PROJECT

OF
FAMILY LAW-II
ON
TRIPLE TALAQ: INDIA’S BATTLE AGAINST 3 WORDS
In partial fulfilment of odd semester internal evaluation

Submitted to
Mr. Prashant Chauhan

ICFAI Law School

The ICFAI University, Dehradun
(Jan-May, 2019)

Academic Session: - 2018-2019

Submitted by- Submitted to-

Name- Aviral Deep Mr. Prashant Chauhan
Roll No.- 17FLICDDN01033
Year- II, BBA LLB
Batch- 2017-22

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Contents
Introduction ............................................................................................................................................. 3
Definition of Defamation: Essential Element ......................................................................................... 3
(A) Making or Publishing of an Imputation .................................................................................. 3
(b) Intention to cause Harm: .............................................................................................................. 4
(C) Reading as a Whole: ..................................................................................................................... 5
(D) Defamation of the Dead .......................................................................................................... 5
(E) Defamation of a Company ...................................................................................................... 5
(F) Ironical/Alternative Expressions ............................................................................................. 6
(G) Lowering of Reputation .......................................................................................................... 6
Exceptions to the Offence of Defamation ............................................................................................... 6
A Critical Analysis of Subramanian Swamy v. Union of India .............................................................. 8
Judgement: A critical appraisal ............................................................................................................... 9
Defamation: Public versus individual remedy ........................................................................................ 9
Sections 499 and 500 IPC 1860 versus reasonable restrictions ............................................................ 10

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Introduction
One of the most treasured possessions of an individual is his reputation. For some, reputation
is what a human being lives for and life without reputation according to many is meaningless.
It is a natural instinct of man to preserve and protect his reputation and therefore, Law also
protects an individual’s reputation by punishing those who try to injure or harm it. In India,
reputation is protected under both Civil and Criminal law. Section 499 in Chapter XXI of the
Indian Penal Code deals with the offence of Defamation, which is an offence against the
reputation of a person.

Definition of Defamation: Essential Element

For an offence of defamation to be committed, the following essential elements must be
present:
a) Making or Publishing an imputation concerning an individual
b) Such imputation may be in the form of words, spoken or intended to be read, signs or
visible representations
c) Making of such imputation with the intention of harming or with the knowledge or
reason to believe that the reputation of the person against whom imputation has been
made will be harmed.

(A) Making or Publishing of an Imputation:

For the offence of defamation to be committed, it is necessary to make or publish an
imputation. Anyone who participates in the composition, dictation or publication of
defamatory content or approves the same shall be guilty under this section. For
example, if a person writes defamatory material, another publishes it and a third one
consents to the composition and publication of such defamatory material, all three
individuals shall be held liable for defamation under the Code.

Another important factor in the offence of Defamation is the publishing of imputation.

Publication means that defamatory matter should be brought to the knowledge of a third
person that is, a person other than the one making the imputation and the one against
whom the imputation is made. It is to be noted that mere communication of the
defamatory matter to the person against whom it is made will not amount to an offence
under section 499. For example, A writes a letter to B imputing that he is a corrupt
Government Servant. Here A is not guilty of Defamation as the imputation has been
made privately to B and as such, the factor of publication is absent.

If the facts of the above illustration are slightly altered and instead of B receiving the
letter, the letter was received by a third person C who opened the letter and read the
contents, a question might arise as to whether or not A will be guilty of Defamation.
Even under such circumstances, A will not be guilty of Defamation as neither the
subjective nor the objective elements of the offence are present in this case. In other
words, A intended the communication to be private and so, the mens rea for the offence

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 was not present. Likewise, by sending the letter to B, A’s action was also not wrongful
and therefore, it did not qualify as actus reus. Thus irrespective of the fact that the letter
was received and read by C instead of B, A will not be guilty of Defamation.

Publication includes the idea of distribution or broadcasting of defamatory material

which is printed or written. The writer or composer of defamatory material is equally
liable with the publisher of such material.

In the case of Mohammed Abdul Khan Vs. Prakash K.1 Jaya Kirana, a Kannada
newspaper, published from Mangalore, Karnataka, allegedly carried a news item
containing certain allegations against Mohammed Abdulla Khan. He filed a private
complaint against Prakash K, the owner of the newspaper. The magistrate took
cognizance of the matter for the offences punishable under sections 500, 501 and 502
of the Indian Penal Code.

