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
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
LAW & ORS. [DIPAK MISRA, J.] 
foreign States", "public order, decency or morality". The submission is 
based on the premise that "defamation" is meant to serve private interest 
of an individual and not the larger public interest. Both the aspects of 
the said submission are interconnected and interrelated. Defamation has 
been regarded as a crime in the !PC which is a pre-constitutional law. It 
is urged that such kind of legal right is unconnected with the fundamental 
right conceived ofunder Article 19( I )(a) of the Constitution. Additionally, 
it is canvassed that reputation which has been held to be a facet of 
Article 21 in Dilipkuniar Ra~Jwvemlrana(lt Nadkami (supra), 
Me/mzood Nayyar Azam (supra), and Umesh Kumar (supra), is against 
the backdrop where the State has affected the dignity and reputation of 
an individual. This aspect of the submission needs apposite understanding. 
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. It matters to an individual 
in the eyes of the society. 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. When we talk of society, it is not an 
, abstract idea or a
thought in abstraction. There is a link and connect 
between individual rights and the society; and this connection gives rise 
to community interest at large. It is a concrete and visible phenomenon. 
Therefore, when harm is caused to an individual, the society as a whole 
is affected and the danger is perceived. 
76. In this context, it is necessary to understand the basic concept 
of crime. In Halsbury's, 4
1h Edition, "Principles of Criminal Liability" it 
has been described thus:-
"There is no satisfactory definition of crime which will embrace 
the many acts and omissions which are criminal, and which will at 
the same time exclude all those acts and omissions which are not. 
Ordinarily a crime is a wrong which affects the security or well-
being of the public generally so that the public has an interest in its 
suppression. A crime is frequently a moral wrong in thatit amounts 
to conduct which is inimical to the general moral sense of the 
community. It is, however, possible to instance many crimes which 
exhibit neither of the foregoing characteristics. An act may be 
made criminal by Parliament simply because it is criminal process, 
rather than civil, which offers the more effective means of 
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77. In Kenny's Outlines of Criminal Ia~v. 19'h Edition, 1966 by 
J.W. Cecil Turner, it has been stated that:-
"There is indeed no fundamental or inherent difference between 
a crime and a to11. Any condl!::t which harms an individual to 
some extent harms society, since society is made up of individuals; 
and therefore although it is true to say of crime that is an offence 
against society, this does not distinguish crime from tort. The 
difference is one of degree only, and the early history of the 
common law shows how words which now suggest a real 
distinction began rather as symbols of emotion than as terms of 
scientific classification." 
And, again :-
''So long as crimes continue (as would seem inevitable) to be 
created by government policy the nature of crime will elude true 
definition. Nevertheless it is a broadly accurate description to 
say that nearly every instance of crime presents all of the three 
following characteristics: (I) that it is a harm, brought about hy 
human conduct, which the sovereign power in the State desires to 
prevent: (2) that among the measures of prevention selected is 
the threat of punishment; (3) that legal proceedings of a special 
kind are employed to decide whether the person accused did in 
fact cause the harm, and is, according to law, to be held legally 
punishable for doing so.'' 
78. Stephen defines a Crime thus:-
"a
crime is an unlawful act or default which is an offence against 
the public, rendering the person guilty of such act or default liable 
to legal punishment. The process by which such person is punished 
for the unlawful act or default is carried on in the name of the 
Crown; although any private person, in the absence of statutory 
provision to the contrary, may commence a criminal prosecution. 
Criminal proceedings were formerly called pleas of the crown, 
because the King, in whom centres the majesty of the whole 
community, is supposed by the law to be the person injured by 
every infraction of the public rights belonging to that community. 
Wherefore he is, in all cases, the proper prosecutor for every
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
951 
LAW & ORS. [DIPAK MISRA, J.] 
public offence". 57 
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79. Blackstone, while discussing the general nature of crime, has 
defined crime thus:-
" A crime, or misdemeanour, is an act committed or omitted, in 
violation of a public law, either forbidding or commanding it. This 
general definition comprehends both crimes and misdemeanours; 
which, properly speaking, are mere synonyms terms: though, in 
common usage, the word 'crimes' is made to denote such offences 
as are of a deeper and more atrocious dye; while smaller faults, 
and omissions ofless consequence, are comprised under the gentler 
name of 'misdemeanours' only."58 
80. The distinction of public wrongs from private, of crimes and 
misdemeanours from civil injuries, seems principally to consist in this: 
that private wrongs or civil injuries are an infringement or privation of 
the civil rights which belongs to individuals, considered merely as 
individuals; public wrongs or crimes and misdemeanours are a breach 
and violation of the public rights and duties due to the whole community 
in its social aggregate capacity.5" In all cases the crime includes i11jury; 
every public offence is also a private wrong, and somewhat more. It 
affects the individual, and it li~ewise affects the commu1iity.60 
8 l. The constituents of crime in general has been enumerated in 
Halsbury's Laws of England as "a person is not to be convicted of a 
crime unless he has, by ~oluntary
conduct, brought about those elements 
which by common law or statute constitute that crime. In general a 
person does not incur criminal liability unless he intended to bring about, 
or recklessly brought about, those elements which constitute the crime. 
The foregoing concepts are traditionally expressed in maxim "actus 11011 
facit reum nisi mens sit rea"61 • Enforcement of a right and seeking 
remedy are two distinct facets. It should not be confused. 
82. The concept of crime is essentially concerned with social 
order. It is well known that man's interests are best protected as a member 
of the community. Everyone owes certain duties to his fellow-men and 
" Stephen's : New Commentaries on the Laws of England. Ed 17. Vol.4. Chap I. p. 1-2. 
" Blackstone's : Commentaries on the Laws of England: Edited by Wayne Morrison. 
Vol. 4, p.5 
" Ibid. p. 5 
'"Ibid. p. 6 
''' Halsbury's Laws of England: Edition 4. Vol.2. Para 4. p.12 
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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 society inter-
se. Although most people believe in the principle of'live and let live', yet 
there are 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. Th is 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 are known as wrongful acts or crimes, 
whereas those which are permissible under the law are treated as lawful. 
The wrongdoer committing crime is punished for his guilt under the law 
of crime."' 
83. Mr. Rohtagi has referred to the Blackstone's definition crimes 
and laid emphasis on the statement of Antony Duff who has lucidly 
observed that "we should interpret a 'public' wrong, not as a wrong that 
injures the public, but as one that properly concerns the public i.e. the 
polity as a whole". In this regard, he has
drawn our attention to a passage 
from Duff and Marshall which state that public wrongs are wrongs 
which village the shared values that normatively define the political 
community in which fellow citizens are participants. The impact of such 
wrongs are shared by both the victims and fellow citizens and in this 
sense, such wrongs, concern the public at large- the polis, the state and 
fellow citizens. It is because of the "public" element that it is the State 
rather than the victim who is principally in-charge of the legal process. 
It is the pol ice who investigates the case, it is the State that brings the 
charges and whether charges are brought, how far the case proceeds is 
up to the prosecution - it is not for the victim to decide the course of the 
case. On the other hand, in the civil process it is the affected private 
individual who is primarily in-charge of the legal process and it is for 
such individual to take the case to its logical conclusion or to drop it ifhe 
so chooses -there is no duty on him to bring the case at all. 
'''Criminology and Penology by Dr. N.V. Pranjape. 15th Edition. 2012 p. I
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
LAW & ORS. [DIPAK MISRA, J.] 
84. In this context, reference to certain authorities that deliberated 
the conception of crime in the societal context would be apt. In State of 
Maltaraslttra v. Sujay Mangeslt Poyarekar63, this Court has held that 
every crime is considered as an offence against the society as a whole 
and not only against an individual even though it is an individual who is 
the ultimate sufferer. It is, therefore, the duty of the State to take 
appropriate steps when an offence has been committed. Yet again, in 
Moltd. S/ia/iabuddin v. State of Bilrnr and otliers64, it has been 
observed that every criminal act is an offence against the society. The 
crime is a wrong done more to the society than to an individual. It 
involves a serious invasion of rights and liberties of some other person or 
persons. In Vinay Devanna Nayak v. Ryot Sewa Sallakari Bank 
Ltcl.6;, the Court, while deliberating on the issue of compromise in a 
criminal case, has noted that it is no doubt true that every crime is 
considered to be an offence against the society as a whole and not only 
against an individual even though an individual might have suffered 
thereby. It is, therefore, the duty of the State to take appropriate action 
against the offender. It is equally the duty of a court of law administrating 
criminal justice to punish a criminal. The stress is on the duty of the 
State in taking action against the violator of law.
85. In R. Sai Blwratlti v. J. Jayalalitlw aiul otlters66, while 
opining about crime, it has been observed as under:-
"56. Crime is applied to those acts, which are against social order 
and are worthy of serious condemnation. Garafalo, an eminent 
criminologist, defined "crime" in terms of immoral and anti-social 
acts. He says that:-
"crime is an immoral and harmful act that is regarded as 
criminal by public opinion because it is an injury to so 
much of the moral sense as is possessed by a community -
/ 
a measure which is indispensable for the adaptation of 
the individual to society". 
The authors of the Indian Penal Code stated that: 
" ... We cannot admit that a Penal Code is by any means to be 
"(2008) 9 sec 475 
M (2010) 4 sec 653 
"(2008) 2 sec 305 
"' (2004) 2 sec 9 
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considered as a body of ethics, that the legislature ought to punish 
acts merely because those acts are immoral, or that, because an 
act is not punished at all, it follows that the legislature considers 
that act as innocent. Many things which are not punishable are 
morally worse than many things which are punishable. The man 
who treats a generous benefactor with gross ingratitude and 
insolence deserves more severe reprehension than the man who 
aims a blow in passion. or breaks a window in a frolic; yet we 
have punishment for assault and mischict~ and none for ingratitude. 
The rich man who refuses a mouthful of rice to save a fellow 
creature from death may be a far worse man thai1 the starving 
wretch who snatches and devours the rice; yet we punish the 
latter for theft, and we do not punish the former for hard-
heartedness." 
86. l n T. K. Gopal alia.\· Gopi v. State 1~{ Kllr1111t11kll61 • 
deliberating on the definition of crime. the Court ruled that crime can be 
defined as an act that subjects the doer to legal punishment. It may also 
be defined as commission of an act specifically forbidden by law; it may 
be an offence against morality or social order". In Kllrlur Si11glt 1• • 
. State of P1111jah68 , this Cou1t observed that:-
"446. What is a crime in a given society at a particular time has a 
wide connotation as the concept of crime keeps on changing with 
change in political, economic and
social set-up of the country. · 
Various legislatioiis dealing with economic offences or offences 
dealing with violation of industrial activity or breach of taxing 
provision are ample proofofit. The Constitution-makers foresaw 
the eventuality, therefore they conferred such powers both on 
Central and State Legislatures to make laws in this regard. Such 
right includes power to define a crime and provide for its 
punishment. Use of the expression, "including all matters included 
in the Indian Penal Code at the commencement of the 
Constitution"' is unequivocal indication of comprehensive nature 
of this entry. It further empowers the legislature to make laws not 
01ily in respect of matters covered by the Indian Penal Code but 
any other matter which could reasonably and justifiably be 
considered to be criminal in nature." 
'" (2000) 6 sec 168 
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,,, < 1994) 3 sec 569
SUBRAMANIAN SWAMY v. UNION OF INDIA. MINISTRY OF 
LAW & ORS. [DIPAK MISRA, J.] 
87. In Harpreet Kaur (Mrs) 1•. State of Malrnrashtra mu/ 
<mother"°, the Court, though in a different context. opined that crime is 
a revolt against the whole society and an attack on the civilisation of the 
day. In their essential qua I ity, the activities which affect' law and order' 
and those which disturb 'public order' may not be different but in their 
potentiality and effect upon even tempo of the society and public tranquility 
there is a vast difference. In State of Kamataka v. Appa Balu I11ga/e 
a11d others'0 it has been observed that criminal law primarily concerns 
with social protection, prescribes rules of behavior to be observed by all 
persons and punishes them for deviance. transgression or omission. 
88. From the aforesaid discussion, it is plain as day that the 
contention that the criminal offence meant to sub serve the right of inter 
se private individuals but not any public or collective interest in totality is 
sans substance. In this regard, we may take note of the submission put 
forth by Mr. Narsimha, learned Additional Solicitor General, that Articles 
17, 23 and 24 which deal with abolition ofuntouchability and prohibit 
trafficking in human beings and forced labour and child labour respectively 
are rights conferred on the citizens and they can be regarded as 
recognition of horizontal rights under the Constitution. He has referred 
to certain legislations to
highlight that they regulate rights of individuals 
inter se. Mr. Narsimha ,has drawn immense inspiration from Vislwka 
and others v. State of R<~iastlu111 and others" where the Court has 
framed guidelines to protect the rights of individuals at their work place. 
It ultimately resulted in passing of the Sexual Harassment of Women at 
Workplace (Prevention, prohibition and Redressal) Act, 2013 which 
empowered individuals to protect their fundamental right to dignity against 
other citizens. Similarly, legislations like the Child Labour (Prohibition & 
Regulation) Act, 1986, the Scheduled Castes and the Scheduled Tribes· 
(Prevention of Atrocities) Act, 1989, Protection of Civil Rights Act, 1955, 
Press Council Act, 1978, the Noise Pollution (Regulation and Control) 
Rules, 2000 under the Environment (Protection) Act. 1986 regulate the 
fundamental rights of citizens vis-a-vis other citizens. 
89. We have referred to this facet only to show that the submission 
so astutely canvassed by the learned counsel for the petitioners that 
treating defamation as a criminal offence can have no public interest 
,,., (1992)2 sec 111 
,., 1995 Supp. < 4 l sec 469 
11 < 1997) 6 sec 241 
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and thereby it does not serve any social interest or collective value is 
sans substratum. We may hasten to clarify that creation of an offence 
may be for some different reason declared unconstitutional but it cannot 
be stated that the legislature cannot have a law to constitute an act or 
omission done by a person against the other as a crime. It depends on 
the legislative wisdom. Needless to say, such wisdom has to be in accord 
with constitutional wisdom and pass the test of constitutional challenge. 
lfthe law enacted is inconsistent with the constitutional provisions, it is 
the duty of the Court to test the law on the touchstone of Constitution. 
90. It is submitted by Mr. Rao, learned senior counsel, that the 
object of Part III of the Constitution is to provide protection against the 
State action and, therefore, the criminal defamation which is basically a 
dispute between two private individuals cannot become a facet of the 
term criminal defamation as used in Article 19(2) of the Constitution, for 
there cannot be a constitutional protection for such an action. For the 
said purpose, he has placed reliance on the authority in State of West 
Bengal v. Suhod/i'Gopal Bose and others7'. On a perusal of the said 
decision, we find that it has been rendered in a quite different context 
and not with regard to an individual act becoming an offence in the 
criminal law and hence, the said decision is
remotely not applicable to 
such a situation. Therefore, we conclude and hold that the restricted 
meaning sought to be given to the term "defamation" is unacceptable 
and insuppmiable. 
