Congress vice-president Rahul Gandhi, Delhi Chief Minister Arvind Kejriwal and BJP MP Subramanian Swamy will have to face trial in separate defamation cases as the Supreme Court on Friday dismissed their petitions.
The trio and several others had challenged the legal validity of the offence of defamation under Sections 499 and 500 of the Indian Penal Code, asserting it violated their fundamental right to freedom of speech and expression.
Rahul Gandhi is facing defamation charges for saying in an election rally that the RSS was behind the killing of Mahatma Gandhi. Kejriwal is facing criminal defamation for allegedly using derogatory terms against Transport Minister Nitin Gadkari, and Swamy is facing similar case in Tamil Nadu.
The apex court was asked to settle the debate over the tussle between two Constitutional provisions — right to free speech under Article 19(1)(a) and right to live with dignity under Article 21.
This is the first authoritative pronouncement on the validity of defamation defined under IPC Section 499 made punishable with a maximum jail term of two years under Section 500. Hearing the best of legal minds in the country on various aspects of the issue, the Bench of Justices Dipak Misra and Prafulla C Pant concluded that the freedom of speech is not absolute and could be restricted when it involves harm to somebody’s reputation.
The Bench gave eight weeks to all petitioners facing defamation proceedings to approach the High Courts for setting aside the summons issued by the magistrate. The defamation proceedings will remain stayed during this period.
The Bench observed, “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.”
Tracing the origin of the colonial law on defamation, the Bench noted the Centre’s submissions stating that the object of defamation, civil or criminal, is not to suppress dissent or criticism but to protect the reputation and dignity of an individual against scurrilous attacks.
Attorney General Mukul Rohatgi, along with ASG PS Narasimha, submitted that Article 19(1)(a) was meant to advance public debate and discourse and not to make speech laden with “harmful intent” and a “reckless disregard” of one’s reputation.
Agreeing with this view, Justice Misra, writing the judgment for the Bench said,
“Dignity of a person is an affirmation of his/her constitutional identity and the individual reputation is constitutionally protected as a normative value of dignity. laws relating to initiation of civil as well as criminal action are, therefore, permissible and withstand assail on their constitutionality.” In coming to this conclusion, the Bench was assisted by two eminent lawyers K Parasaran and TR Andhyarujina, both appointed amicus curiae in the matter.
The Court held reputation as an integral part of Article 21. It held, “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.”
Some other petitioners include TV journalist RaJdeep Sardesai, well-known editor from Tamil Nadu, Nakheeran Gopal and Foundation for media professionals.