The hon’ble court held that If the respondent is the person who either made or published
the defamatory imputation, he would be liable for punishment under Section 500 IPC.
If he is the person who “printed” the matter within the meaning of the expression under
Section 501 IPC. Similarly to constitute an offence under Section 502 IPC, it must be
established that the respondent is not only the owner of the newspaper but also sold or
offered the newspaper for sale.

English law distinguishes between written and spoken forms of Defamation. Whereas
defamation by written means is known as Libel, commission of the same offence by
spoken words is known as Slander. Libel is more permanent in nature and therefore,
more serious while on the other hand, slander is less serious and relatively temporary.
Indian law does not make any such distinction between slander and libel.

(b) Intention to cause Harm:

Intention to cause harm is a very essential element in the offence of Defamation. If an

imputation is made or published in good faith, without an intention to cause harm, it
will not amount to defamation. For example, A publishes a statement against B in a
newspaper, believing in good faith that B committed a certain wrongful act but B
alleges that the same is untrue. Here if A publishes the statement in good faith without
an intention to cause harm to B but only with the objective of stating what he believes
is right, the offence of Defamation cannot be said to have been committed.
Interpretation of the term “harm” is very essential at this juncture. “Harm” means and
refers to the making of an imputation that lowers the reputation of a person or brings
down his estimation in the eyes of others.

It is also important to understand the connotation of the term “reputation”. Reputation

must be distinguished from self esteem. Reputation refers to the public image of a
person. In other words, it is an estimation of an individual by the public. On the other
hand, self esteem is the estimation that an individual has of himself. Defamation is an
offence against the former, i.e. reputation.

1
(Crl.) No.1741 of 2017

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In the case of P. Muppaia Ranganayakamma vs. K. Venugopala Rao and Yandarnoori
Veerendra Nath2
It was held by the hon’ble court that severely criticising by imputing words to the complainants,
which lacked good faith and showed malice, and thus will be held liable for defamation The
trial Court found her guilty. On appeal to the Andhra Pradesh High Court the court confirmed
the judgment of the trial Court

(C) Reading as a Whole:

For figuring out whether or not a case of defamation can be made out, it is necessary to
read the document as a whole. For conclusively establishing that a certain article or
written material is defamatory, it is necessary to find out whether the entire document
cannot be severed from parts of it that carry an imputation.3

(D) Defamation of the Dead:

Under Explanation I of section 499, dead persons can be said to have been defamed if
the following conditions are satisfied: (a) the imputation hurt the reputation of the
deceased person and (b) the imputation hurt the feeling of his family and relatives. The
two conditions must co-exist and cannot be present only in the alternative.

(E) Defamation of a Company:

A company or corporation can be defamed by an imputation if by making such

imputation the reputation of the company is affected or injured. Likewise, making an
imputation against an association or collection of individuals can also amount to
defamation. It is essential that the members of the association of collection of
individuals are capable of being identified.

It is crucial for the application of this section that the class or group of persons against
whom an allegation of defamation is made are distinctly identifiable. A case in point
is the case of G. Narasimham v. T.V. Chokappa4. In this case, a case of defamation
was filed against publishers of three Madras dailies: The Hindu, Indian Express and
Dinamani. The newspapers had imputed that a resolution was passed in the conference
organised by the Dravida Kazakham party stating that it should not be an offence
under the Indian Penal Code to punish a person for coveting another man’s wife.
However, the complainant stated that the resolution passed was that it should not be
an offence for a person’s wife to covet another man.

The complainant contended that the reporting was defamatory in nature. However, the
Supreme Court held that it has to be ascertained whether the conference as distinct
from the political party, Dravida Kazakham was a distinct and identifiable body. The
issue was important because the members of the Conference were not the same as the

2
1987 CrLJ 2000 AP
3
Supra note 1
4
AIR 1972 SC 2609

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 members of the political party. It was not possible to indentify each and every member
who was part of the Conference. In the event of lack of such identification, the group
of persons in unidentifiable. Therefore, there can be no defamation under section 499
of the IPC.

(F) Ironical/Alternative Expressions:

An imputation made ironically or in the alternative will also qualify as defamation. For
example, in illustration (a) under section 499 when A says that Z is an honest man and
he did not steal B’s watch intending to cause others to believe that actually Z did steal
B’s watch, such expression is ironical. It qualifies as Defamation.