Sanctity and significance of Freedom of Speech and 
Expression in a democracy 
91. Freedom of speech and expression in a spirited democracy is 
a highly treasured value. Authors, philosophers and thinkers have 
considered it as a prized asset to the individuality and overall progression 
of a thinking society, as it permits argument, allows dissent to have a 
respectable place, and honours contrary stances. There are proponents 
who have set it on a higher pedestal than life and not hesitated to barter 
death for it. Some have condemned compelled silence to rnthless treatment. 
William Dougles has denounced regulation of free speech like regulating 
diseased cattle and impure butter. The Court has in many an authority 
having realized its precious nature and seemly glorified sanctity has put 
it in a meticulously structured pyramid. Freedom of speech is treated as 
the thought of the freest who has not mortgaged his ideas, may be wi Id, 
"AIR 1954 SC 92 : [ 1954] SCR 587
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
LAW & ORS. [DIPAK MISRA, J.] 
to the artificially cultivated social norms; and transgression thereof is not 
perceived as a folly. Needless to emphasise, freedom of speech has to 
be allowed specious castle, but the question is should it be so specious or 
regarded as so righteous that it would make reputation of another individual 
or a group or a collection of persons absolutely ephemeral, so as to hold 
that criminal prosecution on account of defamation negates and violates 
right to free speech and expression of opinion. Keeping in view what 
we have stated hereinabove, we are required to see how the constitutional 
conception has been understood by the Court where democracy and 
rule oflaw prevail. 
92. Bury in his work History of .Freedom of Thought 
( 1913) 
has 
observed 
that 
freedom 
of expression 
is 
''a supreme condition of mental and moral progress" [p.239]. In the 
words of American Supreme Court, it is "absolutely indispensible for the 
preservation of a free society in which government is based upon the 
consent of an informed citizenry and is dedicated to the protection of the 
rights of all, even the most despised minorities•· (See Speiser v. 
Ramlall''). In Yttte.5 v. U.S. 7" the court held that '"the only kind of 
security system that can preserve a free Government - one that leaves 
the way wide open for people to favor discuss, advocate, or incite causes 
and doctrines however obnoxious and
antagonistic such views may be 
to the rest of us." In Stromberg v. Cal[fornia75 the Court remarked 
"The maintenance of the opportunity for free political discussion to the 
end that government may be responsive to the will of the people and that 
changes may be obtained by lawful means ... is a fundamental principle 
of our constitutional system." In Palko v. Co1111ectic11t76 the right to 
freedom of speech and expression has been described as the "touchstone 
of individual liberty" and "the indispensable condition of nearly every 
form of freedom." 
93. Apart from the aforesaid decisions, we may refer to the 
dissenting opinion of Holmes J. in !lbmms v. United States77 • thus:-
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..... But when men have realised that time has upset many fighting 
faiths, they may come to believe even more than they believe the 
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very foundations of their own conduct that the ultimate good 
" ( 1958) 257 us 513 (530) 
" ( 1958) 354 us 298 (344) 
" ( 1931) 283 us 359 (369) 
7"(1937)302US319 
77 250 US 616: 63 L Ed 1173 (1919) 
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desired is better reached by free trade in ideas-that the best test 
of truth is the power of the thought to get itself accepted in the 
competition of the market; and that truth is the only ground upon 
which their wishes safely can be carried out. That at any rate, is 
the theory of our Constitution." 
94. In the concurring judgment Brandeis. J. in Whitney v. 
Califomia78, stated that:-
"Those who won our independence believed that the final end of 
the State was to make men free to develop their faculties, and 
that in its Government the deliberative forces should prevail over 
the arbitra1y. They valued liberty both as an end and as a means. 
They believed liberty to be the secret of happiness and courage to 
be the secret of libe11y. They believed that freedom to think as 
you will and to speak as you think are means indispensable to the 
discovery and spread of political truth; that without free speech 
and assembly discussion would be futile; that with them, discussion 
affords ordinarily adequate protection against the dissemination 
of noxious doctrine; that the greatest menace to freedom is an 
inert people; that p,1blic discussion is a political duty; and that this 
should be a fundamental principle of the American Government. 
They recognised the risks to which all human institutions are 
subject. But they knew that order cannot be secured merely 
through fear of punishment for its infraction; that
it is hazardous 
to discourage thought, hope and imagination; that fear breeds 
repression; that repression breeds hate; that hate menaces stable 
Government; thatthe path of safety I ies in the opportunity to discuss 
freely supposed grievances and proposed remedies; and that the 
fitting remedy for evil counsels is good ones. Believing in the power 
of reason as applied through public discussion, they eschewed 
silence coerced by law-the argument of force in its worst form. 
Recognising the occasional tyrannies of governing majorities, they 
amended the Constitution so that free speech and assem~ly should 
be guaranteed. 
Fear of serious injury cannot alone justify suppression of free 
speech and assembly. Men feared witches and burnt women. It 
is the function of speech to free men from the bondage of irrational 
fears. To iust(fy suppression of.free speech there must be 
1-1 
"L Ed 1095: 274 US 357 ( 1927)
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
LAW & ORS. [DIPAK MISRA, .I.] 
reasonable ground to .feur that serious evil will result iffree 
speech is practiced. There must be reasonable ground to believe 
that the danger apprehended is imminent. There must be 
reasonable ground to believe that the evil to be prevented is a 
serious one. Every denunciation of existing law tends in some 
measure to increase the probability that there will be violation of 
it. Condonation ofa breach enhances the probability. Expressions 
of approval add to the probability. Propagation of the criminal 
state of mind by teaching syndicalism increases it. Advocacy of 
law-breaking heightens it still further. But even advocacy of 
violation, however reprehensible morally, is not a justification for 
denying free speech where the advocacy falls short of incitement 
and there is nothing to indicate that the advocacy would be 
immediately acted on. The wide difference between advocacy 
and incitement, between preparation and attempt. between 
assembling and conspiracy. must be borne in mind. In order to 
suppo1t a finding of clear and present danger it must be shown 
either that immediate serious violence was to be expected or was 
advocated, or that the past conduct furnished reason to believe 
that such advocacy was then contemplated." 
(Emphasis supplied) 
95. Be it stated, the dissenting opinion of Holmes, J. and the 
concurring opinion of Brandeis have been quoted in Shrey" Si11glu1/
(supra). We have only referred to these decisions as immense emphasis 
has been laid on the freedom of speech and expression and in a way 
propositions have been propounded that it can have no boundary in a 
growing democracy if democracy is expected to thrive. In Shrey" 
Sing/wt (supra). the Court has drawn a difference between the US 
First Amendment and Article 19( I )(a) read with Article 19(2). The 
Court has drawn four differences. We need not advert to the same. 
However, the Court has also opined that American judgments have great 
persuasive value on the content of freedon1 of speech and expression 
and the tests laid down for its infringement but it is only when it comes to 
subserving the general public interest that there is the world of difference. 
In the said judgment, a passage has been quoted from K"meshw"r 
Pr(ll'ftd v. St(lte of Bi!Ulr79 wherein it has been held that the resultant 
flexibility of the restrictions that could be validly imposed renders the 
American decisions inapplicable to and without much use for resolving 
"'1962 Supp. (3) SCR 369: AIR 1962 SC 1166 
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the questions arising under Article 19( I )(a) or (b) of our Constitution 
wherein the grounds on which limitations might be placed on the 
guaranteed right are set out with definiteness and precision. The Court 
has also referred to a passage from Indian Express Newspapers 
(Bombay) Private Ltd. mu/ others v. Union of India and others80 
wherein the Court has opined that while examining constitutionality ofa 
law which is alleged to contravene Article 19(1 )(a) of the Constitution, 
the Court cannot, no doubt, be solely guided by the decisions of the 
Supreme Court of the United States of America. But in order to 
understand the basic principles of freedom of speech and expression 
and the need for that freedom in a democratic country, the Court may 
take them into consideration. We will be referring to Shreya Si11glwl 
(supra) in detail at a later stage as the learned counsel for the petitioners 
have submitted with immense vigour that the principles stated in Shreya 
Singlwl (supra) would squarely apply to the concept of defamation and 
application of the said principles would make Section 499 !PC 
unconstitutional. 
96. In Rome.~'1 Tlwppar v. State<~{ Madras8' the nrnjority opined 
that freedom of speech and of the press lay at the foundation of all 
democratic organisations, for without free political discussion no public 
education, so essential for the proper functioning of the processes of 
popular
Government, is possible. A freedom of such amplitude might 
involve risks of abuse. But the Framers of the Constitution may well 
have reflected with Madison who was 'the leading spirit in the preparation 
of the. First Amendment of the Federal Constitution', that' it is better to 
leave a few of its noxious branches to their luxuriant growth, than, by 
pruning them away, to injure the vigour of those yielding the proper fruits' 
(Near v. Minnesota"~. L Ed p. 1368.). 
97. In Expre~·s Newspaper (Private) Ltd. and another v. Union 
of /11dia and othersS! the Court referred to the decision in Romesll 
Tlmppar (supra), noted a few decisions of the Court which involved 
with the interpretation of Article 19( l )(a) that they only lay down that 
the freedom of speech and expression includes freedom of propagation 
of ideas by which freedom is ensured; emphasized on liberty of the 
press as it is an essential part of the right to freedom of speech and 
"' ( I 985 l 1 sec 64 I 
" 1950 SCR 594 : AIR 1950 SC 12,1 
"283 U.S. 607. AT 717-8 
"AIR 1958 SC 578: 1959 SCR 12
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
LAW & ORS. [DIPAK MISRA; J.] 
expression and further stated that liberty of the press consists in allowing 
no previous restraint upon publication. Thereafter the Court referred to 
number of authorities of the United States of America and culled out the 
principles from the American decisions to the effect that in the United 
States of America (a) the freedom of speech comprehends the freedom 
of press and the freedom of speech and press are fundamental personal 
rights of the citizens; 
(b) that the freedom of the press rests on the 
assumption that the widest possible dissemination of information from 
diverse and antagonistic sources is essential to the welfare of the public; 
(c) that such freedom is the foundation of free Government of a free 
people; ( d) that the purpose of such a guarantee is to prevent pub I ic 
authorities from assuming guardianship of the public mind, and (e) that 
freedom of press involves freedom of employment or non-employment 
of necessary means of exercising this right or in other words, freedom 
from restriction in respect of employment in the editorial force and 
eventually ruled thus:-
"This is the concept of the freedom of speech and expression as 
it obtains in the United States of America and the necessary 
corollary thereof is that no measure can be enacted which would 
have the effect of imposing a pre-censorship, curtailing the 
circulation or restricting the choice of employment or
un-
employment in the editorial force. Such a measure would certainly 
tend to infringe the freedom of speech and expression and would, 
therefore, be liable to be struck down as unconstitutional." 
98. In All llldia Ba11k Employees' Associmio11 v. Natio11a/ 
l11dustrial Trihu11a/ (Bank Disputes), Bombay mu/ ot!ter~-
8~ it has 
been held that "freedom of speech" means freedom to speak so as to be 
heard by others, and, therefore, to convey one's ideas to others. Similarly 
the very idea of freedom of expression necessarily connotes that what 
one has a right to express may be communicated to others; and that 
includes right to freedom of circulation of ideas. 
99. In Sakal Papers (P) Ltd. v. U11io11 of /m/ia8; it has been 
held that it must be borne in mind that the Constitution must be interpreted 
in a broad way and not in a narrow and pedantic sense. Certain rights 
have been enshrined in our Constitution as fundamental and, therefore, 
while considering the nature and content of those rights the Court must 
" ( I 962) 3 SCR 269 : A IR I 962 SC 171 
"(1962)3 SCR842=AJR 1962 SC 305 
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not be too astute to interpret the language of the Constitution in so I iteral 
a ~ense as to whittk: them down. On the other hand. the Court must 
interpret the Constitution in a manner which would enable the citizen to 
enjoy the rights guaranteed by it in the fullest measure subject, of course, 
to permissible restrictions. The Court further observed that the right to 
freedom of speech and expression carries with it the right to publish and 
circulate one's ideas. opinions and views with complete freedom and by 
resorting to any available means of publication, subject again to such 
restrictions as could be legitimately imposed under clause (2) of Article 
19. Be it stated here that in flldia11 Express Newspapers (supra). this 
Court referring to earlier decisions had accepted that freedom of speech 
and expression includes within its scope freedom of press, for the said 
freedom promises fre.:dom of propagation of ideas which freedom is 
assured by the freedom of circulation. Liberty of the press has been 
treated as inseparable and essential for the right to freedom of speech 
and expression. 
I 00. The Court in Be1111ett Coleman & Co. awl others v. Union 
o/1mlw and otlten8" referring to Sakal Papers case opined that in the 
~aid case the Court has held that freedom of speech would not be restricted 
for the purpose of regulating the commercial aspects of activities of the 
newspapers. Similarly, it
referred to the authorities in l11dia11 Express 
Newspapers (supra) and stated that if a law were to single out the 
press for laying down prohibitive burdens on it, that would restrict 
circulation and eventually violate Article 19( 1 )(a) and wou Id fall outside 
the protection afforded by Article 19(2). Elaborating the idea further, the 
nu~jority ruled:-
"The faith of a citizen is that political wisdom and vi11uc will sustain 
themselves in the free market of ideas so long as the channels of 
communication arc left open. The faith in the popular Government 
rests on the old dictum, "let the people have the truth and the 
freedom to discuss it and all will go well." The liberty of the press 
remains an ·'Art of the Covenant" in every democracy. Steel will 
yield products of steel. Newsprint will manifest whatever is thought 
of by man. The newspapers give ideas". 
10 I. In the said case, the Com1 referred to William Blackstone's 
commentaries:-
"' ( t 972) 2 sec 788
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
LAW & ORS. [DIPAK MISRA. J.] 
"Every free man has n undoubted right to lay what sentiments 
he pleases before the public: to forbid this is to destroy the freedom 
of the press: but ifhe publishes what is improper, mischievous or 
illegal, he must take the consequence of his own temerity." 
102. Mathew, J .• while otherwise dissenting, accepted the 
protection of freedom of speech in the following words:-
" .... Free expression is necessary ( 1) for individual fulfilment, (2) 
for attainment of truth, (3) for participation by members of the 
society in political or social decision-making. and (4) for maintaining 
the balance between stability and change in society. In the 
traditional theory, freedom of expression is not only an individual 
good, but a social gnod. It is the best process for advancing 
knowledge and discovering truth. The theory contemplates more 
than a process of individual judgment. It asserts that the process 
is also the best method to reach a general or social judgment. ln a 
democracy the theory is that all men are entitled to participate in 
the process of formulating common decisions. [See Thomas I. 
Emerson: Toward a General Theory of First Amendment]. The 
crucial point is not that freedom of expression is politically useful 
but that it is indispensableto the operation of a democratic system. 
In a democracy the basic premise is that the people are both the 
governors and the governed. In order
that governed may form 
intelligent and wise judgment it is necessary that they must be 
appraised of all the aspects of a qt1estion on which a decision has 
to be· taken so that they might arrive at the truth''. 
We have reproduced the said passage to appreciate the height to 
which the freedom of speech and expression has been elevated by this 
Cotui regard being to the democratic and constitutional goals. 
