SUBRAMANIAN SWAMY versus UNION OF INDIA, MINISTRY OF LAW & ORS.
[2016] 3 S.C.R. 865, Supreme Court of India, 2016
Outcome: Disposed off
Segment: Ratio
[2016) 3 S.C.R. 865 
SUBRAMANIAN SWAMY 
v. 
UNION OF INDIA, MINISTRY OF LAW & ORS. 
(Writ Petition (Crl.) No. 184 of2014) 
MAY 13,2016 
[DIPAK MISRA AND PRAFULLA C.-PANT, JJ.] 
PENAL CODE, 1860: 
ss.499, 500 -
Constitutional validity of -
Held: ls 
constitutionally valid - The Preamble balances different and 
divergent rights - Keeping in view the constitutional value, the 
legislature has not repealed s.499 and kept the same alive as a 
criminal offence - It is not correct to hold that the existence of 
criminal defamation is absolutely obnoxious to freedom of speech 
and expression - It neither invites the frown of any of the Articles 
of the Constitution nor its very existence can be regarded as an 
unreasonable restriction - Code of Criminal Procedure, 1973 -
ss.199(1) to 199(4). 
ss.499, 500 - Criminal defamation which is in existence in 
the form of ss.499 and 500 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 -
Thus, it cannot be said 
that provisions relating to criminal defamation are not saved by 
doctrine of proportionality because it determines a limit which is 
not impermissible within the criterion of reasonable restriction. 
CONSTITUTION OF INDIA: 
Art.14 - Reasonable restriction - To treat a restriction 
constitutionally
permissible, it is necessary to scrutinize whether 
the restriction or imposition of limitation is excessive or not - 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 
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SUPREME COURT REPORTS 
[2016] 3 S.C.R. 
should not be arbitrary or of an excessive nature beyond what is 
required in the interest of the public -
Reasonableness is judged 
with reference to the Qbjective which the legislation seeks to achieve, 
and must not be in excess of that objective - Further, the 
reasonableness is examined in an objective manner from ihe 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 or 
abstract considerations. 
Art.19(2) - Interpretation of term 'defamation' -
Held: The 
term 'defamation' as used in Art.19(2) not to be construed narrowly 
- The word "defamation" as used in Article 19(2) has to be conferred 
an independent meaning, for it is incomprehensible to reason that 
it should be read with the other words and expressions, namely, 
"security of the State", 'friendly relations with foreign States", 
"public order, decency or morality". 
' 
Art.21 - Right to reputation, an essential component of Art.21 
- Held: It is an individuals fundamental right and, therefore, 
balancilig of fundamental right is imperative - In the name of freedom 
of speech and expression, the right of another cannot be jeopardized 
Reputation being aninherent component of Art. 21, it should 
not be allowed to be sullied solely because another individual can 
have its freedom - Reputation of one cannot be allowed to be 
crucified at the altar of others
right of free speech. 
Art.51-A (e) - Concept of fraternftY - Held: The c011cept of 
fraternity under the Constitution expects every citizen to respect 
the dignity of the other - Mutual respect is the jitlcrum of fraternity 
that assures dignity - It would not mean that there cannot be dissent 
or difference or discordance or a different voice - One has a right 
to freedom of speech and expression - One is also obliged under 
the Constitution to promote the idea of fraternity - It is a 
constitutional obligation - In the context of constitutional fraternity, 
fundamental duties engrafted under Art. 51-A gain significance -
The prismatic perception of sub-article (e) of Art. 51-A would reflect 
that it is. the duty of every citizen of India to promote· harmony and 
the concept of colllmon brotherhood alllongst all the people despite 
lllany diversities -It is also.the duty of every citizen !&strive towards 
excellence in all spheres of individual and collective activity. 
..
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
LAW & ORS. 
Code of Criminal Procedure, 1973: s.199 - Public servants 
whether amount to different class to enable them to file a case through 
public prosecutor in the Court of Session - Held: A publ'ic servant 
is entitled to file a complaint through public prosecutor in respect 
of his conduct in discharge of public functions - The provision 
gives them protection for their official acts - There cannot be 
defamatory attacks on them because of discharge of their due 
functions - In that sense, they constitute a different class. 
Doctrines/Principles: Principle of Noscitur a soccis -
Applicability of - Held: lt is only when and where the intention of 
the legislature in associating wider words with words of narrowest 
significance is doubtful or otherwise not clear, that the rule of 
noscitur a soccis is useful. 
Disposing of the writ petition, the Court 
HELD: 1.1 Noscitur <1 soccis is merely a rule of construction 
and cannot prevail where it is clear that wider and diverse 
etymology is intentionally and deliberately used in the provision. 
The term "defamation" as used is absolutely clear and 
unambiguous. 
The said term was there at the time of 
commencement of the Constitution. If the word "defamation" is 
associated or is interpreted to take colour from the terms 
"incitement to an offence'', it would unnecessarily make it a 
restricted one which even the founding fathers did not intend to 
do. K_eeping in view the
aid that one m_ay take from the 
Constituent Assembly Debates and regard being had to the clarity 
of expression, there is no warrant to apply the pri_!lciple of 11oscitur 
a sociis to give a restricted meaning to the term "defamation" 
that it only includes a criminal action if it gives rise to incitement 
to constitute an offence. The word "incitement" bas to be 
understood in the context of freedom of speech and expression 
.and reasonable restriction. The word "incitement" in criminal 
jurisprudence has a different meaning. It is difficult to accede to 
the submission that defamation can only get criminality ifit incites 
to make an offence. The word "defamation" has its own 
independent identity and it stands alone and the law relating to 
defamation has to be understood as it stood at the time when the 
Constitution came into force. [Parns 70, 71) [946-D, E-H; 947-A-
B) 
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[2016] 3 S.C.R. 
1.2 The word "defamation" as used in Article 19(2) has to 
be conferred an independent meaning, for it is incomprehensible 
to reason that it should be read with the other words and 
expressions, namely, "security of the State", "friendly relations 
with foreign States", "public order, decency or morality". 
Defamation has been regarded as a crime in the IPC which is a 
pre-constitutional law. Individuals constitute the collective. Law 
is enacted to protect the societal interest. The law relating to 
defamation protects the reputation of each individual in the 
perception of the public at large. 
Protection of individual right 
is imperative for social stability in a body polity and that is why 
the State makes laws relating to crimes. A crime affects the 
society. It causes harm and creates a dent in social harmony. 
There is a link and connection between individual rights and the 
society; and this connection gives rise to community interest at 
large. 
Therefore, when harm is caused to an individual, the 
society as a whole is affected and the danger is perceived. [Para 
75] (948-G-H; 949-A-E] 
1.3 The concept of crime is essentially concerned with social 
order. It is well known that man's interests arc best protected as 
a member of the community. Everyone owes certain duties to his 
fellow-men and at the same time has certain rights and privileges 
which he expects others to ensure for him.
This.sense of mutual 
respect and trust for the rights of others regulates the conduct of 
the members of sociefy illter-se. Although most people believe in 
the principle of 'live and let live', yet there arc a few who, for 
some reason or the other, deviate from this normal behavioural 
pattern and associate themselves with anti-social elements. This 
obviously imposes an obligation on the State to maintain normalcy 
in the society. This arduous task of protecting the law abiding 
citizens and punishing the law breakers vests with the State which 
performs it through the instrumentality of law. It is for this reason 
that Salmond has defined law as a 'rule of action' regulating the 
conduct of individuals in society. The conducts which are 
prohibited by the law in force at a given time and place arc known 
as wrongful acts or crimes, whereas those which are permissible 
under the law arc treated as lawful. [Para 82) [951-G; 952-A-D] 
..
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
869 
LAW & ORS. 
R. Rajagopal alias R.R. Gopal and another v. State of 
T.N. and others 1994 (4) Suppl. SCR 353 : (1994) 6 
sec 632; N. Ravi and others V. Union of India and 
others (2007) 15 SCC 631; Jacob Mathell' le State of 
Punjab and another 2005 (2) Suppl. SCR 307 : 2005 
(6) SCC 1 ; Shreya Singhal v. Union of India 2015 (5) 
SCR 963 : (2015) 5 SCC 1; Special Reference No. 1 of 
1964 (1965) 1 SCR 413; Bata India Ltd. v. A.M Turaz 
& Ors. 2013 (53) PTC 586; Pandey Surindra Nath 
Sinha v. BaKeshwari Pd .. AIR 1961 Pat. 164; Hill v. 
Church of Scientology of Toronto 1995 2 SCR 1130; 
Board of Trustees of the Port of Bombay v. Dilipkumar 
Raghavendranath Nadkarni and others 1983 (1) SCR 
828 : (1983) 1 SCC 124 ; Kiran Bedi v. Committee of 
Inquiry and another 1989 (1) SCR 20 : (1989) 1 SCC 
494; Gian Kaur v. State of Punjab 1996 (3) SCR 697: 
(1996) 2 SCC 648; Mehmood Nayyar Azam v. State of 
Chhatisgarh and others 2012 (8) SCR 651: (2012) 8 
SCC 1 ; Vishll'anath Agrawal v. Sarai Vishwanath 
Agrawal 2012 (7) SCR 607 : (2012) 7 SCC 288; Umesh 
Kumar v. State of Andhra Pradesh and another 2013 
(14) SCR 213 : (2013) 10 SCC 591; Kishore Samrite v. 
State of Uttar Pradesh and others 2012 (9) SCR 733 : 
(2013) 2 SCC 398; Nilgiris Bar Association v. T.K. 
Mahalingam and another.1991 (6) Suppl. SCR 246 : 
(1998) 1 SCC 550 ; Om Prakash Chautala v. Kanll'ar 
Bhan and others 2014 (1) SCR 939 : (2014) 5 SCC 
417; State of Gujarat and
another v. Hon 'ble High Court 
of Gujarat 1998 (2) Suppl. SCR 31 : (1928) 7 SCC 
392; State of Bihar i: Shailabala Devi AIR 1952 SC 
329 : 1952 SCR 654; Br(j Bhushan v. State of Delhi 
1952 SCR 654 : AIR 1950 SC 129; S.R. Chaudhuri v. 
State of Pw?jab and others 2001 (1) Suppl. SCR 621 : 
. (2001) 7 SCC 126; Special Reference No. 1 of 2002, /11 
re (Gujarat Assembly Election matter) 2002 (3) Suppl. 
SCR 366 : (2002) 8 SCC 237; His Holiness 
Kesavananda Bharati Sripadagalvaru v. State of Kera/a 
and another 1973 (0) Suppl. SCR 1: (1973) 4 SCC 
225; Mano} Nant!a v. Union of India 2014 (9) SCR 
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[2016] 3 S.C.R . 
965 : (2014) 9 SCC 1; Superintendent and 
Remembrancer of Legal Affairs v. Corporation of 
Calcutta AIR 1967 SC 997: 1967 (2) SCR 170; Ganga 
Bai v. Vl}ay Kumar 1974 (3) SCR 882 : (1974) 2 SCC 
393; State of Bombay v. Hospital Mazdoor Sabha AIR 
1960 SC 610 : (1960) 2 SCI{ 866; Bank of India v. 
Vl}ay Transport and nthers 1988 Supp SCC 47 : AIR 
1988 SC 151 : 1988 SCR 96i; R.L. Arora.v. State of 
Uttar Pradesh (1964) 6 SCR 784 : AIR 1964 SC 1230; 
Godfrey Phillips India Ltd. and another v. State of U.P. 
and others 2005 (1) SCR 732 : (2005) 2 SCC 515; 
Ahmedabad Pvt. 
Primary Teachers' Assn. 
v. 
Administrative Officer and others 2004 (1) SCR 470 : 
(2004) 1 SCC 755; K. Bhagirathi G Shenoy and others 
v. K.P. Ballakuraya and another 1999 (2) SCR 438 : 
(1999) 4 SCC 135; Reserve Bank of India v. Peerless 
General Finance and Investment Co. Ltd. and others 
1987 (2) SCR 1 : (1987) 1 SCC 424; State of 
Maharashtra v. Sz!jay Mangesh Poyarekar 2008 (13) 
SCR 750 : (2008) 9 SCC 475; Mohd. Shahabuddin v . 
. Stale of Bihar and others 2010 (3) SCR 911 : (2010) 4 
SCC 653 ; Vinay Devonna Nayak v. Ryot Sewa 
Sahakari Bank Ltd. 2007 (12) SCR 1134 : (2008) 2 
SCC 305; R. Sai Bharathi v. J. Jayalalitha and others 
2003 (6) Suppl. SCR 85 : (2004) 2 SCC 9 ; T.K. Gopal 
alias Gopi v. State of Karnataka 2000 (3) SCR 1640 : 
(2000) 6 SCC 168; Kartar Singh v. State of Punjab 
1994 (2) SCR 375 : (1994) 3 SCC 569 ; Harpreet
Kaur (Mrs) v. State of Maharashtra and another 1992 
(1) SCR 234 : (1992) 2 SCC 177 ; State of Karnataka 
v. Appa Batu Ingale and others 1992 (3) Suppl. SCR 
284 :1995 Supp. (4) SCC 469 ; Vishaka and others v. 
State of Rajasthan and others 1997 (3) Suppl. SCR 404 
: (1997) 6 SCC 241; Manisha Koirala v. Shashi Lal 
Nair & Ors 2003 (2) Born CR 136 - referred to. 
New York Times v. Sullivan 29 LED 2d 822 (1971); 
Parmiter v. Coupland (1840) 6 MLW 105; Myroft v. 
Sleight (1921) 37 TLR 646; Plato Films Ltd. v. Spiedel 
(1961) 1 All. E.R. 876; Reynolds " Times Newspapers
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
LAW & ORS. 
Ltd [20011 2 AC 127 at 201; Campbell v. MGN Ltd 
(2004) UKHL 22; Wisconsin " Constantineau 400 U.S. 
433 (1971) ; Rosenblatt v. Baer 383 U.S. 75 (1966); 
Khumalo v. Holomisa (2002] ZACC 12; 2002 (5) SA 
401; Lindon v. France (2008) 46 E.H.R.R. 35; Chauvy 
and Others v. France (2005) 41 EHRR 29; Abeberry v. 
France and White v. Sweden (2007) EMLR I; Karak6 
v. Hungary (2011) 52 E.H.R.R. 36; Axel Springer AG 
, v. Germany (2012) 55 E.H.R.R. 6; D.F. Marion 1' Davis 
55 ALR 171; Scoff v. Sampson (1882) QBD 491 -
referred to. 
State of West Bengal v. Subodh Gopal Bose and others 
AIR 1954 SC 92 : 1954 SCR 587 - distinguished. 
Salmond & Heuston on the Law of Torts, 20th Edn.; Winfield 
& Jolowics on Torts (17'" Edn. 2006); 
.. The Law of Defamation" 
Richard O'Sullivan, QC and Roland Brown; Carter- Ruck on Libel 
and Slander -
referred to. 
2. The right of freedom of expression in a poem, play or a 
novel pertaining to fictional characters stand on a different footing 
than defamation as the latter directly concerns the living or the 
legal heirs of the dead and most importantly, having a known 
identity. A person in reality is defamed contrary to a "fictional 
character" being spoken of by another character or through any 
other mode of narrative. Liberty of freedom in that sphere is 
fundamentally different than the arena of defamation. Therefore, 
the decisions rendered in tlie said context are to be guardedly
studied, appreciated and applied. The freedom in the said sphere 
is not totally without any limit or boundary. What could legally be 
permissible in the arena of fiction may not have that allowance in 
reality. Freedom of speech and expression is a highly treasured 
value under the Constitution and voice of dissent or disagreement 
has to be respected· and regarded and not to be scuttled as 
unpalatable criticism. Notwithstanding, the expansive and 
sweeping and ambit of freedom of speech, as all rights, right to 
freedom of speech and expression is not absolute. It is subject 
to imposition of reasonable restrictions. [Paras 114 and 115] (969- · 
D-H; 970-AJ 
Bennett Coleman & Co. and others v. Union of India 
and others 1973 (2) SCR 757 : (1972) 2 SCC 788; 
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Secretary, Ministry of Information & Broadcasting, 
Govt. of India and others v. Cricket Association of 
Bengal and others 1995 (1) SCR1036 :(1995) 2 SCC 
161; Union of India and others v. Motion Picture 
Association and others 1999 (3) SCR 875 : (1999) 6 
SCC 150; People'.\· Union for Civil Liberties (PUCL) 
and another v. Union of India and another 2003 (2) 
SCR 1136: (2003) 4 SCC 399 ; Union of India l( Naveen 
Jindal and another 2004 (1 ) SCR 1038 _: (2004) 2 
SCC 510 ; Government of Andhra Pradesh and others 
v. P. Laxmi Devi 2008 (3) SCR 330 : (2008) 4 SCC 
720; S. Khushboo v. Kanniammal and another 2010 
(5) SCR 322 : (2010) 5 SCC 600; Ramlila Maidan 
Incident, !11 re 2012 (4) SCR 971 : (2012) 5 SCC 1; 
Sahara India Real Estate Corporation Ltd. and others 
l( Securities and Exchange Board of India and another 
2012 (12) SCR 256 : (2012) 10 SCC 603; State of 
Karnataka and another v. Associated Management of 
English Medium Primary and Secondary Schools and 
others (2014) 9 SCC 485; Devidas Ramachandra 
Tuljapurkar v. State of Mahrashtra and others 2015 
(7) SCR 853 : (2015) 6 SCC I; Odyssey 
Communications Pvt. Ltd. v. Lokvidayan Sanghatana 
and others 1988 (1) Suppl. SCR 486 : (1988) 3 SCC . 
410 - relied on. 
Kameshwar Prasad v. State of Bihar 1962 ·Supp. (3) 
SCR 369 : AIR 1962 SC 1166 ; Indian Express 
Newspapers (Bombay) Private Ltd. and others v. Union 
of India and others 1985 (2) SCR 287 :
(1985) 1 SCC 
641; Ramesh Thappar v. State of Madras 1950 SCR 
594 : AIR 1950 SC 124; Express Newspaper (Primte) 
Ltd. and another v. Union of India and others AIR 1958 
SC 578 : 1959 SCR 12; All India Bank Employees' 
Association v. National Industrial Tribunal (Bank 
Dispute5), Bombay and others (1962) 3 SCR 269 : AIR 
1962 SC 171 - referred to. 
Speiser v. Randall (1958) 257 US 513 (530) ; fotes v. 
US. (1958) 354 US 298 (344) ; Stromberg v. California 
(1931) 283 US 359 (369) ; Palko 1'. Connecticut (1937)
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
873 
LAW & ORS. 
302 US319 ; Abrams v. United States 250 US 616 :63 L 
A 
Ed 1173 (1919) ; Whitney v. California 71 L Ed 1095 
: 274 US 357 (1927) - referred to. 
Sakal Papers (P) Ltd. v. Union of India (1962) 3 SCR 
842 : AIR 1962 SC 305 - held inapplicable. 
3. 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 "impact 
doctrine" or the principle of "inevitable effect" or "inevitable 
· consequence" stands in contradistinction to abuse or misuse of 
a legislation or a statutory provision depending upon the 
circumstances of the case. 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. 
The social interest principle would include the felt needs of the 
society. The right to freedom of speech and expression is a right 
that has to get
ascendance in a democratic body polity, but at the 
same· time the limit has to be proportionate and not unlimited. 
(Para 125) (973-G; 974-A-E) 
S. Rangarajan v. P. Jagjivan Ram and others 1989 (2)' 
SCR 204 :1989 (2) SCC 574 ; Ranjit D. Udeshi v. State 
of Maharashtra AIR 1965 SC 881 : (1965) 1 SCR 65; 
Chandrakant Kalyandas Kakodkar v. State of 
Maharashtra 1970 (2) SCR 80 : (1969) 2 SCC 687; 
K.A. Abbas v. Union of India 1971 (2) SCR 446 : (1970) 
2 SCC 780 ; Raj Kapoor v. State 1980 (1) SCR1081 : 
(1980) 1 SCC 43 ; Samaresh Bose v. Amal Mitra 1985 
(3) Suppl. SCR 17 : (1985) 4 SCC 289 ; Directorate 
General of Doordarshan v. Anand Patwardhan 2006 
(5) Suppl. SCR 403 : (2006) 8 SCC .433 ; Ajay Gosll'ami 
v. Union of India 2006 (10) Suppl. SCR 770 : (2007) 1 
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SCC 143; Bobby Art International v. Om Pal Singh Hoon 
1996 (2) Suppl. SCR 136 ; (1996) 4 SCC 1; Aveek 
Sarkar v. State of W.B. (2014) 4 SCC 257; Chintaman 
Rao v. State of MP. AIR 1951 SC 118 : 1950 SCR 
759; State of Madras v. V.G Row AIR 1952 SC 196 : 
1952 SCR 597; Maneka Gandhi v. Union of India and 
another (1978) 1 SCC 248 : AIR 1978 SC 597 : 1978 
(2) SCR 621; R.C. Cooper v. Union of India 1971 (1) 
SCR 512 : (1970) 2 SCC 298; Mis Laxmi Khandsari 
and others v. State of U.P. and others 1981 (3) SCR 92 
: (1981) 2 SCC 600 ; Dwarka Prasad Laxmi Narain v. 
