CRIMINAL DEFAMATION: RETAINING THE COLONIAL ......backbone to the Constitution of India in Kesavananda Bharti Sripadagalvaru v. State of Kerela & another1. In Minerva Mills ltd. V

ISSN 2455-4782

116 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 4 ISSUE 7

CRIMINAL DEFAMATION: RETAINING THE COLONIAL LEGACY OF

RISTRICTIONS ON FREEDOM OF SPEECH

Authored by: Shikhar Sharma* & Yuvraaj Paul **

* 5th Year BA. LL.B (Hons.), Amity Law School Noida

**5th Year BA. LL.B (Hons.), Amity Law School Noida

______________________________________________________________________________

INTRODUCTION

In 1906 when Evelyn Beatrice Hall tried to summarize the thoughts of Voltaire, the great writer of

the French revolution, on the sacred principle of freedom of speech she said “I don’t agree with

what you say but I will defend to the death your right to say it.” This becomes even more relevant

to this paper because the concept of Fundamental rights which holds a very sacred place in the

Indian constitution as well as the hearts of the Indians has been borrowed from the French Post

revolution Constitution. The Indian Penal Code of 1860 criminalizes defamation and thus puts the

sacred principle of freedom of speech in grave danger. Through this paper the authors envision to

highlight to the reader how Criminal defamation not only violates the domestic grund norm i.e.

The Indian Constitution but also goes against the fabric of International Law. Moreover, efforts

have been made to explain the follies in the relevant sections of the procedure code dealing with

criminal defamation. The high and mighty often misuse this law to curb down any criticism and

consequently why defamation is inherently a civil wrong or tort and must be treated the same have

been explained too. It must be understood that India was born out of dissent towards the powerful,

against the British. If free speech is curbed by fear or prosecution and punishment, the difference

between independence and transfer of power would be a blurred line.

CRIMINAL DEFAMATION AND FUNDAMENTAL RIGHTS

Articles 19 and 21 belong at the very core of Constitutionalism as envisaged in India. They

guarantee those rights which our forefathers gave their life for. Any law or State action which

denies Indians these cherished Constitutional values should be struck down by a strict hand of the

Judiciary. Sections 499 and 500 of the Indian Penal Code which criminalise defamation not only

ISSN 2455-4782


go against free speech as envisaged under Article 19(1) (a) of the Constitution but also deny the

right to life and liberty under Article 21 of the Indian Constitution.

CRIMINAL DEFAMATION AND ARTICLE 19

We are considerate of the view that both Sections 499 & 500 of the IPC are in contravention with

Article 19 of the Constitution of India. Article 19 is broadly divided into two parts one of which

envisages right to the citizen and the other part of the same article also put some reasonable

restrictions on the same vested right. We mainly need to focus on Article 19(1)(a) of the

Constitution of India which guarantees right to freedom of speech and expression to all its citizens.

Sections 499 as well as Section 500, which curtail free speech and flow of ideas in a democratic

set up and also dish out criminal liability for the same, are in contravention with this cherished

Article of the Constitution. The concept of “basic structure” was first raised to give a stronger

backbone to the Constitution of India in Kesavananda Bharti Sripadagalvaru v. State of Kerela

& another1.

In Minerva Mills ltd. V. Union of India2, which explained and set out to demarcate what actually

belongs to the said basic structure, the bench expressly stated that fundamental rights belong right

at the basic structure of the constitution. By this, meaning it is evidently clear that the said Article

19(1) (a) belongs to the basic structure. Thus, sections 499 and 500 of the IPC are on a footing

against the basic structure of the constitution and in that light against what, in fact, makes our

constitution democratic.

The importance of freedom of speech and expression can never be over emphasised in a democratic

setup and this view has been emphasised time and again in eminent judgments.

In the landmark case of modern India, Shreya Singhal v Union of India3, it was said, “The

Preamble of the Constitution of India inter alia speaks of liberty of thought, expression, belief,

faith and worship. It also says that India is a sovereign democratic republic. It cannot be over

emphasised that when it comes to democracy, liberty of thought and expression is a cardinal value

1 (1973) 4 SCC 225 2 (1980) 3 SCC 625 3 (2015) 5 SCC 1

ISSN 2455-4782


that is of paramount significance under our constitutional scheme.”

In Sakal Papers (P) Ltd. & Ors. v. Union of India,4a Constitution Bench of Supreme Court said

freedom of speech and expression of opinion are of paramount importance under a democratic

constitution which envisages changes in the composition of legislatures and governments and must

be preserved. The bench said, “It may well be within the power of the State to place, in the interest

of the general public, restrictions upon the right of a citizen to carry on business but it is not open

to the State to achieve this object by directly and immediately curtailing any other freedom of that

citizen guaranteed by the Constitution and which is not susceptible of abridgement on the same

grounds as are set out in clause (6) of Article 19. Therefore, the right of freedom of speech cannot

be taken away with the object of placing restrictions on the business activities of a citizen.”

Another Constitutional bench in the Hon’ble Apex Court held in India Bank Employees

Association v. National Industrial Tribunal5, that Freedom of speech means freedom to speak, so

as to be heard by them, and therefore to convey one’s ideas to others. In light of the above

precedents it is very important to understand, that more than having an opinion it is important to

express that opinion. And for that matter, at the heart of Article 19(1) (a) lies debate and debate

must not be curtailed by the fear of criminal trial and criminal consequences. Sections 499 and 500

in the IPC deal with criminal defamation. While the former defines the offence of defamation, the

latter defines the punishment for it. Article 19(1) (a) which, as already stated belongs to the basic

structure is completely on the opposite side of the spectrum.