103. In llldia11 Express Newspapers (supra). a three-Judge 
Rench was again concerned with the importance of freedom of press in 
a democratic society. Venkataramiah. J. speaking for the C'ourt opined 
thatfreedom of press is the heart and soul and political intercourse and 
it has assumed the role of public educator nwking formal and non-formal 
education possible in a large scale particularly in the developing world. 
The Court further observed that the purpose of the press is to advance 
the public interest by publishing facts and opinions without which a 
democratic electorate cannot make responsible judgments. In this 
backdrop, it was emphatically stated it is the primary duty of the courts 
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to uphold the said freedom and invalidate all laws or administrative actions 
which interfere with it, contrary to the constitutional mandate. 
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104. In Secret"ry, Mi11istry of li1fornwtio11 & Bro(l</C(ISti11g, 
Govt. of India and otlters v. Cricket Association of Bengal am/ 
otlters87, it has been ruled that the freedom of speech and expression 
includes right to acquire information and to disseminate it; and freedom 
of speech and expression is necessary, for self-expression which is an 
important means of free conscience and self-fulfilment. The Court further 
observed that it enables people to contribute to debates on social and 
moral issues and it is the best way to find a truest model of anything, 
since it is only through it that the widest possible range of ideas can 
circulate. Emphasis has been laid on freedom of the press and freedom 
to communicate or circulate one's opinion without interference. 
I 05. The Court in Union of Indi" "nd others v. Motio11 Picture 
Association and otlters88 explaining the significance of free speech has 
observed that free speech is the foundation of a democratic society and 
a free exchange of ideas, dissemination of information without restraints, 
dissemination of knowledge, airing of differing viewpoints, debating and 
forming one's own views and expressing them, are the basic indicia of a 
free society. It has been further stated that freedom alone makes it 
possible for
people to formulate their own views and opinions on a proper 
E 
basis and to exercise their social, economic and political rights in a free 
·society in an informed manner and, therefore, restraints on this right 
have been jealously watched by the courts. Article 19(2) spells out the 
various grounds on which this right to free speech and expression can 
be restrained. Reddi J. in his concurring opinion in People's Union for 
F 
G 
Civil Liberties (PUCL) and another v. Union of India and mwtl1er89, 
has explained the nature of freedom of speech and expression by 
elucidating that just as the equality clause and guarantee of life and 
liberty, has been very broadly construed by this Court freedom of speech 
and expression has been variously described as a "basic human right'', 
"a natural right" and the I ike. The learned Judge has observed that the 
importance our Constitution-makers wanted to attach to this freedom is 
evident from the fact that reasonable restrictions on that right could be 
placed by law only on the I imited grounds specified in Article 19(2), not 
to speak of inherent limitations of the right. 
"(1995)2 sec 161 
"'< 1999) 6 sec 1so 
H 
,., (2003) 4 sec 399
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
LAW & ORS. [DIPAK MISRA, J.] 
106. In Union of India v. Naveen Jindal and <mother90 , the 
·Court has laid down that freedom of expression is a cornerstone of 
functioning of the democracy and there is a constitutional commitment 
to free speech. 
In Gover11me11t of Andhm Pradesh mu/ others v. P. 
Laxmi Devi9', it has been ruled that freedom and liberty is essential for 
progress, both economic and social and without freedom to speak, 
freedom to write, freedom to think, freedom to experiment, freedom to 
criticise (including criticism of the Government) and freedom to dissent 
there can be no progress. In S. Khushboo v. Kallltiamnutl am/ 
anot!ter9~, it has been laid down that even though the constitutional 
freedom of speech and expression is not absolute and can be subjected 
to reasonable restrictions on grounds such as 'decency and morality' 
among others, stress must be laid on the need to tolerate unpopular views 
in the socio-cultural space. The framers of our Constitution recognised 
the importance of safeguarding this right since the free flow of opinions 
and ideas is essential to sustain the collective life of the citizenry. While 
an informed citizenry is a pre-condition for meaningful governance in 
the political sense, it is the duty of everyone to promote a culture of open 
dialogue when it comes to societal attitudes. 
I 07. The significance of freedom of speech has been accentuated 
in Ramlila Maidan
Incident, In re93 by observing that the freedom of 
speech is the bulwark of a democratic Government. This freedom is 
essential for proper functioning of the democratic process. The freedom 
of speech and expression is regarded as the first condition of liberty. It 
occupies a preferred position in the hierarchy ofliberties, giving succour 
and protection to all other liberties. It has been truly said that it is the 
mother of all other liberties. Freedom of speech plays a crucial role in 
the formation of public opinion on social, political and economic matters. 
It has been described as a "basic human right", "a natural right" and the 
like. 
I 08. The observations in Salum1 India Real Estate Corporation 
Ltd. and others v. Securities (l/U/ Exchange Board of India and 
anotlzer94 being extremely significant in the present context are extracted 
below:-
"" (2004)2 sec s10 
"' (2008) 4 sec no 
"(201 o) s sec 600 
"'<2012) s sec 1 
., (2012) 10 sec 603 
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·'Freedom of expression which includes freedom of the press has 
a capacious content and is not restricted to expression of thoughts 
and ideas which are accepted and acceptable but also to those 
which offend or shock any section of the population. It also includes 
the right to receive information and ideas ofall kinds from different 
sources. In essence, the freedom of expression embodies the right 
to k110w. However, under our Constitution no right in Part III is 
absolute. Freedom of expression is not an absolute value under 
our Constitution. It must not be forgotten that no single value, no 
matter exalted, can bear the full burden of upholding a democratic 
system of government." 
[Emphasis added] 
I 09. In Swte of Karnataka mul a11otlter v. Associated 
J)fmiageme11t of E11glislt Medium Prinwry mul Secondary Sc/tools 
and otlters95, while dealing with the freedom under A11icle 19(1 )(a), the 
Constitution Bench opined:-
"36. The word 'freedom' in A11icle 19 of the Constitution means 
absence of control by the State and A11icle 19( 1) provides that 
the State will not impose controls on the citizen in the matters 
mentioned in sub-clauses (a), (b), (c), (d), (e) and (g) of Article 
19(1) except those specified in clauses (2) to (6) of Article 19 of 
the Constitution. In all matters specified in clause (I) of Article 
19, the citizen has therefore the liberty to choose, subject only to 
restrictions in
clauses (2) to (6) of Article 19." 
110. The Court referred to the famous essay 'on 
liberty' by 
John Stuart Mill and reproduced a passage from A Grammer of Politics 
by Harold J. Laski and then ruled that:-
"Freedom or choice in the matter of speech and expression is 
absolutely necessary for an individual to develop his personality in 
his own way and this is one reason, if not the only reason, why 
under Article 19( I )(a) of the Constitution every citizen has been 
guaranteed the right to freedom of speech and expression." 
111. Recently in Devitfas Ra111ac/u11ulm Tuljapurkar i•. State 
of Maltraslitra anti otlters9'' the court relying upon various judgments 
has ruled that:-
'" (2014) 9 sec 485 
H 
"''(2015)6SCC I
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY -OF 
LAW & ORS. [DIPAK MISRA, J.] 
" ... There can be no doubt that there has been an elevation of the 
concept in a different way, but it cannot form the foundation or 
base to sustain the argument of Mr Subramanium that the freedom 
has to be given absolute and uncurtailed expanse without any 
boundaries of exceptions. We accept the proposition that there 
should not be a narrow or condensed interpretation of freedom of 
speech and expression, butthat does not mean that there cannot 
be any limit." 
112. While discussing about importance of freedom of speech 
and expression which includes freedom to express, we feel it necessary 
to dwell upon the JibertY or freedom to express one's ideas through various 
medium like writing, printing or making films, etc. Dr. Dhawan, learned 
senior counsel, has commended us to the authorities in Odyssey 
Cvmmwtications Pvt. Ltd. v. Lokvidayan Sanglwtmw and otlters97 
and S. Rangar<~imt v. P. Jagjivmt Ram and otlters98 • In Odyssey 
Communications Pvt. Ltd. (supra), a public interest litigation was filed 
before the High Court for restraining the authorities from telecasting a 
serial film Honi-Anhoni on the plea that it had the potential to spread 
false or blind beliefs and superstition amongst the members of the public. 
The High Court by an interim order had restrained the authorities from 
telecasting the film. This Court allo»'ed the appeal and observed that 
right of a citizen to
exhibit films on the Doordarshan subject to the terms 
and conditions to be imposed by the Doordarshan is a part of the 
fundamental right of freedm:n of expression guaranteed under Article 
19(1 )(a) and can be curtailed only under circumstances enshrined in 
Article 19(2) and by no other measure. In S. Rm1garajm1 (supra) the 
Court was required to consider whether the High Court was justified in 
revoking the 'U Certificate' issued to a Tamil film 'Ore Oru Gramathile' 
for public viewing. The principal point that was argued before this Com1 
was based on right to freedom of speech and expression under Article 
19(1 )(a). The Court after referring to earlier decisions opined thus:-
"The High Court, however, was ofopinion thafpublic reaction to 
the film, which seeks to change the system of reservation is bound 
to be volatile. The High Court has also stated that people ofTamil 
Nadu who have suffered for centuries will not allow themselves 
to be deprived of the benefits extended to them on a particular 
97 < 1988) 3 sec 41 o 
'"<I 989) 2 sec 574 
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basis. It seems to us that the reasoning of the High Court runs 
afoul of the democratic principles to which we have pledged 
ourselves in the Constitution. In democracy it is not necessary 
that everyone should sing the same song. Freedom of expression 
is the rule and it is generally taken for granted. Everyone has a 
fundamental right to form his own opinion on any issue of general 
concern. He can form and inform by any legitimate means." 
I 13. Recently, in Devidas Ranutclumdra Tuljapurkar (supra) 
a two-Judge Bench was dealing with the issue ofobscenity in a poem in 
a different context. Various judgments of the United States of America, 
the United Kingdom and European Cou1ts were referred to. There was 
also reference to the authorities of this Court in the context of Section 
292 IPC which included Ranjit D. Udeslti v. State of Malwraslttra99, 
Clwmlrakm1t Kalymul"s Kakodkar v. State of Mll1Utr"slllr" 100, K.A. 
Abbas v. Union of l11dia' 0'. R<{i Kapoor v. State' 0\ 
Sanwreslt Bose 
v. Am"/ Mitra' 03, Directorate General of Doordars/1m1 v. Ammd 
Patward/l(ln' 0·1, Ajay Goswami v. Union of India' 05, Bobby Art 
Internati01wl v. Om Pal Singlt Hoon'°" and Aveek Sarkar v. St"te of 
W.B. '01 and observed that factum of obscenity has to be judged by applying 
the contemporary community standards test. However, the Court held 
that when name of Mahatma Gandhi is used as a symbol speaking or 
using obscene words,
the concept of 'degree' comes in. We think it 
appropriate to reproduce the said passage:-
"When the name of Mahatma Gandhi is alluded or used as a 
symbol, speaking or using obscene words, the concept of"degree" 
comes in. To elaborate, the "contemporary community standards 
test" becomes applicable with more vigour, in a greater degree 
F 
and in an accentuated manner. What can otherwise pass of the 
contemporary community standards test for use of the same 
language, it would not be so, ifthe name of Mahatma Gandhi is 
used as a symbol or allusion or surrealistic voice to put words or 
w AIR 1965 SC 881: (1965) I SCR 65 
G 
''"' < 1969) 2 sec 687 
'"' < 1970) 2 sec 780 
'"' < 19SOJ 1 sec 43 
'"' < 1985) 4 sec 289 
'"' <2006) s sec 433 
'"' (2007) 1 sec J 43 
'"'(1996)-lSCC I 
H 
''" <20 J.1 H sec 2s1
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
LAW & ORS. [DIPAK MISRA, J.) 
to show him doing such acts which are obscene. While so 
concluding, we leave it to the poet to put his defence at the trial 
explaining the manner in which he has used the words and in 
what context. We only opine that view of the High Court pertaining 
to the framing of charge under Section 292 IPC cannot be flawed." 
114. We have referred to a series of judgments on freedom of 
speech and then referred to Devit/as Ramclum<lra Tuljapurkar (supra) 
which dealt with Section 292 IPC solely for the purpose that test in 
respect of that offence is different. That apart, constitutional validity of 
Section 292 has been upheld in Ranjit D. U<leslti (supra). It is to be 
noted that all the cases, barring Odyssey Communication Pvt. Lill. 
(supra) and Bobby Art International (supra) [Bandit Queen case], all 
others are in the fictional realm. We are disposed to think that the right 
of expression with regard to fictional characters through any medium 
relating to creation of a fiction would be somewhat dissimilar for it may 
not have reference to an individual or a personality. Right of expression 
in such cases is different, and be guided by provisions of any enactment 
subject to constitutional scrutiny. The right of freedom of expression in 
a poem, play or a novel pettaining 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 the 
said context are to be guardedly studied, appreciated and applied. It 
may be immediately added here that the freedom in the said sphere is 
nottotally without any limit or boundary. We have only adverted to the 
said aspect to note that what could legally be permissible in the arena of 
fiction may not have that allowance in reality. Also, we may state in 
quite promptitude that we have adverted to this concept only to have the 
completeness with regard to precious value of freedom of speech and 
expression and the limitations perceived and stipulated thereon. 
115. Be that as it may, the aforesaid authorities clearly lay down 
that 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. Emphasis 
has been laid on the fact that dissonant and discordant expressions are 
to be treated as view-points with objectivity and such expression of views 
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and ideas being necessary for growth of democracy are to be zealously 
protected. 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 ofreasonable restrictions. 
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Reasonable Restrictions 
116. To appreciate the compass and content of reasonable 
restriction, we have to analyse nature of reasonable restrictions. Article 
19(2) envisages "reasonable restriction". The said issue many a time 
has been deliberated by this Court. The concept of reasonable restriction 
has been weighed in numerous scales keeping in view the strength of 
the right and the effo11 to scuttle such a right. In Cltintanum Rao v. 
State of M.P. 108, this Court, opined as under:-
"The phrase "reasonable restriction" connotes that the limitation 
imposed on a person in enjoyment of the right should not be 
arbitrary or of an excessive nature, beyond what is required in the 
interests of the public. The word "reasonable" implies intelligent 
care and deliberation, that is, the ch-0ice of a course which reason 
dictates. Legislation which arbitrarily or excessively invades the 
right cannot be said to contain the quality ofreasonableness and 
unless it strikes a proper balance between the freedom guaranteed 
in article 19 (I) (g) and the social control permitted by clause (6) 
of article 19, it must be held to be
wanting in that quality." 
117. In State of Madras v. V.G Row109, the Court has ruled that 
the test of reasonableness, wherever prescribed, should be applied to 
each individual statute impugned and no abstract standard, or general 
pattern of reasonableness can be laid down as applicable to all cases. 
The nature of the right alleged to have been infringed, the underlying 
purpose of the restrictions imposed, the extent and urgency of the evil 
sought to be remedied thereby, the disproportion of the imposition, the 
prevailing conditions at the time, should all enter into the judicial verdict. 