State of U.P. AIR 1954 SC 224 :1954 SCR 803; 
Bishambhar Dayal Chandra Mohan and others v. State 
of Uttar Pradesh and others 1982 (1) SCR1137: (1982) 
1 SCC 39; State of Bihar v. K.K. Misra ( 1969) 3 SCC 
377; Dr. N.B. Khare v. The State ofDelhi (1952] S.C.R. 
597; Papnasam Labour Union v. Madura Coats Ltd. 
and another 1994 (6) Suppl. SCR 369 : (1995) 1 SCC 
501; Francis Coralie Mullin v. Administrator, Union 
Territory of Delhi and others 1981 (2) SCR 516 : (1981) 
1 SCC 608; Chameli Singh and others v. State of U.P. 
and another 1995 (6) Suppl. SCR 827 : (1996) 2 SCC 
549; Siddharam Satlingappa Mhetre v. State of 
Maharashtra 2010 (15 ) SCR 201 : (2011) 1 SCC 694; 
Babu Singh and others v. State of U.P. 1978 (2) SCR 
771 : (1978) 1 SCC 579; Haridas Das v. Usha Rani 
Banik and others 2007 (8) SCR 365 : (2007) 14 SCC 
1; S.P. Mittal v. Union of
India and others (1983) 1 
sec 51 : AIR 1983 SC 1: 1983 (1) SCR 729 ; Charil 
Khurana and others v. Union of India and oJhers 2014 
(12) SCR 259 : (2015) 1 SCC 192 - referred to. 
4. The right to reputation is a constituent of Article 21 of 
the Constitution. It is an individual's fundamental right and, 
therefore, balancing of fundamental right is imperative. In the 
name of freedom of speech and expression, the right of another 
cannot be jeopardized. Reputation being an inherent component 
of Article 21, it should not be allowed to be sullied solely because 
another individual can have its freedom. It is not a r~striction 
that has an inevitable consequence which impairs circulation of
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
LAW & ORS. 
thought and ideas. In faft, 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. Applying the doctrine of 
balancing of fundamental rights, existence of defamation as a 
criminal offence is not beyond the boundary of Article 19(2) of 
the Constitution, especially when the word "defamation" has been 
· used in the Constitution. [Paras 139, 140, 149} [982-C-D; 983-
B-C; 989-B-C] 
. 
Noise Pollution (V), In re 2005 (1) Suppl. SCR 624 : 
(2005) 5 sec 733 - relied on. 
Ramji Lal Modi v. State of U.P. AIR 1957 SC 620 : 
1957 SCR 860 - distinguished .. 
Acharya 
Maharajshri 
Narendra 
Prasadji 
Anandprasadji Maharashtra and others v. The State 
of Gujarat and others 1975 (2) SCR 317 : (1975) 1 
SCC 11; Delhi Transport Corporation v. D. T. C. 
Mazdoor Conl{ress and others 1990 (1) Suppl. SCR 
142 : 1991 Supp (1) SCC 600 ; St. Stephens ColleRe v. 
University of Delhi 1991 (3) Suppl. SCR 121: (1992) 1 
SCC 558 ; Mr X' v. Hospital 'Z' 1998 (1) Suppl. SCR 
723 : (1998) 8 SCC 296 ; Post Graduate Institute of 
Medical Education & Research, Chandigarh v. Faculty 
"Association and
others 1998 (2) SCR 8~5 : (1998) 4 
SCC 1; Ram Jethmalani and others v. Union of India 
and others 2011 (8) SCR 725: (2011) 8 SCC 1; Mohd. 
Arif alias Ashfaq v. Registrar, Supreme Court of India 
and others 2014 (11) SCR 1009 : (2014) 9 SCC 737 -
ref~rred to. 
--- ---- ---. =··-.,;!\..--
American Communications Assn. v. Douds 94 L Ed 925 
: 339 US 382 (1950) - referred to. 
5.1 Permissibility of criminal defamation can be tested on 
the touchstone of constitutional fraternity and fundamental duty. 
The term "fraternity" has a significant place in the history of 
constitutional law. The Preamble states that it is a cons.titutional 
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duty to promote fraternity assuring the dignity of the individual. 
Fraternity as a concept is characteristically different from the other 
constitutional goals. It is a constitutional value which is. to be 
cultivated by the people themselves as a part of their social 
behavior. There are two schools of thought; one canvassing 
individual liberalization and the other advocating for protection 
of an individual as a member of the collective. The individual 
should have all the rights under the Constitution but 
simultaneously he has the responsibility to live upto the 
constitutional values like essential brotherhood - the fraternity 
- that strengthens the societal interest. Fraternity means 
brotherhood and common interest. Right to censure and criticize 
does not conflict with the constitutional objective to promote 
fraternity. Brotherliness does not abrogate and rescind the 
concept of criticism. In fact, brothers can and should be critical. 
Fault finding and disagreement is required even when it leads to 
an individual disquiet or group disquietude. [Paras 150, 151, 
154, 155) (989-C-F; 990-D, F-G) 
5.2 The concept of fraternity under the Constitution expects 
every citizen to respect the dignity of the other. Mutual respect 
is the fulcrum of fraternity that assures dignity. It docs not mean 
that there cannot be dissent or difference or discordance or a 
different voice. It does not convey that all
should join the chorus 
or sing the same song. One has a right to freedom of speech and 
expression. One is also required to maintain the constitutional 
value which is embedded in the idea of fraternity that assures the 
dignity of the individual. One is obliged under the Constitution 
to promote the idea of fratern!ty. It is a constitutional obligation. 
In the context of constitutional fratcmity, fundamental duties 
engrafted under Article 51-A of the Constitution gain significance. 
The prismatic perception of sub-article (e) of Article 51-A would 
reflect that it is the duty of eY.ery citizen of India to promote 
harmony and the concept of common brotherhood amongst all 
the people despite many diversities. It is also the duty of every 
citizen to strive towai·ds excellence in all spheres of individual 
and collective acti¥ity. [Paras 158, 159, 160) [992-B-D, F) 
5.3. ·The individual interest of each individual -serves the 
collective interest and correspondingly the collective interest 
H · enhances the individual excellence. Action against the State is
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
LAW & ORS. 
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. It is difficult to 
hold 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. [Para 163] [993-H; 994-A-C] 
Indra Sawhney and ors. v. Union of India and ors. AIR 
1993 SC 477 : 1992 (2) Suppl. SCR 454; 1992 Supp. 
(3) SCC 217; AIIMS Students' Union v. A/IMS and 
others 2001 (2) Suppl. SCR 79 : (2002) 1 SCC 428; 
Raghunathrao Ganpatrao v. Union of India 1993 (1) 
SCR 480 : 1994 Supp. (1) SCC 191; PA. 111a111dar and 
others v. State of Maharashtra and others 2005 (2) 
Suppl. SCR 603 : (2005) 6 SCC 537 ; Jeffrey J. 
Diermeier and anr. v. State of West BenRal and am: 2010 
(7) SCR 128 : (2010) .6 SCC 243 - referred to. 
6.1. To constitute the offence of defamation, there has to 
be imputation and it must have made in the manner as provided 
in the provision with the
intention of causing harm or having 
reason to believe that such imputation will harm the reputation 
of the person about whom it is made. Causing harm to the 
reputation of a person is the basis on which the offence is founded 
and mens rea is a condition precedent to constitute the said offence. 
The complainant has to show that the accused had intended or 
known or had reason to believe,i.hat the imputation made by him 
would harm the reputation of the complainant. The criminal offence 
emphasizes on the intention or harm. Section 44 of IPC defines 
"injury". It denotes any harm whatever ille-gally caused to any 
person, in body, mind, reputation or proper-ty. Thus, the word 
"injury" encapsulates harm caused to the reputation of any person. 
It also takes into account the harm caused to a person's body 
and mind. [Para 165] [994-E-G] 
877 
A 
B 
c 
D 
E 
F 
G 
H
878 
SUPREME COURT REPORTS 
[2016] 3 S.C.R. 
A 
State of Jammu and Kashmir v. Triloki Nath Khosa and 
others 1974 (l)SCR 771 : (1974) 1 SCC 19 - referred 
to. 
B 
c 
D 
E 
F 
G 
H 
6.2. Section 499 provides for harm caused to the reputation 
of a person, that is, the complainant. There are four Explanations 
to the main provision and an Explanation has been appended to 
the Fourth Exception. Explanation 4 needs to be explained first. 
It is because the said Explanation provides the expanse and the 
inherent control wherein what imputation has been regarded as 
harm to a person's reputation and that an imputation can only be 
treated as harm of a person's reputation if it directly or indirectly, 
in the estimation of others, lowers the mora• or intellectual 
character of that person, or lowers the character of that person 
in respect of his caste or of his calling, or lowers the credit of that 
person, or causes it to be believed that the body of that person is 
in a loathsome state, or in a state generally considered as 
disgraceful. Explanation 1 stipulates that an imputation would 
amount to defamation if it is done to a deceased person if the 
imputation would harm the reputation of that person ifhe is living 
and is intended to be harmful to the feelings of his family or other 
near relatives. [Paras 165, 166, 167] [994-G-H; 995-C-E, G-H] · 
Melepurath Sankuni Ezhuthassan v. 
Thekittil 
Phytoplankton Nair 1985 (3) Suppl. SCR 805: (1986) 
1 SCC 118 ; M Veerappa v. Evelyn
Sequeira and others 
1988 (2) SCR 606 : (1988) 1 SCC 556 - referred to. 
6.3 The prosecution, as envisaged in Explanation 1, lays 
two postulates, that is, (i) the imputation to a deceased person is 
of such a nature that would have harmed the reputation of that 
person if he was living and (ii) the said imputation must be 
intended to be hurtful to the feelings of the family or other near 
relatives. Unless the twin tests a'f satisfied, the complaint would. 
not be entertained under Section 199 of CrPC. The said 
Explanation protects the reputation of the family or relatives. 
The entitlement to damages for personal injury is in a different 
sphere whereas a criminal complaint to be filed by the family 
members or other relatives under twin tests being satisfied is in 
a distinct compartment. It is more rigorous. The principle of 
grant of compensation and the principle of protection of reputation
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
LAW & ORS. 
of family or near relative cannot be equated. Explanation 2 deals 
with imputation concerning a company or an association or 
collection of persons as such. Explanation 3 says that an 
imputation in the form of l\n alternative or expressed ironically 
may amount to defamation. Section 11 of IPC defines "person" 
to mean a company or an association or collection of persons as 
such or body of persons, .whether incorporated or not. 
The 
inclusive nature of the definition indicates that juridical persons 
can come within its ambit. 
[Paras 169, 170] [997-G; 998-A-D] 
Sahib Singh Mehra v. State of Uttar Pradesh AIR 1965 
SC 1451 : 1965 (2) SCR 823; G. Narasimhan, G. 
Asterisk and K. Gopalan v. T. V. Chokkappa 1973 (2) 
SCR 40 : (1972) 2 SCC 680 ; Aneeta Hada v. Godfather 
Travels & Tours (P) Ltd 2012 (5) SCR 503 : (2012) 5 
sec 661 - referred to. 
6.4 The First Exception stipulates that it is not defamation 
879 
A 
B 
c 
to impute anything which is true concerning any person, if it be . D 
for the public good that the imputation should be made or 
published. "Public good" has to be treated to be a fact. Fifth 
Exception stipulates that it is not defamation to express in good 
faith any opinion whatever respecting the merits of any case, civil 
or criminal which has been decided by a Court of Justice, or 
respecting the conduct of any person as a party, witness or agent. 
The further stipulation is that the said
opinion must .relate to the 
character of said person, as far as his 'character appears in that 
conduct. neither the main provision nor the Explanation nor the 
Exceptions remotely indicate any vagueness. 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. [Paras 173, 180, 183, 184] (999-H; 1000-A; 1003-
C-D; 1005-D, G~H; 1006-A] 
' 
Harakchand Ratanchand Banthia & others v Union of 
India and others 1970 (1) SCR 479 : (1969) 2 SCC 
166 - distinguished. 
Chaman Lal v. State of Punjab 1970 (3) SCR 913 : 
E 
F 
G 
(1970) 1 SCC 590; Arundhati Roy, In re 2002 (2) SCR 
H
880 
A 
B 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
[2016] 3 S.C.R. 
213 : (2002) 3 SCC 343; Harbhajan Singh v. State of 
Punjab and another AIR 1966 SC 97 : 1965 SCR 
235; Sukra Mahto v. Basdeo Kumar Mahto and another 
1971 (0) Suppl. SCR 329 :1971 (1) SCC 885 ; Jatish 
Chandra Ghosh v. Hari Sadhan Mukherjee (1961) 3 
SCR 486; Kanll'al Lal v State of Punjab 1963 Supp (1) 
SCR 479; MC. Verghese v. T.J. Poonan 1969 (2) SCR 
692 : (1969) 1 SCC 37 ; Rajendra Kumar Sitaram Pande 
v. Uttam 1999 (1) SCR 580 : (1999) 3 sec 134; 
Sewakram Sobhani v. R.K. Karanjia 1981 (3) SCR 627 
: (1981) 3 SCC 208; Om Kumar v. Union of India 2000 
(4) Suppl. SCR 693 : (2001) 2 SCC 386; Modern Dental 
College & Research Centre and others v. State of 
Madhya Pradesh and others 2016 (4) SCALE 478 -
referred to. 
6.5 The law imposing restriction is proportional ifit 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. Reasonableness is judged with reference to the 
ob,jective which the legislation seeks to achieve, and must not 
be in excess of that objective. Further, the reasonableness is 
examined in an objective manner form the stand point of the 
interest of the general public and not from the point of view of 
the person upon whom the restrictions arc imposed or
abstract 
considerations. The 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. Thus, it cannot be said that provisions 
relating to criminal defamation are not saved by doctrine of 
proportionality because it determines a limit which is not 
impermissible within the criterion of reasonable restriction. [Paras 
185, 186] (1006-F-G; 1007-A; 1008-B-C)
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
LAW & ORS. 
. 
P.P. Enterprises v. Union of India 1982 (3) SCR 510 : 
(1982) 2 SCC 33; Mohd Hanif Quareshi. V. State of 
Bihar AIR 1958 SC 731:1959 SCR 629 ; MRF Ltd. v. 
Inspector, Kera/a Govt. 1998 (2) Suppl. SCR 632 : 
(1998) 8 sec 227 ; D.C. Saxena (Dr) V. Hon 'ble The 
Chief Justice of India 1996 (3) Suppl. SCR 677 : (1996) 
5 sec 216 - relied on. 
6.6 A public servant is entitled to file a complaint through 
public prosecutor in respect of his conduct in discharge of public 
functions. Public function stands on a different footing than the 
private activities of a public servant. The provision gives them 
protection for their official acts. There cannot be defamatory 
attacks on them because of discharge of their due functions. In 
that sense, they constitute a different class. .However, criticism 
is different than defamation. One is bound to tolerate criticism, 
dissent and discordance but not expected to tolerate defamatory 
attack. Sub-section (6) gives to a public servant what every citizen 
has as he cannot be deprived of a right of a citizen. There can be 
cases where sanction may not be given by the State Government 
in favour of a public servant to protect his right and, in that event, 
he can file a case before the Magistrate. The provision relating 
to engagement of public prosecutor in defamation cases in respect 
of the said authorities is seriously criticized on the ground that it 
allows unnecessary room
to the authorities mentioned therein 
and the public servants to utilize the Public Prosecutor to espouse 
their cause for vengeance. Once it is held that the public servants 
constitute a different class in respect of the conduct pertaining 
to their discharge of duties and functions, the engagement of Public 
Prosecutor cannot be found fault with. It is ordinarily expected 
that the Public Prosecutor has a duty to scan the materials on the 
basis of which a complaint for defamation is to be filed. He has a 
duty towards the Court. When sufficient protection is given and 
the right to appeal to the High Court is not curtailed as the CrPC 
protects it, the submission does not really commend acceptation. 
In view thereof the said, there is no justification to declare the 
provisions ultra vires. [Paras 192,193)[1013-E-H;1014-A-B,E-Fj 
John Thomas v. Dr. K. Jaf{adeesan 2001 ( 3 ) SCR 934 
: (2001) 6 SCC 30; MS. Jayaraj v. Co111m1: of Excise 
(2000) 7 SCC 552; Special Courts Bill, 1978, /11 re 1979 
881 
A 
B 
c 
D 
E 
F 
G 
H
882 
A 
B 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
[2016] 3 S.C.R. 
(2) SCR 476 : (1979) 1 SCC 380 ; Yogendra Kumar 
Jaiswal & others v. State of Bihar and others (2016) 3 
SCC 183 ; Ram KPishna Da/111ia v. S.R. Tendolkar AIR 
1958 SC 538: 1959 SCR 279 ; Satyall'ati Sharma v. 
Union of India 2008 (6) SCR 566 : (2008) 5 SCC 287 
; Rehman Shagoo v. State of J&K AIR 1960 SC 1: 
1960 SCR 680; C.I. Emden v. State of U.P. AIR 1960 
SC 548: 1960 SCR 592 ; Baira111 Muralidhar v. State 
of Chandra Pradesh 2014 (8) SCR 328 : (2014) 10 
sec 380 - referred to. 
7. Section 199 CrPC envisages filing of a complaint in court. 
In case of criminal defamation neither any FIR can be filed nor 
can any direction be issued under Section· 156(3) CrPC. The 
offence has its own gravity and hence, the responsibility of the 
Magistrate is more. In a way, it is immense at the time of issue of 
process. Issue of process, as has been held in Rajindra Nath 
Mahato is a matter of judicial determination and before issuing a 
process, the Magistrate has to examine the complainant. In 
matters of criminal defamation the heavy burden is on the 
Magistracy 'to scrutinise the. complaint from all aspects. The 
Magistrate has also to keep in view the language employed in 
Section 202 CrPC which stipulates about the resident of the 
accused at a place beyond the area in which the Magistrate 
exercises his jurisdiction. He must be satisfied that ingredients 
of Section 499 CrPC are satisfied. Application of mind
in the 
case of complaint is imperative. It is settled position of law that 
those who plead Exception must prove it. It has been laid down 
in M.A. Rumugam that for the purpose of bringing any case within 
the purview of the Eighth and the Ninth Exceptions appended to 
Section 499 IPC, it would be necessary for the person who pleads 
the Exception to prove it. He has to prove good faith for the 
purpose of protection of the interests of the person making it or 
any other person or for the public good. The said proposition 
would definitely apply to any Exception who wants to have the 
benefit of the same. Therefore, the argument that. if the said 
Exception should be taken into consideration at the time of the 
issuing summons it would be contrary to established criminal 
jurisprudef!ce and, therefore, the stand that it cannot be taken 
into consideration makes the provision unreasonable, is absolutely
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
883 
LAW & ORS. 
an unsustainable one and in a way, a mercurial one. (Paras 196, 
A 
197, 198] 1015-H; 1016-A-B, F-G; 1017-A-C] 
Rajindra Nath Mahato v. T. Ganguly, Dy. Superintendent 
and another 1972 (2) SCR 671 : (1972) 1 SCC 450; 
Punjab National Bank and others v. Surendra Prasad 
Sinha 1992 (2) SCR 528 :1993 Supp. (1) SCC 499; 
B 
Pepsi Foods Ltd. and another v. Special Judicial 
Magistrate and others 1997 (5) Suppl. SCR 12 : (1998) 
5 SCC 749; MA. Rumugam v. Kittu 2008 (15 ) SCR 
642 : (2009) 1 sec 101 - relied on. 
Case Law Reference 
c 
1994 (4) Suppl. SCR 353 
referred to 
Para2 
(2007) 15 sec 631 
referred to 
Para3 
2005 (2) Suppl. SCR 307 
referred to 
Para 13 
2015 (5) SCR 963 
referred to 
Para 16 
D 
(1965) 1 SCR 413 
referred to 
Para 18 
AIR 1961 Pat. 164 
referred to 
Para 21 
2003 (2) Born CR 136 
referred to 
Para 21 
1995 2 SCR 1130 
referred to 
Para39 
E 
1983 (1) SCR 828 
referred to 
Para 45 
1989 (1) SCR 20 
referred to 
Para 46 
1996 (3) SCR 697 
referred to 
Para 47 
2012 (8) SCR 651 
referred to 
Para 47 
F 
2012 (7) SCR 607 
referred to 
Para 48 
2013 (14) SCR 213 
referred· to 
Para 48 
2012 (9) SCR 733 
referred to 
Para 49 
G 
1997 (6) Suppl. SCR 246 
referred to 
Para 49 
2014 (1) SCR 939 
referred to 
Para 50 
1998 (2) Suppl. SCR 31 
referred to 
Para 51 
1952 SCR 654 
referred to 
Para 60 
H
884 
SUPREME COURT REPORTS 
[2016] 3 S.C.R. 