In a separate concurring judgment, Bennett Coleman & Co. & Others. v. Union of India &

Others6, Beg J. said that the freedom of speech and of the press is the Ark of the Covenant of

Democracy because public criticism is essential to the working of its institutions.

Moreover, in Life Insurance Corp of India v. Professor Manu Bhai D. Shah7 with Union of

India through its secretaries & others v. Cinemart Foundation8 this very court laid down, that,

every citizen has an undoubted right to air what sentiments he pleases before the public. Freedom

4 [1962] 3 S.C.R. 842 at 866 5 (1962) 3 SCR 269 6 [1973] 2 S.C.R. 757 at 829 7 1992 S.C.R (3) 595 8 (1992) 3 SCC 367

ISSN 2455-4782


to air one’s view is the lifeline of any democratic institution and any attempt to stifle, suffocate or

gag this right will sound a death-knell to democracy and would help usher autocracy or

dictatorship. Efforts by intolerant authorities to curb or suffocate this freedom have always been

firmly repelled.

Public institutions in a democracy belong to the citizens. Not letting someone criticise or even try

to improve something which is theirs as a matter of law goes against the basic fabric that is, India.

We as citizens of India have the right to criticise our government: Section 499 and 500 of the IPC,

take away our right to be Indians. As reiterated in Romesh Thappar v. State of Madras9, Supreme

Court stated that freedom of speech lay at the foundation of all democratic organisations.

In S. Khushboo v. Kanniamal & Anr.10, The Supreme Court stated, in paragraph 45 that the

importance of freedom of speech and expression was necessary as we need to tolerate unpopular

views. This right requires the free flow of opinions and ideas essential to sustain the collective life

of the citizenry. While an informed citizenry is a pre-condition for meaningful governance, the

culture of open dialogue is generally of great societal importance. This nation is built on the back

of unpopular opinions and descent for the government (which considered it legitimate at that time),

we are by the virtue of Sections 499 and 500 being disallowed to practice what our forefathers

preached. Thus, in the light of the precedents and law at hand it is abundantly clear and without

doubt that Sections 499 and 500 do not only go against Article 19(1) (a) but also against what truly

defines India.

Now next question which comes into debate is the does the restrictions mentioned in Article 19(2)

on freedom of speech and expression is of civil nature or criminal nature. This is discussed in this

paper further.

CRIMINAL DEFAMATION AND ARTICLE 21

Article 21 guarantees right to life and personal liberty, right to life and personal liberty has a wider

9 [1950] S.C.R. 594 at 602 10(2010) 5 SCC 600

ISSN 2455-4782


meaning than its literal sense. Personal liberty also covers right to express own opinions and

criticize what is not right to one’s conscious and criminalisation of defamation at the same time

curtails the enjoyment of the vested right enriched under article 21. Article 21 reads as “Protection

of life and personal liberty No person shall be deprived of his life or personal liberty except

according to procedure established by law” As per the decisive decision of this Hon’ble Apex

court in the cases of Kesavandana Bharti11 and in Minerva Mills12 it is amply clear that Article

21 is a part of the basic structure of the Constitution.

It is suggested by authors that Article 19 and Article 21 of the constitution must be read together

to truly exemplify the importance of right of dignity and the right to hold opinions. This was

reiterated in Jolly George Varghese v. Bank of Cochin13 , Where this Hon’ble Court held that,

High value of human dignity and worth of human soul is estimated when Article 21 is read with

Article 19 and Article 14.

Right to life and liberty as mentioned in Article 21 can only be taken away by due process of law

and not by procedure established by law. Thus, in this regard we are on the same footing as the

United States of America. In Sunil Batra v. Delhi Admin14 Krishna Iyer J. said, “True our

constitution has no ‘due process’ clause...but after Cooper and Maneka Gandhi the consequence

is the same”

In one of the most eminent cases of the United States of America Munn v. Illinois15, Supreme

Court held, right to life includes within its heart all the faculties by which life is enjoyed. And if

any statutory provision runs counter to such a right, it must be held unconstitutional. This was

brought to light in the Indian context when the bench pronounced its judgment in Francis Coralie

v. Delhi16 and held “we think that the right to life includes right to live with human dignity and all

that goes along with it, namely, “expressing one’s self in diverse forms.”

11 (1972) 4 SCC 225 12 (1980) 3 SCC 625 13 (1980) 2 SCC 360 14 (1978) 4 SCC 494 15 94 U.S. 113 (1877) 16 (1981) 1 SCC 608

ISSN 2455-4782


Sections 499 and 500 of the IPC criminalise defamation and in fact go against the right to express

oneself as mentioned above being a part of right to liberty as well as right to life. Thus, the

inhibition against deprivation of life would extend to all those faculties by which life is enjoyed.

The dissenting judgment in Kharak Singh v. State of Uttar Pradesh17 read as: “No doubt the

expression "personal liberty" is a comprehensive one and the right to move freely is an attribute

of personal liberty. It is said that the freedom to move freely is carved out of personal liberty and,

therefore, the expression "personal liberty" in Art. 21 exclude that attribute. In our view, this is

not a correct approach. Both are independent fundamental rights, though there is overlapping.

