INC leader Rahul Gandhi

On 23rd March, 2023, Indian National Congress’s former President Rahul Gandhi was convicted by Surat court, for defamation in relation to his one statement against ‘modi surname’. However, He got bail and his punishment was suspended by the court, to give him time to appeal in session court.

Many people wondered why we still have defamation offence and How court can convict a political leader on such statements which are normal in Politics?

Defamation is an offence under Section 499 of IPC, 1860, if a person intentionally tries to malign the reputation of any other person by writing or orally, then such person may be charged under this section. However, it provides some exceptions also, if such statement is true or given in good faith and public good, then court may think to exonerates the accused.

The constitution validity of the defamation section of IPC, was challenged in the case of ‘Dr. Subramaniam Swamy v. UOI, (2016)’. Dr. Swamy belongs to Bhartiya Janta Party and former member of parliament and also former union minister. He made some allegations against former chief Minister of Tamilnadu, Jayalalitha (now dead), in response of those allegations, Jayalalitha imposed defamation case against Swamy.

But, in return of that, Swamy challenged the constitutional validity of defamation section before Supreme Court on the ground that defamation section violates the right given under Art. 19(1)(a) of the constitution. The said article gives right to speech to citizen of India and in its clause (2), the article also imposes some restriction on freedom of speech in the interest of sovereignty, integrity of India, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.

Subramaniam Swamy v. UOI (2016)

To put their case emphatically, the petitioner’s counsels made following arguments in support of their petition-

  • 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 “reasonable restrictions” are those which are meant to prevent the expression of a thought which is intrinsically dangerous to public interest and would not include anything else.

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, and, therefore, Article 19(2) cannot be regarded as the source of authority for Section 499 of IPC which makes defamation of any person an offence.

  • It is to be borne in mind that defamation of an individual by another individual is a civil wrong or tort, pure and simple for which the common law remedy is an action for damages. Article 19(1)(a) and Article19(2), defamation of any person by private person cannot be treated as a “crime”, for it does not subserve any public interest.
  • The added requirement of the accused having to prove that the statement made by him was for the public good is unwarranted and travels beyond the limits of reasonableness because the words “public good” are quite vague as they do not provide any objective standard or norm or guidance as a consequence the provisions do not meet the test of reasonable restriction and eventually they have the chilling effect on the freedom of speech.
  • 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.
  • Freedom of expression is quintessential to the sustenance of democracy which requires debate, transparency and criticism and dissemination of information and the prosecution in criminal law pertaining to defamation strikes at the very root of democracy, for it disallows the people to have their intelligent judgment.
  • In the absence of any definition of the crime of defamation in a precise manner, it is hit by the principle of “void for vagueness”, for the Constitution of India does not permit to include all categories of situations for constituting offence without making it clear what is prohibited and what is permitted.
  • In terms of the press, criminal defamation has a chilling effect which leads to suppress a permissible campaign. The threat of prosecution alone is enough to suppress the truth being published, and also the investigating journalism which is necessary in a democracy.

In opposition of declaring it ultra vires, the arguments of gov’s counsels were as follows-

  • Right to reputation is an insegregable part of Article 21 of the Constitution. A person’s reputation is an inseparable element of an individual’s personality and it cannot be allowed to be tarnished in the name of right to freedom of speech and expression because right to free speech does not mean right to offend, the right enshrined under Article 19(1)(a) cannot allowed to brush away the right engrafted under Article 21, but there has to be balancing of rights.
  • It is a misconception that injury to reputation can adequately be compensated in monetary terms. Reputation which encapsules self-respect, honour and dignity can never be compensated in terms of money.
  • The object of Part III of the Constitution is to provide protection against the State action and, therefore, the criminal defamation which is basically a dispute between two private individuals cannot become a facet of the term criminal defamation as used in Article 19(2) of the Constitution, for there cannot be a constitutional protection for such an action

Analysis by the Court

Before going further, it is relevant to know the meaning of ‘Defamation’. According to Salmond: –

“The wrong of defamation, consists in the publication of a false and defamatory statement concerning another person without lawful justification. The wrong has always been regarded as one in which the Court should have the advantage of the personal presence of the parties if justice is to be done. Hence, not only does an action of defamation not survive for or against the estate of a deceased person, but a statement about a deceased person is not actionable at the suit of his relative”.