A 
1952 SCR 654 
referred to 
Para 60 
2001 (1) Suppl. SCR 621 
referred to 
Para 61 
2002 (3) Suppl. SCR 366 
referred to 
Para 61 
1973 (0) Suppl. SCR 1 
referred to 
Para 61 
B 
2014 (9) SCR 965 
referred to 
Para 62 
.1?67 (2) SCR 170 
referred to 
Para 64 
.1?74 (3) SCR 882 
referred to 
Para 65 
(1960) 2 SCR 866 
referred to 
Para 67 
c 
1988 SCR 961 
referred to· 
Para 68 
(1964) 6 SCR 784 
referred to 
Para 68 
2005 (1) SCR 732 
referred to 
Para 69 
2004 (1) SCR 470 
referred to 
Para 70 
D 
1999 (2) SCR 438 
referred to 
Para 73 
1987 (2) SCR 1 
referred to 
Para 73 
2008 (13) SCR 750 
referred to 
Para 84 
E 
.2!110 (3) SCR 911 
referred to 
Para 84 
2007 (12) SCR 1134 
referred to 
Para 84 
2003 (6) Suppl. SCR 85 
referred to 
Para 85 
2000 (3) SCR 1040 
referred to 
Para 86 
F 
1?94 (2) SCR 375 
referred to 
Para 86 
1 ?92 (1) SCR 234 
referred to 
Para 87 
1992 (3) Suppl. SCR 284 
referred to 
Para 87 
1997 (3) Suppl. SCR 404 
referred to 
Para 88 
G 
1954 SCR 587 
distinguished Para 90 
1962 Supp. (3) SCR 369 
referred to 
Para 95 
1?85 (2) SCR 287 
referred to 
Para 95 
1950 SCR 594 
referred to 
Para 96 
H 
1959 SCR 12 
referred to 
Para 97
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
885 
LAW & ORS. 
(1962) 3 SCR 269 
referred to 
Para 98 
A 
(1962) 3 SCR 842 
held inapplicable Para 99 
1973 (2) SCR 757 
relied on 
Para 100 
1995 (1) SCR 1036 
relied on 
Para 104 
1999 (3) SCR 875 
relied on 
Para 105 
13 
2003 (2) SCR 1136 
relied on 
Para 105 
2004 (1) SCR 1038 
relied on 
Para 106 
2008 (3) SCR 330 
relied on 
Para 106 
2010 (5) SCR 322 
relied on 
Para 106 
c 
2012 (4) SCR 971 
relied on 
Para 107 
2012 (12) SCR 256 
relied on 
Para 108 
(2014) 9 sec 485 
relied on 
Para 109 
2015 (7) SCR 853 
relied on 
Para 111 
D 
1988 (1) Suppl. SCR 486 
relied on 
Para 112 
1989 (2) SCR 204 
referred to 
Para 112 
(1965) 1 SCR 65 
referred to 
Para 113 
E 
1970 (2) SCR 80 
referred to 
Para 113 
1971 (2) SCR 446 
referred to 
Para 113 
1980 (1) SCR 1081 
referred to 
Para 113 
1985 (3) Suppl. SCR 17 
referred to 
Para 113 
F 
2006 (5) Suppl. SCR 403 
referred to 
Para 113 
2006 (IO) Suppl. SCR 770 referred to 
Para 113 
1996 (2) Suppl. SCR 136 referred to 
Para 113 
(2014) 4 sec 257 
referred to 
Para 113 
G 
1950 SCR 759 
referred to 
Para 116 
1952 SCR 597 
referred to 
Para 117 
1978 (2) SCR 621 
referred to 
Para 119 
1971 (1) SCR 512 
referred to 
Para 119 
H
886 
SUPREME COURT REPORTS 
[2016] 3 S.C.R. 
A 
1981 (3) SCR 92 
referred to 
Para 120 
1954 SCR 803 
referred to 
Para 122 
1982 (1) SCR 1137 
referred to 
Para 123 
(1969) 3 sec 377 
referred to 
Para 123 
B 
(1952) S.C.R. 597 
referred to 
Para 123 
1994 (6) Suppl. SCR 369 referred to 
Para 124 
1981 (2 ) SCR 516 
referred to 
Para 126 
1995 (6) Suppl. SCR 827 referred to 
Para 126 
c 
2010 (15 ) SCR 201 
referred to 
Para 126 
1978 ( 2 ) SCR 777 
referred to 
Para 126 
2007 (8) SCR 365 
referred to 
·Para 126 
1983 (1) SCR 729 
referred to 
Para 126 
D 
2014 (12) SCR 259 
referred to 
Para 127 
1975 (2) SCR 317 
referred to 
Para 131 
1990 (1) Suppl. SCR 142 referred to 
Para 131 
E 
1991 (3) Suppl. SCR 121 referred to 
Para 131 
1998 (1) Suppl. SCR 723 referred to 
Para 132 
1998 ( 2) SCR 845 
referred to 
Para 133 
2011 (8) SCR 725 
referred to 
Para 134 
F 
2014 (11) SCR 1009 
referred to 
Para 139 
2005 (1) Suppl. SCR 624 relied on 
Para 131 
1957 SCR 860 
distinguished 
Para 147 
1992 ( 2 ) Suppl. SCR 454 referred to 
Para 155 
G 
2001 (2) Suppl. SCR 79 
referred to 
Para 156 
1993 (1) SCR 480 
referred to 
Para 157 
2005 (2) Suppl. SCR 603 referred to 
Para 161 
2010 (7) SCR 128 
referred to 
Para 165 
'"" 
H 
1974 (1) SCR 771 
referred to 
Para 166 
/
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
887 
LAW & ORS. 
1985 (3) Suppl. SCR 805 
referred to 
Para 167 · 
A 
1988 (2) SCR 606 
referred to 
Para 168 
1965 (2) SCR 823 
referred to 
Para 170 
1973 (2) SCR 40 
referred to 
Para l71 
2012 (5) SCR 503 
referred to 
Para 172 
B 
1970 (3) SCR 913 
referred to 
Para 173 
1970 (1) SCR 479 
distinguished 
Para 174 
2002 (2) SCR 213 
referred to 
Para 177 
1965 SCR 235 
referred to 
Para 177 
c 
1971 (0) Suppl. SCR 329 
referred to 
Para 178 
(1961) 3 SCR 486 
referred to 
Para 178 
1963 Supp (1) SCR 479 
referred. to 
Para 180 
1969 (2) SCR 692 
referred to 
D 
Para 181 
1999 (1) SCR 580 
referred to 
Para 181 
1981 (3) SCR 627 
referred to 
Para 182 
2008 (15 ) SCR 642 
relied on . 
Para 182 
E 
2000 (4) Suppl. SCR 693 
referred to 
Para 184 
2016 (4) SCALE 478 
. referred to 
Para 184 
1982 (3) SCR 510 
relied on 
Para 185 
1959 SCR 629 
relied on 
Para 185 
F 
1998 (2) Suppl. SCR 632 
relied on 
Para 185 
1996 (3) Suppl. ~CR 677 
relied on 
Para 186 
2001 (3) SCR 934 
referred to 
Para 189 
c2000) 1 sec 552 
referred to 
Para 189 
G 
1979 (2) SCR 476 
referred to 
Para 190 
(2016) 3 sec 183 
referred to 
Para 191 
1959 SCR 279 
referred to 
Para 191 
2008 (6) SCR 566 
referred to 
Para 191 
H
888 
A 
B 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
1960 SCR 680 
referred to 
1960 SCR 592 
referred to 
2~14 (8) SCR 328 
referred to 
1972 (2) SCR 671 
relied on 
1,92 (2) SCR 528 
relied on 
1997 (5) Suppl. SCR 12 
relied on 
[2016] 3 S.C.R. 
Para 191 
Para 191 
Para 193 
Para 196 
Para 196 
Para 196 
CRIMINAL ORIGINAL JURISDICTION 
Writ Petition 
(Criminal) No. 184of2014 
WITH 
W. P. (Crl.) Nos. 8, 19, 56, 64, 62, 63, 67, 79, 73, 82, 80, 77, 91, 98, 
117, 118, 106, 121, 116, 119, 96, 1!0and120of2015 
T. P. (Crl.) Nos. 102-105 and 94-101 of2015 .. 
Mukul Rohatgi, AG, P. S. Narasimha, ASG, K. Parasaran, T. R. 
Andhyarujina, Sr. Advs., (A.C.), Sushi) Kumar Jain, P. P. Rao, Kapil 
Sibal, H. P. Raval, Mrs. Mahalakshmi Pavani, Sanjay Hegde, Anup J. 
Bhambani, Dr. Rajeev Dhavan, Mrs. V. Mohana, L. Nageswara Rao. 
Subramonium Prasad, V. Shekhar, Sidharth Luthra, Dr. Abhishek Manu 
Singhvi, M. N. Krishnamani, K. Radhakrishna, Sr. Advs., Nikhil Swami, 
Ms. Aditi Dani, Ashwin Kumar D. S., Ms. Gayathri, Yineet Pandey, 
Mrs. Prabha Swami, G. S. Mani, P. K. Tripathy, M. M. Kashyap, Puneet 
Jain, Pradeep Agarwal, Abhinav Gupta, Manu Maheshwari, Ms. Christi 
Jain, Ms. Chhaya Kirti, Ms. Pratibha Jain, Chirag M. Shroff, Abhay A. 
Jena, Ranjit B. Raut, Ms. Bina Gupta, Gautam Narayan, G. Balaji, K. C. 
Mittal, Santosh Krishnan, Ms. Tarannum Cheema, M/s. Karanjawala & 
Co., Nikhil Goel, Ms. Naveen Goel, Marsook Bafaki, Sachin Patil, B. V. 
Singh, Amit Kumar Pathak, Ms. Ruchi Kohli, Ram
Sankar, Y. Lokesh, 
R. V. Kameshwaran, Abhinav Mukerji, Lal it Kumar, Moh it Paul, Apar 
Gupta, Dushyant Arora, Rizwan, Aruneshwar Gupta, D. K. Singh, 
Pradeep Shukla, Abhijit Sengupta, Anil Kumar Mishra-I, Snehasish 
Mukherjee, Ms. Pooja Mehra Saigal, Ms. Khyati Sharma, Tara Chandra 
Shanna, Ms. Madhavi Divan, Ms. Binu Tamta, Sridhar Potraju, B. 
Ragunath, K. Parmeshwar, Gaichangpou, Gangmei, Arjun Singh, 
Mukunda Rao Angara, Vishwajit Sadanand, Ms. I. Denning Shruti S., 
Ms. Sushma Suri, Gaurav Agrawal, P. N. Puri, M. Yogesh Kanna, Jayant
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
LAW & ORS. 
Patel, Ashmeet Singh, Tarun Gupta, Ms. Supriya Juneja, Anandana Handa, 
Viraj Gandhi, Ms. Mehaak Jaggi, Vinay P. Tripathi, Saurabh Gupta, Ms. 
Supriya Juneja, Bhakti Vardhan Singh, S. S. Shamshery, Anish Kumar 
Gupta, Anand De, Merusagar Samantaray, Vishnu Shankar Jain, Santosh 
Kumar, Pattabhi Ram, Ms. Apeksha Sharan, M/s. Corporate Law Group, 
S.S. Rawat, Ajay Sharma, D.S. Mahra, S. Udaya Kumar Sagar, Krishna 
Kumar Singh, Balbir Singh Gupta, Ms. Binu Tamta, Mansoor Ali, Ms. 
Rubina Jawed, Ms. Mumtaz Bhalla, Abhay Kumar, K. V. Jagdishvaran, 
Mrs. G. Indira, Sukumar Pattjoshi, Mahaling Pandarge, Prakash Gautam, 
Nishant Katneshwarkar, Advs. for the ,appearing parties. 
Subramanian Swamy, Petitioner-in-Person 
The Judgment of the Court was delivered by 
DIPAK MISRA, J. I. This batch of writ petitions preferred 
under Article 32 of the Constitution of India exposits cavil in its 
quintessential conceptuality and percipient discord between venerated 
and exalted right of freedom of speech and expression ofan individual, 
exploring manifold and multi layered, limitless, unbounded and unfettered 
spectrums, and the controls, restrictions and constrictions, under the 
assumed power of"reasonableness" ingrained in the statutory provisions 
relating to criminal law to reviver and uphold one's reputation. The 
assertion by the Union oflndia and the complainants is that tl1e reasonable 
restrictions are based on the
paradigms and parameters of the Constitution 
that are structured and pedestaled on the doctrine of non-absoluteness 
of any fundamental right, cultural and social ethos, need and feel of the 
time, for every right engulfs and incorporates duty to respect other's 
right and ensure mutual compatibility and conviviality of the individuals 
based on collective harmony and conceptual grace of eventual social 
order; and the asseveration on the part of the petitioners is that freedom 
of thought and expression cannot be scuttled or abridged on the threat of 
criminal prosecution and made paraplegic on the mercurial stance of 
individual reputation and of societal harmony, for the said aspects are to 
be treated as things of the past, a symbol of colonial era where the ruler 
ruled over the subjects and vanquished concepts of resistance; and, in 
any case, the individual grievances pertaining to reputation can be agitated 
in civil courts and thus, there is a remedy and viewed from a prismatic 
perspective, there is no justification to keep the provision of defamation 
in criminal law alive as it creates a concavity and unreasonable restriction 
in individual freedom and further progressively mars voice of criticism 
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and dissent which are necessitous forthe growth of genuine advancement 
and a matured democracy. 
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2. The structural architecture of these writ petitions has a history, 
although not in any remote past, but, in the recent times. In this batch of 
writ petitions, we are required to dwell upon the constitutional validity of 
Sections 499 and 500 of the Indian Penal Code, 1860 (for short, 'IPC') 
and Sections 199(1) to 199( 4) of the Code of Criminal Procedure, 1973 
(for short, "CrPC"). It is necessary to note here that when the Writ 
Petition (Crl) No. 184 of 2014 was taken up for consideration, Dr. 
Subramanian Swamy, the petitioner appearing in-person, had drawn our 
attention to paragraph 28 of the decision in R. Rajagopal alias R.R. 
Gopa/ anti anotlter v. State o/T.N. anti otlters
1 which reads as follows:-
"In all this discussion, we may clarity, we have not gone into the 
impact of Article 19(1 )(a) read with clause (2) thereofon Sections 
499 and 500 of the Indian Penal Code. That may have to await a 
proper case." 
3. Dr. Swamy had also drawn our attention to the observations 
made in N. Ravi mu/ otlters v. U11io11 of I11tlia anti otlters\ which are 
to the following effect:-
"Strictly speaking on withdrawal of the complaints, the prayer 
about the validity ofSection 499 has also become academic, but 
having regard to the importance of the question, we are of the 
view, in agreement with the learned
counsel for the petitioners, 
that the validity aspect deserves to be examined. In this view, we 
issue rule, insofar as prayer (a) is concerned." 
4. On the aforesaid plinth, a mansion of argument was sought to 
be built, and that is why we have used the term 'history'. Regard being 
had to the importance of the matter, we had asked Mr. K. Parasaran 
and Mr. T.R. Andhyarujiua, learned senior counsel to assist the Court 
and they have assisted with all the devotion and assiduousness at their 
command. 
5. We feel obliged to state at the beginning that we shall refer to 
the provisions under challenge, record the submissions of the learned 
counsel for the parties, dwell upon the concepts of 'defamation' and 
'reputation', delve into the glorious idea of "freedom of speech and 
1 {1994) 6 sec 632 
2 (2001) 1 s sec 63 I
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
LAW & ORS. [DIPAK MISRA, J.] 
expression" and conception of "reasonable restrictions" under the 
constitutional scheme and x-ray the perception of the Court as regards 
reputation,. and appreciate the essential anatomy of the provisions and 
thereafter record our conclusions. Despite our commitment to the 
chronology, there is still room for deviation, may be at times being essential 
in view of overlapping of ideas and authorities. 
6. Sections 499 of the IPC provides for defamation and Section 
500 IPC for punishment in respect of the said offence. 
The said 
provisions read as follows:-
"Section 499. Defamation.- Whoever, by words either spoken 
or intended to be read, or by signs or by visible representations, 
makes or publishes any imputation concerning any person intending 
to harm, or knowing or having reason to believe that such 
imputation will harm, the reputation of such person, is said, except 
in the case hereinafter expected to defame that person. 
Explanation 1.-It may amount to defamation to impute anything 
to a deceased person, if the iinputation would harm the reputatioi1 
of that person ifliving, and is intended to be hurtful to the feelings 
of his family or other near relatives. 
Explanation 2.-Jt may amount to defamation to 11rnke an 
imputation concerning a company or an association or collection 
of persons as such. 
Explanation 3 .-An imputation in the form of an alternative or 
expressed
ironically, may amount to defamation. 
Explanation 4.-No irriputation is said to harm a ·person's 
reputation, unless that imputatio1l directly or indirectly, in the 
estimation of others, lowers the moral or intellectual character of 
that person, or lowers the character of that person in respect of 
his caste or of his calling, or lowers the credit.of that person, or 
caufies it io be believed that the body of that person is in a loathsome 
state; or in a statege,nerally considered as disgraceful. 
First Exception.-Jmputation of truth wliich. public good requires 
to be made or published- It is not defamation to impute anything 
which is true concerning any person, if it be for the public good 
thatthe imputation should be made or published. Whether or not it · 
is for the public good is a question of fact. 
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Second Exception.-Public conduct of public servants.-lt is not 
defamation to express in good faith any opinion whatever 
respecting the conduct of a public servant in the discharge of his 
public functions, or respecting his character, so far as his character 
appears in that conduct, and no further. 
' 
Third Exception.-Conduct of any person touching any public 
question.-lt is not defamation to express in good faith any opinion 
whatever respecting the conductofany person touching any public 
question, and respecting his character, so far as his character 
appears in that conduct, and no further. 
Fourth Exception.-Publication of reports of proceedings of Courts 
- It is not defamation to publish substantially true report of the 
proceedings of a Com1 of Justice, or of the result of any such 
proceedings. 
Explanation.-A Justice of the Peace or other officer holding an 
inquiry in open Court preliminary to a trial in a Court of Justice, is 
a Cou11 within the meaning of the above section. 
Fifth Exception.-Merits of case decided in Court or conduct of 
witnesses and others concerned - It is not defamation to express 
in good faith any opinion whatever respecting the merits of any 
case, civil or criminal, which has been decided by a Court of Jus-
tice, or respecting the conduct of any person as a partly, witness 
or agent, in any such case, or respecting the character of such 
person, as far as his
character appears in that conduct, and no 
further. 
Sixth Exception. -Merits of public performance- It is not defa-
mation to express in good faith any opinion respecting the merits 
of any performance which its author has submitted to the judg-
ment of the public, or respecting the character of the author so 
far.as his character appears in such performance, and no further. 
' 
Explanation.-A performance may be substituted to the judgment 
of the public expressly or by acts on the part of the author which 
imply such submission to the judgment of the public. 
Seventh Exception.-Censure passed in good faith by person 
having lawful authority over another - It is not defamation in a 
person having over another any authority, either conferred by law
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
893 
LAW & ORS. [DIPAK MISRA, J.] 
or arising out of a lawful contract made with mat other, to pass in 
A 
good faith any censure on the conduct of that other in matters to 
which such lawful authority relates. 
Eighth Exception.-Accusation preferred in good faith to 
authorised person - It is not defamation to prefer in good faith an 
accusation against any person to any of those who have lawful 
B 
authority over that person with respect to the subject-matter of 
accusation. 
Ninth Exception.-lmputatiqn made in good faith by person for 
protection of his or other's interests- It is not defamation to make 
an imputation on the character of another provided that the impu-
C 
tation be made in good faith for the protection of the interests of 
the person making it, or of any other person, or for the public 
good. 
Tenth Exception.--Caution intended for good of person to whom 
conveyed or for public good - It is not defamation to convey a 
D. 
caution, in good faith, to one person against another, provided that 
such caution be intended for the good of the person to whom it is 
conveyed, or of some person in whom that person is interested, or 
for the public good. 
Section 500; Punishment for defamation.-Whoever defames , E 
another shall be punished with simple imprisonment for a term 
which may extend to two years, or with fine, or with both." 
Section 199 Cr PC proyjdes for prosecution for defamation. It .is 
apposite to
reproduce the said provision in entirety. It is as follows:-
"199. Prosecution for defamation.-
( I) No Court shall take cognizance of an offence punishable un-
der Chapter XXI of the Indian Penal Code ( 45 of 1860) 
except upon a complaint made by some person aggrieved by the 
offence: 
Provided that where such person is under the age of eighteen 
years, or is an idiot or a lunatic, or is from sickness or infirmity 
unable to make a complaint, oris a woman who, according to 
·the local customs and manners, ought not to be compel led to 
appear in pub\1c, some other person may, with the leave of the 
. Court, make a complaint on his or her behalL 
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(2) Notwithstanding anything contained in this Code, when any 
offence falling under Chapter XXI of the Indian Penal Code 
(45 of 1860) is alleged to have been committed against a person 
who, at the time of such commission, is the President oflndia, the 
Vice-President oflndia, the Government of a State, the Adminis-
trator ofa Union territory or a Minister of the Union or ofa State 
or of a Union territory, or any other public servant employed in 
connection with the affairs of the Union or of a State in respect of 
his conduct in the discharge of his public functions a Court of 
Session may take cognizance of such offence, without the case 
being committed to it, upon a complaint in writing made by the 
Public Prosecutor. 
(3) Every complaint referred to in sub-section (2) shall set forth 
the facts which constitute the offence alleged, the nature of such 
offence and such other particulars as are reasonably sufficient to 
give notice to the accused of the offence alleged to have 
been committed by him. 
