Free Speech which is guaranteed by Article 19(1)(a) and made subject to certain limitations in Article 19(2) is essential to a democracy, for democracy is fundamentally based on free debate and open discussion, and a citizen has the right to exercise his right to free speech in a democracy by discerning the information and eventually making a choice and, if it is curtailed by taking recourse to colonial laws of defamation, the cherished value under the Constitution would be in peril and, therefore, the provisions pertaining to criminal action which create a dent in free speech are unconstitutional. Free speech encapsulates the right to circulate one’s independent view and not to join in a chorus or sing the same song. It includes the right of propagation  of ideas, and the freedom of speech and expression cannot brook restriction and definitely not criminal prosecution which is an anathema to free speech. Free speech has priority over other rights and whenever and wherever conflict emerges between the freedom of speech and other interest, the right of freedom of expression can neither be suppressed nor curtailed unless such freedom endangers community interest and that apart the said danger should have immediate and proximate nexus with expression. Reasonable restriction is founded on the principle of reasonableness which is an essential facet of constitutional law and one of the structural principles of the constitution is that if the restriction invades and infringes the fundamental right in an excessive manner, such a restriction cannot be treated to have passed the test of reasonableness. The language employed in Sections 499 and 500 Indian Penal Code is clearly demonstrative of infringement in excess and hence, the provisions cannot be granted the protection of Article 19(2) of the Constitution. Freedom of expression is quintessential to the sustenance of  emocracy 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. The intent of the criminal law relating to defamation cannot be the lone test to adjudge the constitutionality of the provisions and it is absolutely imperative to apply the “effect doctrine” for the purpose of understanding its impact on the right of freedom of speech and expression, and if it, in the ultimate eventuality, affects the sacrosanct right of freedom, it is ultra vires. The basic concept of “effect doctrine” would not come in the category of exercise of power, that is, use or abuse of power but in the compartment of direct effect and inevitable result of law that abridges the fundamental right.

The Chief Justice of India ,though in a different context, that if maintenance of democracy is the foundation for free speech, society equally is entitled to regulate freedom of speech or expression by democratic action.

Reasonable restriction cannot assume any disproportionate characteristic in the name of reasonableness, for the concept of reasonableness, as a constitutional vehicle, conceives of the doctrine of proportionality. The Constitution requires the legislature to maintain a balance between the eventual adverse effects and the purpose it intends to achieve and as the provisions under assail do not meet the test of proportionality or least restrictive measure, they do not withstand the litmus test as postulated Under Article 19(2) of the Constitution.

Freedom of speech and expression in a spirited democracy is a highly treasured value. Authors, philosophers and thinkers have considered it as a prized asset to the individuality and overall progression of a thinking  society, as it permits argument, allows dissent to have a respectable place, and honours contrary stances. There are proponents who have set it on a higher pedestal than life and not hesitated to barter death for it. Some  have condemned compelled silence to ruthless treatment. William Dougles has denounced Regulation of free speech like regulating diseased cattle and impure butter. The Court has in many an authority having realized its precious nature  and seemly glorified sanctity has put it in a meticulously structured pyramid. Freedom of speech is treated as the thought of the freest who has not mortgaged his  ideas, may be wild, to the artificially cultivated social norms; and transgression thereof is not perceived as a folly. Needless to emphasise, freedom of speech has to be allowed specious castle, but the question is should it be so specious or regarded as so righteous that it would make 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.

The significance of freedom of speech has been accentuated in Ramlila Maidan Incident, whereby the court observed that the freedom of speech is the bulwark of a democratic Government. This freedom is essential for proper functioning of the democratic process. The freedom of speech and expression is regarded as the first condition of liberty. It occupies a preferred position in the hierarchy of liberties, giving succor and protection to all other liberties. It  has been truly said that it is the mother of all other liberties. Freedom of speech plays a crucial role in the formation of public opinion on social, political and economic matters. It has been described as a “basic human right”, “a natural right” and the like.

Reputation is part of article 21 of the constitution:Freedom of thought and expression includes a dissent because disagreement or expression of a contrary opinion has significant constitutional value which is engrafted Under Article 19(1)(a) and also is an acceptable pillar for a free and harmonious society. Control of free speech by the majority is not an acceptable principle and, therefore, the provision pertaining to defamation is fundamentally a notion of the majority to arrest and cripple freedom of thought and expression which makes the provision  unconstitutional. Criminal prosecution as envisaged Under Section 499 Code of Criminal Procedure. cannot be based on the principle of the State to take appropriate steps when an offence of this nature is committed, for an offence of this nature is really not an offence against the State, because it does not encompass the ultimate facet of criminal prosecution which is meant for “protection of the society as a whole”.

