Defamation / Reputation, Political Expression
Hoffer and Annen v Germany
Closed Contracts Expression
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The Supreme Court of India dismissed challenges to the constitutionality of the criminal offense of defamation, holding that it was a reasonable restriction on the right to freedom of expression.
Numerous petitions were filed under Article 32 of the Constitution of India challenging the constitutional validity of the offense of criminal defamation as provided for in Sections 499 and 500 of the Indian Penal Code and Sections 199(1) to 199(4) of the Indian Code of Criminal Procedure, 1973.
Several of the petitioners, such as Subramanian Swamy, Rahul Gandhi and Arvind Kejriwal, are politicians who had been charged with criminal defamation. They contested the constitutionality of the offense of criminal defamation, arguing that it inhibited their right to freedom of expression. The criminal proceedings against them had been stayed pending the constitutional proceedings.
The judgment of the Court was delivered by Justice Dipak Misra, with whom Justice Prafulla C. Pant agreed. The judgment begins by analyzing the meaning of the terms ‘defamation’ and ‘reputation’, and the interaction of these terms with right of the freedom of speech and expression. Reviewing various authorities, the Court found that the term was clear and unambiguous. The Court also found that the concept of ‘reputation’ was included in the protection of ‘dignity’, which was part of the constitutionally protected right to life. The Court also recognized the sanctity and significance of the right to freedom of speech and expression in a democracy, but pointed out that it is subject to reasonable restrictions. Such restrictions should serve the public interest and should not be excessive. Legislation by which restrictions are enacted should not invade the rights and should not be arbitrary. The balance to be achieved should weigh the importance to society of freedom of speech against the societal importance to the public interest sought to be protected.
The Court observed that the State had chosen the criminal law as one of the avenues through which to protect reputation. Noting that reputation is protected under Article 21 of the Indian Constitution, which protects life and liberty, the Court found that it was difficult to subscribe to the view that criminal defamation has an undue chilling effect on the right to freedom of speech and expression. The Court emphasized that the law on criminal defamation is clear and thus distinguished other cases in which it had struck down legislation as infringing freedom of speech, such as Singhal v. Union of India and Rangarajan.
The Court went on to emphasize the importance of the concepts of constitutional fraternity and fundamental duty, under which every citizen is expected to respect the dignity of the other. Noting that this is a constitutional duty, the Court held that it could not conclude that the existence of criminal defamation is obnoxious to freedom of speech and expression.
Furthermore, the Court addressed the question whether the criminal defamation provisions violate the concept of ‘reasonableness’, either substantively or proceduraly, examining whether it is vague, or arbitrary or disproportionate. Examining the four explanations included in the Penal Code provision on defamation, the Court concludes that these were neither vague nor ambiguous. The Court takes note that an imputation can only be treated as defamatory if it directly or indirectly, in the estimation of others, lowers a person’s character or his credit. The Court took note that truth is a defense only when a statement also serves the public good, but opines that if a truthful statement is not made for any kind of public good but only to malign a person, this should not be constitutionally protected.
Finally, the Court holds that the penal code provision is not disproportionate. The reasonableness and proportionality of a restriction is examined from the stand point of the interest of the general public, and not from the point of view of the person upon whom the restrictions are imposed. Applying this standard, the Court judged the criminal defamation laws to be proportionate. The Court rejected the contention that defamation is fundamentally a notion of the majority meant to cripple the freedom of speech and expression as too broad a proposition to be treated as a guiding principle to adjudge the reasonableness of a restriction.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The judgment upholds the constitutionality of the offense of criminal defamation, stating that it constitutes a reasonable restriction on the right to freedom of expression. This goes against recommendations made by international watchdogs such as the United Nations Special Rapporteur on Freedom of Opinion and Expression which have advised states to abolish criminal defamation laws and replace them with adequate civil laws, on the grounds that the criminal offense of defamation constitutes a disproportionate restriction.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Article 21 of the Constitution of India
Sections 499 & 500 IPC
Sections 199(1) to 199(4) CrPC
1. New York Times v. Sullivan 29 LED 2d 822 (1971)
2. Scott v. Sampson (1882) QBD 491
3. Parmiter v. Coupland (1840) 6 MLW 105
4. Myroft v. Sleight (1921) 37 TLR 646
5. Plato Films Ltd. v. Spiedel (1961) 1 All. E.R. 876
6. Reynolds v. Times Newspapers Ltd  2 AC 127 at 201
7. Campbell v. MGN Ltd (2004) UKHL 22 at para 55
8. Wisconsin v. Constantineau (2004) UKHL 22 at para 55
9. Rosenblatt v. Baer 383 U.S. 75 (1966)
10. Hill v. Church of Scientology of Toronto  2 SCR 1130
11. Khumalo v. Holomisa 2002 (5) SA 401
12. Lindon v. France (2008) 46 E.H.R.R. 35
13. Karakó v. Hungary (2011) 52 E.H.R.R. 36
14. Axel Springer AG v. Germany (2012) 55 E.H.R.R. 6
15. Yates v. U.S (1958) 354 US 298 (344)
16. Stromberg v. California (1931) 283 US 359 (369)
17. Palko v. Connecticut (1937) 302 US 319
18. Abrams v. United States 250 US 616 :63 L Ed 1173 (1919)
19. Whitney v. California 71 L Ed 1095 : 274 US 357 (1927)
Salmond & Heuston on the Law of Torts, 20th Edn.
Halsburys Laws of England, Fourth Edition, Vol. 28
Chambers Twentieth Century Dictionary [Gatley’s Libel and Slander, 6th edition, 1960 also Odger’s Libel and Slander 6th Ed. 1929]
Winfield & Jolowics on Torts (17th Edn. 2006)
“The Law of Defamation” [Richard O’ Sullivan, QC and Roland Brown]
Carter Ruck on Libel and Slander
Case significance refers to how influential the case is and how its significance changes over time.
The Supreme Court’s decision is binding on all courts within the territory of India.
Decisions of the Supreme Court of India are regarded as authoritative in other common law jurisdictions.
The case has been viewed as a huge set back to free speech rights in India. India has witnessed a growing concern regarding suppression of right to freedom of speech and expression in the recent years. For example, the Central Board of Film Certification was severely criticized, on social media and on other public forums, for demanding 89 cuts from a film ‘Udta Punjab’.
Let us know if you notice errors or if the case analysis needs revision.