(4) No complaint under sub-section (2) shall be made by the Pub-
lic Prosecutor except with the previous sanction-
( a) of the State Government, in the case of a person who is or 
has been the Governor of that State or a Minister of that Gov-
ernment; 
(b) of the State Government, in the case of any other public 
servant employed in connection with the affairs of the State; 
(c) of the Central Government, in any
other case. 
F 
(5) No Court of Session shall take cognizance of an offence un-
der sub-section (2) unless the complaint is made within six months 
from the date on which the offence is alleged to have been com-
mitted. 
(6)Nothing in this section shall affect the right of the person against 
G 
whom the offence is alleged to have been committed, to make a 
complaint in respect of that offence before a Magistrate having 
jurisdiction or the power of such Magistrate to take cognizance 
of the offence upon such complaint." 
It may be stated that the aforesaid provision came into existence 
H 
in the present incarnation after introduction of Section 199(2) to (5) by
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
LAW & ORS. [DIPAK MISRA, J.] 
. 
~-
the Code of Criminal Procedure (Amendment) Act, 1955 on I 0th August, 
1955. 
7. The constitutionality of the aforesaid provisions have been 
challenged on many a score and from many an angle by different counsel 
appearing for the writ petitioners who belong to different walks of life. 
First, we shall record the submissions in their essential facets of the 
learned counsel for the petitioners, the contentions advanced by the 
learned Attorney General and the Additional Solicitor General in defence 
of the provisions and thereafter the arguments put forth by the learned 
Amicus Curiae. We may immediately state that the effort would be to 
record the submissions in fullest, may be sans elaborations and 
individualistically crafted and sculptured nuances during the oral hearings. 
8. Submissions of Mr. P. P. Rao and Ms. Mahalakshmi 
Pavani 
i. The right t.o uninhibited freedom of speech conferred by A11icle 
19( I )(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 pub! ic ihterest and would not 
include anything else. The enabling power in Article 19(2) to impose 
reasonable restrictions on the right conforred by Article 19( J )(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 ofauthority for Section 499 off PC which makes defamation 
of any person an offence. That apai1, Article 19(2), being an exception 
to Article 19(1 )(a), needs to be construed narrowly and it cannot constrict 
the liberal interpretation warranted to be placed on Article 19 ( 1 )(a) of 
the Constitution. The schematic intendment in clause (2) of A1iicle 19 is 
founded on the fundamental tenet of interests of the State and the pub I ic 
in general· and hence, regard being had to the nature of fundamental 
rights and scope of reasonable "restrictions to be imposed thereon, the . 
exception has to be understood applying the principle ofnoscitur a sociis 
and excluding criminal defamation. 
ii. 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. ·It has to be kept in mind 
that fundamental rights are conferred in the public interest and defamation 
of any person by another person is unconnected with the fundamental 
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right conferred in the public interest by Article 19( 1 )(a) and, therefore, 
Section 499 is outside the scope of Article 19(2) of the Constitution. 
Right to one's reputation which has been held to be a facet of Article 21 
is basically vis-a-vis the State, and hence, Article 19(2) cannot be invoked 
to serve the private interest of an individual. That apart, crime means an 
offence against the society of which the State is the custodian. 
Considering the scope of Article 19(1 )(a) and Article 19(2), defamation 
of any person by private person cannot be treated as a "crime", for it 
does not subserve any public interest. 
iii. Section 499 of !PC exfacie infringes free speech and it is a 
serious inhibition on the fundamental right conferred by Article 19(1 )(a) 
and hence, cannot be regarded as a reasonable restriction in a democratic 
republic. A restriction that goes beyond the requirement of public interest 
cannot be considered as a reasonable restriction and would be arbitrary. 
Additionally, when the provision even goes to the extent of speaking of 
truth as an offence punishable with imprisonment, it deserves to be 
declared unconstitutional, for it defeats the cherished value as enshrined 
under Article 51-A(b) which is associated with the national struggle of 
freedom. 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 
ofreasonable restriction and eventually they hav~ the chilling effect on 
the freedom of speech. 
iv. "Reasonableness" is not a static concept, and it may vary 
from time to time. What is considered reasonable at one point of time 
F 
may become arbitrary and unreasonable at a subsequent point of time. 
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. 
G 
v. The Explanations and Exceptions appended to the main 
provision contained in Section 499 !PC, in case the constitutionality of 
the said Section is upheld, are to be interpreted with contextual purpose 
regard being had to the broad canvas they occupy and the sea change 
· that has taken place in the society. 
H 
v1. The words like "company", "association" or "collection of
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
897 
LAW & ORS. [DIPAK MISRA, J.] 
persons as such" as used in Explanation 2 should exclude each other 
A 
because different words used in the Section must be given different 
meanings and it is appropriate that they are not given meanings by which 
an indefinite multitude can launch criminal cases in the name of class 
action or common right to reputation. 
vii. Section 199(2) CrPC provides a different procedure for certain 
category of person and Court of Session to be the Court of first instance, 
and thereby it creates two kinds of procedures, one having the advantage 
over the other. This classification is impermissible as it affects the equality 
clause. That apart, it also uses the State machinery by launching of the 
prosecution through the Public Prosecutor, which enables the State to 
take a different route to curb the right of freedom of speech and 
expression. 
9. Contentions advanced by Dr. Rajeev Dhawan 
i. 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 bas the right to exercise his right to free speech in a 
de1nocracy 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. 
ii. 
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 withJ:xpression. 
iii. Reasonable restriction is founded on the princiP-le of 
reasonableness which is an essential facet of constitutional law and one 
of the structural principles oftheconstitution is that jfthe restriction 
invades and infringes the fundamental right in an excessive manner, such 
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a restriction cannot be treated to have passed the test of reasonableness. 
The language employed in Sections 499 and 500 IPC 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 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. 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, 
tb.at is, use or abuse of power but ·in the compartment of direct effect 
and inevitable result of la»' that abridges the fundamental right. 
' iv. 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 a\:hieve 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. 
v. The provisions under assail being pre-constitutional, statutory 
provisions are to be examined with deeper scrutiny and, therefore, when 
the freedom of speech is treated as a monumental socially progressive 
value in a democratic set up at the international level, the restrictive 
provisions deserve to be declared as unconstitutional as they create an 
,lJ,11llcceptable remora in the growth of an individual. That apart, societal 
perception having undergone a great change, the constitutional right has. 
to be given a pietistic position and analysed in these parameters, the 
colonial law meant to invite people to litigate should be allowed a timely 
extinction. · 
vL Section 1 99(2) to ( 4) Cr PC protects ciyil servants and creates : 
a separate class and said classification has no rationale and th is distinction 
has no basis to withstand the constitutional scrutiny. Differential treatment 
granted to them is an unacceptable discrimination and for the said reason,
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
LAW & ORS. [DIPAK MISRA, J.] 
provisions contained in Section 199(2) to ( 4) CrPC are liable to be struck 
down. 
·vii. Section 499 !PC read in conjunction with Explanation IV 
provides a storehouse of criteria for judging reputation and it allows a 
greater width and discretion without any guidance and hence, the provision 
is arbitrary and unreasonable. There is no justification to enable a 
company or association or collection of persons to have the benefit of 
defamation in the criminal law. Similarly, there is no justification for any 
criminal defamation to save reputation of dead persons and for allowing 
his legal heirs to prosecute on the ground that it is intended to be hurtful 
to the feeli~gs of his family and other near relatives. 
viii. The provision relating to defamation under Section 499 IPC 
does not recognize truth as an absolute defence but qualifies that if 
anything is imputed which is even true concerning any person, it has to 
be for the "public good". If a truthful statement is made and truth being 
the first basic character of justice, to restrict the principle of truth only to 
public good is nothing but an irrational restriction on the free speech. 
The concept of"good faith" has been made intrinsic to certain Exceptions 
and that really scuttles the freedom of speech and freedom of thought 
and expression and thereby it invites the discomfort to Article 19( I )(a). 
The words "good faith" and
"public good" have to meet ti1e test of 
reasonableness and proportionality which would i11clude honest opinion 
with due care and attention and the concept of reasonable restriction 
has to be narrowed to the sphere of ma/a fide and reckless disregard. 
When the concept of defamation is put in the compartment of criminal 
offence by attributing a collective colour to it, it stifles the dissenting 
voices and does not tolerate any criticism that affects the foundation of 
popular and vibrant democracy which is a basic feature of the 
Constitution. Quite apart from that, the concepts of information, ideas, 
criticisms and disclosures are not only the need of the hour but also have 
imperatives; and in such a climate, to retain defamation as a criminal 
offence will tantamount to allow a hollowness to remain which will 
eventually have a chilling effect on the freedom of speech and expression 
that shall lead to a frozen democracy. 
I 0. Arguments of Mr. Datar, learned Senior Counsel 
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i. 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 I 9(1 )(a) and also is 
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[20 I 6] 3 S.C.R. 
an acceptable pillar for a free and harmonious society. 
ii. 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 Cr.P.C. 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 a.s a whole". 
iii. 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 IPC 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. 
iv. 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 A1ticle 21 and enabling the private complainant to move the criminal 
comt for his sense of self-worth. The individual reputation can very well 
be agitated in a civil comt. But fear ofa 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 !PC 
cause unnecessary discomfort to Article 19(1 )(a) and also to Article 14 
of the Constitution. 
v. The purpose of criminal prosecution is not concerned with 
repairing individual injury, especially, reputation or vindicating or protecting 
the reputation of an individual. The purpose of such law has to be the 
ultimate protection of the society. Quintessentially, the provision cannot 
cater to individual whims and notions about one's reputation, for it is
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
LAW & ORS. [DIPAK MISRA, J.] 
done at the cost of freedom of speech in the society which is 
impermissible. The restriction as engrafted under Article 19(2) has to be 
justified on the bedrock of necessity of the collective interest. The nature 
of Exceptions carved out and the manner in which they are engrafted 
really act as obstruction and are an impediment to the freedom of speech 
and expression and such hindrances are inconceivable when appreciated 
and tested on the parameters of international democratic values that 
have become paramount as a globally accepted democratic culture. 
11. Arguments on behalf of Mr. Aruneshwar Gupta 
i. Defamation is injury or damage to reputation which is a 
metaphysical property. Criminal prosecution was entertained in 
defamation cases because of the erroneous doctrine of'malice in law or 
intended imputation or presumption by law of the existence of malice', 
when the said doctrine has been kept out of criminal jurisprudence, the 
enactments based on the said doctrine cannot be allowed to survive. 
Once there is no presumption of malice by law, the thought, idea and 
concept of 'per se malicious or per se defamatory', and the basis and 
foundation of defamation becomes non-existent and is eroded and the 
criminal content in defamation in Article 19(2) has to be severed from 
the civil content in it. 
ii. The reputation of every person does not have any specific 
identifiable existence
for it is perceived differently, at different times, by 
different persons associated, related, concerned for affected by it, who, 
in turn, are acting with their multi-dimensional personality for multiple 
reasons and prejudices and as such, they are bereft of any social impact 
or criminal element in it. 
iii. On a reading of Sections 499 & 500 !PC and Section 199 
CrPC, it is. manifest that there is presumption of facts as a matter oflaw 
and that alone makes the provision arbitrary and once the foundation is 
unreasonable and arbitrary, the provisions deserve to be declared ultra 
vires A1ticles 14, 19 and 21 of the Constitution. 
12. Submissions of Mr. Anup J. Bhambhani 
i. The restrictions imposed under Article 19(2) on the fundamental 
rightto free speech and expression as contained in Article l 9(l)(a) should 
be reasonable in substance as well as in procedure. The procedural 
provisions applicable to complaints alleging criminal defamation under 
Sections 499 and 500 !PC do not pass the test of reasonableness as 
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envisaged under Article 19(2) of the Constitution. That apart, 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. 
ii. 
The procedural safeguards can only stand the test of 
reasonableness if the Exceptions to Section 499 IPC are taken into · 
consideration at the time of summoning of the accused and if it is ensured 
that all material facts are brought on record at that stage. But on a plain 
reading of the provision that is not permissible and hence, the provision 
is ultra vires as the procedure enshrined affects the basic marrow of the 
fundamental right pertaining to freedom of speech and expression. 
iii. Section 199( I) CrPC which is intended to be a restriction on 
who may file a criminal complaint under Section 499/500 IPC has to be 
narrowly construed so as to confer a meaning to the words "person 
aggrieved" that would not in its width, include a person other than the 
victim, for that indirectly would affect the procedural safeguard which 
eventually affects the substantive right. 
iv. The essential ingredients of the offence under Section 499 
!PC which include making or publishing any imputation concerning any 
person and that the said
imputation must have been made with an intention 
to harm or having reason to believe that the imputation will harm the 
reputation of a person should not be allowed to have a free play to 
permit multiple points of territorial jurisdiction for the prosecution ofa 
single offensive matter as that would place an unreasonable fetter on 
the exercise of right of free speech and expression of a person by 
oppressive litigation. 
· 
13. Arguments of Mr. Sanjay R. Hcgcle 
i. The architecture of the Section as envisioned by its draftsmen 
criminalises speech that harms reputation and then provides Exceptions 
to such speech in certain specific circumstances. The concept of 
defamation as a crime remained unchallenged even during the drafting 
of the constitutional guarantees of free speech. In fact, the Parliament 
further re-affirmed its intent, when the First Constitutional Amendment 
Act was passed, priinarily to overcome judgments of this Court that 
provided expansive definitions of the fundamental rights of free speech 
and property. With the passage of time, the manner of transmission of 
speech has changed with the coming of modern means of communication
SUBRAMANIAN SWAMY v. UNION OF !NOIA, MINISTRY OF 
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LAW & ORS. [DIPAK MiSRA, J.] 
and the same is not under the speaker's control. The provisions when 
judged on the touchstone of Articles 14 and 19(2) do not meet the test 
inasmuch as they are absolutely vague and unreasonable. Section 499 
!PC, as it stands, one may consider an opinion, and, another may call it 
defamation and, therefore, the word "defamation" is extremely wide. 
which makes it unreasonable. 
ii. 
Section 199(2) by which a "Court of Session may take 
cognizance of such offence, without the case being committed to it upon 
a complaint in writing made by the Public Prosecutor'', when any offence 
falling under Chapter XX! ofthe !PC is alleged to have been committed 
against ''any other public servant employed in co1111ection with the affairs 
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of the Union or of a State in respect of his conduct in the discharge of . C 
his public functions", if appositely appreciated deprives the accused of 
an appeal to the Court of Session and brings in the State machinery to 
prosecute a grievance which would be otherwise personal to the 
concerned public servant. 
iii. In terms of the press, criminal defamation has a chilling effect 
which leads to suppress a permissible canipaign. The threat of 
prosecution alone is enough to stippress the truth being published, and 
also the investigatingjournalism which is necessary in a ~emocracy. 
iv. lfthe Court is not inclinedto strike down Section 499 IPC, at 
least in
relation to criminal complaints'arisingout of media report where 
the members of the media are prosecuted, a procedure akin to the decision 
in Jacob Mathew v. State of Punjab and anotlier' should be adopted. 
To elaborate, a similar mechanism may be devised for media professional, 
either through statutory bodies like the Press Council of India or non-
statutory bodies like the News Broadcasting Standards Authority which 
may be given the power to recommend prosecutions in cases of grossly 
negligent or malicious reporting made with ulterior motives. 
PROPONEMENTS IN OPPUGNATION 
1.4. Submissions of Mr. Mukul Rohatgi, learned Attorney 
General for India 
i. Article 19(2) must be read as a part of the freedom of speech 
and expression as envisaged under Article 19(1 )(a), for the freedom of 
speech as a right cannot be ui1derstood in isolation. The freedom of 
speech is a robust right but nonetheless, not unrestrieted or heedless. 
Even though the Courts have often drawn the difference between free 
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speech under the U.S. Constitution and that under the Indian Constitution, 
yet even in the United States, where free speech is regarded as the 
most robust, it is not absolute. The restrictions have not been left to the 
courts to carve out but have been exhaustively set out in Article 19(2). 
It is for the legislature to determine the restrictions to impose and the 
courts have been entrusted with the task of determining the 
reasonableness and in the present case, the right to free speech under 
Article I 9( 1 )(a) is itself conditioned/qualified by the restrictions contained 
in Article 19(2) which includes "defamation" as one of the grounds of 
restriction and the term "defamation" has to include criininal defamation, 
and there is nothing to suggest its exclusion. Article 19(2) has to be 
perceived as an integral part of the right to free speech as Article 19( 1 )(a) 
is not a standalone right and, therefore, it cannot be said that there is an 
unbridled right to free, much less defamatory speech. 
ii. The submission that defamation being only protective of 
individual cases between two individuals or a group ofindividuals and no 
State action is involved, cannot be elevated to the status of a fundamental 
right, is without much substance inasmuch as Article 19(2) represents 
varied social community interest. That apart, contextual meaning of the 
term "defamation"; and if the grounds of exception under
Article 19(2) 
are analysed, each of them represent a public interest and so does 
defamation, for its principal object is to preserve reputation as a shared 
value of the collective. 
iii. The stand that criminal defamation under Section 499 IPC 
smothers the freedom of speech and expression or is a threat to every 
dissent and puts private wrong at the level of public wrong, is totally 
F 
incorrect. The legal theorists and thinkers have made a subtle distinction 
between private and public wrong and it has been clearly stated that 
public wrong affects not only the \ ictim but injures the public and 
ultimately concerns the polity as ;1 whole and tested on that count, 
criminalization of defamation or damag.: to reputation is meant to subserve 
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basic harmony in polity. 
iv. Right to reputation is an in segregable part of Article 21 of the 
Constitution. A person's reputation i,; an inseparable element of an 
individual's personality and it cannot he allowed to be tarnished in the 
name ofright to freedom uf spec:c'.h a11d expression because right to free 
speech does not mean rif!lit l\l Pl knd. Hc:putation of a person is neither
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
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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( I )(a) cannot allowed to 
brush away the right engrafted under Article 21, but there has to be 
balancing of rights. 
v. In many a c;ountry, 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 !PC 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 differe11t, both are constitutionally permissible and hence, the 
· provisions pertaining to defamation under the IPC. do not cause any kind 
of discomfortto
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 coma~osing 
effect on individual dignity, which is also an integral part under Article 21 
of the Constitution. 
vi. It is a misconception that injury to reputation can adequately 
be compensated in monetary terms. Reputation which encapsules self. 
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respect, honour and dignity can never be compensated in terms of money. 
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Even if reputation is thougnt 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 obtaini1ig a decree 
from the civil court is not justified and regard being had to that, criminal · G 
defamation is constitutiorally permissible. 
vii. 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, 
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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. The apprehension 
of abuse of law, or for that matter. abuse of a provision of law would not 
invalidate the legislation. Possibility ofabuse, as is well settled, does not 
offend Article 14 of the Constitution. A distinction has to be drawn 
between the provision in a statute and vulnerability of the action taken 
under such a provision. 
viii. The provisions have stood the test of time after the Constitution 
has come into existence and the concept ingrained in the term "reputation" 
has not been diluted but. 011 the contrary, has become an essential 
constituent of Article 2 I. That apart, the ten Exceptions provide 
reasonable safeguards to the provision and, therefore, it can never be 
said that the provision suffers from lack of guidance thereby inviting the 
frown of Article 14 oft he Constitution. 
ix. The words "some person aggrieved" used in Section 199( I) 
CrPC deserve a strict construction so as to prevent misuse oftl1e law of 
criminal defamation. lt slmuld be the duty of the cou11 taking cognizance 
to ensure that .the complainant is the person aggrieved. The court may 
refer to earlier authoriti..:s and clarify the concept
of "some person 
aggrieved" and explain the words in the present context. Similarly, the 
grievance that the provisiuns gi\c room for filing of multiple complaints 
at various places is not ccirn:ct as the concept ofterritorialjurisdiction is 
controlled by CrPC. 
15. Sulnnissions In Mr. P.S. ~arsimha, !carried Additional 
Solicitor c;eneral 
i. The submissiun that the word "defamation" occurring in Article 
19(2) is confined only to civil defamation and not criminal defamation 
cannot be countenanced Oil the basis of our constitutional history. The 
Constitutional debates amply clarify the position that when the Constituent 
Assembly debated about the inclusion of defamation as a ground for 
imposing restrictions on !he freedom of speech and expression. the 
statutory provision for dt:fomation, i.e .. Section 499 ofIPC was already 
an existing law. The wisdom of the founding fathers is quite demonstrable 
inasmuch as at the !im..: oi'dralting of the Constitution, the only statutory 
law on defamation was Sc·dion 499 of !PC providing for criminal 
defamation and, thcn.:l(>l"l'. it sl:mds to reason that the framers always
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
LAW & ORS. [DIPAK MISRA, J.] 
