ARTICLE 19 OF THE CONSTITUTION VIS-À-VIS SECTION 499 OF INDIAN

PENAL CODE

A proposal made by: A proposal submitted to:

Riya Giri Dr. Fr. Peter F Ladis

1757 Assistant Professor of Law

B.A.L.L.B (2nd year)

A research proposal submitted in partial fulfillment of the course Criminal Law-I for

attaining the degree of BALLB(hons.)

Academic year-2017-22

CHANAKYA NATIONAL LAW UNIVERSITY

Nyaya nagar, Mithapur, Patna (800001)

INTRODUCTION

Like the major body of laws in India, the law with regard to defamation comes through the
route of the English Common Law which places a high value on reputation as a ‘man’s’
property more valuable than material assets and a jus in rem, a right good against all the
people in the world. Under the Common Law statements exposing a person to public hatred,
contempt and hatred were considered defamatory and fell in the category of libel and slander.
Libel involved publishing defamatory statements tending to injure the reputation of another
person and slander constituted statements through spoken words or gestures. Criminal
liability under English Law was attracted when libellous matter had a direct tendency to
provoke breach of the peace. This involved tendency to arouse angry passions, provoking
revenge or challenges to fight, thus endangering public peace and therefore fell in the
category of criminal offence. Defamatory statements without the element of breach of peace
were civil wrongs. The remedy for civil wrongs is damages and apology while a criminal
offence is punishable with imprisonment and fine.

In the Indian law, the liability for the civil wrong of defamation continues to be governed by
the Law of Torts, evolved as Common Law by courts in England. The Law of Torts, coming
from tortuous or twisted conduct, is not codified in a statute and continues to primarily
depend on judgments of common law courts of England. However, the law with regard to
criminal liability for defamation was codified under section 499 and made punishable under
Section 500 of the Indian Penal Code, 1860.

Criminal Defamation has been defined as imputation by publishing, spoken words or signs
intending or knowing or having reason to believe that it will harm the reputation of the
person. Harming a person’s reputation has been defined by broad strokes of the brush as an
imputation which lowers the moral or intellectual character, or lowers the character of a
person in respect to his caste or calling or lowers his credit or causes to be believed that the
body of the person is in a loathsome or disgraceful state. Ironical expressions are also
included in defamation and imputations could be against a person or a company or an
association or collection of persons. Defamation has been made punishable with
imprisonment up to two years or with fine or both. Imprisonment directly affects the valuable
right to life and liberty guaranteed under Article 21 of the Constitution.
Imputations which are true and for the public good, public conduct of public servants and
conduct of a person touching any public question have been taken out of the category of
criminal defamation. Similarly, reports of court proceedings, merits of decided cases or
conduct or witnesses, merits of public performances, censure by lawful authority, accusation
in good faith to authorized person and imputation or caution made in good faith to protect
interests or for the public good have been carved out as exceptions under Section 499 IPC.
Truth is not a complete defense to a charge of criminal defamation, and it must also be
proved that the imputation was made for the public good.

There are no absolute fundamental rights under the Indian Constitution. The right to freedom
of speech and expression under Article under 19(1)(a) is subject to reasonable restrictions
under Article 19(2) of the Constitution in the interests of sovereignty and integrity of India,
security of state, friendly relations with foreign states, public order, decency or morality,
contempt of court, defamation or incitement to an offence. The freedom of the press is not on
a higher footing than the freedom of an ordinary citizen and subject to the same limitations.
The right is fettered by a whole range of restrictions including vague and imprecise concepts
like decency, morality and security of state.

The Apex Court in the Subramaniam Swamy judgment has upheld the criminal defamation
provision holding it to be a reasonable restriction under Article 19(2) on the right to free
speech and expression guaranteed under Article 19(1)(a) of the Constitution. It is pertinent to
note that despite the exceptions carved out the definition of criminal defamation remains
broad and vague and creates vulnerability with the threat of curtailment of liberty through
imprisonment and leaves space for harassment, especially by the rich, high and mighty. In the
context of the civil defamation case by Mr. Jaitley seeking Rs. 10 crores, it is relevant to keep
in mind that even the civil defamation law is by and large, recourse for wealthy public figures
hiring expensive lawyers to seek damages at perceived unfair treatment and a feeling of being
pilloried by the popular press.

The criminal defamation law enacted in 1860 remains unchanged after the passage of a
century and a half and merits revisiting by the legislature. Perhaps narrowing the definition
and restricting it to defamatory statements inciting to an offence or violence as punishable
offences could be an avenue of exploration in the arena of criminal defamation law.
OBJECTIVES

The objective of this research is to study the Section 499 of Indian Penal Code which deals
with Defamation in accordance with Article 19 of the Indian Constitution.