There is no question of one being carved out of another. The fundamental right of life and personal

liberty have many attributes and some of them are found in Art. 19. If a Person's fundamental right

under Art. 21 is infringed, the State can rely upon a law to sustain the action; but that cannot be

a complete answer unless the said law satisfies the test laid down in Art. 19 (2) so far as the

attributes covered by Art. 19 (1) are concerned. In other words, the State must satisfy that both the

fundamental rights are not infringed by showing that there is a law and that it does amount -to a

reasonable restriction. Within the meaning of Art. 19 (2) of the Constitution. But in this case no

such defence is available, as admittedly there is no such law. So the petitioner can legitimately

plead that his fundamental rights both under Art. 19 (1) (d) and Art. 21 are infringed by the State.”

Over the period of times, the view of Hon’ble Justice Subba Rao.J., has become the accepted

view18, In fact it has been retreated in Maneka Gandhi v. Union of India19, Bhagwati, J observed,

“The expression 'personal liberty' in Art. 21 is of the widest amplitude and covers a variety of

rights which go to constitute the personal liberty of a man and some of them have been raised to

the status of distinct fundamental, rights and given additional protection under Article 19(1). Thus

Articles 19(1) and 21 are not mutually exclusive.”

Therefore, it should now be taken to be well-settled that Article 21 does not exclude Article 19

and that even if there is a law prescribing procedure for depriving a person of personal liberty and

there is consequently no infringement of the fundamental right conferred by Article 21, such law,

17 AIR 1963 SC 1295 18 State of West Bengal v. Ashok Dey; (1972) 1 SCC 199, Haradhan Saha v. State of West Bengal: (1975) 3 SCC

368 19 (1978) 1 SCC 248

https://indiankanoon.org/doc/1199182/










ISSN 2455-4782


so far as it abridges or takes away any fundamental right under Article 19 would have to meet the

challenge of that Article.

The right to hold and express opinions in a free manner constitute liberty of person and of mind

and criminal sanctions against it not only violate the right to express but also the right to live.

Article 21 includes within its ambit Article 19(1) (a), and a violation of the latter would result in

the violation of the former, and in this regard Section 499 and 500 of the IPC are in contravention

with the fundamental rights which form the basic structure of the Constitution of India.

DEFAMATION AS A CIVIL WRONG

In Northern India Caterers V State of Punjab20 it was held, “If there are two laws covering a

situation, one more drastic than the other, there is the danger of discrimination if the

administration has the discretion to apply any of these laws on a given case. Of two persons,

placed in similar situation, one may be dealt with under the drastic law and the other under the

softer law, to minimise any chance of such discrimination, and the courts insist that the drastic

law should lay down some rational and reasonable principle or policy to regulate administrative

discretion as to its application. If the drastic law fails to do so, then it will be void under Article

14.” In Northern India Caterers V State of Punjab21 the majority also held that a rule of procedure

laid down by law comes as much within the purview of Article 14 as rules of substantive law and

that it was necessary that all litigants, who are similarly situated, are able to avail themselves of

the same procedural rights for relief and for defence with like protection and without

discrimination. If it is established that the person complaining has been discriminated against as a

result of legislation and denied equal privileges with others occupying the same position it would

be enough to make such a law in violation of Art. 14.

However, having two procedures for the same wrong, one obviously stricter than the other goes

against the very rule of law and as well as against Article 14 of the constitution of India.

20 AIR 1967 SC 1581 21 1967 AIR 1581

ISSN 2455-4782


Further in, Bachan Singh V. State of Punjab22Supreme Court said, “Wherever we find

arbitrariness or unreasonableness there is denial of rule of law”. Additionally, Ajay Hasia v.

Khalid Mujib23 “very state action must be non-arbitrary and reasonable. Otherwise, the court

would strike it down as invalid.” In another judgement of John Vallamattom v. Union of India24,

“Restrictions valid under one circumstance may become invalid in changed circumstances”

Hence, it is evidently clear that very apex court of justice has frowned upon the practices of

arbitrary power to use any, ambiguous, discriminatory course of action for the same offence,

exactly as in the matter of defamation under criminal and civil codes.

Hon’ble Justice Beg in A.D.M., Jabalpur v. Shivakant Shukla25; the dissenting judgment of

Justice Khanna rightly held the view that if two constructions of the municipal law are possible,

the courts should lean in favour of adopting such construction as would make the provisions of the

municipal law to be in harmony with the international law or treaty obligations, and that the rule

about the construction of municipal law also holds good when construing the provisions of the

Constitution, and that a construction of the relevant constitutional provisions was possible as

would not bring them in conflict with the Universal Declaration of Human Rights (articles 8 and

9 – right to ‘an effective remedy’ and ‘no arbitrary arrest’). The Declaration, not in itself legally

binding, much of its content can now be said to form part of customary international law. Hon’ble

Justice Khanna’s opinion has been followed in Vellore Citizens Welfare Forum v. Union of

India26.

Thus, it is abundantly clear having two procedures for committing the same wrong is both un

constitutional as per A. 14 and also against the direction which has been laid down by this very

court several times.

