge of the legal process. It is the police 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 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 if he so chooses-there is no duty on him to bring the case at all. 84. In this context, reference to certain authorities that deliberated the conception of crime in the societal context would be apt. In State of Maharashtra v. Sujay Mangesh Poyarekar (2008) 9 SCC 475, 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 app....
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....r worse man than the starving 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. In T.K. Gopal alias Gopi v. State of Karnataka (2000) 6 SCC 168, deliberating on the definition of crime, the Court ruled that crime can be 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 Kartar Singh v. State of Punjab (1994) 3 SCC 569, this Court observed that: 446. What is a crime in a given society at a particular time has a wide connotation as the concept of crime keeps on changing with change in political, economic and social set-up of the country. Various legislations dealing with economic offences or offences dealing with violation of industrial activity or breach of taxing provision are ample proof of it. The Constitution-makers foresaw the eventuality, therefore they conferred such powers both on 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 expressi....
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...., 1986, the Scheduled Castes and the Scheduled Tribes (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-à-vis other citizens. 89. We have referred to this facet only to show that the submission so astutely canvassed by the learned Counsel for the Petitioners that treating defamation as a criminal offence can have no public interest 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 with constitutional wisdom and pass the test of constitutional challenge. If the law enacted is inconsistent with the constitutional provisions, it is the duty of the Court to test the law on the touchstone of Constitution.....
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....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 of law prevail. 92. Bury in his work History of Freedom of Thought (1913) has observed that freedom of expression is "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. Randall (1958) 257 US 513 (530)). In Yates v. U.S. (1958) 354 US 298 (344) 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. California (1931) 283 US 359 (369) the Court remarked "The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and tha....
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....and that the 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 assembly should 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 justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free 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 it. Condonation of a 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-breakin....
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....t 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 take them into consideration. We will be referring to Shreya Singhal (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 Singhal (supra) would squarely apply to the concept of defamation and application of the said principles would make Section 499 Indian Penal Code unconstitutional. 96. In Romesh Thappar v. State of Madras 1950 SCR 594 : AIR 1950 SC 124 the majority 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 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 Fe....
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.... Association v. National Industrial Tribunal (Bank Disputes), Bombay and Ors. (1962) 3 SCR 269: AIR 1962 SC 171 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 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. Union of India (1962) 3 SCR 842 : AIR 1962 SC 305 it has been held that it must be borne in mind that the Constitution must be interpreted 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 not be too astute to interpret the language of the Constitution in so literal a sense as to whittle 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 ....
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....ords: .... 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 good, but a social good. 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. In a democracy the theory is that all men are entitled to participate in 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 indispensable to 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 intelligent and wise judgment it is necessary that they must be appraised of all the aspects of a question on which a decision has to be take....
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....o formulate their own views and opinions on a proper 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 Anr. v. Union of India and Anr. (2003) 4 SCC 399, 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 like. The learned Judge has observed that the importance our Constitution-makers wanted to attach to this freedom is evident from the fact that reasonable restrictions on that right could be placed by law only on the limited grounds specified in Article 19(2), not to speak of inherent limitations of the right. 106. In Union of India v. Naveen Jindal and Anr. (2004) 2 SCC 510, the Court has laid ....
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....able but also to those which offend or shock any Section of the population. It also includes the right to receive information and ideas of all kinds from different sources. In essence, the freedom of expression embodies the right to know. 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. [Emphasis added] 109. In State of Karnataka and Anr. v. Associated Management of English Medium Primary and Secondary Schools and Ors. (2014) 9 SCC 485, while dealing with the freedom Under Article 19(1)(a), the Constitution Bench opined: 36. The word 'freedom' in Article 19 of the Constitution means absence of control by the State and Article 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 (1) of Article 19, the citizen....
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.... curtailed only under circumstances enshrined in Article 19(2) and by no other measure. In S. Rangarajan (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 Court 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 of opinion that public reaction to the film, which seeks to change the system of reservation is bound to be volatile. The High Court has also stated that people of Tamil Nadu who have suffered for centuries will not allow themselves to be deprived of the benefits extended to them on a particular 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....