907 
contemplated criminal defamation to fall within the ambit of the word 
"defamation" occurring in A11icle 19(2). 
ii. The argument that the word ''defamatiun" occurring in Article 
19(2) must be read in the light of the other grounds mentioned therein by 
applying the rule of noscitur a sociis is not correct, for the said rule has 
a very limited application. The word "defamation" is clearly not 
susceptible to analogous meaning with the other grounds mentioned 
therein. The word "defamation", in fact, has a distinct meaning as 
compared to the other grounds and it does not stand to reason that the 
word "defamation" will take colour from terms like "security of the 
State", "friendly relations with a foreign state", ''public order", "decency 
and morality" and the like thereby restricting and narrowing the ambit of 
the word "defamation" in Article I 9(2). Defamation ofan individual or 
collection of persons serves public interest 11 hich is the basic parameter 
ofrestrictions under Article 19(2) and, therefore. it can never be perceived 
as individual interest in a narrow compartment. 
iii. The contention that the fundamental rights are matters between 
the State and the citizens and not between private individuals per se is 
untenable because it has been already recogniLed that it is the duty of 
the State is to protect the fundamental rights of citizens inter se other 
citizens and many a
legislation do so project. In fact, the State is indeed 
obligated to enact laws to regulate fundamental rights of individuals vis-
a-vis other individuals. 
iv. The stand of direct effect test or, t<' put it differently, "direct 
and inevitable impact test" is concerned with incidentally creating a dent ' 
in the freedom of speech and expression but has no nexus with the 
content of the free speech per se. A distinctit1n has to be drawn between 
the external constraints on free speech and the direct assault on the free 
speech. The "subject matter test" can have direct and inevitable impact 
on the right, but the "regulation test by law" has a different connotation. 
v. The object of guaranteeing constitut iuna I protection to freedom 
of speech and expression is to advance pub Ii..: dehate and discourse. 
However, speech laden with harmful inlt:nt ur J..nowlcdgc of causing 
harm or made with reckless disregard i;, nut entitled to the protection of 
Article 19( I )(a) since it does not serve Hll) <>t. the purposes mentioned 
above. Such speech has no social value cxcl'.pt in cases where it i~ a 
truthful statement meant for the public good or where it is made in good 
faith, in which case it is protected by the l·:xcc:ptions in Section 499 IPC 
and is not criminalized. 
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vi. The Preamble to the Constitution plays an important role in 
interpreting the freedoms mentioned in Article 19. The ideals mentioned 
in the Preamble cannot be divorced from the purpose and objective of 
conferring the rights. The freedom of speech and expression under 
Article 19( I )(a) must take colour from the goals set out in the Preamble 
and must be read in the light of the principles mentioned therein. The 
Preamble seeks to promote "Fraternity assuring the dignity of the 
individual and the unity and integrity of the Nation". In its widest meaning 
and amplitude, fraternity is understood as a common feeling of 
brotherhood. While justice, liberty and equality have been made justiciable 
rights under the Constitution, the idea of fraternity has been used to 
interpret rights, especially horizontal application ofrights. The Preamble 
consciously chooses to assure the dignity of the individual, in the context 
of fraternity, before it establishes the link between fraternity and unity 
and integrity oflndia. The rights enshrined in Part Ill have to be exercised 
by individuals against the backdrop of the ideal of fraternity, and viewed 
in this light, Article 19(2) incorporates the vision of fraternity. Hence, 
the restriction imposed by the statutory provision satisfies the content of 
constitutional fraternity. The fraternal ideal finds resonance also in Part 
IVA of the Constitution. Article
51-A of the Constitution, which deals 
with the fundamental duties of a citizen, makes it a duty "to promote 
harmony and the spirit of common brotherhood amongst all the people 
of India transcending religious, linguistic and regional or sectional 
diversities; to renounce practices derogatory to the dignity of women". 
In fact, this Comt has held that Part IVA could be used as an interpretative 
tool while assessing the constitutional validity oflaws, especially in the 
context of restrictions imposed on rights. Judged on the anvil of the 
aforesaid constitutional norms, the provisions pertaining to criminal 
defamation withstand scrutiny. The principal objective of the law of 
defamation, civil or criminal, is to protect the reputation and dignity of 
the individual against scurrilous and vicious attacks. Section 44 oflPC 
defines injury as "any harm whatever illegally ·caused to any person, in 
body, mind, reputation or property." The said section demonstrates that 
the harm caused to the mind and reputation of a person, protected by the 
right to dignity, is also treated as injury in the eyes oflaw, along with the 
harm caused to body and property. From the Preamble to the provisions 
in Part HI, it is clear that the aim of the Constitution has been to protect 
and enhance human dignity. Reputation in general, and dignity in 
particular, are enablers ofrights which make the exercise of other rights·
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
LAW & ORS. [DIPAK MISRA, J.] 
guaranteed in the Constitution more meaningful. Dignity of a person is 
an affirmation ofhis/herconstitutional 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. 
vii. The international human right treaties explicitly provide for 
the right to reputation as well as right to free speech and expression. 
The Universal Declaration on Human Rights, 1948 in Article 12 clearly 
stipulates that no one shall be subjected to attack on his honour and 
reputation. Scrutinising on this score, it cannot be said that reputation 
should be allowed backseat whereas freedom of speech and expression 
should become absolutely paramount. Though certain countries have 
kept the remedy under common law and have decriminalized defamation, 
yet it does not mean that where the law criminalizing defamation is 
maintained, the said law is unreasonable and, therefore, unconstitutional. 
The right to protection of reputation and the right to freedom of speech 
and expression are seemly balanced. 
viii. The criminal law of defamation is neither vague nor ambiguous. 
That apart, the content restrictions in civil law and criminal law are not 
identical. Section 499 IPC read with the Exceptions incorporates all the 
three classical
elements of a crime while penalizing certain forms of 
speech and expression. The provision criminalizes only that speech which 
is accompanied by malicious intention to harm or with knowledge that 
harm will be caused or with reckless disregard. The requirement of 
guilty intention, knowledge or proof of recklessness (absence of good 
faith) that form the bedrock of various provisions of IPC is also 
incorporated in Section 499. Moreover, harm to reputation and mind is 
treated as injury along with the injmy to body and property under Section 
44 ofIPC. Therefore, the same standards applicable to the injury caused 
to body and property are applicable to the injury caused to the mind and 
reputation under Section 499 which makes the axis of provision certain, 
definite and unambiguous. That apart, each of the Exceptions marks the· 
contours of the section amply clear and provides an adequate warning 
of the conduct which may fall within the prescribed area. It excludes 
from its purviewspeech that advances public good and demarcates what 
is accepted speech and what is proscribed speech. Hence, it cannot be 
said that the said Section is vague and that it leads to uncertainty. First 
Exception to Section 499 which does not make truth an absolute defense 
has a very relevant purpose. In fact, this Exception is meant to ensure 
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that the defense is available only in cases where the expression of truth 
results in 'public good'. Thus, the right to privacy is respected, and will 
give way only in case the truthful disclosure, albeit private, is meant for 
public good. 
ix. There is an intelligible d!!Jerentia between the complaint of 
the individual alleging defamation ofhimselfand that ofan official in the 
context of his governmental functions. This intelligible d!!Jerentia has 
a rational nexus to the object that the Parliament has sought to achieve, 
i.e., there must be credibility in the functioning of the Government and 
that it must protect its functioning through its officers discharging their 
duty from malicious disrepute. There is no justification to assume that 
the Government grants sanction under Section 199( 4) without due 
application of mind. In fact, it is a safety valve to protect a citizen 
against a government official filing complaints on behalf of the 
Government. A public prosecutor is a responsible officer and this Court 
has held in a number of cases that he acts independently and with 
responsibility. The fact that the prosecution is by the public prosecutor 
goes to show that the proceedings will be conducted with objectivity and 
without any personal bias. 
16. Submissions by Ur. Abhishek Mann Singhvi: 
i. !tis fallacious to argue that fundamental rights are fetters only 
on State action and that A1iicle
19(2) is intended to safeguard the interests 
6t' the State and the general public and not of any individual. The 
exception to this fetter is that the State can make laws under Article 
19(2) which are reasonable restrictions on the right under Article 19(1 )(a). 
Laws constitute State action, whatever their subject matter. Laws 
restricting obscenity or offences against public order or sovereignty of 
the State, for example, are just as much State action as a law making 
defamation of a pe.rson a criminal offence. Therefore, it cannot be said 
that Article 19(2) is intended to safeguard only the interests of the State 
and that of the general public and not of any individual. The argument 
that the law of criminal defamation protects the interests only of an 
individual and not the public in general is incorrect inasmuch as defamation 
cannot be understood except with reference to the general public. The 
law of criminal defamation protects reputation which is the estimation of 
a person in the eyes of the general public. That apart, the criminal law 
of defamation is necessary in the interests of social stability. 
ii. Articles 14 and 19 have now been read to be a pait of A1ticle
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
LAW & ORS. [DIPAK MISRA, J.] 
21 and, therefore, any interpretation of freedom of speech under 
Article 19( 1 )(a) which defeats the right to reputation under Article 21 is 
untenable. The freedom of speech and expression under A1iicle 19( I )(a) 
is not absolute but is subject to constrictions under Article 19 (2). 
Restrictions under Article 19(2) have been imposed in the larger interests 
of the community to strike a proper balance between the 1 iberty guaranteed 
and the social interests specified under Article 19(2). One's right must 
be exercised so as not to come in direct conflict with the right of another 
citizen. The argument of the petitioners that the criminal law of defamation 
cannot be justified by the right to reputation under A1iicle 21 because 
one fundamental right cannot be abrogated to advance another. is not 
sustainable. It is because (i) the right to reputation is not just embodied 
in Article 21 but also built in as a restriction placed in Article 19(2) on the 
freedom of speech in Arti.cle 19(1 )(a); and (ii) the right to reputation is 
no less important a right than the right to freedom of speech. 
iii. A11icle 19(2) enumerates certain grounds on which the right to 
free speech and expression can be subjected to reasonable restrictions 
and one such· ground is defamation. Althou'gh .. libel" and .. slander'' were 
included in the original Constitution, yet the same were deleted by the 
First
Amendment, whereas defamation continues to be a part of the 
Constitution. Therefore, it is fallacious to argue that defamation under 
Article 19(2) covers only civil defamation when at the time of the 
enactment of the Constitution, Section 499 !PC was the only provision 
that defined defamation and had acquired settled judicial meaning as it 
had been on the statute book for more than 90 years. 
iv. Septions 499 and 500 of!PC continue to serve a public purpose 
by defining a public wrong so as to protect the larger interests of the 
society by providing reasonable restrictions under Article 19(2) of the 
Constitution. It is incorrect to suggest that the purpose, logic and rationale 
of criminal defamation no longer subsists in the modern age, and the la\y 
having served its goal, it must be struck down as violative of Article 14. 
Arguably, in the modern age, the need for the law is evc11 stronger than 
it was in the 19th century. The constitutional validity ofa statute would 
have to be determined on the basis of its provisions and on the ambit of 
its operation as reasonably construed as has been held in S/ireya Singlwl 
v. U11io11 of Indilr. Moreover, given the presumption of constitutionality, 
it has also been held by this Court that in judging the reasonableness of 
restrictions, the Cou11 is fully entitled to take into consideration matters 
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ofcommon report, history of the times and matters of common knowledge 
and the circumstances existing at the time of legislation. The concept 
reasonable restriction conveys that there should not be excessive or 
disproportionate restriction. Merely because law of criminal defamation 
is misused or abused would not make the provisions unconstitutional if 
they are otherwise reasonable. 
v. Section 499 !PC defines the offence of defamation with 
specificity and pmiicularity and enumerates ten broad Exceptions when 
statements against a person wi 11 not be considered defamatory, and by 
no stretch of imagination it can be termed as vague. That apart, for the 
offence of defamation as defined under Section 499 1 PC, there are three 
essential ingredients which make it specific and further Explanation 4 to 
Section 499 IPC also limits the scope of the offence of defamation 
contained in the Section. It makes only such imputation punishable which 
lowers a person's reputation in the estimation of others, and if the 
imputation does not lower the moral or intellectual character or a person's 
character in respect of his caste or calling or his credit, it would not be 
defamatory. The concepts like "in good faith" or "for the public good" 
are the mainstay of the Exceptions available to the accused, which, if 
proved to the extent of preponderance of probability, enable him to avoid 
conviction, and these facets
make the provision reasonable and definitely 
not vague. Truth ought not to be an absolute defence because it can be 
misutilised to project a negative image to harm the reputation of a person 
without any benefit to the public at large. 
vii. The argument that protection for "legitimate criticism" or 
"fair comment" on a question of public interest is only available in the 
civil law of defamation and is not covered by any of the Exceptions to 
Section 499 IPC is not tenable. Exceptions 2, 3, 5, 6 and 9 of Section 
499 IPC provide protection akin to the defence of fa'ir coniment in the 
civil law of defamation. 
viii. Section 199(1) CrPC safeguards the freedom of speech by 
placing the burden on the complainant to pursue the criminal complaint 
without involving the State prosecution machinery. This itself filters out 
many frivolous complaints as the complainant should.be willing to bear 
burden and pain of pursuing the criminal complaint for defamation only 
when he has a clear case. Under the aforesaid provision, the cognizance 
of an offence, which pertains to defamation, cannot be taken except 
upon a complaint made by "some person aggrieved by the offence".
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
LAW & ORS. [DIPAK MISRA, J.] 
This Section carves out an exception to the general rule of criminal 
jurisprudence that any person can set the law in motion. Under Section 
199 CrPC, a complaint can be filed only by "by some person aggrieved". 
The contention of the petitioners that "some person aggrieved" in Section 
199( I) Cr PC is vague and opens floodgate for frivolous litigation is 
misconceived and has no basis in law. The phrase "some person 
aggrieved" is neither vague nor is it unreasonably wide. 
17. Submissions of Mr. M.N. Krishnamani, Mr. Siddharth 
Luthra and Mr. Satish Chandra Mishra, in person 
i. The power to create an offence being an essential legislative 
function, there is nothing inherently wrong with Section 499 !PC. The 
contention that the word "defamation" in Article 19(2) has to be read 
down not to include criminal defamation in it so that it is confined to civil 
defamation alone is not permissible, for the principle ofreading down a 
provision is inapplicable to constitutional interpretation. The words in the 
Constitution are to be understood in their literal dictionary meaning and 
in any case not to be narrowly construed as suggested. The term 
"defamation" is neither indefinite nor ambiguous to invite an interpretative 
process for understanding its meaning. 
ii. Misuse of a provision or its possibility of abuse is no ground to 
declare Section 499 IPC as unconstitutional. If a provision of
law is 
misused or abused, it is for the legislature to amend, modify or repeal it, 
if deemed necessary. Mere possibility of abuse ofa provision cannot be 
a ground for declaring a provision procedurally or substantively 
unreasonable. 
iii. The law relating to defamation was enacted regard being had 
to the diversity in the society and it also, as on today, acts as a reasonable 
restriction and fulfils the purpose behind Section 44 IPC. The issue of 
free speech and right to reputation and the arguments regarding the 
constitutional validity of the provision must be considered in the context 
of the social climate of a country. The social climate takes in its sweep 
the concept of social stability. 
iv. The term "harm" is not defined in the !PC and must be given 
its ordinary dictionary meaning, but what is important is that it must be 
illegally caused. There is no distinction in the !PC between harm to 
body, mind, reputation or property. When the legislature has treated 
defamation as an offence regard being had to the social balance, there is 
no justification to declare it ultra vires. 
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v. The mere fact that the offence U1ider Section 499 !PC is non-
cognizable or that the complainant can only be "some person aggrieved" 
does not create an arbitrary distinction of it being an offence of a private 
character as opposed to an offence against society. There are numerous 
offences which are not congnizable but that does not i11ean that the said 
category of offences are private acts, for harm being caused to a person 
is the subject of focus of offences under the Penal Code. 
vi. Section 199 CrPC adds a restriction limiting filing ofa complaint 
by "some person aggrieved" and ''a person aggrieved" is to be determined 
by the Courts in each case according to the fact situation. The words 
"some person aggrieved" and Exception I l has been the subject of much 
deliberation by the Courts and it is not a vague concept. Section 199 
CrPC mandates that the Magistrate can take cognizance of the offence 
only upon receiving a complaint by a person who is aggrieved. This 
limitation on the power to take cognizance of defamation serves the 
purpose of discouraging filing of frivolous complaints which would 
otherwise clog the Magistrate ·s Courts. The "collection of persons" is 
not a vague concept. Th.; said body has to be an identifiable group in the 
sense that one could, 1Yith certainty, say that a group of particular people 
has been defamed as cl istinguished from the rest of the community.
Establishment of identity oft he collection of people is absolutely necessa1y 
in relation to the dcfomatory imputations and hence, it is reasonable. 
vii. Article 19( I )(a) guarantees freedom of speech and expression, 
and fr<:edom of press is included therein. This freedom is not absolute 
but it is subjected to reasonable restrictions as provided in A11icle l 9(2) 
of the Constitution. The freedom of speech and expression as guaranteed 
by the Constitution docs not confer an absolute right to speak or publish 
whatever one chooses and it is not an unrestricted or unbridled licence 
that mny give immunity and pn:vcnt punishment for abuse of the freedom. 
The right has its own natural limitation. 
viii . .Journalists are in no better position than any other person. 
They have nu grc:iter freedom than others to make any imputations or 
allegations sufficient to ruin the reputation ofa citizen. Even truth of an 
allegation docs not pcr111 it aj ustification under the First Explanation unless 
it is proved to be in the pub I ic good. A news item has the potentiality of 
bringing dooms day for an individual. Editors have to take the responsibility 
of everything they publish and to maintain the integrity of published 
records. It can cause far reaching consequences in an individual and
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
LAW & ORS. [D!PAK MISRA, J.] 
country's life. Section 7 of the Press and Registration Books Act, 1867 
makes the declarations to be prima fucie evidence for fastening the 
liability in any civil or criminal proceedings on the Editor. The press has 
great power in impressing minds of people and it is essential that persons 
responsible for publishing.anything in newspapers should take good care 
before publishing anything which tends to harm the reputation of a person. 
Reckless defamatory comments are unacceptable. 
18. Submissions of learned Amicus Curiae 
Mr. K. Parasaran, Sr. Advocate 
i. There has to be a harmonious interpretation of Article 19( 1 )(a) 
read with Articles 19(2) and 21. This has to be done by adve1ting to 
Articles 13(3 ), 366(10), 3 72 (Explanations I and II), and also Article 14, 
the Preamble, Part Ill and Part IV of the Constitution.· There is a need 
to interpret Article 19(2) by considering as to whether it includes: a) 
Defamation as an offence with punishment of imprisonment and/or fine 
on being proved guilty, or; b) Defamation as a civil wrong with liability 
for damages for the injury caused to reputation, or; c) both of the above. 
The word "defamation" in A1ticle 19(2) includes defamation as an offence 
as well as a civil wrong. The above two cannot be considered in isolation 
while interpretingA1ticle 19(2). 
ii. 
The question for determination is whether the word 
"defamation" used in
A1ticle 19(2) has reference to the Indian Penal 
Code (statutory law) as an indictment. or tort of the work "defamation" 
after "contempt of cou1t" (which includes criminal contempt) and before 
the phrase "incitement to an offence", both being penal in nature. Applying 
the principle of 'noscitur a sociis', the word '·defamation·· is not to be 
interpreted only as civil defamation. Applying the principle of 'nomen 
;uris' the word "defamation" must necessarily refer only to IPC, since 
there is no other statute in existence that defines "defamation". 
iii. The Preamble to the Constitution opens with the word' Justice'. 
It is the ccincept of Dharma. The fou11dation of administration of Justice 
after the advent of the Constitution is the motto ')Jato dharmastato 
;uyaha'. Judge-made law. insofar as the right to life is concerned, is to 
protect the inherent right to reputation as part of the right to life. No one . 
can be deprived of that right except according to the procedure established 
by law. The word "law" in Article 21 has to necessarily bear 
interpretation that it is procedure established by plenary legislation only. 
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Whenever any right conferred by Part Ill is abridged or restricted or 
violated by "law", as widely defined in Article 13 for the purposes of 
that Article, are rendered void. Right to reputation is an inherent right 
guaranteed by Article 21. Duty not to commit defamation is owed to the 
community at large, because the right to reputation is a natural right. 
The personality and dignity of the i:~ciividual is integral to the right to life 
and liberty and fraternity assuring dignity of an individual is part of the 
Preamble to the Constitution. The right to life or personal liberty includes 
dignity of individuals which is so precious a right that it is placed on a 
higher pedestal than all or any of the fundamental rights conferred by 
Part III. The right to reputation is an inherent right guaranteed by Article 
21 and hence, the right to freedom of speech and expression under Article 
19(1)(a) has to be balanced with the right under Article 21 and cannot 
prevail over the right under A11icle 21. 
iv. The test ofreasonableness has been invariably applied when 
deciding the constitutionality of a plenary legislation. As Article 19(2) 
itself uses the words "existing laws" and "defamation", and as the 
offence of defamation is defined in Section 499, it must be held to have 
been incorporated in the Constitution at least to the extent it is defined in 
Section 499 ('1ro111e11juris.'). It is, thus, not open to
challenge as being 
an unreasonable restriction for there is no other law that defihed 
"defamation". 
v. The test ofreasonableness cannot be a principle in abstraction. 