(G) Lowering of Reputation:

Explanation 4 of section 499 states that for any act to harm a person’s reputation, it is
necessary that such act should lower the moral or intellectual estimation of the person
concerned, his character, caste or credit in the eyes of others. Making an imputation
which suggests that the body of a person is in a loathsome or disgraceful state will also
amount to defamation.

Exceptions to the Offence of Defamation:

Exception 1 to section 499 states that if the impugned statement is shown to be true and its
publication is shown to have been made for public good, the act will not amount to Defamation.
The two conditions of truthfulness of the impugned statement and publication for public good
should co-exist. No matter how true a statement is, the accused will not be exonerated unless it
is shown that the publication was made for public good. It is important to interpret the term
public good. The term public includes any collection or class of the public or community. Thus,
if the actions are of a public servant, disclosing the truth of their public actions by publication
can be said to be for public good. However unnecessary publicity of the private or personal
matters of an individual cannot be said to be for public good. What is and is not a matter for
public good is a question of fact and has to be culled out from the given facts of a case.
In the case of Jawaharlai Darda vs. Manoharrao Ganpatrao Kapsikar 5 Certain
Government funds were misappropriated. The accused published about such misappropriation
in his newspaper. The source of such news was the statement of Minister disclosing the details
of misappropriation. Complainant’s name was one of the persons involved in such
misappropriation. Complaint was filed under Sees. 500, 501 and 502.Before the trial Court, the
accused contended that he published a true report, and in the interests of public good in good
faith believing the statement to be true. The trial Court believing the version of the accused
quashed the complaint. On appeal, the Supreme Court also admitted the contention of the
accused and quashed the proceedings in his favour.

Exception 2 states that expression in good faith of any opinion regarding the conduct of a
public servant in the discharge of his functions or in relation to his character so far as his
character appears in that conduct does not amount to Defamation. Fair criticism of public

5
SC (1998) 4 SCC 112)

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servants cannot be penalised. This exception deals with the expression of opinion in relation to
certain course of conduct. There is no immunity from fair public criticism.

The importance of good faith in each of these exceptions is crucially important. Good faith has
to be interpreted in the light of section 52 of the IPC. Honesty or nobility of intention is not
relevant in the criminal standard of good faith. What is of relevance is the presence of due care
and attention in a given case.
For exception 2 to apply it has to be shown that the opinion is not only fair but also honest.
Exception 3 to section 499 deals with fair comment on the public conduct of public men other
than public servants. This includes rights of the press and media as well as others who fairly
comment on the public conduct of individuals. In the case of P. Ramaswamy v. M.
Karunanidhi6, it was held by the Madras High Court that a plea of fair comment cannot be
sustained until and unless it could be proved that it was fair and reasonable to make such
suggestions.

Exception 4 covers report of proceedings of Courts of Justice. It has to be noted that judicial
proceedings are completely public documents. It will not amount to criminal defamation to
fairly criticise judicial proceedings of the country. It has to be understood that the actions of
the judiciary in terms of decision making have a very direct and substantial impact on the
public. So, fair reporting of the decisions is of essential service to the public and also, the public
has a right to know what transpires in a court of law.

The element of good faith has not been emphasised in this exception. What is necessary is that
the report should be substantially true. It should not be based on a concoction or manipulation
of facts. Reporting of proceedings should not be mixed up with the personal observations or
comments of the reporter. In such cases, the reporting will be biased. However, it is also not
necessary that the reporting should be complete from all aspects. What is necessary is that it
should not be lopsided and false.
Exception 5 protects the genuine comments made on cases which are decided by the courts.
Case comments include opinions on a point of law/fact in the decisions laid down by courts.
Members of the public have every right to discuss fairly and genuinely the flaws, merits and
demerits of the judicial system. Such actions are in public interest and are democratically
permissible. Giving reasons and justifications for a certain comment is permissible. It will not
amount to fair comment to cast personal aspersions on the judge who passes a certain decision.
It will be a fair comment, however, to show what errors in points of law were committed and
how by committing such errors, there was a miscarriage of justice.

Exception 6 to section 499 talks about fair literary criticism. Literary criticism is within the
democratic radars of civilised society. It is one of the most important privileges of democracy.
However, a rider to literary criticism is that the criticism should be targeted towards merits of
the performance. It should not be personal in nature.