118. In Bennett Co/e111a11 & Co. (supra) while dealing with the 
concept of reasonable restriction, th is Court has held that the law which 
lays excessive and prohibitive burden which would restrict the circulation 
of a newspaper will not be saved by Article 19(2), for the freedom of a 
newspaper to pub I ish any number of pages or to circulate it to any number 
'"'AIR 1951SC118 
H 
""AIR 1952 SC 1%
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
LAW & ORS. [DIPAK MISRA, J.] 
of persons is an integral part of the freedom of speech and expression 
and said freedom is violated by placing restraints upon it or by placing 
re.straints upon something which is an essential part of that freedom. 
119. In Mmieka Gandhi v. U11io11 of bulia and <1110tller110 
Bhagwati, J. referred to the authority in R.C. Cooper v. U11io11 of /11dia''' 
and the principles stated in Bennett Co/e111a11 & Co. (supra) and opined 
that:-
"It may be recalled that the test formulated in R.C. Cooper case 
(supra) merely refers to "direct operation" or 'direct consequence 
and effect' of the State action on the fundamental right of the 
petitioner and does not use the word "inevitable" in this connection. 
But there can be no doubt, on a reading of the relevant observations 
of Shah, J ., that such was the test really intended to be laid down 
by the Cow1 in that case. If the test were merely of direct or 
indirect effect, it would be an open-ended concept and in the 
absence of operational criteria for judging "directness", it would 
give the Court an unquantitiable discretion to decide whether in a 
given case a consequence or effect is direct or not. Some other 
concept-vehicle would be needed to quantify the extent o( 
directness or indirectness in order to apply the test. And that is 
supplied by the criterion of "inevitable" consequence or effect 
adumbrated in the Express Newspapers case. This
criterion helps 
to quantify the extent of directness necessary to constitute 
infringement of a fundamental right. Now, if the effect of State 
action on fundamental right is direct and inevitable, then a fortiori 
it must be presumed to have been intended by the authority taking 
the action and hence this doctrine of direct and inevitable effect 
has been described by some jurists as the doctrine of intended 
and real effect. ... " 
120. In Mis Laxmi Klumdsari mu/ others v. State of U.P. am/ 
others"~ the Court has observed that imposition ofreasonable restrictions 
and its extent would depend upon the object which they seek to serve. 
The Court has observed that it is difficult to lay down any hard and fast 
rule of universal application but in imposing such restrictions the State 
must adopt an objective standard amounting to a social control by 
"" ( 1978) 1 sec 248 : AIR 1978 SC 597 
111 <1970) 2 sec 298 
11' (1981)2 sec 600 
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restricting the rights of the citizens where the necessities of the situation 
demand and in adopting the social control one of the primary 
considerations which should weigh with the court is that as the directive 
principles contained in the Constitution aim at the establishment of an 
egalitarian society so as to bring about a welfare State within the 
framework of the Constitution. That apart, restrictions may be partial, 
complete, permanent or temporary but they must bear a close nexus 
with the object in the interest of which they are imposed. Another 
important consideration is that the restrictions must be in public interest 
and are imposed by striking a just balance between deprivation ofright 
and danger or evil sought to be avoided. 
121. In Ramlila Maidmt l11cide11t, 111 re (supra), this Court 
opined that a restriction imposed in any form has to be reasonable and to 
that extent, it must stand the scrutiny of judicial review. It cannot be 
arbitrary or excessive. It must possess a direct and proximate nexus 
with the object sought to be achieved. Whenever and wherever any 
restriction is imposed upon the right to freedom of speech and expression, 
it must be within the framework of the prescribed law, as subscribed by 
Article 19(2) of the Constitution. Thereafter, it has been laid down that 
associating police as a prerequirement to hold such meetings, dharnas 
and protests, on such large
scale, would not infringe the fundamental 
rights enshrined under Articles 19( I )(a) and 19(1 )(b) of the Constitution 
as this would squarely fall within the regulatory mechanism ofreasonable 
restrictions, contemplated under Articles 19(2) and 19(3). Furthermore, 
it would help in ensuring due social order and would also not impinge 
upon the rights of the others, as contemplated under Atiicle 21 of the 
Constitution oflndia. Emphasis was laid on the constitutional duties that 
all citizens are expected to discharge. 
122. In Sahara l11dia Real Estate Corponttio11 Ltd. (supra), 
this Couii reiterated the principle of social interest in the context of 
Article 19(2) as a facet of reasonable restriction. In Dwarka Prasad 
Laxmi Narain v. State of U.P. 113, while deliberating upon "reasonable 
restriction" observed that it connotes that the limitation imposed upon a 
person in enjoyment of a right should not be arbitrary or of an excessive 
nature beyond what is required in the interest of the public. It was also 
observed that to achieve quality of reasonableness a proper balance 
between the freedom guaranteed under Atiicle 19( I )(g) and the social 
control permitted by clause (6) of Article 19 has to be struck. 
11 ·' AIR 1954 SC 224
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
LAW & ORS. [DIPAK MISRA, J.] 
123. In Bisl/(fmhll(lr Dayal Clumdra Moh"" ttnd others v. 
State of Uttar Pradesh and others''", this Court ruled that the expression 
"reasonable restriction" signifies that the limitation imposed on a person 
in enjoyment of the right should not be arbitrary or of an excessive nature, 
beyond what is required in the interests of the public. The test of 
reasonableness, wherever prescribed, should be applied to each individual 
statute impugned, and no abstract standard, or general pattern of 
reasonableness can be laid down as applicable in all cases. In Sf(lfe of 
Bi/l(lr v. K.K. Mism 115, the Court, after referring to Dr. N.B. Khare v. 
The State of Delhi' 16 and V.G Row (supra), ruled that it is not possible 
to formulate an effective test which would enable the court to pronounce 
any particular restriction to be reasonable or unreasonable per se. All 
the attendant circumstances must be taken into consideration and one 
cannot dissociate the actual contents of the restrictions from the manner 
of their imposition or the mode of putting them into practice. 
124. In Pap1wsa111 Labour Union v. Madura Coats Ltd. and 
another 111 the Court on the base of earlier authorities summed up that 
when the constitutionality of a statutory provision is challenged on the 
ground of reasonableness of the restriction, the Court should evaluate 
whether the restriction is excessive in nature, existence of
the reasonable 
nexus between restriction imposed and the object sought to be achieved, 
quality ofreasonableness, felt need of the society and the complex issues 
facing the people which the legislature intends to solve, protection of 
social welfare prevailing within the social values, its consistency and 
accord with Article 14 of the Constitution. Additionally, the Court also 
observed that in judging the reasonableness of the restriction imposed 
by clause (6) of A1iicle 19, the Court has to bear in mind the Directive 
Principles of State Policy and any restriction so imposed which has the 
effect of promoting or effectuating a directive principle can be presumed 
to be a reasonable restriction in public interest. 
125. The principles as regards reasonable restriction as has been 
stated by this Court from time to time are that the restriction should not 
be excessive and in public interest. The legislation should not invade the 
rights and should not smack of arbitrariness. The test ofreasonableness 
"' ( 1982) 1 sec 39 
'" ( 1969) 3 sec 377 
'"' [1952] S.C.R. 597 
"'(1995) 1 sec soi 
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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 ofrestraint are tci 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. As the submissions would show, the stress is given 
on the right to freedom of speech and expression in the context of 
individual growth, progress of democracy, conceptual respect for a voice 
of dissent, tolerance for discordant note and acceptance of different 
voices. Right to say what may displease or annoy others cannot be 
throttled or garroted. There can never be any ca vi I over the fact that 
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. It is urged that the defamation 
has been described as an offence under Section 499 IPC that protects 
individual's perception of his own reputation which cannot be elevated 
to have the status of public interest. The argument is that to give a 
remedy by taking recourse to criminal jurisprudence to curb the 
constitutional right, that is, right to freedom of speech and expression, is 
neither permissible nor justified. The provision possibly could have met 
the constitutional requirement has it been associated with law and order 
or breach of peace but the same is not the position. It is also canvassed 
that in the colonial era the defamation was conceived of to keep social 
peace and social order but with the changing climate of growing 
democracy, it is not permissible to keep alive such a restriction. 
126. The principles being stated, the attempt at present is to 
scrutinize whether criminalization of defamation in the manner as it has 
been done under S. 499 IPC withstands the said test. The submission of 
the respondents is that right to life as has been understood by this Court 
while interpreting Article 21 of the Constitution covers a wide and varied 
spectrum. Right to life includes the right to life with human dignity and 
....
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
LAW & ORS. [DIPAK MISRA, J.] 
all that goes along with it, namely, the bare necessities of life such as 
nutrition, clothing and shelter and facilities for reading, writing and 
expressing oneself in diverse forums, freely moving about and mixing 
and commingling with fellow human beings and, therefore, it is a precious 
human right which forms the arc of all other rights [See : Francis Coralie 
Mullin v. Administrator, Union Territory of Delhi lllUI others118]. It 
has also been laid down in the said decision that the right to life has to be 
interpreted in- a broad and expansive spirit so as to invest it with 
significance and vitality which may endure for years to come and enhance 
dignity of an individual and w01th of a human being. In Clwmeli Singh 
anti others v. State of U.P. am/ ll/Wther' 19, the Court has emphasized 
on social and economic justice which includes the right to shelter as an 
inseparable component of meaningful right to life. The respect for life, 
property has been regarded as essential requirement of any civilized 
society in Siddlwram Sutlinguppa Mltetre v. State of Malwraslttra 120 • 
Deprivation of life, according to Krishna Iyer, J. in Babu Singh mu/ 
ot[iers v. State o(U.P. 111 has been regarded as a matter of grave concern. 
Personal liberty, as used in Article 21, is treated as a composition of 
rights relatable to various spheres of life to confer the meaning to the 
said ri'ght. Thus
perceived, the right to life under.Article 21 is equally 
expansive and it, in its connotative sense, carries a collection or bouquet 
of rights. In the case at hand, the emphasis is on right to reputation 
which has been treated as an inherent facet of Article 21. In Haridas 
Das v. Usha Rani Banik and otlters 122 , it has been stated that a good 
name is better tlian good riches. In a different context, the majority in 
S.P. Mittal v. Union of India and otlters12', has opined that man, as a 
rational being, endowed with a sense of freedom and responsibi I ity, does 
not remain satisfied with any material existence. He has the urge to 
indulge in creative activities and effort is to realize the value of life in 
them. The said decision lays down that the value of life is 
incomprehensible without dignity. 
127. In Cllaru Klturana lllU/ others v. Union of btdia and 
otllers
12;, it has been ruled that dignity is the quintessential quality of a 
"' (1981) 1sec608 
"" l 1996) 2 sec 549 
"" <2011) 1sec694 
· "' (1978) 1 sec 579 
'" (2007) 14 sec 1 
1" (1983) 1sec51: AIR 1983 sc 1 
1" (2015) 1 sec 192 
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personality, for it is a highly cherished value. Thus perceived, right to 
honour, dignity and reputation are the basic constituents ofright under 
Article 21. Submission of the learned counsel for the petitioners is that 
reputation as an aspect of Article 21 is always available against the 
highhanded action of the State. To state that such right can be impinged 
and remains unprotected inter se private disputes pertaining to reputation 
would not be correct. Neither this right be overridden and blotched 
notwithstanding malice, vile and venal attack to tarnish and destroy the 
reputation of another by stating that curbs and puts unreasonable 
restriction on the freedom of speech and expression. There is no 
gainsaying that individual rights form the fundamental fulcrum of collective 
harmony and interest of a society. There can be no denial of the fact 
that the right to freedom of speech and expression is absolutely sacrosanct. 
Simultaneously, right to life as is understood in the expansive horizon of 
Article 21 has its own significance. We cannot forget the rhetoric 
utterance of Patrick Henry:-
"ls life so dear, or peace so sweet, as to be purchased at the price 
of chains and slavery? Forbid it, Almighty God! r know not what 
course others may take, but as for me, give me liberty, or give me 
death!"' 25 
128. In this context, we also think it apt to quote a passage from 
Edmund Burke:-
" Men are
qualified for civil liberty, in exact proportion to their 
disposition to put moral chains upon their own appetites; in 
proportion as their love to justice is above their rapacity; in 
proportion as their soundness and sobriety of understanding is 
above their vanity and presumption; in propo1tion as they are more 
disposed to listen to the counsel of the wise and good, in preference 
to the flattery of knaves. Society cannot exist unless a controlling 
power upon will and appetite be placed somewhere and the less 
of it there is within, the more there must be without. lt is ordained 
in the eternal constitutionofthingsthat men of intemperate minds 
cannot be free. Their passions forge their fetters 126." 
129. The thoughts of the aforesaid two thinkers, as we understand, 
are not contrary to each other. They relate to different situations and 
'"Patrick Henry. Speech in House of Burgesses on 23.3.1775 (Virginia) 
"''Alfred Howard. The Beauties of Burke (T. Davison. London) 109
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
LAW & ORS. [DIPAK MISRA, J.] 
conceptually two different ideas; one speaks of an attitude of 
compromising libe1ty by accepting chains and slavery to save life and 
remain in peace than to death, and the other view relates to "qualified 
civil libe1ty" and needed control for existence of the society. Contexts 
are not different and reflect one idea. Rhetorics may have its own place 
when there is disproportionate restriction but acceptable restraint 
subserves the social interest. In the case at hand, it is to be seen whether 
right to freedom and speech and expression can be allowed so much 
room that even reputation of an individual which is a constituent of Article 
21 would have no entry into that area. To put differently, in the name of 
freedom of speech and expression, should one be allowed to mar the 
other's reputation as is understood within the ambit of defamation as 
defined in criminal law. 
Balancing of :Fundamental Rights 
130. To appreciate what we have posed hereinabove, it is 
necessary to dwell upon balancing the fundamental rights. It has been 
argued by the learned counsel for the petitioners that the right conferred 
under Article 19(1 )(a) has to be kept at a different pedestal than the 
individual reputation which has been recognized as an aspect of Article 
21 of the Constitution. In fact the submission is that right to freedom of 
speech and expression which includes freedom of press should be given
higher status and the individual's right to have his/her reputation should 
yield to the said right. In this regard a passage from Sakal Papers (P) 
Ltd. (supra) has been commended us. It says:-
" ...... Freedom of speech can be restricted only in the interests of 
the security of the State, friendly relations with foreign State, public 
order, decency or morality or in relation to contempt of com1, 
defamation or incitement to an offence. It cannot, I ike the freedom 
to carry on business, be curtailed in the interestof the general 
public. If a law directly affecting it is challenged, it is no answer 
that the restrictions enacted by it are justifiable under clauses (3) 
to (6). For, the scheme of Article 19 is to enumerate different 
freedoms separately and then to specify the extent of restrictions 
to which they may be subjected and the objects for securing which 
this could be done. A citizen is entitled to enjoy each and eve1y 
one of the freedoms together and clause ( 1) does not prefer one 
freedom to another. That is the plain meaning of this clause. It 
follows from this that the State cannot make a law which directly 
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restricts one freedom even for securing the better enjoyment of 
another freedom." 