A general pattern cannot be conceived to be made applicable to all cases 
because it will depend upon the nature ofright infringed or violated and 
the underlying purpose of the imposition ofrestrictions. The evil thought 
to be remedied and the prevailing conditions of the time are to be kept in 
view while judging proportionality of the restriction. Being a part of the 
original Constitution, the penal provision as to defamation having been 
approved by the constituent power when Article 19(2) was enacted, it 
cannot now be held to be unreasonable. If defamation as an offence is a 
reasonable law for the purposes of Article 19(2), it has to be equally a 
G · reasonable law for the purposes of Article 14. The principle of a law 
being worn out by passage oftime and the principle of 'CessanteRatione 
Legis Cessat lpsa Lex' cannot be applied to. a constitutional provision 
like Article 19(2) or to procedural laws. Section 500 IPC does not impose 
any mandatory minimum punishment and when a penal law does not 
mandate a minimum sentence but provides only for simple imprisonment 
H
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
917 
LAW & ORS. [DIPAK MISRA, J.] 
with discretion vested in the Court, the provision will not be struck down 
A 
as arbitrary or unreasonable. 
vi. Right to life and liberty is an inherent right and natural right 
and not a right conferred by the Constitution but recognized and protected 
by it. Judge-made law is meant to protect fundamental rights and not to 
impose restrictions on the fundamental rights. The constitutional courts 
B 
are assigned the role ofa "Sentinel on the qui vive". In the said bedrock, 
the right to life which includes right to reputation has to be protected and 
respected and cannot be allowed to succumb to the right to freedom and 
expression. 
vii. The inherent right to life or personal liberty recognized by c 
Article 21, the fundamental right of freedom of speech conferred by 
Article 19( I )(a) read with A1ticle 19(2) and Article 194 dealing with the 
Powers, Privileges etc. of the Houses of Legislature and of the Members 
and Committees thereof (Article I 05 also corresponds to this Article) 
were considered and harmoniously interpreted and applied in Special 
Reference No 1 of 1964' wherein this Court also observed that if a 
D 
citizen moves the High Court on the ground that his fundamental right 
under Article 21 has been contravened, the High Court would be entitled 
to examine his claim, and that itself would introduce some limitation on 
the extent of the powers claimed by the House.
Thus, balancing of 
rights is a constitutional warrant. 
E 
Mr. T. R. Andhyaruiina, Sr. Advocate 
i. Freedom of speech and expression in India is not absolute but 
subject to various restrictions mentioned in the Constitution itself. Article 
19( I )(a) is subject to the restrictions prescribed by Article 19(2) of the 
Constitution. The protection given to criticism of public officials even if 
F 
not true, as in the case of New York Times v. Sullivm16, is not protected 
by A1ticle 19(1)(a) as this Cou11 has noted that there is a difference 
between Article 19(1 )(a) and the First Amendment to the US Constitution 
ii. A law of defamation protects reputation of a person. Reputation 
is an integral and important part of the dignity of the individual and when 
G 
reputation is damaged, society as well as the individual is the loset. 
· Protection of reputation is conducive to the public good. Therefore, 
freedom of expression is not an absolute right. 
' ( 1965) I SCR 413 
6 29 LED 2d 822 ( 1971) 
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iii. While the freedom of speech and expression is, no doubt, 
extremely relevant and requires protection as a fundamental right, at the · 
same time, it is necessary that the reputation of individuals requires to be 
protected from being unnecessarily tarnished. Reputation is an element 
of personal security and is protected as a fundamental right under Article 
21 of the Constitution and requires equal protection. The right to freedom 
of expression under A1iicle 19 is subject to the right to reputation. It is 
to be noted that civil action for defamation would not be a satisfactory 
remedy in many cases as the author of the defamation may not be able 
to compensate the person defamed. 
iv. The prosecution of a person for defamation under Sections 
499 and 500 off PC is not absolute. The crime is subject to ten Exceptions 
in favour of the author of the imputation. The most relevant is First 
Exception which protects the author it the imputation is true ai1d made 
forthe public good. Even with the Exceptions in Section 499 IPC, there 
remains the problem of whether criminal prosecution for defamation 
under Section 499 and Section 500 IPC acts as a ''chilling effect" on the 
freedom of speech and expression or a potential for harassment, 
particularly, of the press and media. Fair comment on a matter of public 
· interest is not actionable in civil action for defamation. This right is one 
of the aspects
of the funda1i1ental principles of freedom of expression 
and the courts are zealous to preserve it unimpaired; and the said principle 
has been stated in Salmon mu/ lleuston on Law of Torts, 25th Ed., p. 
138. 
v. In a prosecution for defamation under Section 499 IPC, fair 
comment which is not covered by the Exceptions would not be protected. 
The prospect of punishment may sometimes act as a deterrent on the 
freedom of speech. Section 199(2) CrPC may also give an unfair 
disadvantage to have a public prosecutor in cases of a libel against a 
Minister or a public servant. These factors need to be considered for 
safeguarding the freedom of speech. Section 499 IPC be read to provide 
that imputation and criticism or fair comment even if not true but made 
in good faith and in the public interest would not invite criminal 
prosecution. Such and other qualifications may be considered as. 
necessai·y to retain criminal defamation as a reasonable restriction on 
the freedom of speech and expression. Hence, there may be a need to 
have a proper balancil1g between the freedom of speech and the necessity 
of criminal defamation.
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
LAW & ORS. [DIPAK MISRA, J.] 
19. We have studiedly put forth the submissions of the learned 
counsel for the parties. They have referred to various authorities and 
penetratingly highlighted on numerous aspects to which we shall advert 
to at the appropriate stage. Prior to that, we intend to, for the sake of 
clarity and also keeping in view the gravity of the issue, dwell upon 
certail) aspects. 
20. First, we shall expatiate on the concepts of"defamation" and 
"reputation". The understanding of the term ''defamation" and 
appreciation of the fundamental concept of"reputation" are absolutely 
necessitous to understand the controversy. 
21. Meaning of the term "defamation" 
i. 
Salmond & /Ieuston on the L((W of Torts, 201/i Ed11. 7 define 
a defamatory statement as under:-
"A defamatory statement is one which has a tendency to injure 
the reputation of the person to whom it refers; which tends, that is 
to say, to lower him in the estimation of right -thinking members 
of society generally and in particular to cause him to be regarded 
with feelings of hatred. contempt, ridicule, fear, dislike, or 
disesteem. The statement is judged by the standard of an ordinary, 
right- thinking member of society ... " 
ii. Halsburys Laws of England, Fourth Edition, Vol. 28, defines 
'defamatory statement' as under:-
"A defamatory statement is a statement which tends to lower a 
person in the estimation of right thinking members of the
society 
generally or to cause him to be shunned or avoided or to expose 
him to hatred, contempt or ridicule, or to convey an imputation on 
him disparaging or injurious to him in his office, profession, calling 
trade or business." 
iii. The definition of the term has been given by Justice Cave in 
the case of Scott v. Sm11pson 8 as a "false statement about a man to his 
discredit." 
iv. 
Defamation, according to C/wmhers Twentieth Century 
Diction((ry, means to take away or destroy the good fame or reputation; 
to speak evil of; to charge falsely or to asperse. According to Salmond:-
- Bala India lrd. v. A.M. Turaz & Ors. 2013 (53) PTC 586: Pande.)· Surindra .\"ath Sinha 
v. Bageshwari Pd. AIR 1961 Pat. 16-1 
' (1882) QBD 491 
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"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 
ifjustice 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"9• 
v. Winfield & Jo/owics on Torts 10 defines defamation thus:-
"Defamation is the publication of a statement which tends to lower 
a person in the estimation of right thinking members of society 
c 
generally; or which tends to make them shun or avoid that person. 
vi. In the book "Tlte Law of De(a111"tio11"11 , the term defamation 
has been defined as below:-
"Defamation may be broadly defined as a false statement of which 
the tendency is to disparage the good name or reputation of another 
D 
person." 
E 
as:-
vii. In Parmiter v. Couplmu/
12, defamation has been described 
'A publication, without justification or lawful excuse, which is 
calculatep to injure the reputation of another, by exposing him to 
hatred, contempt, or ridicule." 
viii. The definition of defamation by Fraser was approved by Mc 
Cardie Jin Myroji v. Sleiglit 13 • It says:-
"a defamatory statement is a statement concerning any person 
F 
which exposes him to
hatred, ridicule or contempt or which causes 
him to be shunned or avoided or which has a tendency to injure 
him in his office, profession or trade." 
G 
H 
ix. Carter- Ruck 011 Libel ({Ill/ S/a11der1• has carved out some 
'' Ga!ley's Libel and Slander, 6th edition, 1960 also Odger's Libel and Slander 6'i. Ed. 
1929 
1'1 (171' Edn. 2006) 
11 Richardo· Sullivan. QC and Roland Brown 
"(1840)6 MLW 105 
"(1921) 37 TLR 646 
"Manisha Koirala v. Shashi Lal Nair & Ors .. 2003 (2) Bom CR 136
SUBRAMANIAN SWAMY v. UNION OF INDIA, _MINISTRY OF 
921 
LAW & ORS. [DIPAK MISRA, J.] 
of the tests as under: -
"(!)a statement concerning any person which exposes him to 
hatred, ridicule, or contempt, or which causes him to be shunned 
or avoided, or which has a tendency to injure him in his office, 
professional or trade. 
(2) a false statement about.a man to his discredit. 
(3) would the words tend to lower the plaintiff in the estimation of 
right thinking members of society generally" 
22. We have noted the aforesaid definitions, descriptions and 
analytical perceptions only to understand how the concept has been 
extensively dealt with regard being had to its ingredients and expanse, 
and clearly show the solemnity of 'fame' and its sapient characteristics. 
Be.it stated, Section 499 !PC defines fame and covers a quite range of 
things but the reference to the term 'fame' is to ostracise the saying that 
"fame is a food that dead men eat". 
23. CONCEPT OF REPUTATION 
A 
B 
c 
D 
Having dealt about "defamation", we would like to refer to the 
intrinsic_ facets of "reputation" and what constitutes reputation. The 
allusions would clearly exposit the innate universal value of"reputation" 
and how it is a ·cherished constituent of lifoand not limited or restricted 
E 
by time. The description may be different, but the crucial base is the 
same. 
Vision of the Ancients 
i. In Bhagawad Gita, it has been said :-
The English translation of the· aforequoted shloka is:
"Non-violence in thought, word and deed, truthfulness and 
geniality of speech, absence of anger even on provocation, 
disclaiming doership in respect of actions, quietude or composure 
of mind. Abstaining from malicious gossip; compassion towards 
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al 1 creatures, absence of attachment to the objects of senses even 
during their contact with the senses, mildness, a sense of shame 
in transgressing against the scriptures or usage, and abstaining 
from frivolous pursuits." 
B 
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ii. In Subhashitratbhandagaram, it has been described:-
"Sa jeevti yas/10 yashya kirtiyashya sa jeevti, 
Ayasl10kirtism1yukto jeevannipe mritoopamma" 
Translated into English it is as follows: 
"One who possesses fame alone does live. One who has 
good praise does alone live. Who has no fame and negative praise 
is equal to one who is dead while alive." 
iii. The English translation of Surah 49 Aayaat 11 of the Holy 
Quran reads as follows:-
"Let not some men among you laugh at others: it may be that the 
(latter) are better than the (former): nor defame nor be sarcastic 
to each other, nor call each other by (offensive) nicknames, i 11-
seeming is a name connoting wickedness, (to be used of one) 
after he has believed: and those who do not desist are (indeed) 
doing wrong." 
iv. Proverb 15 of the Holy Bible reads as under:-
"A soft answer turns away wrath, 
but a harsh word stirs up anger. 
The tongue of the wise dispenses 
knowledge, 
but the mouths of fools pour out 
folly. 
The eyes of the LORD are in evety 
place, 
keeping watch on the evil and the good. 
A gentle tongue is a tree of life, 
but perverseness in it breaks the spirit." 
Though 'the aforesaid sayings have different
contexts, yet they 
lay stress on the reputation, individual honour and also the need of 
gentleness of behavior on the part of each one.
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
923 
LAW & ORS. [DIPAK MISRA, J.] 
Thoughts of the creative writers and thinkers 
A 
24. William Shakespeare in Othe.lo expressed his creative 
thoughts on character by the following expression:-
"Good name in man and woman, my dear lord, 
is the immediate jewel of their souls 
Who steals my purse steals trash; 'tis something, nothing; . 
'Twas mine, 'tis his, and has been slave to thousands; 
But he that filches from me my good name 
Robs me of that which not enriches him, 
And makes me poor indeed," 
25. The said author in Richard II, while enhancing the worth of 
individual reputation, achieved his creative heights, and the result in the 
ultimate is the following passage:-
"The purest Treasure mortal times afford 
ls spotless reputation; that away, 
Men are but gilded loam or painted clay. 
A jewel in a ten-times-barr'd-up chest 
Is a bold spirit in a loyal breast. 
Mine honour is my life, both grow in one; 
Take honour from me and my life is done." 
26. The famous Greek philosopher and thinker Socrates taught:-
"Regard your good name as the richest jewel you can possibly be 
possessed of-for credit is like fire; when once you have kindled 
it you may easily preserve it, but if you once extinguish it, you will 
find it an arduous task to rekindle it again. The way to gain a good 
reputation is to endeavour to be what you des.ire to appear.'' 
27. The philosopher. in Aristotle inspired him ~o speak:-
"Be studious to
preserve your reputation·; if that be once lost, you 
are like a cancelled writing, of no value, and at best you do but 
survive your own funeral": 
B 
c 
D 
E 
F 
28. While' speaking about reputation, William Hazlitt had to say:-
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"A man's reputation is not in his own keeping, but lies atthe mercy 
of the profligacy of others. Calumny requires no proof. The 
throwing out of malicious imputations against any character leaves 
a stain, which no after-refutation can wipe out. To create an 
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unfavourable impression, it is not necessary that certain things 
should be true, but that they have been said. The imagination is of 
so delicate a texture that even words wound it." 
B 
c 
D 
E 
F 
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H 
The International Covenants 
29. Various International Covenants have stressed on the 
significance ofreputation and honour in a person's life. The Universal 
Declaration 011 Hunum Rights, 1948 has explicit provisions for both, 
the right to free speech and right to reputation. Article 12 of the said 
Declaration provides that:-
"No one shall be subjected to arbitrary interference with his 
privacy, family, home or correspondence, nor to attacks upon his 
honour and reputation. Everyone has the right to the protection 
of the law against such interference or attacks." 
" 
30. The l11ternational Covenant 011 Civil mu/ Political Rights 
(CICCPR) contains similar provisions. Article 19 of the Covenant 
expressly subjects the right of expression to the rights and reputation of 
others. lt reads thus:-
" 1. Everyone shall have the right to hold opinions without 
interference. 
2. Everyone shall have the right to freedom of expression; this 
right shall iliclude freedom to seek, receive and impart informa-
tion and ideas of all kinds, regardless of frontiers, either orally, in 
writing or imprint, in the form of art, or through any other media 
of his choice. 
3. The exercise of the rights provided for in paragraph 2 of this
article carries with it special duties and responsibilities. It may 
therefore be subject to certain restrictions, but these shall only be 
such as are provided by law and are necessary: 
(a) For respect of the rights or reputations of others; 
(b) For the protection of national security or of public order (or-
der public), or of public health or morals''. 
31. Articles 8 and I 0 of the European Convention for the 
Protection of Human Rights mu/ Fundamental Freedoms (ECHR) 
provide:-
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
LAW & ORS. [DIPAK MISRA, J.) 
"Article 8. Right to respect for private and family life 
\. Everyone has the right to respect for his private and family 
life, his home and his correspondence. 
2. There shall be no interference by a public authority with the 
exercise of this right except such as is in accordance with the law 
and is necessary in a democratic society in the interests of na-
tional security, public safety or the economic wellbeing of the coun-
try for the prevention of disorder or crime, for the protection of 
health or morals, or for the protection of the rights and freedoms 
of others" 
"Article 10. :Freedom of expression 
1. Everyone has the right to freedom of expression. This right 
shall incfode freedom to hold opinions and to receive and impart 
information and ideas without interferenceby public authority and 
regardless of frontiers. This article shall not prevent States from 
requiring the licensing of broadcasting, television or cinema 
enterprises. 
2. The exercise of these freedoms, since it carries with it duties 
and responsibilities, maybe subject to such formalities, conditions, 
restrictions or penalties as are prescribed by law and are necessary 
in a democratic society, in the interests of national security, 
territorial integrity or public safety, for the prevention of disorder 
or crime, for the protection of health or morals, for the protection 
of the reputation or rights of others, for
preventing the disclosure 
of information received in confidence, or for maintaining the 
authority and impatiiality of the judiciary." 
32. The reference to international covenants has a definitive 
purpose. They reflect the purpose and concern and recognize reputation 
as an inseparable right of an individual. They juxtapose the right to 
freedom of speech and expression and the right of reputation thereby 
accepting restrictions, albeit as per law and necessity. That apart, they 
explicate that the individual honour and reputation is of great value to 
human existence being attached to dignity and all constitute an inalienable 
part of a complete human being. To put it differently, sans these values, 
no person or individual can conceive the idea of a real person, for absence 
of these aspects in life makes a person a non-person and an individual to 
be an entity only in existence perceived without individuality. 
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Perception of the Courts in United Kingdom as regards 
Reputation 
33. Now, we shall closely cover the judicial perception of the 
word "reputation" and for the said purpose, we shall first refer to the 
view expressed by other Cou1ts and thereafter return home for the 
B 
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34. Lord Denning explained the distinction between character 
and reputation in Plato Films Ltd. v. Spiedel15 in a succinct manner. 
We quote:-
"A man's "character," it is sometimes said, is what he in fact is, 
whereas his "reputation" is what other people think he is. If this 
be the sense in which you are using the words, then a libel action 
is concerned only with a man's reputation, that is, with what people 
think of him: and it is for damage to his reputation, that is, to his 
esteem in the eyes of others, that he can sue, and not for damage 
to his own personality or disposition. That is why Cave J. spoke 
of "reputation" rather than "character." 
The truth is that the word "character" is often used, and quite 
properly used, in the same sense as the word "reputation." Thus, 
when I say ofa man that "He has always "borne a good character," 
I mean that he has always been thought well of by others: and 
when I want to know what his "character" is, I write, not to him, 
but to others who know something about him. In short, his 
"character" is the esteem in which he i~ held by others who know 
him and are in a
position to judge his worth.A man can sue for 
damage to his character i11 this sense, even though he is little 
known to the outside world. If it were said of Ro.Pinson Crusoe 
that he murdered Man Friday, he would have a cause of action, 
even though no one had ever heard of him before. But a man's 
"character," so understood, may become known to others beyond 
his immediate circle. In so far as the estimate spreads outwards 
from those who know him and circulates among people generally 
in an increasing range, it becomes his "reputation," which is entitled 
to the protection of the law just as much as his character. But 
here I speak only ofa reputation which is built uppn the estimate 
of those who know him. No other reputation is of any worth. The 
1' ( 1961) I All. E.R. 876 
""'---
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
LAW & ORS. [DIPAK MISRA, J.] 
law can take no notice of a reputation which has no foundation 
except the gossip and rumour of busybodies who do not know the 
man. Test it this way. Suppose an honourable man becomes the 
victim of ground less rumour. He should be entitled to damages 
without having this wounding gossip dragged up against him. He 
can call people who know him to give evidence of his good 
character. On the other hand, suppose a ·'notorious rogue" 
manages to conceal his dishonesty from the world at large. He 
should not be entitled to damages on the basis that he is a man of 
unblemished reputation. There must, ones would think, be people 
who know him and can come and speak to his bad character." 
35. In regard to the importance of protecting an in~ividual's 
reputation Lord Nicholls of Birkenhead observed in Rey110/ds v. Times 
Newspapers Ltd16:-
'Reputation is an integral and important part of the dignity of the 
individual. It also forms the basis of many decisions in a democratic 
society which are fundamental to its well-being: whom to employ 
or work for, whom to promote, whom to do business with or to 
vote for. Once besmirched by an unfounded allegation in a national 
newspaper, a reputation can be damaged forever, especially if 
there is no opportunity to vindicate one's reputation. When this 
happens, society as well as the individual is the loser. For it should 
not be supposed that protection of
reputation is a matter of 
importance only to the affected individual and his family. Protection 
of reputation is conducive to the public good. lt is in the public 
interest that the reputation of public figures should not be debased 
falsely. In the political field, in order to make an informed choice, 
the electorate needs to be able to identify the good as w~ll as the 
bad. Consistently with these considerations, human rights 
· conventions recognise that freedom ofexpression is not an absolute 
right. Its exercise may be. subject to such restrictions as are 
prescribed by law and are necessary in a democratic society for 
the protection of the reputations of others." 
36. While deliberating on possible balance between the right to 
reputation and freedom of expression, in Campbell v. MGN Ltd17, it 
has been stated:-
"' [2001] 2AC 127 at201 
17 (200.J) UKHL 22 at para 55 
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"Both reflect impo1iant civilized values, but, as often happens, 
neither can be given effect in full measure without restricting the 
other, How are they to be reconciled in a particular case? There 
is in my view no question of automatic priority. Nor is there a 
presumption in favour of one rather than the other. The question 
is rather the extent to which it is necessary to quality the one right 
in order to protect the underlying value which is protected by the 
other. And the extent of the qualification must be propo1iionate to 
the need .... " See : Sed/ey LJ in Doug/Jlas v. Hello/ Ltd. [200 I] 
QB 967 
View of the Courts in United States 
37. In Wiscom'i11 v. Co11stm1ti11ea11 18 it has beenobserved that:-
"Where a person's good name, reputation, honor, or integrity is at 
stake because of what the government is doing to him, notice and 
an opportunity to be heard are essential. ''Posting" under the 
Wisconsin Act may to some be merely the mark of illness, to 
others it is a stigma, an official branding ofa person. The label is 
a degrading one. Under the Wisconsin Act, a resident of Hartford 
is given no process at all. This appellee was not afforded a 
chance 
to defend herself. She may have been the victim of an official's 
caprice. Only when the whole proceedings leading 10 the pinning 
of an unsavory label on a person are aired can oppressive results 
be prevented." 