Secondly, it should be pointed towards Section 199 of the Code of Criminal Procedure which says

that a case can be filed by the public prosecutor on behalf of the 'public servant’, who is at receiving

the end of defamation, making it a crime against the state. But when we look at defamation with a

22 AIR 1980 SC 898 23 1981 AIR 487 24 AIR 2003 SC 2902 25 1976 AIR 1207 26 AIR1996 SC 2715

ISSN 2455-4782


closer look, it is evident that it is only a wrong by one person, to another person, technically not

forming a crime: but is a tortuous liability, which, sadly is not a developed code of law in India.

To add to that, defamation under Section 199 of CrPC can only be filed by the alleged victim

(unless it is done in the course of action of a public servant), failing to be a 'crime' which, as a

basic concept, can be reported by anyone for the safety of the society. Hence, it can be clearly

concluded that defamation as a crime is totally against criminal jurisprudence and its rich history.

In Rayala Corporation. V. Director of enforcement27, it was held, " it would appear that it is left

to the arbitrary discretion of the Director of Enforcement to decide which proceedings should be

taken. The liability of a person for more or less severe punishment for the same act at the sole

discretion and arbitrary choice of the Director of Enforcement, it is urged, denies equality before

law guaranteed under Art. 14 of the Constitution." And, "Parliament must be credited with the

knowledge that, if provision is made for two alternative punishments for the same act one differing

from the other without any limitations, such a provision would be void under Art. 14 of the

Constitution;" Further, "when the law provides for the same offence being tried under two

procedures, which are substantially different, and it is left to the discretion of an executive officer

whether the trial should take place under the one or the other of them, there is clear'

discrimination, and Art. 14 are contravened."

We have observed that India has forked-road defamation: criminal and civil. Evidently,

criminalising defamation is against the international treaties and also defamation mentioned in the

Constitution, under Article 19(2) envisages a civil wrong as proved in the aforesaid arguments.

Hence, India should 'favour' defamation as a civil wrong, since “Equality and arbitrariness are

sworn enemies” as held in Delhi transport corp. v. DTC Mazdoor Congress28

MISUSE OF CRIMINAL DEFAMATION BY PEOPLE IN POWER

We want to point towards the difficult situation in which India finds it. We have now come to

27 1970 AIR 494 28 (1991) supp (1) SCC 600

ISSN 2455-4782


accept as a way life that politics and crime go hand in hand and one mustn’t dare criticise higher

officials. SLAPP (or strategic lawsuit against public participation) suits have been used in the

recent past to muzzle investigative journalists and prevent critical analysis of the financial

information of listed companies. Giving an unreasonable pedestal to 'public servants during their

course of action' would be in violation of Article 14 of the Constitution of India.

The possibility of being arrested by the police, held in detention and subjected to a criminal trial

will be in the back of the mind of a journalist when he or she is deciding whether to expose, for

example, a case of high-level corruption. The criminal provisions have often been used purely as

a means of harassment. Given the cumbersome nature of Indian legal procedures, the process itself

turns into punishment, regardless of the merits of the case.

Additionally, Section 400 and 500 of IPC r/w 199 of the CrPC, has been misused by the 'public

servants' to stop and oppress anything said or published against them, irrespective of its legitimacy.

Between May 16, 2011 and July 28, 2016, the Tamil Nadu Government has filed 213 defamation

cases against political opponents and media houses for “derogatory statements” against Late Chief

Minister Jayalalithaa. Reporting on the CM’s vacations, criticising her government for water

scarcity or not fulfilling promises mentioned in the manifesto, have all been termed derogatory.

These details were submitted to this very Hon’ble Court on August 17, 2016 that had on July 29,

2016 asked the Jayalalithaa government to give a list of defamation cases after one of the

opposition leaders, DMDK’s Vijayakanth, sought relief in one such case. A large number of people

are facing criminal proceedings for making wild allegations against the chief minister, says the

affidavit.

“Anyone calling a government corrupt or unfit cannot be slapped with defamation case. There has

to be tolerance to criticism. Defamation cases cannot be used as a political counter weapon. Cases

for criticising the government or bureaucrats create a chilling effect,” observed the top court

bench comprising of Justices Dipak Mishra and Justice R.F. Nariman, while hearing a petition

filed by DMDK chief Vijayakanth in A. Vijayakanth v Public Prosecutor, Dharampuri District

& others.29

29 (2016) SCC online SC 708

ISSN 2455-4782


CRIMINAL PROCEDURE CODE AND CRIMINAL DEFAMATION

Section 199 of the Criminal procedure code is reads as: “Prosecution for defamation; (1) No Court

shall take cognisance of an offence punishable under Chapter XXI of the IPC (45 of 1860 ) except

upon a complaint made by some person aggrieved by the offence: Provided that where such person

is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable

to make a complaint, or is a woman who, according to the local customs and manners, ought not

to be compelled to appear in public, some other person may, with the leave of the Court make a

complaint on his or her behalf.”

Firstly, Section 199 (1) of the Code of Criminal Procedure, 1973 which speaks about only the

person aggrieved to initiate the proceedings for offences of defamation as under 499 and 500 of

the IPC. It is a matter general legal prudence that civil proceedings for civil wrongs or torts are

initiated by the aggrieved against the accused.