Exception 7 deals with censure by one in authority. It allows a person under whose legal or
personal authority another person has been placed to censure the latter. For example, a teacher
has the right to censure the student for misconduct in class. This does not amount to defamation.
Likewise, a person can complain against the servant to the master. This will also not amount to
defamation. However, the publication should not be to such an extent that it is unreasonable.

6
( 1970 ) LW 245 (Cri)

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Exception 8 deals with complaint to authority. If a complaint is made to a superior about the
conduct of his subordinate, this does not amount to defamation. It is necessary that there should
be a lawful authority of the superior over the subordinate. The purpose of this provision is to
protect official discharge of functions.
Exception 9 talks about imputation for protection of interests. Communications made in good
faith, for the protection of interest of one another are given the protection of exception 9. So,
for example, if a businessman tells another businessman that X should not be given goods on
credit, it will not amount to defamation under section 499 so long as the purpose of conveying
this information was to protect the business interest in good faith. The ninth exception is
broader in ambit than the first exception. Whereas exception 9 includes any form of imputation,
exception 1 includes only those imputations which are made for public good.
Exception 10 under section 499 talks about caution in good faith. This exception covers cases
in which an imputation is made for discharging a public duty. So, for example if A tells his
friend B that he should not retain C as his maid as she was accused of theft by a neighbour, this
does not amount to defamation. This advice, given by way of caution to protect the interest of
a friend is protected under Exception 10.

A Critical Analysis of Subramanian Swamy v. Union of India7

The concurring petitions filed by leading political figures unanimously demanded
decriminalizing defamation on one hand and strengthening civil remedies and financial
compensation for the loss of individual reputation. The two basic contentions of the seven
issues raised in the writ petition filed by Subramanian Swamy were:

i. Declaring Section 499 and 500 of the Indian Penal Code, 1860 as unconstitutional.

ii. Declaring Section 199(2) of the Code of Criminal Procedure, 1973 (Cr PC) as
unconstitutional.
According to the petitioner, these provisions cast an unreasonable restriction on free speech,
one that falls beyond article 19(2) of the Constitution of India. Apart from that, other
contentions submitted by the petitioner are as follows:

i. In a democratic body polity, public opinion, public perception and public criticism, are the
three fundamental pillars to guide and control the Executive action and, if they are scuttled or
fettered or bound by launching criminal prosecution, it would affect the growth of a healthy
and matured democracy

ii. Fundamental rights of liberty and free speech are controlled and not absolute as per the
Constitution, but in the name of control the freedom of speech that pertains to criticism of
certain governmental actions cannot be gagged.

iii. The individual interest in the guise of reputation cannot have supremacy over the larger
public interest, for the dominant interest in a democracy is the collective interest and not the
perspective individualism.

7
2016 SCC Online SC 550

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iv. The Executive does not permit expression of public opinion by instituting cases of
defamation through the public prosecutors by spending the sum from the State exchequer which
is inconceivable.

v. The concept of sanction, which is enshrined under Section 199(2) of the Code of Criminal
Procedure, is a conferment of unfettered power by which the citizenry right to criticize, is
gradually allowed to be comotosed. The counsel appearing for the State of Tamil Nadu
submitted that sections 499 and 500 could not be said to travel beyond reasonable limits on free
speech, because article 19(2) itself imposes such a restriction.8 Also, there has to be a debate
with regard to the conceptual meaning of the term ‘defamation’ used in article 19(2) of the
Constitution and ‘defamation’ in section 499 of the IPC. It was also pointed out that the freedom
of speech and expression has to be a controlled one and does not include the concept of
defamation as defined under section 499.9 The bench while going through the petition raised a
question that whether abolition of criminal action in other countries10 could really have effect
when the court decides on the constitutional validity of a provision regard being given to India’s
own written and organic constitution.