[Emphasis supplied] 
13 1. Having bestowed our anxious consideration on the said 
passage, we are disposed to think that the above passage is of no 
assistance to the petitioners, for the issue herein is sustenance and 
balancing of the separate rights, one under Article 19(l)(a) and the other, 
under Article 21. Hence, the concept of equipose and counterweighing 
fundamental rights of one with other person. It is not a case of mere 
better enjoyment of another freedom. In Aclwrya Malutrajs/iri 
Naremlra Prasadji Anmufprasadji Maharaj amt others v. The 
State of Gu]arat mu/ otlters' 27, it has been observed that a particular 
fundamental right cannot exist in isolation in a watertight compartment. 
One fui1damental right of a person may have to co-exist in harmony 
with the exercise of another fundamental right by others and also with 
reasonable and valid exercise of power by the State in the light of the 
Directive Principles in the interests of social welfare as a whole. The 
Court's duty is to strike a balance between competing claims of different 
interests. In Delhi Transport Corporation v. D. T.C. Mauloor 
Congress mu/ otlters"8 the Cou11 has ruled that Articles relating to 
fundamental rights are all parts of an integrated scheme in the Constitution 
and their waters must mix to constitute that grand fiow of unimpeded
and impartial justice; social, economic and political, and of equality of 
status and opportunity which imply absence of unreasonable or unfair 
discrimination between individuals or groups or classes. In St. Stephen's 
Colle1:e v. University of Delhi 129 this Court while emphasizing the need 
for balancing the fundamental rights observed that it is necessary to 
mediate between Article 29(2) and Article 30( 1 ), between letter and 
spirit of these ai1icles, between fraditions of the past and the convenience 
of the present, between society's need for stability and its need for 
change." 
132. In Mr 'X' v. Hospital 'Z'' 30 this Cow1 stated that, where 
there is a clash of two Fundamental Rights, the right to prii;·acy as part 
of right to life and Ms 'Y's right to lead a healthy life which is her 
Fundamental Right under Article 21, the right which would advance the 
1" (1975) 1sec11 
'" 1991 Supp (I) sec 600 
"'<I 992J 1 sec 558 
H 
"" ( 1998) 8 SCC296
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
979 
LAW & ORS. [DIPAK MfSRA, J.] 
public morality or public interest, would alone be enforced through the ·A 
process of court, for the reason that moral considerations cannot be 
kept at bay and the Judges are not expected to sit as mute structures of 
clay in the hall known as the courtroom, but have to be sensitive, "in the 
sense that they must keep their fingers firmly upon the pulse of the 
accepted morality of the day". (See: Allen: Legal Duties). That apart, 
we would also add that there has to be emphasis on advancement of 
pub I ic or social interest. 
133. In Post Graduate Institute of Medical Education & 
Research, Chandigarh v. Faculty Association and others 131 while 
emphasizing the need to balance the fundamental rights, this Court held 
that:-
" ... It is to be appreciated that Article 15( 4) is an enabling provision 
like Article 16( 4) and the reservation under either provision should 
not exceed legitimate limits. In making reservations for the 
backward classes, the State cannot ignore the fundamental rights 
of the rest of the citizens. The special provision under Article 
15( 4) [sic 16( 4)] must therefore strike a balance between several 
relevant considerations and proceed objectively". 
134. In Ram Jetlmutfani and others v. Union of /11</ia a11<1 
others
13~ it has been held that the rights of citizens, to effectively seek 
the protection of fundamental rights have to be balanced against the 
rights
of citizens and persons under Article 21. The latter cannot be 
sacrificed on the anvil offervid desire to find instantaneous solutions to 
systemic problems through defamation speech, for it would lead to 
dangerous circumstances and anarchy may become the order of the 
. day. 
135. In Sahara In<lia Real Estate Corporation Ltd. (supra) 
while describing the role of this Court in balancing the fundamental rights, 
the Constitution Bench observed that the Supreme Court is not only the 
sentinel of the fundamental rights but also a balancing wheel between 
the rights, subject to social control. The larger Bench further observed 
that:-
"Freedom of expression is not an absolute value under our 
Constitution. It must not be forgotten that no single value, no matter 
'" (1998H sec 1 
'" (2011) s sec 1 
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SUPREME COURT REPORTS 
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exalted, can bear the full burden ofupholding a democratic system 
of govemment. Underlying our constitutional system are a number 
of important values, all of which help to guarantee our liberties, 
but in ways which sometimes conflict. Under our Constitution, 
probably, no values are absolute. All important values, therefore, 
must be qualified and balanced ;;gain st other important, and often 
competing, values. This orocess of definition, qua) ification and 
balancing is as much required with respect to the value of freedom 
of expression as it is for other values". 
136. In Mm1eka Gandhi (supra), it has been held:-
"5 .... It is indeed difficult to see on what principle we can refuse 
to give its plain natural meaning to the expression 'personal liberty' 
as used in Article 21 and read it in a narrow and restricted sense 
so as to exclude those attributes of personal liberty which are 
specifically dealt with in Article 19. We do not think that this would 
be a correct way ofinterpreting the provisions of the Constitution 
conferring fundamental rights. The attempt of the Court should 
be to expand the reach and ambit of the fundamental rights rather 
than attenuate their meaning and content by a process of judicial 
construction. The wavelength for comprehending the scope and 
ambit of the fundamental rights has been set by this Court in R.C. 
Cooper case (supra) and our approach in the
interpretation of 
the fundamental rights must now be in tune with this wavelength. 
We may point out even at the cost ofrepetition that this Court has 
said in so many terms in R.C. Cooper case (supra) that each 
freedom has different dimensions and there may be overlapping 
between different fundamental rights and therefore it is not a valid 
argument to say that the expression 'personal liberty' in Article 
21 must be so interpreted as to avoid overlapping between that 
article and A1ticle 19(1 )." 
137. Krishna Iyer, J., in his concurring opinion, has observed 
"96. 
. ...... the law is now settled, as I apprehend it, that no 
article in Part Ill is an island but part of a continent, and the 
conspectus of the whole part gives the direction and correction 
needed for interpretation of these basic provisions. Man is not 
dissectible into separate limbs and, likewise, cardinal rights in an 
organic constitution, which make man human have a synthesis.
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
981 
LAW & ORS. [DIPAK MISRA, J.] 
The proposition is indubitable that A11icle 21 does not, in a given 
A 
situation, exclude A11icle 19 if both rights are breached. 
97. We may switch to A11icle 19 very briefly and travel along 
another street for a while. Is freedom of extra-territorial travel to 
assure which is the primary office of an Indian passport, a facet 
of the freedom of speech and expression, of profession or vocation 
B 
under Article 19? My total consensus with Shri Justice Bhagwati 
jettisons from this judgment the profusion of precedents and the 
mosaic of many points and confines me to some fundamentals 
confusion on which, with all the clarity on details, may mar the 
conclusion. It is a salutary thought that the summit Court should 
not interpret constitutional rights enshrined in Part Ill to choke its 
C 
life-breath or chill its elan vital by processes oflegalism, overruling 
the enduring values burning in the bosoms of those who won our 
independence and drew up our founding document. We must also 
remember that when this Court lays down the law, not ad hoc 
tunes but essential notes, not temporary tumult but transcendental 
0 
truth, must guide the judicial process in translating into authoritative 
notation and mood music of the Constitution." 
138. Beg, J. has stated that:-
"A11icles dealing with different fundamental rights contained in 
Part lil of the Constitution do not represent entirely
separate 
streams ofrights which do not mingle at many points. They are all 
parts of an integrated scheme in the Constitution. Their waters 
must mix to constitute that grand flow of unimpeded and impai1ial 
Justice (social, economic and political), ..... " 
139. In Moltd. Arif alias Aslifaq v. Registrar, Supreme Court 
of India and otllers133, wherein the majority in the Constitution Bench 
has observed that the fundamental right to life among all fundamental 
rights is the most precious to all human beings. The aforementioned 
authorities clearly state that balancing of fundamental rights is a 
constitutional necessity. It is the duty of the Court to strike a balance so 
that the values are sustained. The submission is that continuance of 
criminal defamation under Section 499 IPC is constitutionally 
inconceivable as it creates a serious dent in the right to freedom of 
speech and expression. It is urged that to have defamation as a component 
of criminal law is an anathema to the idea of free speech which 1s 
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recognized under the Constitution and, therefore, criminalization of 
defamation in any form is an unreasonable restriction. We have already 
held that reputation is an inextricable aspect of right to life under Article 
21 of the Constitution and the State in order to sustain and protect the 
said reputation of an individual has kept the provision under Section 499 
IPC alive as a part oflaw. The seminal point is permissibility of criminal 
defamation as a reasonable restriction as understood under Article 19(2) 
of the Constitution. To elucidate, the submission is that criminal 
defamation, a pre-Constitution law is totally alien to the concept of free 
speech. As stated earlier, the right to reputation is a constituent of Article 
21 ofthe Constitution. It is an individual's fundamental right and, therefore, 
balancing of fundamental right is imperative. The Court has spoken about 
synthesis and overlapping of fundamental rights, and thus, sometimes 
conflicts between two rights and competing values. In the name of 
freedom of speech and expression, the right of another cannot be 
jeopardized. In this regard, reproduction of a passage from Noise 
Pollution (V), In rei"3• would be apposite. It reads as follows:-
" ... Undoubtedly, the freedom of speech and right to expression 
are fundamental rights but the rights are not absolute. Nobody 
can claim a fundamental right to create noise by amplifying the
sound ofhis speech with the help of loudspeakers. While one has 
a right to speech, others have a right to listen or decline to listen. 
Nobody can be compelled to listen and nobody ca!lclaim that he 
has a right to make his voice trespass into the ears or mind of 
others. Nobody can indulge in aural aggression. If anyone 
increases his volume of speech and that too with the assistance 
ofartificial devices so as to compulsorily expose unwilling persons 
to hear a noise raised to unpleasant or obnoxious levels, then the 
person speaking is violating the right of others to a peaceful, 
comfortable and pollution-free life guaranteed by Article 21. Article 
19( I )(a) cannot be pressed into service for defeating the 
fundamental right guaranteed by Article 21. We need not further 
dwell on this aspect. Two decisions in this regard delivered by the 
High Courts have been brought to our notice wherein the right to 
live in an atmosphere free from noise pollution has been upheld as 
the one guaranteed by Article 21 of the Constitution. These 
decisions are Free Legal Aid Cell Shri Sugan Chand Aggarwal 
'" <2005) s sec 733
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
983 
LAW & ORS. [DIPAK MISRA, J.] 
v. Govt. of NCT of Delhi 13; and P.A. Jacob v. Supdt. of · A 
Police136 • We have-carefully gone through the reasoning adopted 
in the two decisions and the principle oflaw laid down therein, in 
particular, the exposition of Article 21 of the Constitution. We find 
ourselves in entire agreement therewith." 
J 40. We are in respectful agreement with the aforesaid enunciation 
oflaw. Reputation being an inherent component of Article 21, we do not 
think it should be allowed to be sullied solely because another individual 
can have its freedom. It is not a restriction that has an inevitable 
consequence which impairs circulation of thought and ideas. In fact, it 
is control regard being had to another person's right to go to Court and 
state that he has been wronged and abused. He can take recourse to a 
procedure recognized and accepted in law to retrieve and redeem his 
reputation. Therefore, the balance between the two rights needs to be 
struck. "Reputation" of one cannot be allowed to be crucified at the 
altar of the other's right.of free speech. The legislature in its wisdom 
has not thought it appropriate to abolish criminality of defamation in the 
obtaining social climate. In this context, the pronouncement in Sltreya 
Sing/ta/ (supra) becomes significant, more so, as has been heavily relied 
upon by the learned counsel for the petitioners. In the said case, 
constitutional validity
of Section 66-A and ancillary thereto Section 69-A 
of the Information Technology Act, 2000 was challenged on the ground 
that they infringe the fundamental right to free speech and expression 
and are not saved by any of.the eight subjects covered in Article 19(2). 
The two-Judge Bench has expressed the view that both U.S. and India 
permit freedom of speech and expression as well as freedom of the 
press. So far as abridgement and reasonable restrictions are concerned, 
both the U.S. Supreme Court and this Court have held that a restriction 
in order to be reasonable must be narrowly tailored or narrowly interpreted 
so as to abridge or restrict only what is absolutely necessary. The Court 
has observed that only when it comes to the eight subject matters in 
Article 19(2) that there is vast difference. The Court has further observed 
thus:-
" ... In the US, if there is a compelling nece,ssity to achieve an 
important governmental or societal goal, a law abridging freedom 
of speech may pass muster. But in India, such law cannot pass 
"'AIR 2001 Del 455: (::iOOI) 93 DLT 28 (DB) 
"' AIR 1993 Ker I 
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muster if it is in the interest of the general public. Such law has to 
be covered by one of the eight subject-matters set out under Article 
19(2). If it does not, and is outside the pale of Article 19(2), Indian 
courts will strike down such law." 
141. The Court has referred to the decisions rendered in 
B 
Kamesltwar Prasad (supra) and Indian Express Newspapers 
(Bombay) (P) Ltd. (supra) to understand the great persuasive value of 
the American judgments. There has been a reference to the observations 
of Jackson, J. in American Co111111u11icatio11s Assn. v. Douds 131 which 
are to the following effect:-
C 
" ... Thought control is a copyright of totalitarianism, and we have 
no claim to it. It is not the function of our Government to keep the 
citizen from falling into error; it is the function of the citizen to 
keep the Government from falling into error. We could justify any 
censorship only when the censors are better shielded against error 
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than the censored." 
J42. There has been reference to many other pronouncements 
relating to reasonable restrictions and public order. The Court has 
reproduced a passage from S. Rm1garaja11 (supra) and thereafter 
adverted to the pronouncement in Slwilabal<t Devi (supra) and opined 
that:-
"Viewed at, either by the standpoint of the clear and present danger 
test or the tendency to create public disorder, Section 66-A would 
not pass muster as it has no element of
any tendency to create 
public disorder which ought to be an essential ingredient of the 
offence which it creates." 
143. It is interesting to note that the Court referred to "defamation" 
as defined in Section 499 IPC and stated thus:-
"lt will be noticed that for something to be defamatory, injury to 
reputation is a basic ingredient. Section 66~A does not concern 
itself with injury to reputation. Something may be grossly offensive 
and may annoy or be inconvenient to somebody without at all 
affecting his reputation. It is clear, therefore, that the section is 
not aimed at defamatory statements at all." 
144. The aforesaid paragraph makes it absolutely clear that the 
m 94 LEd 925 : 339 US 382 ( 1950)
,:-::, 
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
LAW & ORS. [DIPAK MISRA, J.] 
Court has observed that Section 66-A did not concern itself with 
injury to reputation. Thereafter, the Court proceeded to analyse 
the provision under challenge from the point of vagueness. It is 
apposite to quote:-
·" 
"90. That the content of the right under Article 19( I )(a) remains 
the same whatever the·means of communication including internet 
communication is clearly established by Reno case 138 and by 
Ministry of Information & Broadcasting, Govt. of India v. 