Now, there is major overlapping when it comes to dealing with procedure for defamation in the

Criminal arena. As stated earlier in numerous cases, there is arbitrariness whether civil or criminal

defamation would arise when an isolated act takes place. Article 14 through its various precedents

talk about intelligible differentia and there is no demarcation of any sorts when it comes to deciding

whether a wrongdoer has a criminal or civil liability.

The procedure to deal with criminal defamation is civil in nature and this gives rise to vagueness

and ambiguity.

In Dwarakadas Marfatia & Sons v. Board of trustees, Bombay port30, it was held by this very

Hon’ble apex court that every action of state must be informed by reason and guided by public

interest. Whenever there is arbitrariness in state action, Article 14 springs to life and judicial review

strikes such action down.

Authors are of a common opinion that the procedure dealing with criminal defamation is not

informed by reason and creates unnecessary confusion.

30 AIR 1989 SC 1642


ISSN 2455-4782


A.P. Aggarwal V. Government of NCT of Delhi31 Article 14 outlaws arbitrary administrative

action when there is arbitrariness in state action, that action is said to be in violation of the basic

structure of the Constitution. Having a civil-type procedure for a civil-type wrong with criminal

ramifications makes the entire concept of defamation in India, translucent. Therefore Section 199

of CrPC is hit at its very core by vagueness and hence overcomplicates a complicated statute

embodied in 499 and 500 of IPC. Equal protection of law which is the cornerstone of Art. 14 is

not being provided to the citizens via Section 199(1) of the code of criminal procedure. For the

same crime people are being tried differently.

In Maganlal Chaganlal v. Municipal Corporation, Greater Bombay32 the landmark principle of

Indian jurisprudence which says, “The court will strike down harsh, oppressive or unconscionable

laws prescribing a procedure other than the ordinary procedure” was propounded by this Hon’ble

court. In the present matter section 199 provides a harsh and oppressive procedure for what is

innately a civil wrong and thus must be struck down.

Before the consolidation, of the criminal procedure laws in India, as now existing in the CrPC,

1973, there was CrPC of 1898. Nowhere in the old code, has any procedure of defamation not been

mentioned expressly and explicitly. The Constitution of India came into force in 1950. At that time

Code of Criminal Procedure 1898 existed and at that time, the forefathers of our constitution did

not intend the procedure for defamation to even vaguely resemble to how it looks today.

Nowhere in the code of civil procedure is a procedure given for defamation to be found. This leads

to people adopting the harsher laws (Section 499 and 500 of CrPC) which are fundamentally

against the basic framework of common law as found in India. We are in favour of a separate

statute dealing with civil defamation.

A dedicated Act for Civil Defamation exists in countries such as, Australia33, Hongkong34,

31 AIR 2000 SC 2005 32 (1975) 1 SCR 1 33 Australia defamation act 2005 34 Hong Kong defamation ordinance 1887

ISSN 2455-4782


Malaysia35, New Zealand36, Ireland37, and United Kingdom38. In light of the above examples,

India must move a special codified civil defamation and eliminate unconstitutional provisions in

our statute.

Purpose of any legislation is to provide remedy against the harm suffered by the aggrieved person.

The sole question arises here is that who will be the aggrieved person? In case of trespass the

owner of the property has the right to institute a suit whereas in case of wrong done to any

corporation the authorised persons have a right represent the concerned corporation.

In a famous case, the apex court expressed its view on person aggrieved as: “The meaning of the

words “a person aggrieved” may vary according to the context of the statute. One of the meaning

is that a person will be help to be aggrieved by a decision if that decision is materially adverse to

him. Normally, one is required to establish that one has been denied or deprived of something to

which one is legally entitled in order to make “a person aggrieved”. Again, a person is aggrieved

if a legal burden is imposed on him. The meaning of the words “a person aggrieved” is sometimes

given a restricted meaning in certain statutes which provide remedies for the protection of private

legal rights. The restricted meaning requires denial or deprivation of legal rights. A more liberal

approach is required in the background of statutes which do not deal with property rights but deal

with professional conduct and morality.”39

Now analysing section 199(1) of code of criminal procedure which is read as:

“199. Prosecution for defamation. – (1) No Court shall take cognizance of an offence punishable

under Chapter XXI of the Indian Penal Code (45 of 1860) except upon a complaint made by some

person aggrieved by the offence: Provided that where such person is under the age of eighteen

years, or is an idiot or lunatic, or is from sickness or infirmity unable to make a complaint, or is a

woman who, according to the local customs and manners, ought not to be compelled to appear in

public, some other person may, with the leave of the Court, make a complaint on his behalf or her

behalf.”

35 Malaysia defamation act 1957 36 New Zealand defamation act 1954 37 Republic of Ireland defamation act 1961 38 UK defamation act 1952, 1996,2013 39 Bar Council of Maharashtra v. M. V. Dabholkar (1975) 2 SCC 702.

ISSN 2455-4782


The above sections make it crystal clear that any person on behalf of minor or lunatic or infirm or

a woman who is restricted by her custom to appear in public can institute a suit in court with the

leave of the court even if such person is not personally an aggrieved party. Again, exceptions to

section 499 of Indian Penal Code (45 of 1860) provide us with more such situations. The relevant

exceptions to section 499 are mentioned below:

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 imputation concerning a company or an association or collection of persons as such.