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....f Section 292 has been upheld in Ranjit D. Udeshi (supra). It is to be noted that all the cases, barring Odyssey Communication Pvt. Ltd. (supra) and Bobby Art International (supra) [Bandit Queen case], all 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 subject to constitutional scrutiny. 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 other mode of narrative. Liberty or 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 ....
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.... 117. In State of Madras v. V.G. Row AIR 1952 SC 196, 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. 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 Coleman and Co. (supra) while dealing with the concept of reasonable restriction, this 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 publish any number of pages or to circulate it to any number of persons is an integral part of the freedom of speech and expression and said freedom is violated by placing restraints upon it or by placing restraints upon something which is an essential part of that freedom. 119. In Maneka Gandhi v. Union of In....
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....within the framework of the Constitution. That apart, restrictions may be partial, 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 of right and danger or evil sought to be avoided. 121. In Ramlila Maidan Incident, In 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 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(1)(a) and 19(1)(b) of the Constitution as this would squ....
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....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 of reasonableness, felt need of the society and the complex issues facing the people which the legislature intends to solve, protection of 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 Article 19, the Court has to bear in mind the Directive Principles of State Policy and any restriction so imposed which has the 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 rights and should not smack of arbitrariness. The test of reasonableness cannot be determined by laying down any abstract ....
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....to scrutinize whether criminalization of defamation in the manner as it has been done Under Section 499 Indian Penal Code 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 spectrum. Right to life includes the right to life with human dignity and all that goes along with it, namely, the bare necessities of life such as 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 are of all other rights [See: Francis Coralie Mullin v. Administrator, Union Territory of Delhi and Ors. (1981) 1 SCC 608]. It 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 worth of a human being. In Chameli Singh and Ors. v. State of U.P. and Anr. (1996) 2 SCC 549, the Court has emphasized....
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....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: Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take, but as for me, give me liberty, or give me death!16 128. In this context, we also think it apt to quote a passage from 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 above their vanity and presumption; in proportion 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 witho....
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....Article 19 is to enumerate different freedoms separately and then to specify the extent of restrictions to which they may be subjected and the objects for securing which this could be done. A citizen is entitled to enjoy each and every 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 restricts one freedom even for securing the better enjoyment of another freedom. [Emphasis supplied] 131. 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 balancing of the separate rights, one Under Article 19(1)(a) and the other, Under Article 21. Hence, the concept of equipoise and counterweighing fundamental rights of one with other person. It is not a case of mere better enjoyment of another freedom. In Acharya Maharajshri Narendra Prasadji Anandprasadji Maharaj and Ors. v. The State of Gujarat and Ors. (1975) 1 SCC 11, it has been observed that a particular fundamental right cannot exist in isolati....
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....e 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 15(4) [sic 16(4)] must therefore strike a balance between several relevant considerations and proceed objectively. 134. In Ram Jethmalani and Ors. v. Union of India and Ors. (2011) 8 SCC 1 it has been held that the rights of citizens, to effectively seek the protection of fundamental rights have to be balanced against the rights of citizens and persons Under Article 21. The latter cannot be sacrificed on the anvil of fervid 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. 135. In Sahara India 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 ....
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....interpretation of these basic provisions. Man is not dissectible into separate limbs and, likewise, cardinal rights in an organic constitution, which make man human have a synthesis. The proposition is indubitable that Article 21 does not, in a given situation, exclude Article 19 if both rights are breached. 97. We may switch to Article 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 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 III to choke its life-breath or chill its elan vital by processes of legalism, 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....
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.... 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 re (2005) 5 SCC 733 would be apposite. It reads as follows: 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 of his speech with the help of loudspeakers. While one has a right to speech, others have a right to listen or decline to listen. Nobody can be compelled to listen and nobody can claim 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 of artificial devices so as to compulsorily expose unwilling persons 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(1)(a) cannot be pressed into service for defeating the fundamental right guarante....
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....r 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: ... In the US, if there is a compelling necessity to achieve an important governmental or societal goal, a law abridging freedom of speech may pass muster. But in India, such law cannot pass 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 Kameshwar 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 Communications Assn. v. Douds 94 L Ed 925 : 339 US 382 (1950) which are to the following effect: ... Thought control is a copyright of totalitarianism, and we have no claim to it. It is not the function of our Gove....