38. In Rosenblatt V; Baer10 Mr.
Justice Stewart observed that:-
"The right of a man to the protection of his own reputation from 
unjustified invasion and wrongful hu11 reflects no more than our 
basic concept of the essential dignity and worth of every human 
being -- a concept at the root of any decent system of ordered 
libe1iy." 
Outlook of the Courts in Canada 
G 
39. Hill v. Church<~{ Scientology of Toro11to'0 
"(ii) The Reputation of the Individual 
".\00 U.S. 433 (1971) 
1• 383 U.S. 75 ( 1966) 
H 
'" 11995) 2 SCR 1130
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
LAW & ORS. [DIPAK MISRA, J.] 
I 07 The other value to be balanced in a defamation action is the 
protection of the reputation of the individual. Although much has 
very properly been said and written about the importance of 
freedom of expression, little has been written of the importance 
of reputation. Yet, to most people, their good reputation is to be 
cherished above all. A good reputation is closely related to the 
innate worthiness and dignity of the individual. It is an attribute 
that must, just as much as freedom of expression, be protected by 
society's laws. In order to undertake the balancing required by 
this case, something must be said about the value of reputation. 
108 · Democracy has always recognized and cherished the 
fundamental importance of an individHal. That importance must, 
in turn, be based upon the good repute of a person. It is that good 
repute which enhances an individual's sense of worth and value. 
False allegations ca11 so very quickly and completely destroy a 
good reputation. A reputation tarnished by libel can seldom regain 
its former lustre. A democratic society, therefore, has an interest 
in ensuring that its members can enjoy and protect their good 
reputation so long as it is merited." 
Opinion of the Courts in South Africa 
40. In the approach of the South African Com1s, "human dignity" 
is one of the founding values of the South African Constitution (Clause 
I). The Constitution
protects dignity (clause 7), privacy (clause 14) and 
freedom of expression (clause 16). In Khumalo v. Ilolo111isac
1 the Com1 
said:-
"27. Inthe context of the actio injuriarum, our common law has 
separated the causes of action for claims for injuries to reputation 
(fama) and dignitas. Dignitas concerns the individual's own sense 
of self worth, but included in the concept are a variety of personal 
rights including, for example, privacy. In our new constitutional 
order, no sharp line can be drawn between these injuries to 
personality rights. The value of human dignity in our Constitution 
is not only concerned with an individual's sense of self-worth, but 
constitutes an affirmation of the worth of human beings in our 
society. It includes the intrinsic worth of human beings shared by 
all people as well as the individual reputation of each person built 
"[2002] ZACC 12; 2002 (5) SA 401 
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upon his or her own individual achievements. The value of human 
dignity in our Constitution therefore values both the personal sense 
of self-worth as well as the public's estimation of the worth or 
value of an individual. It should also be noted that there is a close 
. link between human dignity and privacy in our constitutional order. 
[a footnote here in the judgment reads: "See National Coalition .. 
at para 30: "The present case illustrates how, in particular 
circumstances, the rights of equality and dignity are closely related, 
as are the rights of dignity and privacy."] The right to privacy, 
entrenched in section 14 of the Constitution, recognises that human 
beings have a right to a sphere of intimacy and autonomy that 
should be protected from invasion ... This right serves to foster 
human dignity. No sharp lines then can be drawn between 
reputation, dignitas and privacy in giving effect to the value of 
human dignity in our Constitution .... 
28. The law of defamation seeks to protect the legitimate interest 
individuals have in their reputation. To this end, therefore, it is 
one of the aspects ofour law which supports the protection of the 
value of human dignity. When considering the constitutionality of 
the law of defamation, therefore, we need to ask whether an 
appropriate balance is struck between the protection of freedom 
of expression on the one hand, and the value of human
dignity on 
the other." 
Perception of the European Court of Human Rights 
41. In Lindon v. France", Judge Loucaides, in his concurring 
opinion, held:-
"Accepting that respect for reputation is an autonomous human 
right, which derives its source from the Convention itself, leads 
inevitably to a more effective protection of the reputation of 
·individuals vis-a-vis freedom of expression." 
42. In the said case, the Court has. expressly recognised that 
protection offeputation is a right which is covered by the scope of the 
right to respect for one's private life under Article 8 of the Convention. 
In course of deliberations reference has been made to Clumvy and 
Otfters. v. Francec3, Abeberry v. France (dee.), no. 58729/00, 21 
September 2004; and Wflite v. Sweden'". 
22 (2008) 46 E.H.R.R. 35 
" (2005) 41 EHRR 29 
" [2007) EMLR I
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
931 
LAW & ORS. [DIPAK MISRA, J.] 
43. In Kamk6 v. Hungary25 the Court has opined that:-
A 
"24. The Court reiterates that paragraph 2 of Article I 0 recognises 
that freedom of speech may be restricted in order to protect 
reputation (see paragraph 16 above). In other words, the 
Convention itself announces that restrictions on freedom of 
expression are to be determined within the framework of Article 
B 
I 0 enshrining freedom of speech. 
25. The Court is therefore satisfied that the inherent logic of Article 
I 0, that is to say, the special rule contained in its second paragraph, 
precludes the possibility of conflict with Article 8. In the Court's 
view, the expression "the rights of others" in the latter provision 
c 
encompasses the right to personal integrity and serves as a ground 
for limitation of freedom of expression in so far as the interference 
designed to protect private life is proportionate." 
44. In Axel Springer AG v. Gernumy26 it has been ruled:-
" ... [T]he right to protection of reputation is a right which is 
protected by Article 8 of the Convention as part of the right to 
respect for private life ... In order for Article 8 to come into play, 
however, an attack on a person's reputation must attain a certain 
level of seriousness and in a manner causing prejudice to personal 
enjoyment of the right to respect for private life ... The Court has 
held, moreover, that Article 8 cannot be relied on in
order to 
complain of a loss of reputation which is the foreseeable 
consequence of one's own actions such as, for example, the 
commission of a criminal offence ... 
When examining the necessity of an interference in a democratic 
society in the interests of the "protection of the reputation or rights 
of others", the Court may be required to verify whether the 
domestic authorities struck a fair balance when protecting two 
values guaranteed by the Convention which may come into conflict 
with each other in certain cases, namely, on the one hand, freedom 
of expression protected by Article I 0 and, on the other, the right 
to respect for private life enshrined in A1ticle 8." 
The perspective of this Court 
45. In Board of Trustees of the Port of Bdi11hay v. Dilipkumar 
"(2011) 52 E.1-1.R.R.36 
"' (2012) 55 E.1-1.R.R.6 
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Ragllavendranatlt Nadkarni and otl1ers~
1
, the Court has opined that 
expression "Life" does not merely connote animal existence or a continued 
drudgery through life. Further, it proceeded to state thus:-
" ... The expression "life" has a much wider meaning. Where 
therefore the outcome of a departmental enquiry is likely to 
adversely affect reputation or livelihood of a person, some of the 
finer graces of human civilization which make life worth living 
would be jeopardised and the same can be put in jeopardy only by 
law which inheres fair procedures. In this context one can recall 
the famous words of Chapter II of Bhagwad-Gita: 
'"Sambhavitasya Cha Kirti Marnadati Richyate" 
46. In Kiran Bedi v. Committee of Inquiry and anotlter8 a 
three-Judge Bench, while dealing with the petition for quashing of the 
inquiry report against the petitioner therein, referred to Section 8-B of 
the Commissions of Inquiry Act, 1952 and opined that the importance 
has been attached with regard to the matter of safeguarding the reputation 
of a person being prejudicially affected in clause (b) of Section 8-B of 
the Commissions oflnquiry Act. It is because reputation of an individual 
is a very ancient concept. The Court referred to the words of caution 
uttered by Lord Krishna to Arjun in Bhagwad Gita with regard to dishonour 
or loss ofreputation; and proceeded to quote:-
· 
""Akirtinchapi bhutani kathaishyanti
te-a-vyayam, 
Sambha-vitasya Chakirtir maranadatirichyate. (2.34) 
(Men will recount thy perpetual dishonour, and to one 
highly esteemed, dishonour exceedeth death.)" 
Thereafter, the Court referred to Blackstone's Comme/1/ary of 
the Laws of England, Vol. I, 4th Edn., wherein it has been stated that 
the right of personal security consists in a person's legal and uninterrupted 
enjoyment of his life, his limbs, his body, his health and his reputation. 
" 
. 
Thereafter, advertence was made to the statement made m Corpus 
Juris Secundum, Vol. 77 at p. 268 which is to the following effect:-
"lt is stated in the definition Person, 70 C.J.S. p. 688 note 66 that 
legally the term "person" includes not only the physical body and 
members, but also every bodily sense and personal attribute, among 
which is the reputation a man has acquired. Blackstone in his 
Commentaries classifies and distinguishes those rights which are 
21 (1983) 1 sec 124 
~, ( 1989) 1 sec 494
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
LAW & ORS. [DIPAK MISRA, J.] 
annexed to the person, jura personarum, and acquired rights in 
external objects,jura rerum; and in the fonner he includes personal 
security, which consists in a person's legal and uninterrupted 
enjoyment of his life, his limbs, his body, his health, and his 
reputation. And he makes the corresponding classification of 
remedies. The idea expressed is that a man's reputation is a part 
of himself, as his body and limbs are, and reputation is a sort of 
right to enjoy the good opinion ofothers, and it is capable of growth 
and real existence, as an arm or leg. Reputation is, therefore, a 
personal right, and the right to reputation is put among those 
absolute personal rights equal in dignity and imp011ance to security 
from violence. According to Chancellor Kent as a part of the 
rights of personal security, the preservation of every person's good 
name from the vile arts of detraction is justly included. The laws 
of the ancients, no less than those of modern nations, made private 
reputation one of the objects of their protection. 
The right to the enjoyment of a good reputation is a valuable 
privilege, of ancient origin, and i1ecessary to human society, as. 
stated in Libel and Slander Section 4, and this right is within the 
constitutional guaranty of personal security as stated in 
Constitutional Law Section 205, and a person may not be deprived 
of this right through falsehood and
violence without liability for 
the injury as stated in Libel and Slander Section 4. 
Detraction from a man's reputation is an injury to his personality, 
and thus an injury to reputation is a personal injury, that is, an 
injury to an absolute personal right". 
Be it noted a passage from D.F. Marion v. Davis29 , was 
reproduced with approval:-
"The right to the enjoyment of a private reputation, unassailed by 
malicious slander is of ancient origin, and is necessary to human 
society. A good reputation is an element of personal security, and 
is protected by the Constitution equally with the right to the 
enjoyment oflife, liberty, and property." 
47. In Gia11 Kaur v. State of Pu11jab30, this CoU11 observed that 
the right to reputation is a natural right. In Melmuwd Nayyar Awm v. 
State of Cltlwtisgarlt am/ otlters31 , while discussing the glory of 
honourable life, the CoUI1 observed:-
''' 55ALR171 
'" ( 1996) 2 sec 648 
"(2012) s sec 1 
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"Albert Schweitzer, highlighting on the Glory of Life, pronounced 
with conviction and humility, "the reverence of life offers me my 
fundamental principle on morality". The aforesaid expression may 
appear to be an individualistic expression of a great personality, 
but, when it is understood in the complete sense, it really denotes, 
in its conceptual essentiality, and connotes, in its macrocosm, the 
fundamental perception of a thinker about the respect that life 
commands. The reverence of life is insegregably associated with 
the dignity of a human being who is basically divine, not servile." 
Elucidating further, the Court observed:-
" A human personality is endowed with potential infinity and it 
blossoms when dignity is sustained. The sustenance of such dignity 
has to be the superlative concern of every sensitive soul. The 
essence of dignity can never be treated as a momentary spark of 
light or, for that matter, "a brief candle", or "a hollow bubble". 
The spark of life gets more resplendent when man is treated with 
dignity sans humiliation, for every man is expected to lead an 
honourable life which is a splendid gift of"creative intelligence". 
When a dent is created in the reputation, humanism is 
paralysed .... " 
48. In Visltwanatlt A1:rawal v. Sarai Visltwanatlt A1:rawaP~ 
this Court observed that reputation which is not only the salt of life, but 
also the purest treasure and the most
precious perfume of life. It is a 
revenue generator for the present as well as for the posterity. In Umeslt 
Kumar v. State of Amlltra Pradeslt mu/ anotlter33 the Court observed 
that personal rights of a human being include the right of reputation. A 
good reputation is an element of personal security and is protected by 
the Constitution equally with the rightto the enjoyment oflife, liberty and 
property and as such it has been held to be a necessary element in 
regard to right to life of a citizen under Article 21 of the Constitution. 
The International Covenant on Civil and Political Rights, 1966 recognises 
right to have opinions and right to freedom of expression under Article 
19 is subject to the right of reputation of others. 
49. In Kislwre Samrite v. State<~( Uttar Pradeslt and others", 
while dealing with the term "person" in the context of reputation, the 
"(2012)7 SCC288 
"(2013) 10 sec 591 
H 
3'(2013)2SCC398
SUBRAMANIAN SWAMY v. UNION OF INDIA. MINISTRY OF 
LAW & ORS. [DIPAK MISRA. J.] 
Court after referring to the authorities in Kira11 Bedi (supra) and Nilgiris 
Bar Association v. T.K. A1alwli11ga111 mul mwtlier35 held that:-
"The term "person" includes not only the physical body and 
members but also every bodily sense and personal attribute among 
which is the reputation a man has acquired. Reputation can also 
be defined to be good name, the credit, honour or character which 
is derived from a favourable public opinion or esteem, and character 
by report. The right to enjoyment of a good reputation is a valuable 
privilege of ancie11t origin and necessary to human society. 
"Reputation'' is an element of personal security and is protected 
by the Constitution equally with the right to enjoyment of life, 
liberty and property. Although ·'character" and "reputation" are 
often used synonymously, but these terms are distinguishable. 
"Character'' is what a man is and "reputation" is what he is 
supposed to be in what people say he is. ·'Character" depends on 
attributes possessed and "reputation" on attributes which others 
believe one to possess. The former signifies reality and the latter 
merely what is accepted to be reality at present. ... " 
50. In Om Prakash Clwutala v. Kanwar B/11111 and otlters36 it 
has been held that reputation is fundamentally a glorious amalgam and 
unification ofviltues which makes a man feel proud-of his ancestry and 
satisfies him to bequeath it
as a part of inheritance on posterity. It is a 
nobility in itself for which a conscientious man would never barter it with 
all the tea of China or for that matter all the pearls of the sea. The said 
virtue has both horizontal and vertical qualities. When reputation is hurt, 
a man is half-dead. It is an honour which deserves to be equally preserved 
by the downtrodden and the privileged. The aroma of reputation is an 
excellence which cannot be allowed to be sullied with the passage of 
time. It is dear to life and on some occasions it is dearer than life. And 
that is why it has become an inseparable facet of Article 21 of the 
Constitution. No one would like to have his reputation dented, and it is 
perceived as an honour rather than popularity. 
51. In State (Jf G1~iarat mu/ auotlter v. IJ011'ble High Court of 
Gujaraf7, the court opined:-
" ( 1998) 1 sec sso 
_,,, (2014) s sec 417 
· " ( 1998) 1 sec 392 
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"An honour which is a lost or life which is snuffed out cannot be 
recompensed" 
52. We have dwelled upon the view of this Court as regards 
value ofreputatio11 and importance attached to it. We shall be obliged, 
as we are, to advert to some passages from the aforementioned authorities 
B 
and also from other pronouncements to understand the Court's "accent" 
on reputation as an internal and central facet of right to life as projected 
under A11icle 21 of the Constitution at a later stage. 
53. Having reconnoitered the assessment of tho;: value of reputation 
and scrutinised the conceptual meaning of the term "reputation", we are 
c 
required to weigh in the scale of freedom of speech and expression, 
especially under our Constitution and the natttre oftb democratic polity 
the country has. 
D 
E 
Right of the Freedom of Speech and Ex1>rrssion 
54. To appreciate tht: rang,e and dep1h of the said right, it is essential 
to understand the anatomy of Articles 19(1 )(a) and I 9(2) of the 
Constitution. Be it noted here that Article I 9(2) was amended by the I st 
Amendment to the Consti;ution on 18th June, I 95 i w.e.f. 26.0 I .1950. 
Article I 9(1 )(a) has remained its original form. It reads as under:-
"! 9. (I) All citizens shall have th;: right-
(a) To freedom of speech and expression; 
55. Article I 9(2) prior to the amendment was couched in the 
fqllowinp; words:-
F 
"Nothing in sub-clause (a) ofCl.(J) shall affect the
operation of 
any existing law in so far as it relates to, o,· prevents the state 
from making any lawn latingto, libel, slander, defamation, contempt 
of Court or any matter which offends against de~ency or morality 
or which undermines the security ot: or tends to overthrow, the 
G 
H 
State." 
56. Afier the amendment, the new incarnatio;1 is as follows:-
"(2) Nothing in sub-clause (a) of clause (I) shall affect the 
operation of any existing law, or prevent the State from making 
any law, in so far as such law imposes reasonable restrictions on 
the exercise of the right conferred by the said sub-clause in the
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
LAW & ORS. [DIPAK MISRA, J.] 
interests·ofthe security of the State, friendly relations with foreign 
States, public order, decency or morality; or in relation to contempt 
of Court, defamation or incitement to an offence.'' 
57. Learned counsel appearing for some of the petitioners, apart 
from addressing at length on the concept of reasonable restriction have 
also made an effort, albeit an Everestian one. pertaining to the meaning 
of the term "defamation" as used in Article I 9(2). In this regard, four 
aspects, namely, (i) defamation, however extensively stretched, can only 
include a civil action but not a criminal_ proceeding, (ii) even if defamation 
is conceived of to include a criminal offence, regard being had to its 
placement in Article .19(2), it has to be understood in associa{ion of the 
words, "incitemen_t to an offence", for the principle of noscitur a sociis 
has to be made applicable, then only the cherished and natural right of 
freedom of speech and expression which has been recognized under 
Article 19(1 )(a) would be saved from peril, (iii) the intention of clause 
(2) of Article 19 is to include a pub I ic law remedy in respect of a grievance 
that has a collective impact but not to take in its ambit an actionable 
claim under the common law by an individual and (iv) defamation of a 
person is mostly relatable to assault on reputation by another individual 
and such an individual cavil cannot be
thought of being pedestalled as 
fundamental right and, therefore, the criminal defamation cannot claim 
to have its source in the word "defamation" used in Article 19(2) of the 
Constitution. 
58. To appreciate the said facets of the submission, it is necessary 
to appreciate ambit and purport of the word "defamation". To elaborate, 
whether the word "defamation" includes both civil and criminal 
defamation. Only after we answer the said question. we shall proceed 
to advert to the aspect of reasonable restriction on the right of freedom 
of speech and expression as engrafted under Article 19( I )(a). Mr. 
Rohtagi. learned Attorney General for India has canvassed that to 
understand the ambit of the word '·defamation" in the context of the 
language employed in Article 19(2). it is necessary to refer to the 
Constituent Assembly debates. 
He has referred to certain aspects of 
the debates and we think it appropriate to reproduce the relevant parts:-
"The Honourable Dr. B.R. Ambedkar: Sir. this article is to be 
read along with article 8. 
Article 8 says ·-· 
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Constitution in the territory of India, in so far as they are 
inconsistent with the provision of this Part, shall. to the extent of 
such inconsistency be void." 
And all that this article says is this, that all laws, which relate to 
libels. slander, defamation or any other matter which offends 
against decency or morality or undermines the security of the 
State shall not be affected by miicle 8. That is to say, they shall 
continue to operate. If the words "contempt of coud' were not 
there, then to any law relating to contempt of court article 8 would 
apply, and it would stand abrogated. It is prevent that kind of 
situation that the words "contempt of court" are introduced, and 
there is, therefore, no difficulty in this amendment being accepted. 
Now with regard to the point made by Friend Mr. Santhanam, it is 
quite true that so far as fundamental rights are concerned, the 
word "State" is used in a double sense, including the Centre as 
well as the Provinces. But I think he will bear in mind that 
notwithstanding this fact, a State may make a law as well as the 
Centre may make a law. some of the heads mentioned here such 
as libel, slander. defamation, security of State, etc., are matters 
placed in the Concurre1it list so that if there was any very great 
variation among the laws made, relating to these subjects, it will 
be open to the Centre to enter upon the field and introduce such 
uniformity as the
Centre thinks it necessary for this purpose". 
"Mahaboob Ali Baig Sahib Bahadur ... 