Cricket Assn. of Bengal (supra), SCC at para 78 already referred 
to. It is thus clear that not only are the expressions used in Section 
66-A expressions of inexactitude but they are also over broad and 
would fall foul of the repeated injunctions of this Court that 
restrictions on the freedom of speech must be couched in the 
narrowest possible terms. For example, see, Kedar Nath Singh 
v. State of Bihar 139, SCR at pp. 808-09. In point of fact, judgments 
ofthe Constitution Bench of this Court have struck down sections 
which are similar in nature. A prime example is the section struck 
down in the first Rah1 Manohm: Lohia case
1 ~
0
, namely, Section 
3 of the U .P. Special Powers Act, where the persons who 
"instigated" expressly or by implication any person or class of 
persons not to pay or to defer payment of any liability were 
·punishable. This Court specifically held that under the section a 
wide net was
cast to catch a variety of acts of instigation ranging 
from friendly advice to systematic propaganda. It was held that in 
its wide amplitude, the section takes in the innocent as well as the 
guilty, bona fide and mala fide advice and whether the person be 
a legal adviser, a friend or a well-wisher of the person instigated, 
he cannot escape the tentacles of the section. The Court held that 
it was not possible to predicate with. som~ kind of precision the 
different categories ofinstigation falling within or without the.field 
of constitutional prohibitions. It further held that the section must 
be declared unconstitutional as the offence made out would depend 
upon factors which are uncertain. 
x 
x 
x 
x 
x 
94. These two Constitution Bench decisions bind us and would 
apply directly on Section 66-A. We, therefore, hold that the section 
"'Reno v. Amerkan CivilLiberties Union. 521 US 844: 138 L Ed 2d 874 ( 1997) 
139 1962 Supp (2) SCR 769 : AIR 1962 SC.955 
'"'Supt., Central Prison v. Ram Manohar Lohia, ( 1960) 2 SCR.821 : AIR 1.960 SC. 633 
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is unconstitutional also on the ground that it takes within its sweep 
protected speech and speech that is innocent in nature and is 
liable therefore to be used in such a way as to have a chilling 
effect on free speech and would, therefore, have to be struck 
down on the ground of overbreadth ." 
145. We have referred to the aforesaid authority in extenso a's it 
has been commended to us to pyramid the submission that it lays the 
foundation stone for striking down Sections 499 and 500 !PC because 
existence of defamation as a criminal offence has a chilling effect on 
the right to freedom of speech and expression. As we understand the 
decision, the two-Judge Bench has neither directly nor indirectly laid 
down such a foundation. The analysis throughout the judgment clearly 
pertains to the vagueness and to an act which would make an offence 
dependent on uncertain factors billowed i11 inexcactitude and wide 
amplitude. The Court has ruled that Section 66-A also suffers from vice 
of procedural unreasonableness. The judgment drew distinction and 
observed defamation was different. Thus, the canvas is different. Once 
we have held that reputation of an individual is a basic element of Article 
. 21 of the Constitution and balancing of fundamental rights is a 
constitutional necessity and further the legislature in its wisdom has kept 
the penal provision alive, it is extremely difficult to subscrib~ to
the view 
that criminal defamation.has a chilling effect on the freedom of speech 
and expression. 
146. We have been diligently commended to the following passage 
from S. Ra11garaja11 (supra):-
"The problem of defining the area of freedom of expression when 
it appears to conflict with the various social interests enumerated 
under Article 19(2) may briefly be touched upon here. There does 
indeed have to be a compromise between the interest of freedom 
of expression and special interests. But we cannot simply balance 
the two interests as if they are of equal weight. Our commitment 
of freedom of expression 'demands' that it cannot be suppressed 
unless the situations created by allowing the freedom are pressing 
and the community interest is endangered. The anticipated danger 
should not be remote, conjectural or far-fetched. It should have 
proximate and, direct nexus with the expression. The expression 
of thought should be intrinsically dangerous to the public interest. 
In other words, the expression should be inseparably locked up
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
LAW & ORS. [DIPAK MISRA, J.] 
with the action contemplated like the equivalent of a "spark in a 
power keg". 
147. The said paragraph has also been reproduced in Slireya 
Sing/ta/ (supra) wliile dealing with the principle of"tendency to affect". 
In the said context, the two-Judge Bench in Slireya Singlwl (supra) 
had analysed how Sections 124A and 295A !PC were treated to be 
constitutional by this Court in R"mji Lal Modi v. State of U.P. 1"' and 
Kedar Nath Singh (supra). We think it appropriate for the sake of 
completeness to reproduce the analysis made in S/irey" Singlwl (supra):-
"43. In Ramji Lal Modi v. State of UP (supra), SCR at p. 867, 
this Court upheld Section 295-A of the Penal Code only because 
it was read down .to mean that aggravated forms of insults to 
religion must have a tendency to disrupt public order. Similarly, in 
Kedar Nath Singh v. State of Bihar (supra) Section 124-A of 
the Penal Code, 1860 was upheld by construing it narrowly and 
stating that the offence would only be complete if the words 
complained of have a tendency of creating public disorder by 
violence. It was added that merely creating disaffection or 
creatingfeelings of enmity in certain people was not good enough 
or else it would violate the fundamental right of free speech under 
Article 19( 1 )(a). Again, in Ramesh Yesh1ra11t Prabhoo v. 
Prabhakar Kashinath Kunte 142 , Section 123(3-A) of the 
Representation of the People Act
was upheld only ifthe enmity 
or hatred that was spoken about in the section would tend to create 
immediate public disorder and not otherwise." 
148. The two-Judge Bench in paragraph 44 has reached the 
followingconclusion:-
"Viewed at, either by the standpoint of the clear and present danger 
test or the tendency to create public disorder, Section 66-A would 
not pass muster as it has no element of any tendency to create 
public disorder which ought to be an essential ingredient of the 
offence which it creates." 
149. The analysis therein would show that tendency to create 
public disorder is not evincible in the language employed in Section 66-
A. Section 66-A dealt with punishment for certain obscene messages 
'" AIR 1957 SC 620 
'" (1996) 1 sec 130 
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through communication service, etc. A new offence had been created 
and the boundary of the forbidding area was not clearly marked as has 
been held in Kedar Nath Singh (supra). The Court also opined that the 
expression used in Section 66-A having not been defined ~nd further the 
provision having not used the expression that definitions in IPC will apply 
to the Information Technology Act, 2000, it was vague. The decision in 
Shreya Sing/ta/ (supra) is placed reliance upon to highlight that a 
restriction has to be narrowly tailored but criminal defamation is not a 
narrowly tailored concept. We have early opined that the word 
"defamation" is in existence from the very beginning of the Constitution. 
Defamation as an offence is admittedly a pre-constitutional law which 
was in existence when the Constitution came into force. To interpret 
thatthe word "defamation" occurring in Article 19(2) would not include 
"criminal defamation" or it should have a tendency to cause public disorder 
or incite for an offence, would not be in consonance with the principle of 
interi}retation pertaining to the Constitution. It may be noted here that 
the decisions rendered in Ramji Lal Modi (supra) and Kellar Nath 
Singlt (supra) where constitutional validity of Sections I 24A and 295A 
!PC had been upheld subject to certain limitations. But inspiration cannot 
be drawn from the said authorities that to argue that they convey
that 
defamation which would include criminal defamation must incorporate 
public order or int~ntion of creating public disorder. The said decisions 
relate to a different sphere. The concept of defamation remains in a 
different area regard being had to the nature of the offence and also the 
safeguards provided therein which we shall advert to at a later stage. 
The passage which we have reproduced from S. Rangarajan (supra), 
which has also been referred to in Sltreya Singlu1/ (supra), has.to be 
understood in the context in which ·it is stated having regard to the facts 
of the case. The said decision was rendered in the backdrop that the 
Tamil film 'Ore Oru Gramathile' which was given "U-Certificate" was 
revoked by the High Court observing that the certificate given to the 
movie was bound to invoke reactions which are bound to be volatile. 
This Court observed that alt that film seems to suggest is that existing 
G 
method of reservation on the basis of caste is bad and reservation on the 
basis of economic background is better and also the film deprecated the 
exploitation of people on caste considerations. In that context, the Court 
-
observed, as has been stated earlier, in-a democracy it is not necessary 
that everyone shoul.d sing the same song; freedom of expression is the 
rule, and it is generally taken for granted. Criticism and commentary on 
H
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
LAW & ORS. [DIPAK MISRA, J.] 
policies, enactments or opinions do not remotely constitute defamation. 
Disapproval is not defamation. The argument ignores the scope and 
ambit of the contours of what is criminal defamation. Bearing in mind 
the factual scenario, the Court has discussed about balancing of freedom 
of expression and "special interest". The Court was not concerned with 
balancing of Article 19(1 )(a) and the facet of Article 21 of the Constitution. 
Therefore, in the ultimate conclusion, we come to hold that 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. 
Appreciation in the backdrop of constitutional fraternity and 
fundamental duty 
150. Permissibility of criminal defamation can be tested on the 
touchstone ofconstitutional fraternity and fundamental duty. It is submitted 
·by Mr. Narsimha, learned Additional Solicitor General that right to 
reputation being an inseparable component of Article 21 deserves to be 
protected in view of Preambular concept. Learned Additional Solicitor 
General has referred to the Preamble to the Constitution which provides 
for" ... to promote among them all Fraternity assuring the dignity of the 
individual ... " 
151. The term "fraternity" has a significant place in the history of
constitutional law. It has, in fact, come into prominence after French 
Revolution. The motto of Republican France echoes:-' Liberte, egalite, 
fraternite', or 'Liberty, equality, fraternity'. The,term "fraternity" has 
an animating effect in the cqnstitutioral spectrum. The Preamble states 
that it is a constitutional duty to promote fraternity assuring the dignity of 
the individual. Be it stated that fraternity is a perambulatory promise. 
Dr. B.R. Ambedkar in the Constituent Assembly spoke:-
"The principles of liberty, equality and fraternity are not to be 
treated as separate entities but in a trinity. They form the union 
and trinity in the sense that to divorce one from the other is to 
defeat the very purpose of democracy ... Without fraternity, liberty 
and equality would not become natural course of things. Courts, 
as sentinel on the qui vive, therefore must strike a balance between 
the changing needs of the society for peaceful transformation 
with orders and protection of the rights of the citizens." 
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I 52. In the Preamble to the Constitution oflndia, fraternity has 
been laid down as one of the objectives. Dr. 8.R. Ambedkar inserted 
the sam.e in the Draft Constitution stating "the need for fraternal concord 
arid goodwill in Indja was never greater than now, .and that this particular 
aim of the new Constitution should be emphasized by special mention in 
the Preamble." Fraternity, as a constitutional concept, is umbilically 
connected withjustice, equality and liberty. 
153. American scholarship tends to be in agreement with this 
precept. Morris Abram expresses this in even more emphatic terms 
when he treats it as essential to achieving liberty and equality, and vice 
versa. According to him:-
"In America, we have learned that the elements of the plea are 
interdependent: that liberty of itself may not bring about fraternity 
and equality ... Permit me to observe that the converse is also 
true: merely by possessing fraternity and equality man will not 
thereby automatically achieve liberty.' 143 
154. Fraternity as a concept is characteristically different from 
the other constitutional goals. It, as a constitutional concept, has a keen 
bond of sorority with other concepts. And hence, it must be understood 
in the breed of homogeneity in a positive sense and not to trample dissent 
and diversity. It is neither isolated nor lonely. The idea of fraternity is 
recognised as a constitutional norm
and a precept. It is a constitutional 
virtue.that is required to be sustained and nourished. 
155. It is a constitutional value which is to be cultivated by the 
people themselves as a part of th.eir 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 critic!sm. 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. Enemies Enigmas Oneginese 
w Morris B Abram, 'Libeny. Fraternity and Equality - One or Two Alone are not 
Enough' ( 1967) 16 Journal of Public Law 3. 8.
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
LAW & ORS. [DIPAK MISRA, J.] 
on the part of some does not create a dent in the idea of fraternity but, a 
significant one, liberty to have a discordant note does not confer a right 
to defame the others. The dignity of an ihdividual is extremely important. 
In Indra Sawlmey and ot/.l_ers v. Union of India and otlters1""· the 
Court has deliberated UJJOn as to how reservation connects equality and 
fraternity with social, e;onomic and political justice as it can hamper 
fraternity and liberty if perpetuated for' too long. Jeevan Reddy, J. has 
opined that "Fraternity assuring the dignity of the individual has a special 
relevance in the Indian context .... " Sawant, J., in a separate but 
concurring opinion, stated:-
"Inequality ill-favours fraternity, and unity remains a dream without 
fraternity. The goal enumerated in the preamble of the Constitution, 
of fraternity assuring the dignity of the individual and the unity 
and integrity of the nation must, therefore, remain unattainable so 
long as the equality of opportunity is not ensured to all.' 1• 5 
156. This principle was reiterated in the case of AIIMS Students' 
Union v. AIIMS and otlters 1" 6 where reservation for post graduate 
students was held unconstitutional as it went against the objective of 
attaining fraternity. In Indian Medical Association v. Union of lndia 147 
exemptions granted to a private non-aided educational institution to only 
admit wards of army
personnel was challenged. Among the various tests 
to detennine the constitutionality the Court focused on fraternity by stating 
"in the absence of substantive equality or equality of means to access 
resources, various social groups could never achieve the requisite dignity 
necessary for the promotion of fraternity." 1" 8 
157. In Raglumatltrao Ganpatrao v. Union of India 149 where 
the 26th Amendment to the Constitution which abolished the privileges 
given to former rulers oflndia was in question, the Court held it to be a 
positive step towards achieving the objective of fraternity. The Court 
adverted to the statements of Dr. B.R. Ambedkar during the Constitution 
Assembly debates and stated th~t:-
"ln a country such as India, with several disruptive forces, such 
'"AIR 1993 SC 477: 1992 Supp. (3) sec 217 
"'Id. para 514. 
'" (2002) I sec 428 
'"Indian Medical Association V. Union oflndia, Civil Appeal No. 8170 Of2009 & Writ 
Petition (Civil) Nos. 320 Of2009 & 192 Of2010 
'" Id. 
"" 1994 supp. (1) sec 191 
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as religion, caste and language, the idea of fraternity is imperative 
to ensure the unity of the nation through a shared feeling ofcommon 
brotherhood." 150 
158. 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 does 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. 
Indubitably not. 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 fraternity. It is a 
constitutional obligation. 
159. In the context of constitutional fraternity, fundamental duties 
engrafted under Article 51-A of the Constitution gain significance. Sub-
articles (e) and (j) of Article 51-A of the Constitution read as follows:-
"Article 51-A.(e) to promote harmony and the spirit of common 
brotherhood amongst all the people oflndia transcending religious, 
linguistic and regional or sectional diversities; to renounce practices 
derogatory to the dignity of women; 
x 
x 
x 
x 
x 
U) to strive towards excellence in all spheres of individual and 
collective activity so that the nation
constantly rises to higher levels 
of endeavour and achievement;" 
160. The prismatic perception of sub-article (e) would reflect 
that it is the duty of every 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 towards excellence 
in all spheres ofindividual and collective activity. In this regard, a passage 
from AllMS Students' Union (supra) would be apt to refer. It reads as 
follows:-
i~n Id. 
