Defamation vs. Freedom of Speech


India being the very heart of democracy has always delineated to its citizens the benefit of a liberal constitution and their freedom to think, react, respond and act to same or similar situations distinctively and differently. The later part being the most revered about, as it gives an individual the right to speak what he/she thinks. However, these privileges are not absolute but subject to reasonable restriction under the constitution.

In the words of Voltaire: “I may not agree with what you say but will defend to the death your right to say it”. What the society/ individual/group wants to read and what it wishes to observe has always been a matter of debate.

The European court of human rights has historically kept this in mind, describing free speech
as „one of the important foundations of a democratic society and one of the basic conditions
for its progress and for each individuals self-fulfillment, it also went on to note that frees
speech protects not only information and ideas that are favorably received or regarded as inoffensive or a matter of indifference but also those that offend, shock or disturb.

When we have a glance at the marginal note i.e. Defamation v/s freedom of speech we tend to see just one fundamental right i.e. freedom of speech and expression which is guaranteed under Article 19(1) (A) of the constitution which through its lucid words went on to say that every citizen has a right to free speech and expression though not absolute but subject to reasonable restrictions imposed under Article 19 (2). The interesting part is that when we have a brief look at the list of restrictions under Article 19(2), we see that Defamation also forms an important part of this list, which in turn means that right to freedom of speech and expression is subject to defamation as it is also a reasonable restriction under Article 19(2).

It is very important to note that, defamation apart from being a tort is also an offense dealt under section 499 and section 500 of the Indian Penal Code. The Hon‟ble courts, after having a close look at the provision defining defamation under section 499 went on to interpret the same and opined that “making “and “publishing” are supplementary terms and that if a person merely writes defamatory content, but does not publish the same or communicate it to Others, than in such a situation than the offense cannot be made out2.The courts have also laid Down that when any person receives any defamatory information from an anonymous source and if such information is published, then it is the author who is liable and not the publisher3. Therefore, communication of such defamatory content is necessary and the burden to prove the same is upon the claimant.

The first question that would come to our mind is that how can there be a connecting link between an offense punishable under the Indian Penal Code and the Constitution? A clear answer to it lies under Article 13(3) of the constitution which tents to protect all the preexisting laws which also includes defamation which forms a part of the IPC but is also a Law under Article 19(2). Therefore, even though the date of enactment of the statute varies drastically, it is by the virtue of article 13, that both are linked.

A Race of Two Fundamental Rights!

Another dilemma we would face is that how is it a race between two fundamental rights as defamation forms a part of the Indian Penal Code? The clear answer to it is that, when we say that it is a story of two fundamental rights fighting for its enforcement, what we wish to address is, the right to Speech and expression and the other interestingly being the right not to be defamed. Now when we talk of right of not being defamed, we indirectly point out to right to reputation located under the genesis of Article 21 which reads that no one shall be deprived of his life and personal liberty except with accordance with Law. Reputation is a facet of life and liberty. The Hon‟ble Supreme Court has in its judgement penned down that life and liberty are not just empty terms but carry along-with them several derivative rights, which make life meaningful and liberty worth cherishing.

Supreme Court has over the period of time through its plethora of decisions laid down that the
right to enjoyment of good reputation is a value of ancient origin and necessary to human society4. It also went on to say that right to one‟s reputation is a facet of right guaranteed under Article 215, and that the reputation of an individual is an important part of his/her life6. Therefore, it is of the view that right to reputation is a nuance coming out from the words life and liberty located under Article 21 of the Constitution.

These decisions of the Supreme Court have been a subject of celebration as there have been constant efforts to expand the boundaries of free speech and at the same time has also drawn a balance between two fundamental right in the recent past, wherein it went on to observe that a person‟s right to freedom of speech has to be balanced with the other person‟s right to reputation. It also observed that the right to freedom of speech and expression cannot be allowed so much room that even reputation of an individual guaranteed under Article 21 cannot enter the specified area.

Does one right trump the other?

Where the Supreme Court in the case of Subramaniam Swamy was confronted with the issue as to whether the right to free speech can trump the right to reputation, wherein it was argued that Sec 499 and Sec 500 of IPC were archaic laws and imposed unreasonable restriction on the freedom of speech, it was also further argued that one‟s right to reputation shall slumber below the others freedom of speech. The Supreme Court in reply to these contentions held that the reputation of an individual being an inherent component of Article 21 cannot be allowed to studied solely because another individual can have his freedom. It also said that the reputation of one cannot be crucified at the altar of the others freedom of speech8. Therefore, it is an important duty of the court when it is confronted with two fundamental rights, to strike a balance and not favor either of the rights so that the values are sustained.

Line drawing by the Supreme Court

The Supreme Court even though has faced difficulties in drawing a balanced line, it has not deterred from doing so in a handful of cases.

The first being the so called Gandhi‟s poem case wherein the court did not quash the charges against the accused who had written an obscene poetry on a respected historical personality,Wherein it applied the committee standard tests and thereby rejected the argument that free speech should be given absolute protection when used creatively.

In a subsequent decision the Supreme Court held that the publisher has the right to publish what he alleges to be the life of it, in so far as it appears from the records even without consenting authorization. The line drawn here by the Supreme Court is that prior restraint on publications cannot be tolerated and that restrictions shall kick off only after the material is published.

The Hon‟ble Court in one of its recent judgement held that the court has not to sway by one‟s perception. One may have dislike to a particular manner of expression but that does not warrant a ban on such expression. It also went on to say that if all such expressions are banned on such allegation than there would be no creativity and it would also spoil the value of art.To conclude, all I would like to say is that it is important for the courts that are being confronted with the issue of collusion of two fundamental rights in today‟s modern times *where people believe that they would be able to live without their spouse but not without their cell phones, to draw a line of balance and not favor either of the rights, also at the same time if we are acquired with so much power to form opinions regarding things, it also calls for responsibility and caution on our parts if the others right of not being defamed had to have any meaning at all, so that there is an improved equilibrium in the equation between the freedom of speech and reputation.

1 Handyside V.UK (1976) 1 EHRR 737 Para 49
2 Rohini Singh V State of Gujarat
3 .1964 CriLj 367
4 (2013) 2 SCC 398
5 (2009) 7 SCC 559
6 (2007) 3 SSC 587
7 (2016) 7 SCC 221
8 ibid
9 (2015) 6 SCC 1
10 (1994) 6 SSC 632

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