Arguments in favour and against the Constitutionality of Penal provisions for Defamation

Subramanian Swamy versus Union of India dealt with various writ petitions challenging the constitutional validity of Sections 499 and 500, Indian Penal Code.

The Hon’ble Apex Court( 13 May,2016) summed up the contentions of both the parties as follows (Para 1) –

(a) Petitioners
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. In any case, the individual grievances pertaining to reputation can be agitated in civil courts. There is a remedy and viewed from a prismatic perspective, there is no justification to keep the provision of defamation in criminal law alive as it creates a concavity and unreasonable restriction in individual freedom and further progressively mars voice of criticism and dissent which are necessitous for the growth of genuine advancement and a matured democracy.

(b) Respondents
The reasonable restrictions are based on the paradigms and parameters of the Constitution that are structured and pedestaled on the doctrine of non-absoluteness of any fundamental right, cultural and social ethos, need and feel of the time. For every right engulfs and incorporates a 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.

The Counsels for both the parties advanced the following arguments for and against the constitutionality of defamation provisions under the Indian Penal Code –

Arguments against Arguments in favour of
The procedural provisions applicable to complaints alleging criminal defamation under Sections 499 and 500 IPC do not pass the test of reasonableness as envisaged under Article 19(2) of the Constitution.

Section 499 of IPC ex facie infringes free speech and it is a serious inhibition on the fundamental right conferred by Article 19(1)(a) and hence, cannot be regarded as a reasonable restriction in a democratic republic.

The concept reasonable restriction conveys that there should not be an excessive or disproportionate restriction. Merely because law of criminal defamation is misused or abused would not make the provisions unconstitutional if they are otherwise reasonable.

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 Article19(2).

The right to uninhibited freedom of speech conferred by Article 19(1)(a) is basic and vital for the sustenance of parliamentary democracy, which is a part of the basic structure of the Constitution. The enabling power in Article 19(2) to impose reasonable restrictions on the right conferred by Article 19(1)(a) is intended to safeguard the interests of the State and the general public and not of any individual.

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.


The apprehension of abuse of law, or for that matter, abuse of a provision of law would not invalidate the legislation. The possibility of abuse, as is well settled, does not offend Article 14 of the Constitution. A distinction has to be drawn between the provision in a statute and vulnerability of the action taken under such a provision.

Article 19(2) represents varied social community interest. If the grounds of exception under Article 19(2) are analysed, each of them represents a public interest and so does defamation, for its principal object is to preserve the reputation as a shared value of the collective. 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.


Freedom of thought and expression includes a dissent because disagreement or expression of a contrary opinion has a significant constitutional value which is engrafted under Article 19(1)(a) and also is an acceptable pillar for a free and harmonious society.


Freedom of speech and expression is neither an absolute right nor can it confer allowance to the people to cause harm to the reputation of others.

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.

Free speech has priority over other rights and whenever and wherever conflict emerges between the freedom of speech and other interest, the right of freedom of expression can neither be suppressed nor curtailed unless such freedom endangers community interest and that apart the said danger should have immediate and proximate nexus with expression. It is necessary that the reputation of individuals requires to be protected from being unnecessarily tarnished. Reputation is an element of personal security and is protected as a fundamental right under Article 21 of the Constitution and requires equal protection.


The right to reputation under Article 21 because one fundamental right cannot be abrogated to advance another, The right to reputation is not just embodied in Article 21 but also built in as a restriction placed in Article 19(2) on the freedom of speech in Article 19(1)(a); and (ii) the right to reputation is no less important a right than the right to freedom of speech.
The language employed in Sections 499 and 500 IPC is clearly demonstrative of infringement in excess and hence, the provisions cannot be granted the protection of Article 19(2) of the Constitution.

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 IPC, as it stands, one may consider an opinion, and, another may call it defamation and, therefore, the word “defamation” is extremely wide which makes it unreasonable.

The content restrictions in civil law and criminal law are not identical. Section 499 IPC read with the Exceptions incorporates all the three classical elements of a crime while penalizing certain forms of speech and expression.

The term “defamation” as used in Article 19(2) should not be narrowly construed.

“Reasonableness” is not a static concept, and it may vary from time to time. The colonial law has become unreasonable and arbitrary in independent India which is a sovereign, democratic republic and it is a well known concept that provisions once held to be reasonable, become unreasonable with the passage of time. The provisions have stood the test of time after the Constitution has come into existence and the concept ingrained in the term “reputation” has not been diluted but, on the contrary, has become an essential constituent of Article 21.

In the modern age, the need for the law is even stronger than it was in the 19th century.

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Bhumika Sharma

She is currently a Research Scholar, (PhD) at Himachal Pradesh University, Shimla. She finds peace in research and writing on a variety of social issues. She believes in the power of education and awareness to deal with various problems.

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