For the reason that a deceased person cannot defend his reputation such a right is given to his or

her legal heirs, family person or near relatives. This rule is an exception to the maxim actio

personalis moritur cum persona. In a famous case where Netaji Subhash Chandra Bose was

defamed, his nephew was allowed to file a suit on behalf of deceased freedom fighter40.

Explanation 2, the Supreme Court has expressed that the same is wide and thus a collection of

persons must be an identifiable body so that it is possible to say with precision that a group of

particular persons as distinguished from the rest of the community stood defamed41.

In another situation where a newspaper journal blamed a public servant for accepting bribery, close

friend of public servant was also assumed to be the part of such act by the local people living in

that locality. In the above situation leave of court to institute a case of defamation was granted to

such close friend42.

Further it is to be noticed that legislation framers used the words “by some person aggrieved”

instead of “by some person defamed”. By golden interpretation of section 199 of code of criminal

procedure which is most relevant rule to be applied in above case, it is quite evident that this

section intends to wider the ambit of person who can initiate a suit of defamation.

40 Pat Sharpe v. Dwijendra Nath Bose, 1963 SCC Online Cal 114. 41 Foudation for media professionals v. Union of India, (2015) 9 SCC 252; Sahib Singh Mehra v. State of Uttar

Pradesh 42 Eric Descheemaeker, Protecting Reputation: Defamation and Negligence, 29 Oxford Journal of Legal Studies p.

604 (2006)

ISSN 2455-4782


In another case the Supreme Court also stated that it is not possible to limit the scope of the words

“by some person aggrieved” 43

The Honourable court also laid down test which clearly stated that the standard to be applied in

proof that the defamatory matter refers to the complainant is whether or not a reasonable man

would understand so from the piece of libel even when no name has been mentioned44.

Also, in a case High Court of Punjab and Haryana made an observation that a person who suffers

injury or is adversely affected by the act complained of is obviously the person aggrieved, though

in some cases this expression may include a person who is not the direct target of attack45.

Bombay High Court also made a considerable contribution in this matter, the case was of

defamation of a person’s father. The court observed that the complaint can be filed by some person

aggrieved by the offence and thus aggrieved person can be other than the one against whom the

offence was committed46.

Concluding, authors are of opinion that family, friends and strangers cannot file a complaint on

behalf of the defamed person unless their own reputation has been harmed because of association

with the latter also deceased persons and companies are allowed to be represented through their

legal representatives. Right to reputation has been considered to be a fundamental right which if

violated attracts legal action. “Person aggrieved” in context of section 199 of CrPc should be given

a wider interpretation and should not only be related to the person defamed but also to person

closely related to such person affected by concerned slander or libel.

CRIMINAL DEFAMATION IN CONTRAVENTION WITH INTERNATIONAL LAW

India is under an International obligation to decriminalise defamation. To second the argument,

the court is humbly requested to see to Kubic Dariusz vs Union of India & Ors47, that a two-judge

43 J. Padmalochan Choudhury v. Nirakar Patel, 36 (1970) CLT 940. 44 T. G. Goswami v. The State, AIR 1952 Pepsu 165. 45 Devki Nandan v. K. Narinder, 1962 SCC Online 225. 46 Shri Vijay Vishwanath Kuvalekar v. Shri Suresh Raghunathrao Kalkundrikar, MANU/MH/0543/2000. 650 47 (1990) 1 SCC 568q

ISSN 2455-4782


bench of this apex Court expressly said, “In this context it may not be out of place to bear in mind

that the fundamental rights guaranteed under our Constitution are in conforming line with those

in the Declaration and the Covenant on Civil and Political Rights and the Covenant on Economic,

Social and Cultural Rights to which India has become a party by ratifying them.”

The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty adopted

by the United Nations General Assembly on the 16th of December, 1966, and is in force from the

23rd of March, 1976. It commits its parties to respect the civil and political rights of individuals,

including the right to life, freedom of religion, freedom of speech, freedom of assembly, electoral

rights, rights to due process and a fair trial. The ICCPR is part of the International Bill of Human

Rights, along with the International Covenant on Economic, Social and Cultural Rights (ICESCR)

and the Universal Declaration of Human Rights (UDHR).

India ratified and acceded to the International Covenant on Civil and Political Rights on the 10th

of April l, 1979. Moreover, India is also one of the founding members of the United Nations. This

makes it evidently clear that the leaders and builders of India believed in the international

betterment of rights of all citizens, especially including our very own.

Article 2.2 of the ICCPR reads as: “Where not already provided for by existing legislative or other

measures, each State Party to the present Covenant undertakes to take the necessary steps, in

accordance with its constitutional processes and with the provisions of the present Covenant, to

adopt such laws or other measures as may be necessary to give effect to the rights recognised in

the present Covenant.

Article 19 of the Treaty speaks about freedom of speech and expression which should have the

least of restrictions as under:

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to

seek, receive and impart information and ideas of all kinds, regardless of frontiers, either

orally, in writing or in print, in the form of art, or through any other media of his choice.

ISSN 2455-4782


Additionally, according to the UN Committee on Human Rights, the criminalisation of libel is

“inconsistent” with Article 19 of the international covenant.

Article 19 and Article 2.2 of the ICCPR must be read together to point towards the fact that India

does in fact, have an international obligation to decriminalise defamation. Ironically, on one hand

we are ever so eager to get a seat in the Security Council and on the other, we aren'teven fulfilling

one of the most basic requirements on one of those major bodies of the United Nations, not to

obviously forget, the responsibility of being a democracy.