HYPOTHESIS

The researcher tends to presumes that the Section 499 of the Indian Penal Code does not
violate Article 19 of the Constitution of India.

RESEARCH METHODOLOGY

The researcher tends to undertake doctrinal research methodology

SOURCES OF DATA

Primary sources and secondary sources both are used for completion of this project.

Sources of Data are of two kinds – Primary sources and secondary sorces.

1. The primary sources are –

A. Legislative materials such as Indian Penal code, Constitution, universal declaration of

human rights

B. Decisional materials (Judgements of the courts)

C. The juristic writings (the opinions expressed by the imminent jurists and different
commissions)

2. Secondary sources are-

Books, magazine, journals etc

REVIEW OF LITERATURE

1. THE INDIAN PENAL CODE AS AMENDED BY THE CRIMINAL LAW

(AMENDMENT) ACT, 2013 by Ratanlal & Dhirajlal [LexisNexis]

Into its 118th year, Ratanlal & Dhirajlal, The Indian Penal Code is the oldest commentary on
Indian Penal Code. The fact that this book is into its 34th edition (herein after ‘the current
edition) is a testimony of its biblical value. This edition has been brought forth by two
authors who have affixed their indelible imprint in their respective fields. Honourable Mr.
Justice K.T. Thomas is a doyen in the legal echelons. Amongst the pantheons in the temple of
justice, His Lordship has captained and stewarded several landmark cases in Constitutional
law and Criminal law. Adv. M.A. Rashid is an erudite exuberant and an enterprising author
who has rendered pioneering contribution to legal literature.

Running into 1500 pages the current edition is a voluminous commentary. The review of the
current edition is done on several planks- style, comparative study, descriptive presentation of
case laws and provisions, critical analysis of provisions and case laws, incorporation of
updated case laws and affordability.

This book can be divided into three parts- ‘the general introduction’, ‘the text’, which has
commentary on Indian Penal Code and ‘the summary’. ‘General Introduction’ provides a
brief insight into the evolution of criminal law and development of modern criminal law in
India. ‘Summary’ also gives inputs pertaining to development of Indian Penal Code besides a
cursory glance about entire commentary.

2. INDIAN PENAL CODE by S.N Mishra

A comprehensive and well-explained section wise description on INDIAN PENAL CODE.

The book contains well-described comments on every section which is very easy to
understand. The point wise description making the section easy to understand. The new
criminal law (amendment) act, 2013 have also been merged in prominent places so as to ease
the students with the law. The book is published taking care of the requirements of the
universities and various institutions.
3. CRIMINAL LAW by P.S.A. Pillai

The book is having fifty one chapters a lengthy table of cases and a crisp index. The chapter
breakup is done based the usual flow of tutoring of the subject. This form method is very
useful since any reader of the book will get a logical continuity of the topic. The titles of the
initial chapters itself, Nature of Crime, Penal Law in India, Constituent Elements of Crime,
Mens Rea, are indicative of the logical and coherent progression of the topic. This book is
never a commentary of the Indian Penal Code, but is a book on Criminal Law of India. Even
though it is mentioned that ‘of India’ that terminology should not be construed as something
which is narrowing the scope of discussion of the subject attempted in the book. The book,
in each of the topic, is dwelling into the basics of the discussed topic narrating the underlying
principles from the elements with supporting English case laws. Nevertheless the book is
referring to Indian case laws to the maximum and the anchoring on English case laws is done
basically so as to pin point to laying down of principles. So a reader need not expect to find
recent English decisions aplenty.

LIMITATIONS OF THE RESEARCH

The most important limitation for this project is the accumulation of relevant data. Also the
undertaking of non-doctrinal research or the qualitative research is not possible due limitation
of time and place. The financial support needed for the undertaking of the ground work and
other works for the project is also difficult to arrange. These are the prime hindrances to the
completion of the project

TENTATIVE CHAPTERISATION

1. Introduction

2. Defamation: Section 499 of IPC

3. Freedom of Speeech and Expression: Article 19 of Constitution of India

4. Defamation in realtion to Freedom of Speech and Expression

5. Case Laws

6. Conclusion

BIBLIOGRFAPHY

1. Primary sources:

 Indian Penal Code, 1860

 Constitution of India

2. Secondary Sources: Books-

 The Indian Penal Code by Ratanlal & Dhirajlaa

 Indian Penal Code by S.N. Mishra

 Criminal Law by P.S.A. Pillai