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....ruck down Sections which are similar in nature. A prime example is the Section struck down in the first Ram Manohar Lohia case19, 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 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 it was not possible to predicate with some kind of precision the different categories of instigation 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. xxxxx 94. These two Constitution Bench decisions bind us and would apply directly o....
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....uld be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a "spark in a power keg. 147. The said paragraph has also been reproduced in Shreya Singhal (supra) while dealing with the principle of "tendency to affect". In the said context, the two-Judge Bench in Shreya Singhal (supra) had analysed how Sections 124A and 295A Indian Penal Code were treated to be constitutional by this Court in Ramji Lal Modi v. State of U.P. AIR 1957 SC 620 and Kedar Nath Singh (supra). We think it appropriate for the sake of completeness to reproduce the analysis made in Shreya Singhal (supra): 43. In Ramji Lal Modi v. State of U.P. (supra), SCR at p. 867, this Court upheld Section 295-A of the Penal Code only because 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 124A 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....
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....ubject 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 intention of creating public disorder. The said decisions 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 Shreya Singhal (supra), has to be understood in the context in which it is stated having regard to the facts 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 all that film seems to suggest is that existing 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 exploita....
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....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. 152. In the Preamble to the Constitution of India, fraternity has been laid down as one of the objectives. Dr. B.R. Ambedkar inserted the same in the Draft Constitution stating "the need for fraternal concord and goodwill in India 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 connected with justice, 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: 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 obser....
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....e Constitution, 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.21 156. This principle was reiterated in the case of AIIMS Students' Union v. AIIMS and Ors. (2002) 1 SCC 428 where reservation for post graduate students was held unconstitutional as it went against the objective of attaining fraternity. In Indian Medical Association v. Union of India22 exemptions granted to a private non-aided educational institution to only admit wards of army personnel was challenged. Among the various tests to determine the constitutionality the Court focused on fraternity by stating "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."23 157. In Raghunathrao Ganpatrao v. Union of India 1994 Supp. (1) SCC 191 where the 26th Amendment to the Constitution which abolished the privileges given to former rulers of India was in question, the Court held it to be a positive step towards achieving the objective of frater....
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.... a guide not only for resolving the issue but also for constructing or moulding the relief to be given by the courts. Constitutional enactment of 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. Inamdar and Ors. v. State of Maharashtra and Ors. (2005) 6 SCC 537 it has been observed that: Fundamental duties recognized by Article 51A 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. None can be achieved or ensured except by means of education. It is well accepted by the thinkers, philosophers and academicians that if 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 excellence. Education is a national wealth which must be distribute....
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....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 Indian Penal Code. To constitute the offence, 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 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 that the imputation made by him would harm the reputation of the complainant. The criminal offence emphasizes on the intention or harm. Section 44 of Indian Penal Code defines "injury". It denotes any harm whatever illegally caused to any person, in body, mind, reputation or property. 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. Section 499 provides for harm caused to ....
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....he purpose is to appreciate how the Explanations have been understood by this Court. 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 by the learned Counsel for the Petitioners that the width of the Explanation is absolutely excessive as it enables the family members to prosecute a criminal action whereas they are debarred to initiate civil action for damages. According to the learned Counsel for the Petitioners, Explanation 1 is anomalous and creates a piquant situation which can effortlessly be called unreasonable, for when a civil suit cannot be 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 Melepurath Sankuni Ezhuthassan v. Thekittil Geopalankutty Nair (1986) 1 SCC 118, a suit for damages was dismissed by the trial ....
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.... 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 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. And again: The maxim 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 Rustomji Dorabji v. W.H. Nurse ILR 44 Mad 357 and Ratanlal v. Baboolal AIR 1960 MP 200 as well as in those cases where a suit for damages for defamation, assault or other personal injuries sustained by the Plaintiff had resulted in a decree in favour of the Plaintiff because in 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 to the estate of the Plaintiff which his legal representatives are entitled to uphold and defend (vide G....
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....ople has been defamed, 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 concept of identifiability and definitiveness as regards collection of persons. 171. In G. Narasimhan, G. Kasturi and K. Gopalan v. T.V. Chokkappa (1972) 2 SCC 680, the Court dealt with the applicability of the said Explanation as regards "association" or "collection of persons" and ruled 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 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., ....