U.N. Human Rights Committee which forms the very core of U.N. ideologies has said, “States

parties should consider the decriminalisation of defamation and, in any case, the application of the

criminal law should only be countenanced in the most serious of cases and imprisonment is never

an appropriate penalty.”48

India cannot afford to have sanctions against it or its law being held illegal (as happened with

Philippines) if it wishes to maintain the position it has in world economics and politics.

Some of the countries to rightly decriminalise defamation are United Kingdom, United States of

America; more shockingly less developed countries than India, like Maldives, Jamaica, Ghana,

Kenya, Liberia, Niger, and Uganda have given a green flag to the same.

Moreover, Supreme Court held In Jolly George Verghese v. The Bank of Cochin,49 "There is

need for harmonisation between national and international law whenever possible bearing in mind

the spirit of the Covenants.” Thus, the judiciary has clearly indicated towards the importance of

multilateral treaties and the cognizance of our laws with them. Hence, defamation in Article 19(2)

of the Constitution of India must be read harmoniously with international law, bringing out the

essence of the civil wrong in defamation.

A counter argument may be made, that international treaties are not binding, but the greater

question is that can India afford to have negative sanctions against it? Can India afford its laws

being held as illegal on the international front? How important is the Security Council seat and the

48 (General Comment 34) 49 AIR 1980 SC 470

ISSN 2455-4782


international relations are, to India.

It is a basic principle of international law that a State party to an international treaty must ensure

that its own domestic law and practice are consistent with what is required by the treaty. In some

cases, the treaty may give general guidance on the measures to be taken.

Sir William Blackstone propounded the ‘incorporation’ doctrine in the 18th century, also known

as ‘Blackstonian’ doctrine, whereby customary international law was deemed automatically to be

part of the common law. In Buvot v. Barbuit50, Lord Talbot unambiguously declared that ‘the law

of nations in its full extent was part of the law of England’. In 1876, this doctrine was clouded by

the decision in R. v. Keyn (The Franconia)51. It was held that English courts had no jurisdiction

over crimes committed by foreigners within the maritime belt extending to three miles from the

English coast, although it was claimed that such jurisdiction belonged to them under international

law. This decision was nullified by the Parliament by enacting the Territorial Waters Jurisdiction

Act of 1878 to give English court’s jurisdiction in such circumstances. But in 1905, in the decision

of West Rand Central Gold Mining Co. v. R.52, the ‘incorporation’ doctrine was reaffirmed. In a

number of later pronouncements, the doctrine again received recognition, though with certain

qualifications. Thus, Lord Atkin held in Chung Chi Cheung v. R.53 that an international law rule

would be treated by the courts as incorporated into the municipal law, as far as it was not

inconsistent with rules enacted by Statutes (whether earlier or later in date) or prior judicial

decisions (determining the scope of customary rules) of final authority (although a divergent

customary rule of international law later develops). Besides the qualifications stated by Lord

Atkin, it is also a condition precedent that the customary rule is one generally accepted by the

international community. In A v. Secy. of State for Home54, and mandates that primary and

subordinate legislation must be read and given effect in a way which is compatible with the

Convention rights. Similarly, even India is obligated to follow the international conventions and

decriminalising defamation is embedded in its Constitution and a high magnitude of precedents

rule the same, envisaging and promoting Article 51-A (b) and promoting constructive criticism.

50 (1737) Cases t. Talbot 281 51 (1876) 2 Ex D 63 52 (1905) 2 KB 391 53 (1939) AC 160 54 2004 (10) SCALE J-53

ISSN 2455-4782


Article 51(c) of the Constitution of India states that the State shall endeavour to “foster respect for

international law and treaty obligations in the dealings of organised peoples with one another”.

In Jolly George Varghese v. Bank of Cochin55, the Supreme Court harmonised section 51 of the

Code of Civil Procedure (CPC) (power of court to enforce execution – civil imprisonment) with

the International Covenant on Civil and Political Rights. Article 11 of the Covenant provides that

“no one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation”.

The words “or has had since the date of the decree, the means to pay the amount of the decree” in

section 51, CPC must imply some element of bad faith beyond mere indifference to pay; if the

judgment-debtor once had the means but now has not or if he has money now on which there are

other pressing claims, he should not be cast in prison as the same would be in violation of the spirit

of article 11 of the Covenant. (Also held in violation of article 21 of the Constitution). (2 judge)

In Vellore Citizens Welfare Forum v. Union of India56, the Supreme Court held that “it is almost

accepted proposition of law that the rules of customary international law which are not contrary

to the municipal law shall be deemed to have been incorporated in the domestic law and shall be

followed by the courts of law”

In Pratap Singh v. State of Jharkhand57, the Supreme Court observed that the courts can refer to

and follow international treaties, covenants and conventions to which India is a party although they

may not be a part of our municipal law. A contextual meaning to a statute is required to be assigned

having regard to not only the Constitution but also international law operating in the field. The

Court held that the Juvenile Justice (Care and Protection of Children) Act, 2000 should be

interpreted in the light of the Universal Declaration of Human Rights as well as the United Nations

Standard Minimum Rules for the Administration of Juvenile Justice 1985 (Beijing Rules)