Judgement: A critical appraisal

The division bench comprising of Dipak Mishra and Prafulla C. Pant JJ wherein Mishra J
delivered the judgement, is a gargantuan 268-page document upholding the constitutional
validity of sections 499, 500 of the Code, 1860 and 199 of Cr PC, 1973. A comprehensive and
detailed anatomy has been undertaken whilst arriving at the decision. It commences with the
conceptual exploration of the terms defamation and reputation by delving into various
dictionary meanings, international instruments and allied sources. Thereafter, it classifies the
various submissions of the different counsels for the petitioner in the following manner:

i. Defamation essentially includes a civil action but not a criminal proceeding.

ii. If it is considered that defamation includes a criminal proceeding, then the application of the
principle noscitur a sociis has to be made so as to construe the real meaning of Article 19(2)
and in the process save the fundamental right under Article 19(1) (a).

iii. The intention of Article 19(2) is to include a public law remedy in respect of a grievance
and not an actionable claim against an individual.

iv. Defamation of a person is an assault on their reputation by another individual which

cannot form a fundamental right. Hence, criminal defamation cannot claim to have its source
in the word “defamation” as used in Article 19(2).

Defamation: Public versus individual remedy

8
Vijay Kant v. Union of India [T.P. (Crl) No. 94-101/2015].
9
Arvind Kejriwal v. Union of India [W.P. (Crl) No. 56/2015)].
10
Cyprus, Estonia, Ireland, Romania,Srilanka and the United Kingdom (UK) have repealed criminal defamation
as an offence against private individuals. Yet, even among these countries, considerable work is still needed.
Jamaica has abolished criminal defamation laws including seditious libel. Grenada abolished criminal libel in
2012, but maintains laws criminalising seditious libel and insult of the monarch.

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The arguments advanced by the petitioners emphasized that defamation is a dispute between
two individuals in which the reputation of one individual is attacked by another. Hence, follows
the rationale aforementioned. The apex court meticulously goes into each and every aspect.
Reference is made to the constitutional assembly debates through which the court tries to
establish that the framers of the Constitution too had no intention to confer a restricted meaning
on the term defamation. With regard to the application of principle of noscitur a socii, the court
rules out its application by clarifying that defamation has its own identity and cannot be given
a restricted meaning.
As far as the dichotomy of defamation being a public or individual remedy is concerned, it was
contended that reputation has been held to be a facet of article 21 in Dilipkumar
Raghavendranath Nadkarni, 11 Mehmood Nayyar 12 and Umesh Kumar. 13 Now since,
defamation involves marring the reputation of an individual, therefore, criminal defamation
cannot form a public remedy. To this, the apex court gives reasoning that individuals constitute
the collective and the law relating to defamation protects the reputation of each individual in
the perception of the public at large. Further, a nexus is sought to be established via definitions
of crimes that every crime is an injury; every public offence is also a private wrong, and
somewhat more. It affects the individual, and it likewise affects the community.14 For instance,
the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act,
2013, the Noise Pollution (Regulation and Control) Rules, 2000 under the Environment
(Protection) Act, 1986 regulate the fundamental rights of citizens vis-a-vis other citizens. So,
the petitioner’s contention that that treating defamation as a criminal offence can have no public
interest and thereby it does not serve any social interest or collective value holds no ground.
Conflict between article 19(1) (a) and right to reputation balancing of fundamental rights
Another question which arose before the court was whether reputation of another individual or
a group or a collection of persons absolutely ephemeral, so as to hold that criminal prosecution
on account of defamation negates and violates right to free speech and expression of opinion.
To answer this, the apex court goes into the interpretational analysis of freedom of speech and
expression under article 19(1) (a), 19(2), right to reputation vis-à-vis article 21. After a detailed
scrutiny and references to plethora of cases on each subject matter, the court resorts to the rule
of harmonious interpretation and adopts the doctrine of balancing of fundamental rights. With
regard to the permissibility of criminal defamation, the Court opines that it can be tested on the
touchstone of constitutional fraternity (preamble) and fundamental. duty. However, the court
finds it difficult to come to a conclusion that the existence of criminal defamation is absolutely
obnoxious to freedom of speech and expression but concludes that it does not invite the frown
of any of the articles of Constitution nor its existence can be regarded as unreasonable
restriction.15

Sections 499 and 500 IPC 1860 versus reasonable restrictions

The pertinent question which arose before the court was whether sections 499 and 500 of the
IPC go beyond the scope of the reasonable restrictions imposed under article 19(2) of the
Constitution of India?
While answering in negative, the Supreme Court gave a detailed reasoning of the explanations
and exceptions appended to section 499. It was submitted by the petitioners that on two earlier

11
Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni (1983) 1 SCC 124.
12
Mehmood Nayyar Azam v. State of Chhatisgarh (2012) 8 SCC 1.
13
Umesh Kumar v. State of Andhra Pradesh (2013) 10 SCC 591.
14
Supra note7, para 80
15
Supra note 7, para 163.