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....e established that what has been imputed concerning the Respondent is true and the publication of the imputation is for the public good. The onus of proving these two ingredients, namely, truth of the imputation 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 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. 175. It has 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 Harakchand Ratanchand Banthia and Ors. v. Union of India and Ors. (1969) 2 SCC 166 to highlight that in the said case, it has been held that "public interest" do not provide any objective standard or norm. The context in which the said ....
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.... Exception states about conduct of any person touching any public question and stipulates that it is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question and respecting 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 Exception comes into play when some defamatory remark is made in good faith as held in Sahib Singh Mehra (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 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 and Anr. AIR 1966 SC 97 has opined that where the accused invokes Ninth Exception to Section 499 Indian Penal Code, good faith and public good are both to be satisfied and t....
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....lature or Parliament. The question naturally arises how far the Rule in Wason case25 can be applied to criminal 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 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. 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 said person, as far as his character appears in that conduct. In Kanwal Lal v. State of Pu....
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....een 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 Sobhani v. R.K. Karanjia (1981) 3 SCC 208, it has been observed that the ingredients of the Ninth Exception are that (1) the imputation must be made in good faith, and (2) the imputation must 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 (2009) 1 SCC 101, it has been held that for the purpose of bringing the case within the purview of the 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: 37. It is trite that where to the charge of defamation Under Section 500 Indian Penal Code the accused invokes the aid of Tenth Exception to Section 499 Indian Penal Code, "goo....
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.... 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 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 restriction which is disproportionate. In Om Kumar v. Union of India (2001) 2 SCC 386, 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 Constitution Bench in Modern Dental College and Research Centre and Ors. v. State of Madhya Pradesh and Ors. 2016 (4) SCALE 478, explaining the doctrine of proportionality has emphasized that when the Court....
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.... and defines its contents. The extent of its protection prescribes the limitations on the exercises of the rights within its scope. In that sense, it defines the justification for limitations that can be imposed on 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 analysis of Aharon Barak26, two key elements in developing the modern constitutional theory of recognising 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, 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 Indian democracy. Once we accept the aforesaid theory (and there cannot be any denial thereof),....
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....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 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 defamation on the statute book as in the existing social climate it subserves 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 Constitution does not countenance. 188. Now, we shall advert to Section 199 of Code of Criminal Procedure, which provides for prosecution for defa....
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.... such complaint. 189. The said provision is criticized on the ground that "some 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 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 John Thomas v. Dr. K. Jagadeesan (2001) 6 SCC 30 while dealing with "person aggrieved", the Court opined that the test is 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. Khushboo (supra), while dealing with "person aggrieved", a three-Judge Bench has opined that the Respondents therein were not "person aggrieved" within the mean....
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....or scientific exclusion or inclusion of persons or things. The courts should not insist on delusive exactness or apply doctrinaire tests for determining the validity of classification in any given case. Classification is justified if it is not palpably arbitrary. (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 shall be treated alike both in privileges conferred and liabilities imposed. Equal laws would have to be applied to all in the same situation, and there should be no discrimination between one person and Anr. 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 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 dea....
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....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 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 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 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 of India, the Vice-President of India, the Governor of a State, the Admini....
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....uty to the court as well as his duty to the collective. While filing cases Under Sections 499 and 500 Indian Penal Code, he is expected to maintain that independence and not act as a machine. The other ground of attack is that when a complaint is filed in a Court of Session, right to appeal is curtailed. The said submission suffers from 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 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 Code of Criminal Procedure 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 vires. 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 shor....
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....ifferent jurisdictions, then the Jurisdiction to determine the case lies with the High Court under whose jurisdiction the first complaint was filed. Upon the decision of 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, Code of Criminal Procedure governs the territorial jurisdiction and needless to say, if there is abuse of the said jurisdiction, the person grieved 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 requires to be addressed pertains to issue of summons. Section 199 Code of Criminal Procedure envisages filing of a complaint in court. In case of criminal defamation neither any FIR can be filed nor can any direction be issued Under Section 156(3) Code of Criminal Procedure. 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 Rajind....