(Constitutional bench)

55 AIR 1980 SC 470 56 AIR 1996 SC 2715 57 (2005) 3 SCC 551, pp. 578-579

ISSN 2455-4782


Justice Beg in A.D.M., Jabalpur v. Shivakant Shukla58; the dissenting judgment of Justice

Khanna rightly held the view that if two constructions of the municipal law are possible, the courts

should lean in favour of adopting such construction as would make the provisions of the municipal

law to be in harmony with the international law or treaty obligations, and that the rule about the

construction of municipal law also holds good when construing the provisions of the Constitution,

and that a construction of the relevant constitutional provisions was possible as would not bring

them in conflict with the Universal Declaration of Human Rights (articles 8 and 9 – right to ‘an

effective remedy’ and ‘no arbitrary arrest’). The Declaration, not in itself legally binding, much of

its content can now be said to form part of customary international law.59 Justice Khanna’s opinion

has been followed in Vellore Citizens Welfare Forum v. Union of India60.

We have observed that India has forked-road defamation: criminal and civil. Evidently,

criminalising defamation is against the international treaties and also defamation mentioned in the

Constitution, under Article 19(2) envisages a civil wrong as proved in the aforesaid arguments.

Hence, India should 'favour' defamation as a civil wrong.

Article 9(5) of the Covenant provides that “anyone who has been the victim of unlawful arrest or

detention shall have an enforceable right to compensation”. In Nilabati Behera v. State of Orissa61,

the Supreme Court invoked the said provision for the purpose of granting compensation in a writ

petition for violation of the fundamental right under article 21. This holding was reaffirmed and

followed in D.K. Basu v. State of W.B.62 and People’s Union for Civil Liberties v. Union of

India63.

In M.V. Elisabeth v. Harwan Investment & Trading Pvt. Ltd.64, the Supreme Court referred to

certain International Conventions on maritime law and upheld the admiralty jurisdiction of the

(Andhra Pradesh) High Court over a foreign vessel in an Indian coastal State’s waters, holding that

the sovereignty of a state extends over its internal and territorial waters; though a merchant ship is

58 AIR 1976 SC 1207, 1291 59 Malcolm N. Shaw, International Law, (2003), p.260 60 AIR 1996 SC 2715 61 AIR 1993 SC 1960 62 AIR 1997 SC 610 63 AIR 1997 SC 1203 64 1993 Supp. (2) SCC 433

ISSN 2455-4782


generally governed by the laws of the flag state, it subjects itself to the jurisdiction of a foreign

state as it enters its waters.

There are sufficient precedents of this very Hon’ble Supreme court which point towards the

importance of international law and treaties. To add, India shouldn't just be decriminalising

defamation because of International obligations, rather it should be an inspiration to the rest of the

nations for taking constructive steps towards the protection of rights as the world's largest

democracy.

CONCLUSION

Criminal defamation laws are problematic as they are regularly in conflict with freedom of speech

and expression vested to citizens by the grund norm. The rule of criminal defamation doesn’t only

curb the freedom of presenting opinions and expressions but it may lead to harsh sanctions such

as imprisonment and hefty fines. Even if criminal defamation is imposed with certain restrictions

it will surely cast a shadow on the person accused and will further degrade the right vested in

article 19(1)(a) of the Indian constitution. The threat of being detained or penalized will also

discourage media and other persons in exposing scams or any type of corruption.

The fundamental right of speech and expression is regarded as one of the most basic element of a

healthy democracy as it allows the citizens to participate in various political and social process of

the country and putting restrictions and fear of sanction on the same is against the spirit of

democracy.

Authors through this paper do not intend to discourage defamation laws but instead it must be kept

as a civil violation, as defamation is considered to be a harm to reputation of an individual and it

is quite evident it arises from transaction between two individuals therefore it should be considered

as a civil wrong but not a wrong against society or considered to be a criminal offence.

With regard to wise words of Justice Beg legislature should try to harmonize municipal laws with

the international laws and also as India is a signatory to International Covenant on Civil and

Political Rights (ICCPR), India is persuaded to respect the civil and political rights of individuals,

ISSN 2455-4782


including the right to life, freedom of religion, freedom of speech, freedom of assembly, electoral

rights, rights to due process and a fair trial.

The UN, OSCE and OAS special mandates have stated that “Criminal defamation is not a

justifiable restriction on freedom of speech and expression; all criminal defamation laws should

be abolished and replaced, wherever necessary, with appropriate defamation laws”.

Our predecessors had laid a strong foundation to build a strong and independent nation where

everybody must have some civic right to acknowledge their existence. Our society has reached a

complex enough stage where every citizen should be free enough to express their views on any of

the matter affecting them no matter how politically or socially controversial it might be. Criminal

defamation in present scenario is only used as weapon in hands of some politically superior

persons. They use it as a defense mechanism to suppress any adverse opinions and hide scams. We

the authors suggest that defamation should not be ignored as civil wrong but sanctioning

defamation as a criminal offence is against the spirit of democracy and deteriorate the right

envisaged in our constitution.

Documents

CRIMINAL DEFAMATION: RETAINING THE COLONIAL ......backbone to the Constitution of India in Kesavananda Bharti Sripadagalvaru v. State of Kerela & another1. In Minerva Mills ltd. V