" ... Fundamental duties, though not enforceable by a writ of the 
com1, yet provide a valuable guide and aid to interpretation of 
constitutional and legal issues. In case of doubt or choice, peoples 
wish as.manifested through Article 51 A, can serve as a guide not 
only for resolving the issue but also for constructing or moulding
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
993 
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the relief to be given by the courts. Constitutional enactment of 
A 
fundamental duties, if it has to have any meaning, must be used 
by courts as a tool to tab, even a taboo, on State action drifting 
away from constitutional values." 
161. In P.A. lnamdar mu/ others v. State of Mitlwraslitra and 
others' 5 ' ·it has been observed that:-
B 
"Fundamental duties recognized by Attic le 51 A include, amongst 
others, (i) to develop the scientific temper, humanism and the spirit 
of inquiry and reform; and (ii) to strive towards excellence in all 
spheres of individual and collective activity so that the nation 
constantly rises to higher levels of endeavour and achievement. 
C 
None can be achieved or ensured except by means of education. 
It is well accepted by the thinkers, philosophers and academicians 
thafif JUSTICE, LIBERTY, EQUALITY and FRATERNITY, 
including social, economic and political justice, the golden goals 
set out in the Preamble to the Constitution of India are to be 
achieved, the Indian polity has to be educated and educated with . D 
excellence. Education is a national wealth which must be distributed 
equally and widely, as far as possible, in the interest of creating an 
egalitarian society, to enable the country to rise high and face 
global competition ... " 
162. In Ramlila Maidan Incident, In re (supra), the Court had 
opined that:-
" ... a common thread runs through
Parts Ill, IV and IVA of the 
Constitution oflndia. One Part enumerates the fundamental rights, 
the second declares the fundamental principles of governance and 
the third lays down the fundamental duties of the citizens. While 
interpreting any of these provisions, it shall always be advisable to 
examine the scope and impact of such interpretation on all the 
three constitutional aspects emerging from these parts." 
163. We have referred to two concepts, namely, constitutional 
fraternity and the fundamental duty, as they constitute core constitutional 
· values. Respect tor the dignity of another is a constitutional norm. It 
would not amount to an overstatement if it is said that constitutional 
fraternity and the intr.insic value inhered in fundamental duty proclaim 
the constitutional assurance of mutual respect and concern for each 
other's dignity .. The individual interest of each i.ndividual serves the 
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collective interest and correspondingly the collective interest enhances 
the individual excellence. Action against the State is different than an 
action taken by one citizen against the other. The constitutional value 
helps in structuring the individual as well as the community. interest. 
Individual interest is strongly established when constitutional values are 
respected. The Preamble balances different and divergent rights. Keeping 
in view the constitutional value, the legislature has not repealed Section 
499 and kept the same alive as a criminal offence. The studied analysis 
from various spectrums, it is difficult to come to a conclusion that the 
existence of criminal defamation is absolutely obnoxious to freedom of 
speech and expression. As a prescription, it neither invites the frown of 
any of the Articles of the Constitution nor its very existence can be 
regarded as an unreasonable restriction. 
Anatomy of the provision and its field of operation 
164. Having dealt with thi,s facet, now we shall focus on whether 
Section 499 ofIPC either in the substantive sense or procedurally violates 
the concept of reasonable restriction. We have to examine whether it is 
vague or arbitrary or disproportionate. 
165. For the aforesaid purpose,' it is imperative to analyse in detail 
what constitutes the offence of"defamation" as provided under Section 
499 of!PC. To constitute the offence, 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 that the imputation made by him would 
harm the reputation of the complainant. The criminal offence emphasizes 
on the intention or harm. Section 44 ofIPC 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. Section 499 provides for 
hann caused to the reputation of a person, that is, the complainant. In 
Jeffrey J. Diermeier and another v. State of West Bengal and 
anotlter' 51, a two~Judge Bench deliberated on tht aspect as to what 
'" (20 IOJ 6 sec 243
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRYOF 
LAW & ORS. [DI PAK MISRA, J .] 
constitutes defamation under Section 499 of !PC and in that context, it 
held that there must be an imputation and such iniputation must have 
been made with the intention ofhanning or knowing or having reason to 
believe that it will harm the reputii.tion of the person about whom it is 
made. In essence, the offence of defamation is the harm caused to the 
reputation of a person. It would be sufficient to show that the accused 
intended or knew or had reason to believe that the imputation made by 
him would harm the reputation of the complainant, irrespective of whether 
the complainant actually suffered directly or indirectly from the imputation 
alleged. 
166. Having dwelt upon the ingredients, it is necessary to 
appreciate the Explanations appropriately. There are four Explanations 
to the main provision and an Explanation has been appended to the Fourth 
Exception. Explanation 4 needs to be explain.ed first. It is because the 
said Explanation provides the expanse and the inherent control wherein 
whatimputation 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 moral or 
intellectual character of that person, or lowers the character of that 
person in respect ofhis 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. It is 
submitted by Dr. Dhaw~n, learned senior counsel, that Explanation 4 
has many a distinction and covers a number of criteria which can be 
used widely. He has commended us to a passage from State of Jammu 
and Kashmir v. Triloki Natlt Kflosa and others' ;3 solely for the purpose 
thatthe Explanation 4 engulfs micro-distinctions which is impermissible. 
To appreciate manifold submissions urged by the learned counsel for the 
petitioners, it is seemly to refer to how these Explanations have been 
understood by the Court. We are conscious that we are dealing with the 
constitutional validity of the provision and the decisions relate to 
interpretation. But the purpose is to appreciate how the Explanations 
11ave been understood by this Court. 
· 
167. 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 if he is living and is intended to be 
harmful to the feelings of his family or other near relatives. It is submitted 
''' (1974) 1sec19 
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by the learned counsel for the petitioners thatthe width of the Explanation 
is absolutely excessive as it enables the family members to prosecute a 
criminal action ..yhereas they are debarred to initiate civil action for 
damages. According to the learned counsel for the petitioners, 
Explanation I is anomalous and creates a piquant situation which can 
effortlessly be called unreasonable, for when a civil suit cannot be 
entertained or allowed to be prosecuted by the legal heirs.or the legal 
representatives, how could they prosecute criminal offence by filing a 
complaint. On a first blush, the aforesaid submission looks quite attractive, 
but on a keener scrutiny, it loses its significance. In Melepuratlt Sm1kuni 
Ezftutltassan v. Tltekittil Geopalankutty Nair 15\ a suit for damages 
was dismissed by the trial court but on an appeal being preferred, the 
same was allowed. In second appeal, the High Court reversed the decree 
of the appellate court and dismissed the cross objections of the respondent 
therein. The appellant preferred an appeal by special leave before this 
Court and during the pendency before this Court, he died. His surviving 
legal heirs came to be brought on record to prosecute the appeal. The 
issue that arose before this Court was whether the appeal should abate. 
The Court posed the question whether in a defamation action, the right 
to sue survives if the plaintiff dies. The
Court referred to the Common 
Law principle and the maxim action persona/is 11101'itur cum persona 
(a personal action dies with the person) and thereafter referred to Section 
306 of the Indian Succession Act, 1925 as to which causes of action 
survive and which shall abate. The Court in that context opined thus:-
"Where a suit for defamation is dismissed and the plaint,iff has 
filed an appeal, what the appellant-plaintiffis seeking to enforce 
in the appeal is his right to sue for damages for defamation and as 
this right does not survive his death, his legal representative has 
no right to be brought on the record of the appeal in his place and 
stead if the appellant dies during the pendency of the appeal. The 
position, however, is different where a suit for defamation has 
resulted in a decree in favour of the plaintiff because in such a 
case the cause of action has merged in the decree and the decretal 
debt forms part of his estate and the appeal from the decree by 
the defendant becomes a question of benefit or detriment to the 
estate of the plaintiff respondent which his legal ·representative is 
entitled to uphold and defend and is, therefore, entitled to be 
substituted in place of the deceased respondent plaintiff'. 
'"<1986) 1sec11s
SUBRAMANIAN SWAMY v. UNION Of INDIA, MINISTRY OF 
LAW & ORS. [DIPAK MISRA. J.] 
168. In M. Veemppa v. Evely11 Sequeira and others' 55, a two-
Judge Bench distinguh;l1ed the authority in Melepurath Sankuni 
Ezhuthassan (supra) as there was a subsisting decree and came to 
hold thus:-
"The maxim "actio persona/is c11111 moritur persona" has been 
applied not only to those cases where a plaintiff dies during the 
pendency of a suit filed by him for damages for personal injuries 
sustained by him but also to cases where a plaintiff dies during 
the pendency of an appeal to the appellate court, be it the first 
appellate court or the second appellate court against the dismissal 
of the suit by the trial court and/or the first appellate court as the 
case may be. This is on the footing that by reason of the dismissal 
of the suit by the trial court or the first appellate court as the case 
may be, the plaintiff stands relegated to his original position before 
~ 
the trial court. 
Andagain:-
"The inaxim of actio personalis cum moritur persona has been 
held inapplicable only in those cases where the injury caused to 
the deceased person has tangibly affected his estate or has caused 
an accretion to the estate of the wrong-doer vide Rus10111ji 
Dorabji v. W.H Nurse 156 and Ratanlal v .. Baboolal' 57 as well 
as in those cases where a suit for damages for defamation, assault 
or other personal injuries sustained by the plaintiff had resulted in 
a decree in favour of the plaintiff
because iu such a case the 
cause of action becomes merged in the decree and the decretal 
debt forms part of the plaintiff's estate and the appeal from the 
decree by the defendant becomes a question of benefit or detriment 
to the estate of the plaintiff which his legal representatives are 
entitled to uphold and defend (vide Gopal 1i Ramchandra 158 and 
Melepurath Sankunni v. Thekittil)". 
169. The aforesaid enunciation of law makes it clear how and 
when the civil action is not maintainable by the legal heirs. The 
prosecution, as envisaged in Explanation I, lays two postulates, that is, 
(i) the imputation to a deceased person is of such a nature that would 
"' t 1998) 1 sec 556 
"'· !LR 44 Mad 357 
1' 7 AIR 1960 MP 200 
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have harmed the reputation of that person ifhe was living and (ii) the 
said imputation must be intended to be hurtful to the feelings of the 
family o·r other near relatives. Unless the twin tests are 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 of family or near relative cannot be equated. 
Therefore, we do not find any extra mileage is given to the legal heirs of 
a deceased person when they have been made eligible to initiate a 
criminal action by taking recourse to file a criminal complaint. 
170. 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 an alternative or expressed ironically 
may amount to defamation. Section 11 of!PC 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. The
submission advanced on behalf of the petitioners is that collection of 
persons or, for that matter, association, is absolutely vague. More than 
five decades back, the Court, in Sahib Si11glt Meltra v. State of Uttar 
Prades/i 159 while being called upon to decide whether public prosecutor 
would constitute a class or come within the definition of "collection of 
persons" referred to Explanation 2 to Section 499 of!PC, and held that 
collection of persons must be identifiable in the sense that orie could, 
with certainty, say that this group of particular people has been defamed, 
as distinguished from the rest of the community. The Court, in the facts 
of the case, held that the prosecuting staff of Aligarh or, as a matter of 
fact, the prosecuting staff in the State of Uttar Pradesh, was certainly 
such an identifiable group or collection of persons, and there was nothing 
indefinite about it. Thus, in the said authority, emphasis is laid on the 
concept of identifiability and definitiveness as regards collection of_ 
persons. 
171. In G Narasimlum, G Kasturi flll{/ K. Gopala11 v. T. V. 
Cltokkappa 160 , the Court dealt with the applicability of the said 
'''AIR 1965 SC 1451 : 1965 (2) SCR823 
H 
'''" < 1972) 2 sec 680
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
LAW & ORS. [DIPAK MISRA, J.] 
Explanation as regards "association" or "collection of persons" and ruJed 
that a collection of persons must be an identifiable body so that it is 
possible to say with definiteness that a group of particular persons, as 
distinguished from the rest of the community, was defamed. Therefore, 
in a case where Explanation 2 is resorted to, the identity of the company 
or the association or the collection of persons must be established so as 
to be relatable to the defamatory words or imputations. Where a writing 
weighs against mankind in general, or against a particular order of men, 
e.g., men of gown, it is no libel. It must descend to particulars and 
individuals to make it a libel. Thus, the accentuatioi1 is on 'partipulars'_. 
In S. Kliusliboo (supra), it has been ruled that though the Expla11ation is 
wide yet in order to demonstrate the offence of defamation, such a 
collection of persons must be an identifiable body so that it is possible to 
say with precision that a group of particular persons, as distinguished 
from the rest of the community, stood defamed. Jn case the identity of 
the collection' of persons is not established so as to be relatable to the 
defamatory words or imputations, the complaint is not maintainable. It 
has been fmther opined that in case a class is mentioned, if such a class 
is indefinite, the complaint cannot be entertained and furthermore, ifit is 
not
possible to ascertain the composition of such a class, tlie criminal 
prosecution cannot proceed. _ 
l 72. The aforesaid enunciation of law clearly lays stress on 
determinate and definite body. It also lays accent on identifiable body 
and identity of the collection of persons. It also significantly states about 
the test of precision so that the collection of persons have a distinction. 
Thus, it is fallacious to contend that it is totally vague and can, by its 
inclusiveness, cover an indefinite multitude. The Court has to understand 
the concept and appositely apply the same. There is no ambiguity. Be it 
noted that a three-Judge Bench, though in a different context, in A11eeta 
Hada v. Godfather Travels & Tours (P) Ltd161 has ruled that a 
company has its own reputation. Be that as it may, it cannot be said that 
the persons covered under the Explanation are gloriously vague. 
Exceptions and understanding of the same 
173. Having dealt with the four Explanations, presently, we may 
analyse the Exceptions and note certain authorities with regard to the 
Exceptions. It is solely for the purpose of appreciating how the Cou1t 
has appreciated and applied them. The First Exception stipulates that it 
"'' (2012) 5 sec 661 
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is not defamation to Impute anything which is true concerning any person, 
ifit be for the public good thatthe imputation should be made or published. 
"Public good" has to be treated to be a fact. In Cflaman Lal v. State of 
Punjab 162, the Court has held that in order to come within the First 
Exception to Section 499 of the Indian Penal Code it has to be established 
that what has been imputed concerning the respondent is true and the 
publication of the imputation is forthe public good. The onus of proving 
these two ingredients, namely, truth of the imi't1tation and the publication 
of the imputation for the public good, is on the accused. 
174. It is submitted by Dr. Dhawan, learned senior counsel for 
the petitioners that if the imputation is not true, the matter would be 
different. But as the Exception postulates that imputation even if true, if 
it is not to further public good then it will not be defamation, is absolutely 
irrational. and does not stand to reason. It is urged that truth is the basic 
foundation of justice, but. this Exception does not recognize truth as a 
defence and, therefore, it deserves to be struck down. 