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occasions, R. Rajagopal alias R.R. Gopal v. State of Tamil Nadu16 it had been observed as
follows:17
In all this discussion, we may clarify, we have not gone into the impact of Article 19(1) (a) read
with clause (2) thereof on Sections 499 and 500 of the Indian Penal Code. That may have to
await a proper case.
In N. Ravi v. Union of India18 wherein it had been observed as follows:31
Strictly speaking on withdrawal of the complaints, the prayer about the validity of Section 499
has also become academic, but having regard to the importance of the question, we are of the
view, in agreement with the learned counsel for the petitioners, that the validity aspect deserves
to be examined.
As defamatory speech is one such restriction prescribed under article 19(2) (1) of the
Constitution. Therefore, in order to curb speech that is defamatory, court observed that the
restriction imposed should be ‘reasonable’.
In Chintaman Rao v. The State of Madhya Pradesh 19 the Supreme Court laid down the
meaning of the term ‘reasonable restrictions.20 The phrase "reasonable restriction" connotes
that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of
an excessive nature, beyond what is required in the interests of the public. The word reasonable"
implies intelligent care and deliberation, that is, the choice of a course which reason dictates.
Legislation which arbitrarily or excessively invades the right cannot be said to contain the
quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed
in Article 19 (1) (g) and the social control permitted by clause (6) of Article 19, it must be held
to be wanting in that quality.
Also, whether the law that imposes the restriction is reasonable should be judged in accordance
with current social, economic and political circumstances of the nation. One of the rules of
statutory interpretation is to interpret the words of a statute in light of the current facts and
situations and not based on the facts/situations of the past.
In The Senior Electric Inspector v. Laxminarayan Chopra,21 the court expounded:22
... in a modern progressive society it would be unreasonable to confine the intention of a
Legislature to the meaning attributable to the word used at the time the law was made, for a
modern Legislature making laws to govern a society which is fast moving must be presumed to be
aware of an enlarged meaning the same concept might attract with the march of time and with
the revolutionary changes brought about in social, economic, political and scientific and other
fields of human activity. Indeed, unless a contrary intention appears, an interpretation should be
given to the words used to take in new facts and situations, if the words are capable of
comprehending them.
It had been the one of the contentions that the exceptions make the offence more rigorous,
thereby making the concept of criminal defamation extremely unreasonable. Further, truth was
not a defence and unnecessary stress on ‘public good’. The apex court, after a detailed discussion
concluded that neither the main provision nor the explanation nor the exceptions remotely
indicated any vagueness and thus cannot be called unreasonable.23 It also rejected the argument
that criminal defamation was not saved by the doctrine of proportionality. 24

16
(1994) 6 SCC 632.
17
Idbi. at 651.
18
(2007) 15 SCC 631.
19
AIR 1951 SC 118.
20
Id. at 119.
21
AIR 1962 SC 159.
22
Id. at 163.
23
Supra note 1, para 184
24
Id., para 186.

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Balancing of fundamental rights
Much of the judgement has been rested on the balancing of freedom of speech and expression,
article 19(1)(a) and right of reputation, article 21. While this has been critiqued by intellectuals,
the rationale of the court is that the reputation of one cannot be allowed to be crucified at the
altar of the other’s right to free speech. Therefore, a balance needs to be struck depending upon
the circumstances and in the instant case leads to retention of criminal defamation.

Internet defamation: Shreya Singhal v. Union of India25

In the backdrop of Shreya Singhal’s case, and in context of the contemporary age of information
technology and social networking, how desirable was it to on the part of judiciary to decriminalise
defamation (section 66A)?
Shreya Singhal’s case is a landmark judgement in the field of freedom of speech and expression.
This epic case brings forth various dimensions which are important facets of article 19(a). Section
66A which was widely criticised for its over breadth, vagueness and its chilling effect on speech
was struck down by the apex court as it was unconstitutional.
However, in Swamy’s case Mishra J takes a different route and points out that there is a difference
in the canvas on which the Shreya Singhal’s case has been made. In that case there was a narrow
interpretation of the provision. However, in Swamy’s case ‘reputation’ (which is implicit in article
21) was also involved and narrow interpretation was not the case.