The court analysed it as follows-

  • The principles as regards reasonable restriction as has been stated by Supreme Court from time to time are that the restriction should not be excessive, and in public interest. The legislation should not invade the rights and should not smack of arbitrariness. The test of reasonableness cannot be determined by laying down any abstract standard or general pattern. It would depend upon the nature of the right which has been infringed or sought to be infringed.
  • The ultimate “impact”, that is, effect on the right has to be determined. The prevailing conditions of the time and the principles of proportionality of restraint are to be kept in mind by the court while adjudging the constitutionality of a provision regard being had to the nature of the right. The nature of social control which includes public interest has a role. The conception of social interest has to be borne in mind while considering reasonableness of the restriction imposed on a right.
  • We have already held that reputation is an inextricable aspect of right to life under Article 21 of the Constitution and the State in order to sustain and protect the said reputation of an individual has kept the provision under Section 499 IPC alive as a part of law. The seminal point is permissibility of criminal defamation as a reasonable restriction as understood under Article 19(2) of the Constitution.
  • Reputation being an inherent component of, we do not think it should be allowed to be sullied solely because another individual can have its freedom. It is not a restriction that has an inevitable consequence which impairs circulation of thought and ideas. In fact, it is control regard being had to another person’s right to go to Court and state that he has been wronged and abused. He can take recourse to a procedure recognized and accepted in law to retrieve and redeem his reputation.

Therefore, the balance between the two rights needs to be struck. “Reputation” of one cannot be allowed to be crucified at the altar of the other’s right of free speech. The legislature in its wisdom has not thought it appropriate to abolish criminality of defamation in the obtaining social climate.

  • Once we have held that reputation of an individual is a basic element of Article 21 of the Constitution and balancing of fundamental rights is a constitutional necessity and further the legislature in its wisdom has kept the penal provision alive, it is extremely difficult to subscribe to the view that criminal defamation has a chilling effect on the freedom of speech and expression.
  • The individual interest of each individual serves the collective interest and correspondingly the collective interest enhances the individual excellence. Action against the State is different than an action taken by one citizen against the other. The constitutional value helps in structuring the individual as well as the community interest. Individual interest is strongly established when constitutional values are respected. The Preamble balances different and divergent rights.
  • Keeping in view the constitutional value, the legislature has not repealed Section 499 and kept the same alive as a criminal offence. The studied analysis from various spectrums, it is difficult to come to a conclusion that the existence of criminal defamation is absolutely obnoxious to freedom of speech and expression. As a prescription, it neither invites the frown of any of the Articles of the Constitution nor its very existence can be regarded as an unreasonable restriction. Anatomy of the provision and its field of operation.
  • The provision along with Explanations and Exceptions cannot be called unreasonable, for they are neither vague nor excessive nor arbitrary. There can be no doubt that Court can strike down a provision, if it is excessive, unreasonable or disproportionate, but the Court cannot strike down if it thinks that the provision is unnecessary or unwarranted.
  • When a law limits a constitutional right which many laws do, such limitation is constitutional if it is proportional. The law imposing restriction is proportional if it is meant to achieve a proper purpose, and if the measures taken to achieve such a purpose are rationally connected to the purpose, and such measures are necessary. Such limitations should not be arbitrary or of an excessive nature beyond what is required in the interest of the public.
  • One cannot be unmindful that right to freedom of speech and expression is a highly valued and cherished right but the Constitution conceives of reasonable restriction. In that context criminal defamation which is in existence in the form of Sections 499 and 500 IPC is not a restriction on free speech that can be characterized as disproportionate. Right to free speech cannot mean that a citizen can defame the other. Protection of reputation is a fundamental right. It is also a human right. Cumulatively it serves the social interest.


Subramaniam Swamy v. UOI [2016]