Then, Sir, it is said by Dr. Ambedkar in his introductory speech 
that fundamental rights are not absolute. Of course, they are not; 
F 
they are always subject to the interests of the general public and 
the safety of the State, but the question is when a certain citizen 
oversteps the limits so as to endanger the safety of the State, who 
is to judge? According to me, Sir. and according to well recognized 
canons, it is not the executive or the legislature, but it is the 
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independent judiciary of the State that has to judge whether a 
certain citizen has overstepped the limits so as to endanger the 
safety of the State. This distinction was recognized by the framers 
of the American Constitution in that famous Fourteenth 
Amendment which clearly laid down that no Congress can make 
any law to prejudice the freedom of speech. the freedom of 
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association and the freedom of the press. This was in 1791. and
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
939 
LAW & ORS. [DIPAK MISRA, J.] 
if the American citizen transgressed the limits and endangered 
A 
the State, the judiciary would judge him and not the legislature or 
the executive." 
The following speech from the Constituent Assembly Debates of 
Shri. K. Hanumanthaiya (Mysore) is extremely significant: 
"The question next arises whether this limiting authority should be 
the legislature or the court. That is a very much debated question. 
Very many people, very conscientiously too, think that the 
legislature or the executive should not have anything to do with 
laying down the limitations for the operation of these fundamental 
rights, and that it must be entrusted to courts which are free from 
political influences. which are independent and which can take an 
impartial view. That is the view taken by a good number of people 
and thinkers. Sir, I for one, though I appreciate the sincerity with 
which this argument is advanced, fail to see how it can work in 
actual practice. Courts can, after all, interpret the law as it is. 
Law once made may not hold good in its true character for all 
time to come. Society changes; Government change; the temper 
and psychology of the people change from decade to decade if 
not from year to year. The law must be such as to automatically 
adjust itself to the changing conditions. Courts cannot, in the very 
nature of things, do legislative work: they can only interpret. 
Therefore. in
order to see that the law automatically adjusts to the 
conditions that come into being in times to come, this power of 
limiting the operation of the fundamental rights is given to the 
legislature. After all, the legislature does not consist of people 
who come without the sufferance of the people. The legislature 
consists ofreal representatives of the people as laid down in this 
Constitution. If, at a particular time the legislature thinks that 
these rights ought to be regulated in a certain manner and in a 
particular method. there is nothing wrong in it. nothing despotic 
about it, nothing derogatory to these fundamental rights. I am 
indeed glad that this right of regulating the exercise offundamental 
rights is given to the legislature instead of to the courts." 
59. In this regard, excerpts from speech from Prof. K.T. Shah 
are also noteworthy:-
" ... my purpose in bringing forward this amendment is to point 
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accordance with only the provisions of this article, or are to be 
guaranteed subject to the provisions of this article only, then they 
would amount more to a negation of freedom than the promise or 
assurance of freedom, because in eve1yone of these clauses the 
exceptions are much more emphasised than the positive provision. 
In fact, what is given by one right hand seems to be taken away 
by three or four or five left hands; and thei·efore the article is 
rendered negatory in any opinion. 
I am sure that was not the intention or meaning of the draftsmen 
who put in the other aiiicles also. I suggest therefore that instead 
of making it subject to the provisions of this article, we should 
make it subject to the provisions of this Constitution. That is to 
say, in this Constitution this article will remain. Therefore if you 
want to insist upon these exceptions, the exceptions will also 
remain. But the spirit of the Constitution, the ideal under which 
this Constitution is based, will also come in, which I humbly submit, 
would not be the case, if you emphasise only this article. If you 
say merely subject to the provisions of this article, then you veey 
clearly emphasise and make it necessary to read only this article 
by itself, which is more resti'ictive than necessary .... 
. . . The freedoms are curtly enumerated in 5, 6 or 7 items in one 
sub-clause of the article. The exceptions are all
separately 
mentioned in separate sub-clauses. And their scope is so widened 
that I do not know what cannot be included as exception to these 
freedoms rather than the rule. In fact. the freedoms guaranteed 
or assured by this aiiicle become so elusive that one would find it 
necessary to have a microscope to discover where these freedoms 
are. whenever it suits the State or the authorities running it to 
deny them. I would, therefore, repeat that you should bring in the 
provisions of the whole Constitution, including its Preamble and 
including all other articles and chapters where the spirit of the 
Constitution should be more easily and fully gathered than merely 
in this aiiicle, which, in my judgment, runs counter to the spirit of 
the Constitution .... 
I also suggest that it would not be enough to enumerate these 
freedoms, and say the citizen shall have them. I would like to add 
the words also that by this Constitution these freedoms arc 
guaranteed. That is to say. any exception which is made, unless
SUBRAMANIAN SWAMY v. UNION OF INDIA. MINISTRY OF 
LAW & ORS. [DIPAK MISRA, J.] 
justified by the spirit of the Constitution, the Constitution as a whole 
and every part of it included, would be a violation of the freedoms 
guaranteed hereby." 
Relying on the said debates, it is urged by Mr. Rohatgi that 
the founding fathers had no intention to confer a restricted 111eaning 
on the term "defamation". 
60. After this debate, Article 19(2) came in its original shape. 
Thereafter, the First Amendment to the Constitution, passed in June, 
1951 which empowered the State to impose "reasonable restrictions" 
on the freedom of speech and expression "in the interests of the security 
of the State33, friendly relations with foreign States, public order, decency 
or morality, or in relation to contempt of court, defamation, or incitement 
to an offence". The words "libel" and "slander" were dropped. 
"Incitement to an offence" was added as a response to the rulings in 
State t~f Bilwr v. Sflailaba/a DevP9 am/ Brij Bii us/um v. State of 
Delhi'°. The restrictions were qua I ified by prefixing the word 
"reasonable''. The 16th Amendment to the Constitution in 1963 added 
the power to impose restrictions on the freedom of speech and expression 
in the interests of"sovereignty and integrity of India". 
61. We may state with profit that the debates of the Constituent 
Assembly can be taken aid of for the purpose of understanding the 
intention of the framers of the Constitution. 
In S.R.
Clwudfluri v. 
State of Punjab and others•1 a three-Judge Bench has observed that 
Constitutional provisions are required to be understood and interpreted 
with an object-oriented approach. A Constitution must not be construed 
In a narrow and pedantic sense. The words used may be general in 
terms but, their full import and true meaning, has to be appreciated 
considering the true context in which the same are used and the purpose 
which they seek to achieve. While so observing, the Court proceeded to 
state that it is a settled position that debates in the Constituent Assembly 
may be relied upon as an aid to interpret a constitutional provision because 
it is the function of the court to find out the intention of the framers of 
the Constitution. It was also highlighted that the Constitution is not just a 
document in solemn form, but a living framework for the Government of 
the people exhibiting a sufficient degree of cohesion and its successful 
" Replacing the words "tends to overthrmr the State". 
"AIR 1952 SC 329 
''' 1952 SCR 654 : AIR 1950 SC 129 
' 1 <2001>1sec126 
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work; Jg depends upon the democratic spirit underlying it being respected 
in letter and in spirit. In Special Reference No. 1 of 2002, 111 re 
(Guj;~rat Assembly Election matter)"', the issue of relying on the 
Constituent Assembly Debates again came up for consideration. Khare, 
J. (as His Lordship then was) referred to HIS Ho/i11ess Kesavmumtla 
Blwrati Sripada!(alvaru v. State <~{Kem/a mu/ another, and held:-
"ConstituentAssembly Debates although not conclusive. yet show 
the intention of the framers of the Constitution in enacting provisions 
of the Constitution and the Constituent Assembly Debates can 
throw light in ascertaining the intention behind such provisions." 
62. Recently, in Ma110.i Narula v. U11io11 Qf India"" the majority 
in th~ context of understanding the purpose of Article 75 of the 
Const,itution referred to the Constituent Assembly debates. 
'63. We have referred to the aforesaid aspect only to high I ight the 
intention of the founding fathers and also how contextually the word 
"defamation" should be understood. At this stage, we may state that in 
the course of hearing, an endeavour was made even to the extent of 
stating that the word "defamation" may not even call for a civil action in 
the absence of a codified law. In this regard, we may usefully refer to 
M.C. Setalvad's Hamlyn Lectures (Twelfth Series) ''The Common Law 
of India" wherein India's first Attorney General
expressed that:-
"an impo11ant branch of law which has remained uncodified in 
India is the law relating to civil wrongs. 
Some of the most impo11ant rights of a person which the law 
protects from injury are rights to the security .of his person, his 
domestic relations and his property and reputation ... (page I 08) 
One of the outstanding fact of English legal history for the last 
three centuries is the development of the law of torts from small 
beginnings to its present dimensions as a separate branch of law. 
The action for damages as a remedy for violations of rights and 
duties has been fashioned by lawyers.judges and juries of England 
as an instrument for making people adhere to standards of 
reasonable behavior and respect the rights anc! interest of cne 
another. A body of rules has grown and is constantly growing in 
"(2002) s sec 237 
" ( 1973) 4 sec 225 
"(2014) 9 sec 1
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
943 
LAW & ORS. [DIPAK MISRA, J.] 
response to new concepts of right and duty and new needs and 
A 
conditions of advancing civilization. The principles which form 
the foundation of the law of torts are usually expressed by saying 
the injuria sine damno is actionable but damnu111 sine (or 
absque) injuria is not . ... "(page I 09) 
64. The common law of England was the prevalent law being 
B 
adopted before the Constitution came into force and it is declared as a 
law in force under Article 372 of the Constitution of India by a larger 
Bench decision in S11peri11te11de11t and Remembrancer of Legal Affairs 
v. Corporation of Calcutta"'. 
65. The position has further become clear in Ganga Bai v. Vijay 
c 
K1111wr"6 wherein this Court has ruled thus:-
"There is an inherent right in every person to bring a suit of a civil 
nature and unless the suit is barred by statue one may, at one's 
peril, bring a suit one's choice. It is no answer to a suit, howsoever 
frivolous the claim, that the law confers no such right to sue. A 
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suit for its maintainability requires no authority of law and it is 
enough that no statute bars the suit." 
66. We have referred to this aspect only to clarify the position 
that it is beyond any trace of doubt that civil action for which there is no 
codified law in India, a common law right can be taken recourse to 
E 
under Section 9 of the Code of Civil Procedure, 1908, unless there is 
specific
statutory bar in that regard. 
67. The other aspect that is beingJ1ighlighted in the context of 
Article l 9(2)(a) is that defamation even is conceived of to include a 
criminal offence, it must have the potentiality to "incite to cause an 
offence". To elaborate, the submission is the words "incite to cause an 
offence'' should be read to give attributes and characteristics oferiminality 
to the \vord "defamation". It must have the potentiality to lead to breach 
of peace and public order. It has been urged that the intention ofdause 
(2) of Attic le 19 is to include a public law remedy in respect ofa grievance 
that has a collective impact but not as an actionable claim under the 
common law by an individual and, therefore, the word "defamation" has 
to be understood in that context, as the associate words are "incitement 
to an offence" would so warrant. Mr. Rao, learned senior counsel, 
4; AIR 1967 SC 997 = I 967 (2) SCR 170 
'" ( t9N) 2 sec 393 
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astutely canvassed that unless the word "defamation" is understood in 
this manner applying the principle of noscitur a sociis, the cherished and 
natural right of freedom of speech and expression which has been 
recognized under Article 19( I )(a) would be absolutely at peril. 
Mr. 
Narsimha, learned ASG would contend that the said rule of construction 
would not be applicable to understand the meaning of the term 
"defamation". Be it noted, while construing the provision of Article 19(2), 
it is the duty of the Court to keep in view the exalted spirit, essential 
aspects, the value and philosophy of the Constitution. There is no doubt 
that the principle of noscitur a sociis can be taken recourse to in order to 
understand and interpret the Constitution but while applying the principle, 
one has to keep in mind the contours and scope of applicability of the 
said principle. In State of Bombay v. Hospital Mtizdoor Sab/w41, it 
has been held that it must be borne in mind that noscitur a sociis is 
merely a rule of construction and it cannot prevail in cases where it is 
clear that wider words have been deliberately used in order to make the 
scope of the defined word correspondingly wider. It is only where the 
intention of the legislature in associating wider words with words of 
narrower significance is doubtful, or otherwise not clear that the said 
rule of construction can be usefully applied. It can also
be applied where 
the meaning of the words of wider import is doubtful; but, where the 
object of the legislature in using wider words is clearand free of ambiguity, 
the rule of construction in question cannot be pressed into service. 
68. In Ba11k of India v. Vijay Tra11sport a11d otlters"8, the Cou11 
was dealing with the contention that a literal interpretation is not always 
the only interpretation of a provision in a statute and the court has to look 
at the setting in which the wo1 Is are used and the circumstances in 
which the law came to be passed to decide whether there is something 
implicit behind the words actually used which would control the literal 
meaning of the words used. For the said purpose, reliance was placed 
on R.L. Arora v. State of Uttar Pradesh"9 • Dealing with the said aspect, 
the Court has observed thus:-
" ... It may be that in interpreting the words of the provision of a : 
statute, the setting in which such words are.placed may be taken 
into consideration, but that does not mean that even though the 
"AIR 1960 SC 610; (1960) 2 SCR 866 · 
"1988 Supp sec 47 ;AIR 1988 SC 151 
H 
"' ( 1964) 6 SCR 784 ;AIR 1964 SC 1230
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
LAW & ORS. [DIPAK MISRA, J.] 
words which are to be interpreted convey a clear meaning, still a 
different interpretation or meaning should be given to them because 
of the setting. In other words, while the setting of the words may 
sometimes be necessary forthe interpretation of the words of the 
statute, but that has not been ruled by this Court to be the only and 
the surest niethod of interpretation .... " 
69. The Constitution Bench, in Godfrey Phillips India Ltd. and 
cmother v. State of U.R and others50, while expressing its opinion on 
the aforesaid rule of construction, opined:-
'·8 J. We are aware that the maxim of noscitur a sociis may be a 
treacherous one unless the "societas" to which the "soc ii" belong, 
are known. The risk may be present when there is no other factor 
except contiguity to suggest the "societas". But where there is, 
as here, a term of wide denotation which is not free from ambiguity, 
the addition of the words such as "including" is sufficiently 
indicative of the societas. As we have said, the word "includes" 
in the present context indicates a commonality or shared features 
or attributes of the including word with the included. 
x 
x 
x 
x 
83. Hence on an application of general principles of interpretation, 
we would hol.d that the word "luxuries" in Entry 62 of List II 
means the activity of enjoyment of or indulgence in that which is 
costly or which is generally recognised as being
beyond the 
necessary requirements of an average member of society and 
not articles of luxury." 
70. At this juncture, we may note that in Ahmedahad Pvt. 
Prinwry Teachers' A.\·s11. v. Administrative Officer and others5'. it 
has been stated that noscitur a sociis is a legitimate rule of construction 
to construe the words in an Act of the Parliament with reference to the 
words found in immediate connection with them. 
In this regard, we 
may refer to a passage from Justice G.P. Singh, Principles of Statutory 
lnterpretatfon
5 ~ where the learned filiihor has referred to the lucid 
explanation· given by Gajendragadkar, J. We think it appropriate to 
reproduce the passage:·-
'" (2005) 2 sec 51.5.. 
'' (2004) 1 sec 755 
'' 13th Edn. WI 2 p. 509 
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'•Jt is a rule wider than the rule of ejusdem generis; rather the 
latter rule is only an application of the former. The rule has been 
lucidly explained by GA.I ENDRAGADKAR. J. in the following 
words: "This rule, according to MAXWELL5\ means that when 
two or more words which are susceptible of analogous meaning 
are coupled together. they are understood to be used in their 
cognate sense. They take as it were their colour from each other. 
that is, the more general is restricted to a sense analogous to a 
less general.'' 
Learned author on further discussion has expressed the view that 
meaning of a word is to be judged from the company it keeps, i.e., 
reference to words found in immediate connection with them. It applies 
when two or more words are susceptible of analogous meanings are 
coupled together, to be read and understood in their cognate sense.5• 
Noscitur a soccis is merely a rule of construction and cannot prevail 
where it is clear that wider and diverse etymology is intentionally and 
deliberately used in the provision. It is only when and where the intention 
of the legislature in associating wider words with words of narrowest 
significance is doubtful or otherwise not clear. that the rule of 11oscitur a 
.wccis is useful. 
71. The core issue is whether the said doctrine of noscitur u 
soccis should be applied to the expression "'incitement of an offence" 
used in Article 19(2) of the
Constitution so that it gets associated with 
the term "defamation". The term •'defamation" as used is absolutely 
clear and unambiguous. The meaning is beyond doubt. The said term 
was there at the time of commencement of the Constitution. If the word 
"defamation" is associated or is interpreted to take colour from the terms 
.. incitement to an offence". it would unnecessarily make it a restricted 
om: which even the founding fathers did not intend to do. Keeping in 
view the aid rhat one may take from the Constituent Assembly Debates 
and regard being had to the clarity of expression. we are of the considered 
opinion that there is no warrant to apply the principle of 11oscitur a 
sociis to give a restricted meaning to the term "defamation" that it only 
includes a criminal action if it gives rise to incitement to constitute an 
offence. The word "incitement" has to be understood in the context of 
freedom of speech and expression and reasonable restriction. The word 
' 3 Ma:rn·ell: Interpretation of" Statutes. 11th Edition. p. 321 
"Principles of Statutory Interpretations b: Ci.I'. Singh. Eighth Edition. p.379
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
LAW & ORS. [DIPAK MISRA, J.] 
"incitement" in criminal jurisprudence has a different meaning. It is 
difficult to accede to the submission that defamation can. only get 
criminality ifit incites to make an offence. The word ''defamation" has 
its own independent identity and it stands alone and the law relating to 
defamation has to be understood as it stood at the time when the 
Constitution came into force. 
72. The submission is that Sections 499 and 500 of !PC are not 
confined to defamation of the State or its components but include 
defamation of any private person by another private person totally 
unconnected with the State. In essence, the proponement is that the 
defamation of an individual by another individual can be a civil wrong 
but it cannot be made a crime in the name of fundamental right as 
protection of private rights qua private individuals cannot be conferred 
the status of fundamental rights. If, argued the learned counsel, SLtch a 
pedestal is given, it would be outside the purview of Part Ill of the 
Constitution and run counter to Articles 14, 19 and 21 of the Constitution. 
It is urged that defamation of a private person by another person is 
unconnected with the fundamental right conferred in public interest by 
A11icle 19( I )(a); and a fundamental right is enforceable against the State 
but cannot be invoked to serve a private interest of an individual. 
Elucidating the same, it has been
propounded that defamation of a private 
person by another person cannot be regarded as· a 'crime' under the 
constitutional framework and hence, what is permissible is the civil wrong 
and the remedy under the civil law. Section 499 !PC, which ~tipulates 
defamation ofa private person by another individual, has no nexus with 
the fundamental right conferred under A11icle 19( I )(a) of the Constitution, 
for Article 19(2) is meant to include the public interest and not that of an 
individual and, therefore, the said constitutional provision cannot be the 
source of criminal defamation. This argument is bu i It up on two grounds: 
(i) the common thread that runs through the various grounds engrnfted 
under Artie le 19(2) is relatable to the protection of the interest of the 
State and the public in general and the word "defamation" has to be 
understood in the said context. and (ii) the principle ofnoscitur a sociis, 
when applied, "defamation" remotely cannot assume the character of 
public interest or interest of the crime inasmuch a crime remotely has 
nothing to do with the same. 
73. We have already stated about the doctrine of noscitur a sociis 
with regard to 'incitementofan offence'. Mr. Rao, learned senior counsel, 
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has emphasized on public interest relying on the said principle and in that 
context has commended us to the decisions in K. Blwgiratlti G Sltenoy 
and otlters v. K.P. Bal/akuraya and another55, Reserve Bank of India 
v. Peerless General Finance and Investment Co. Ltd. and otlters56 • 
In Peerless General Finance and /11vest111e11t Co. Ltd. (supra), 
Chinnappa Reddy, J. speaking for the Court, has observed that:-
"Interpretation must depend on the text and the context. They are 
the bases of interpretation. One may well say if the text is .the 
texture, context is what gives the colour. Neither can be ignored. 
Both are important. That interpretation is best which makes the 
textual interpretation match the contextual." 
74. In K. Blwgirathi (supra), it has been held that:-
"lt is not a sound principle in interpretation of statutes to lay 
emphasis on one word disjuncted from its preceding and succeeding 
words. A word in a statutory provision is to be read in collocation 
with its companion words. The pristine principle based on the 
maxim noscitur a sociis (meaning of a word should be known 
from its accompanying or associating words) has much relevance 
in understanding the import of words in a statutory provision." 
75. The decision in Peerless General Finance and Investment 
Co. Ltd. (supra) relates to the principles to be adopted for understanding 
the statute. In K. Blwgirathi (supra), the Comt has
referred to the 
principle having regard to the statutory context. We have already referred 
to the decision in Hospital Mazdoor Sublla (supra) wherein it has been 
ruled that the principle of noscitur a sociis is merely a rule of construction 
and it cannot be allowed to prevail in a case where it is clear that wider 
words have been deliberately used in order to make the scope of the 
defined word correspondingly wider. The term "defamation" as used in 
Article 19(2) should not be narrowly construed. The conferment of a 
narrow meaning on the word would defeat the very purpose that the 
founding fathers intei1ded to convey and further we do not find any 
justifiable reason to constrict the applicatiot1,The word "defamation" as 
used in Article 19(2) has to be conferred an independent meaning, for it 
is incomprehensible to reason that it should be read with the other words 
and expressions, namely, "security of the State", "friendly relations with 
"(1999) 4 sec 135 
"' ( 1987) 1 sec 424