Reputation at its best can be equated with an element of personal security or a significant part of one’s life and unification of virtues which makes the person proud to protect such private interest but that  cannot be regarded as a justification to whittle down freedom of speech and expression which subserves the public interest. The language in which Section 499  Indian Penal Code is couched does not incorporate the seriousness test which has the potentiality of  provoking breach of peace by instigating people as a consequence of the public interest is endangered but, on the contrary, it subserves only the private interest and as it caters to individual revenge or acrimony which in the ultimate eventuate, makes imposed silence to Rule over eloquent free speech.

Though reputation has been treated to be a facet of Article 21 of the Constitution, yet the scheme of the said Article is quite different and a distinction is required to be drawn for protection of reputation Under Article 21 and enabling the private complainant to move the criminal court for his sense of self-worth.  The individual reputation can very well be agitated in a civil court. But fear of a complainant who on the slightest pretext, can file criminal prosecution, that  too, on the base of subjective notion, the fundamental value of freedom of speech and expression gets paralysed and the resultant effect is that Sections 499 and 500 Indian Penal Code cause unnecessary discomfort to Article 19(1)(a) and also to Article 14 of the Constitution.

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. Reputation of a person is neither metaphysical nor a property in terms of mundane assets but an integral part of his sublime frame and a dent in it is a rupture of a person’s dignity, negates and infringes fundamental values of citizenry right. Thus viewed, 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.

In many a country, criminal defamation does not infringe the freedom of speech. The submission that protection of reputation can be sufficiently achieved by taking recourse to civil law cannot be a ground to declare Section 499/500 Indian Penal Code as unconstitutional. It is to be borne in mind that the criminal law and the civil law operate in different spheres and aspects and in societal connotations have different perceptions. Monetary damage in civil law cannot be said to be the only panacea; and permitting an individual to initiate criminal action as provided  under the law against the person making a defamatory remark does not affect the constitutional right to freedom of speech and in no case ushers in anarchy. That apart, mitigation of a grievance by an individual can be provided under a valid law and the remedy under the civil law and criminal law being different,both are constitutionally permissible and hence, the provisions pertaining to defamation under the Indian Penal Code do not cause any kind of discomfort to any of the provisions of the Constitution. In addition to this, it can be said that civil remedy for defamation is not always adequate. The value of freedom of speech cannot be allowed to have the comatosing effect on individual dignity, which is also an integral part Under Article 21 of the Constitution.

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. Even if reputation is thought of as a form of property, it cannot be construed solely as property. Property is not a part of individual personality and dignity, whereas reputation is, and, therefore, the stand that the damage caused to a person’s reputation should be compensated by money and that the same is realizable by way of obtaining a decree from the civil court is not justified and regard being had to that, criminal defamation is constitutionally permissible.

The State is under an obligation to protect human dignity of every individual. Simultaneously, freedom of speech has its constitutional sanctity; and in  such a situation, balancing of rights is imperative and, therefore, the Court should not declare the law relating to criminal defamation as unconstitutional on the ground of freedom of speech and expression as it is neither an absolute right nor can it confer allowance to the people to cause harm to the reputation of others.

Conclusion:

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 Indian Penal Code 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. It has been held in D.C. Saxena (Dr.) v. Hon’ble The Chief Justice of India , though in a different context, that if  maintenance of democracy is the foundation for free speech, society equally is entitled to regulate freedom of speech or expression by democratic action. The reason is obvious, viz., that society accepts free speech and expression and also puts limits on the right of the majority. Interest of the people involved in the acts of expression should be looked at not only from the perspective of the speaker but also the place at which he speaks, the scenario, the audience, the reaction of the publication, the purpose of the speech and the place and the forum in which the citizen exercises his freedom of speech and expression. The Court had further observed that the State has legitimate interest, therefore, to regulate the freedom of speech and expression which liberty represents the limits of the duty of restraint on speech or expression not to utter defamatory or libellous speech or expression. There is a correlative duty not to interfere with the liberty of others. Each is entitled to dignity of person and of reputation. Nobody has a right to denigrate others’ right to person or reputation.

-Kush Kalra