Constitutionality of Criminal Defamation by Sini Sunny @ LeqCliq

Criminal Defamation - Constitutional or Not

In Subramanian Swamy v. Association of India[1] The peak court’s judgment which was conveyed on May 13, 2016, put a lay on the hypothesis of criticism being decriminalized when the legality of the battled arrangements were maintained.

Subramanian Swamy recorded a writ request with respect to the decriminalization of criticism. The two fundamental conflicts of the seven issues brought up in the writ request Swamy were[2]:

  1. Announcing Sec. 499 and 500 of the Indian Penal Code, 1860 as illegal.
  2. Announcing Sec. 199(2) of the Code of Criminal Procedure, 1973 (Cr PC) as illegal.

These arrangements cast an outlandish limitation on the right to speak freely of discourse, one that falls past article 19(2) of the Constitution of India was said by the litigant.

The advice showing up for the State of Tamil Nadu presented that Sec. 499 and 500 couldn’t be said to go past as far as possible on the right to speak freely of discourse, since article 19(2) itself forces such a limitation. Likewise, there must be a discussion as to the applied significance of the term as maligning utilized in article 19(2) of Constitution and criticism in Sec. 499,IPC, 1860. It was likewise brought up that the right to speak freely and articulation must be controlled and does exclude the idea of slander as characterized under Sec. 499[3].

The seat additionally had an inquiry that whether cancelation of criminal activity in different nations could truly have impact when the court chooses the legality of an arrangement respect being given to India’s own composed constitution.

The division seat which included Dipak Mishra and Prafulla C. Gasp JJ, wherein J. Mishra conveyed the judgment The Court held that Section 499 isn’t an extreme limitation under Article 19(2). It held that society is an assortment of people, and what influences people additionally influence the general public all in all. Thus, it held that it is legitimate to regard criticism as a public wrong. It held that criminal maligning is certainly not a lopsided limitation on free discourse, since security of notoriety is a major right just as a basic liberty.


Defamation law is a balancing act on the right of free speech established under Article 19(1)(a) of the Indian Constitution. This article was extensively reviewed to incorporate “presse opportunity” through legal understanding. However, this opportunity is not freed, as Article 19(2) allows the state to make laws which limit such opportunities to “sensitive restrictions.” The constraints are vast, including conditions in public enthusiasm, not to mention other things; to keep it all in control; or to be comparable to court scorn or abuse. The privilege to notoriety of a living individual under Article 21 can’t be relinquished or killed at the special stepped area of another’s entitlement to the right to speak freely of discourse. Both must be fit, as no measure of harms can recover the unfavorable effect on an individual’s notoriety. Just on the grounds that past comparable distributions exist doesn’t allow redundancy of at first sight disparaging suggestions. In any event, the court considers it difficult to reach a decision that criminal criticism cannot possibly be accepted for free speech and articulation. However, it assumes that it does not welcome or consider the glare of any of the provisions of the Indian Constitution nor its reality to be absurd limitation.[4]


The significant inquiry which emerged under the watchful eye of the court was whether 499 and 500 of IPC, 1860 go past the degree of the reasonable impediments constrained under craftsmanship.19(2) of the Indian Constitution?

The notoriety of one can’t be permitted to be executed at the special raised area of the other’s privilege of free discourse. So there is no reason for proclaiming that the current law is unlawful. There is a need to locate some sort of congruity between article 19 and article 21. While replying in negative example, the Supreme Court gave a point by point thinking of the clarifications and exemptions attached to Sec.499. It was presented by the solicitors that on two prior events, R. Rajagopal assumed name R.R. Gopal v. Province of Tamil Nadu[5] it had been seen as follows:

In this discussion, we may clarify; Have now no longer long past into the effect of Article 19(1) (a) study with arrangement (2) thereof on Sections 499 and 500 of the Indian Penal Code. That may need to anticipate a legitimate case.

In N. Ravi v. Relationship of India[6] wherein it had been viewed as follows[7]: Carefully chatting on withdrawal of the complaints, the appeal about the authenticity of Sec. 499 has moreover gotten academic, yet having appreciation to the hugeness of the request, we are of the view, in simultaneousness with the informed direction for the specialists, that the authenticity viewpoint has the privilege to be investigated.

As disparaging talk is one such constraint supported under Art. 19(2) (1) of the Constitution. Along these lines, to check talk that is damaging, court saw that the impediment constrained should be sensible. In Chintaman Rao v. The State of Madhya Pradesh[8], the SC set out the significance of the term sensible constraints[9]

The expression “sensible limitation” indicates that the restriction mandatory on somebody in satisfaction in the correct mustn’t be self-assertive or of Associate in Nursing exorbitant nature, on the far side what’s required inside the interests of the overall population. “Reasonable” infers savvy care and consultation, that is, the decision of a course that reason directs Legislation that all over or too attacks the best possible can’t be aforementioned to contain the norm of sensibility and except if it finds some kind of harmony between the freedom reinforced in Article 19 (1) (g) and hence the gathering activity passable by statement (6) of Article 19, it should be order to be needing during this quality.

It had been the one in all the conflicts that the exemptions construct the offense a ton of thorough, accordingly making the idea of criminal criticism uncommonly preposterous. Further, truth wasn’t a safeguard and unneeded weight on open goods. The SC, when a nearby conversation ended that neither the most arrangement nor the explanation nor the special cases distantly demonstrated any lack of clarity and along these lines can’t be known as irrational[10]. It moreover dismissed the contention that criminal maligning wasn’t spared by the philosophical arrangement of extent[11]


In Vishwanath Agrawal Saral Vishwanath Agrawal[12] , this Court saw that notoriety which isn’t just the salt of life, yet additionally the most flawless fortune and the most valuable fragrance of life. In Gian Kaur v. Territory of Punjab[13], this Court saw that the privilege to notoriety is a characteristic right.

The greatest incongruity of the current law framework is that it appears to be hesitant to meddle in cases encroaching upon the essential rights and then again it likewise races into strategy matters which isn’t applicable for them. Slander laws exemplified under Sec. 499 and 500 of IPC is a twofold edge blade. In the event that a bogus criminal suit is stopped for maligning by the appealing party, the respondent can record a counter case.

Sensibility and proportionality of a limitation is analyzed from the stance of the enthusiasm of the overall population and not from the perspective of the individual upon whom the limitations are forced. Applying this norm, the Court decided that the criminal maligning laws are proportionate and it dismissed the dispute that slander is generally an idea of the larger part intended to handicap the right to speak freely and articulation.

[1] AIR 2016 SC 2728.

[2] Ibid.

[3] Arvind Kejriwal v. Union of India [W.P. (Crl) No. 56/2015)]

[4] Subramanian Swamy v. Union of India [AIR 2016 SC 2728].

[5] (1994) 6 SCC 632.

[6] (2007) 15 SCC 631.

[7] Id. at 631.

[8] AIR 1951 SC 118.

[9] Id. at 119.

[10] Supra note 1, para 184

[11] Id., para 186.

[12] (2012) 7 SCC 288

[13] (1996) 2 SCC 648

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