Chilling effect and overbreadth

The term ‘chilling effect’ in legal context basically describes a situation where a speech or conduct
is suppressed by fear of penalisation at the interests of an individual or group. It is the inhibition
or discouragement of the legitimate exercise of natural and legal rights by the threat of legal
sanction. Regarding over breadth, apex court opined that the net cast by section 66A was so wide
that virtually it covered any opinion on any subject.26 Nariman’s J opinion has highlighted that the
liberty of thought and expression is not merely an aspirational ideal. It is also “a cardinal value
that is of paramount significance under our constitutional scheme.”
Article 19(1) (a) of the Constitution guarantees to citizens right to freedom of speech and
expression. The immediately succeeding clause, Article 19(2), however limits this right in allowing
the state the power to impose by law reasonable restrictions in the interests, among other things,
of the sovereignty and integrity of India, the security of the state, public order, decency or
morality, defamation, or incitement to an offence. According to the petitioners in Shreya Singhal,
none of these grounds contained in article 19(2) were capable of being invoked as legitimate
defences to the validity of section 66A of the Information Technology Act, 2000. They also argued
that the provisions of section 66A were contrary to basic tenets of a valid criminal law in that they
were too vague and incapable of precise definition, amounting therefore to a most insidious form
of censorship. Further, in the petitioners’ argument, Section 66A produced a chilling effect that
forced people to expurgate their speech and expressions of any form of dissent, howsoever
innocuous. The Supreme Court agreed with the petitioners on each of these arguments. According
to the court, none of the grounds, which the state sought to invoke in defending the law, in this
case, public order, defamation, incitement to an offence and decency or morality, each of which
is contained in article 19(2), was capable of being justifiably applied. Nariman J stated “Any law

25
AIR 2015 SC 1523.
26
Ibid

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seeking to impose a restriction on the freedom of speech can only pass muster,” he further said,
“if it is proximately related to any of the eight subject matters set out in Article 19(2).”27 On the
purported justification offered by the state on grounds of defamation, incitement to an offence,
and decency or morality, under article 19(2), the Supreme Court, ruled it as pithily dismissive. The
court pointed out that there was no nexus whatsoever between the criminalisation of “grossly
offensive” or “annoying” speech and the restrictions permitted under the Constitution were self-
evident.

In the case of Subramanian Swamy, a crucial question on the constitutionality of Defamation

was raised. It was argued that the law of defamation is redundant in modern times, particularly
considering that it is not in sync with modern requirements of democracy. Particularly in the
context of freedom of speech and expression, rights of the media and other such factors,
defamation is posing serious trouble. It limits the rights of journalists and media persons and
also curbs democratic rights of citizens. However, the Supreme Court retained the
constitutionality of section 499 by stating that it is a reasonable restriction on the freedom of
speech and expression.

Conclusion
Defamation as an offence under criminal law cast a duty upon individuals to respect the
reputation of others while exercising freedom of speech and expression. The law seeks to
penalise wrongful actions coupled with relevant intention if such actions injure the reputation
of individuals.

Summary
- Law protects an individual’s reputation by punishing those who try to injure or harm
it.
- In India, reputation is protected under both Civil and Criminal law.
- In G Narasimhan v T V Chokappa, the Court has discusses the application of this
section and ruled that the class or group of persons against whom an allegation of
defamation is made are distinctly identifiable.
- It is necessary that such act should lower the moral or intellectual estimation of the
person concerned, his character, caste or credit in the eyes of others.
- If the impugned statement is shown to be true and its publication is shown to have
been made for public good, the act will not amount to defamation.
- Fair criticism of public servant cannot be penalised if it has been done in good faith.
- In P. Ramaswamy v M Karunanidhi, it was held by the Court that a plea of fair
comment cannot be sustained until and unless it is proved that it was fair and reasonable
to make such suggestions.
- Fair criticism of judicial proceedings of the country should not amount to criminal
defamation.
- Genuine comments made on cases which are decided by courts also do not come
under the offence defamation.
- Fair literary criticism does not amount to defamation.
- Censure by one in authority does not amount to defamation.
- Complaint made to superior lawful authority does not amount to defamation.

27
Supra note 23

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- If imputation is made in good faith for the protection of interests then it will not
amount to defamation.
- Caution given in good faith is not defamation.
- In constitutionality of S 499 was discussed on the issue of curtailment of freedom of
speech and expression. SC upheld the constitutionality of this section.

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