175. Ithas been canvassed by Mr. Rao, learned senior counsel, 
that the term "public good" is a vague concept and to bolster the said 
submission, he has placed reliance upon Harakclumd Rata11clu11u/ 
Bantliia & others v Union of India and others' 63 to highlight that in
the said case, it has been held that "public interest" do not provide any 
objective standard or norm. The context in which the said decision was 
rendered has to be appreciated. In the said case, the Court was dealing 
with the constitutional validity of the Gold Control Act, 1968. Section 27 
of the said Act related to I icensing of dealers. It was contended that the 
conditions imposed by sub-section (6) of the Act for grant or renewal of 
licences were uncertain, vague, unintelligible and consequently wide and 
unfettered power was conferred upon the statutory authorities in the 
matter of grant or renewal of licence. The Court expressed the view 
that the contention was well founded. Further analyzing, the Court 
e;wressed that:-
" ... The expression "anticipated demand" is a vague expression 
which is not capable of objective assessment and is bound to lead 
to a great deal ofuncertainty. Similarly the expression "suitability 
of the applicant" in Section 27(6)(e) and "public interest" in Section 
27(6)(g) do not provide any objective standard or norm or guidance. 
,,,, < 1910) 1 sec 590 
11·' (1969)2 sec 166
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 1001 
LAW & ORS. [DIPAK MISRA, J.] 
For these reasons it must be held that clauses (a),(d),(e) and (g) 
of Section 27(6) impose unreasonable restrictions on the 
fundamental right of the petitioner to carry on business and are 
constitutionally invalid ... " 
176. As we perceive, the factual score and the provision under 
challenge was totally different. It has been stated in the backdrop of the 
power conferred on an administrative authority for the purpose of renewal 
of licence, and in that context, the Court opined that the criterion of 
"public interest" did not provide objective standard. The Court, on. analysis 
of the provision from a manifold angle, opined thatthe provision proposed 
unreasonable restriction. The context and the conferment of power 
makes a gulf of difference and, therefore, the said authority has to be 
considered on its own facts. It cannot be ruled that it lays down as a 
principle that "public interest" is always without any norm or guidance 
or has no objective interest. Ergo, the said decision is distinguishable .. 
177. In Arutullutti Roy, /11 re 164, this Court, referring to Second 
. Exception, observed that even a person claiming the benefit of Second 
Exception to Section 499 of the Indian Penal Code, is required to show 
that the opinion expressed by him was in good faith which related to 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. 
Third Exception states about conduct of any person touching any public 
question and stipulates that it is not defamation to express in good faith 
any opinion whatever respecting the conduct of any person touching 
any pu~lic question and respecti1}-g his character, so far as his character 
appears in that conduct. The said Exception uses the words "good faith" 
and particularizes conduct of any person relating to any public question 
and the Exception, as is perceptible, gives stress on good faith. Third 
Exception comes into play when some defamatory remark is made in 
good faith as held in Sahib Si11gh Mehm (supra). The Court has clarified 
that if defamatory remarks are made after due care and attention, it will 
be regarded as made in good faith. In the said case, the Court also 
adverted to Ninth Exception which gives protection to imputation made 
in good faith for the protection of the interest of the person making it or 
of any other person or for the public good. A three-Judge Bench in 
Harbhajan Singh v. State of Punjab a11d a11ot/ler16; has opined that 
''" 12002) 3 sec 343 
'"' AIR 1966 SC 97 
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where the accused invokes Ninth Exception to Section 499 lPC, good 
faith and public good are both to be satisfied and the failure of the appellant 
to prove good faith would exclude the application ofNinth Exception in 
favour of the accused even ifrequirement of public good is satisfied. 
The Court has referred to Section 52 IPC which defines "good faith" 
that requires the element of honesty. It is necessary to note here that the 
three-Judge Bench has drawn a distinction between the First Exception 
and the Ninth Exception to opine that the proof of truth which is one of 
the ingredients of the First Exception is not an ingredient of the Ninth 
Exception and what the Ninth Exception requires an accused person to 
prove is that he made the statement in good faith. Proceeding further, 
the Court has stated that in dealing with the claim of the accused under· 
the Ninth Exception, it is not necessary and, in a way, immaterial, to 
considerwhether he has strictly proved the truth of the allegations made 
by him. 
178. In Sukru M"llfo v. B"sdeo Kumar M"llto and mwther160 
the Court has opined that the ingredients of Ninth Exception are first 
that the imputation must be made in good faith; secondly, the imputation 
must be protection of the interest of the person making it or of any other 
person or for the public good. The Court further opined that good faith 
and public good are questions of fact and
emphasis has been laid on 
making enquiry in good faith and due care and attention for making the 
in:iputation. In Jatislt C/wmlra Ghosh v. H"ri Sad/um Mukherjee 161, 
the Constitution Bench dealt with appellant's claim of absolute privilege 
as a Member of the West Bengal Legislative Assembly which was not 
accepted by the High Court of Judicature at Calcutta. The appellant 
therein was facing a prosecution under Section 500 !PC. The larger 
Bench referred to Section 499 IPC and observed that:-
"In this connection, it is also relevant to note that we are concerned 
in this case w.ith a criminal prosecution for defamation. The Jaw 
of defamation has been dealt with in Sections 499 and 500 of the 
Indian Penal Code. Section 499 contains a number of exceptions. 
Those specified exceptions lay down what is not defamation. The 
fourth exception says that it is not defamation to pub I ish a 
substantially true report of the proceedings of a court of justice, 
but does not make any such concession in respect of proceedings 
of a House of Legislature or Parliament. The question naturally 
""' 1911 o l sec sss 
,,;, (1961) 3 SCR 486
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 1003 
LAW & ORS. [DIPAK MISRA; J.] 
arises how far the rule in Wason case' 68 can be applied to criminal 
A 
prosecutions in India, but as this aspect of the controversy was 
not canvassed at the Bar, we need not say anything about it, as it 
is not necessary for the decision of this case." 
179. After so stating, the Court further opined that the proceedings 
did not deserve to be quashed as there was no such absolute privilege in 
B 
the facts of the case. Being of this view, the Court opined that the 
accused appellant must take his trial and enter upon his defence such as 
he may have. We have referred to the said decision only to highlight 
that the Court has clarified publishing of substantial true. report of 
proceedings of a Court of Justice. 
. c 
180. 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 
D 
said person, as far as his character appears in that conduct. In Km1wal 
Lal v. State of Punjab' 69 the Court, while dealing with the Eighth 
Exception, has opined that in order to establish a defence under this 
Exception the accused would have to prove that the person io whom the 
complaint was made had lawful
authority over the person complained 
against, in respect of the subject-matter of the accusation. 
E 
181. Again in M.C. Verghese v. T.J. Poom111 110, it has been 
ruled that a person making libellous statements in his complaint filed in 
Cow1 is not absolutely protected in a criminal proceeding for defamation, 
for under the Eighth Exception and the illustration to Section 499 the 
statements are privileged only when they are made in good faith. There 
is, therefore, authority forthe proposition that in determining the criminality 
of an act under the Indian Penal Code the Courts will not extend the 
scope of special exceptions by resorting to the rule peculiar to English 
common law that the husband and wife are regarded as one. In Clmnum 
. Lal (supra) this Court has opined that the Eighth Exception to Section 
499 of the Indian Penal Code indicates that accusation in good faith 
against the person to any of those who have lawful authority over.that 
'"' Wason v. Walter, ( 1868) 4 QB 73 
"'' 1963 Supp (I) SCR 479 
"" (1969) 1sec37 
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person is not defamation. In Rajentlra Kumar Sitaram Pantle v. 
Uttam 171 , it has been observed that Exception 8 to Section 499 IPC 
clearly indicates that it is not a defamation to prefer in good faith an 
accusation against any person to any of those who have lawful authority 
over that person with regard to the subject-matter of accusation. In the 
said case the report of the Treasury Officer clearly indicated that pursuant 
to the report made by the accused persons against the complainant, a 
departmental enquiry had been initiated and the complainant was found 
to be guilty. Under such circumstances the fact that the accused persons 
had made a report to the superior officer of the complai11ant alleging that 
he had abused the Treasury Officer in a drunken state which was the 
gravamen of the complaint, would be ·covered by Exception 8 to 
Section 499 of the Indian Penal Code. 
182. In Clumum Lal (supra) the Court has opined that good 
faith requires care and caution and prudence in the background of context 
and circumstances. The position of the persons making the imputation 
will regulate the standard of care and caution. In Sukra Malt to (supra), 
emphasis has been laid on protection of the interest of the person making 
it or of any other person or for the public good. Reference has been 
made to Harbhajan Singh case (supra) to stress on due care and 
attention. In Sewakram Soblrnni v. R.K.
Karanjiam, it has been 
observed that the ingredients of the Ninth Exception are __ that ( 1) the 
Imputation must be made in good faith, and (2) the imputation inust be 
for the protection of the interests of the person making it or of any other 
person or for the public good, and the imputation made must be in good 
faith for the public good. In M.A. Rumugam v. Kittu 173 , it has been 
held that forthe purpose of bringing t_he case within the purview of the 
Eighth and the Ninth Exception appended to Section 499 of the Penal 
Code, it would be necessary for the accused to prove good faith for the 
protection of the interests of the person making it or of any other person 
or for the public good. This Court, in Jeffrey J. Diermeier (supra), has 
observed thus:-
"3 7. It is trite that where to the charge of defamation under Section 
500 IPC the accused invokes the aid ofTenth Exception to Section 
499 IPC, "good faith" and "public good" have both to be established 
by him, The mere plea that the accused believed that what he had 
-----
171 (1999J 3 sec 134 
'" (1981J 3 sec 208 
"'(2009J 1sec101
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 1005 
LAW & ORS. [DIPAK MISRA, J.] 
stated was in "good faith" is not sufficient to accept his defence 
and he must justify the same by adducing evidence. However, he 
is not required to discharge that burden by leading evidence to 
prove his case beyond a reasonable doubt. 
38. It is well settled that the degree and the character of proof 
which an accused is expected to furnish in suppo11 of his plea 
cannot be equated with the degree of proof expected from the 
prosecution in a criminal trial. The moment the accused succeeds 
in proving a preponderance of probability, onus which lies on him 
in this behalf stands discharged. Therefore, it is neither feasible 
nor possible to lay down a rigid test for deciding whether an 
accused person acted in "good faith" and for "public good" under 
the said Exception." 
183. The detailed discussion made hereinabove do clearly reveal 
that neither the main provision nor the Explanation nor the Exceptions 
remotely indicate any vagueness. It is submitted that the ·Exceptions 
make the offence more rigorous and thereby making the concept of 
criminal defamation extremely unreasonable. The criticism advanced 
pertain to truth being not a defence, and unnecessary stress on 'public 
good'. The counter argument is that ifa truthful statement is not made 
for any kind of public good but only to malign a person, it is a correct 
principle in law that the statement or writing can amount to
defamation. 
Dr. Singhvi, learned senior counsel' for some of the respondents has 
given ce11ain examples. The exainples pertain to an imputation that a 
person is an alcoholic; an imputation that two family members are involved 
in consensuafincest; an imputation that a person is impotent; a statement 
is made in pubic that a particular person suffers from AIDS; an imputation 
that a person is a victim of rape; and an imputation that the child of a 
lnarried couple is not fathered by the husband but born out of an affair 
with another man. We have set out the examples cited by the learned 
senior counsel only to show that there can be occasions or situations 
where truth may not be sole defence. And that is why the provision has 
given emphasis on public good. Needless to say, what is public good is 
a question off.act depending on the facts and circumstances of the case. 
184. From the analysis we have made it is clear as day that 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 
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excessive, unreasonable or disproportionate, but the Court cannot strike 
down if it thinks that the provision is unnecessary or unwarranted. Be it 
noted that it has also been argued that the provision is defeated by doctrine 
of proportionality. It has been argued that existence of .criminal 
defamation on the statute book and the manner in which the provision is 
engrafted suffers from disproportionality because it has room for such 
restriction which is disproportionate. In Om Kumar v. U11ion of India17', 
the Court has observed that while regulating the exercise of fundamental 
rights it is to be seen whether the legislature while exercising its choice 
has infringed the right excessively. Recently, the Constitlltion Bench in 
Modern De11tal College & Researcft Ce11tre am/ otfters v. State of 
Madhya Pradesft and otflers175, explaining the doctrine of proportionality 
has emphasized that when the Court is called upon to decide whether a 
statutory provision or a rule amounts to unreasonable restriction, the 
exercise that is required to be unde11aken is the balancing of fundamental 
rights on the one hand and the restrictions imposed on the other. Emphasis 
is _on recognition of affirmative constitutional rights along with its 
limitations. Limitations, save certain interests and especially public or 
social interests. Social interest takes in its sweep to confer protection to. 
rights of the others
to have social harmony founded on social values. To 
treat a restriction constitutionally permissible it is necessary to scrutinize 
whether the restriction or imposition of limitation is excessive or not. 
The proportionality doctrine recognizes balancing of competing rights 
and the said hypothesis gains validity if it subserves the purpose it is 
meant for. 
185. Needless to emphasise that whe1i a law limits a constitutional 
right which many laws do, such limitation is constitutional if it is 
proportional. 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, artd 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 objective which the 
legislation seeks to achieve, and must not be in excess of that objective 
(see: P.P. Enterprises v. Union of /ndia 176). Fu11her, the reasonableness 
is examined in an objective manner form the stand point of the interest 
1"' <2001 J 2 sec 386 
"'2016 (4) SCALE 478 
176 (1982 J 2 sec 33
SUBRAMANIAN SWAMY v. UNION OF INDIA. MINISTRY OF 1007 
LAW & ORS. [DIPAK MISRA, J.] 
of the general public and not from the point of view of the person upon 
whom the restrictions are imposed or abstract considerations (see : Mohd 
Hanif Quareshi. V. State of Bihar 177). The judgment refers to and 
approves guidelines propounded in MRF Ltd. v. Inspector, Kera[(I 
Govt. 118 for examining reasonableness of a statutory provision. In the 
said decision the Constitution Bench while discussing about the doctrine 
of proportionality has observed:-
"54. Modern theory of constitutional rights draws a fundamental 
distinction between the scope of the constitutional rights, and the 
extent of its protection. Insofar as the scope of constitutional rights 
is concerned, it marks the outer boundaries of the said rights and 
defines its contents. The extent of its protection prescribes the 
limitations on the exercises of the rights within its scope. In that 
sense, it defines the justification for limitations that can be imposed . 
· O!) such a right. 
55. It is now almost accepted that there are no absolute 
constitutional rights 14 and all such rights are related. As per the 
analysis of Aharon Barak179, two key elements' in developing the 
modern constitutional theory ofrecognising positive constitutional 
rights along with its limitations are the notions of democracy and 
the rule of law. Thus, the requirement of proportional limitations' 
of constitutional rights by a
sub-constitutional law, i.e. the statute, 
is derived from an interpretation of the notion of democracy itself. 
Insofar as Indian Constitution is concerned, democracy is treated 
as the basic feature of the Constitution and is specifically accorded 
a constitutional status that is recognised in the Preamble of the 
Constitution itself. It is also unerringly accepted that this notion of 
democracy includes human rights which is the corner stone of 
Indian democracy. Once we accept the aforesaid theory (and 
there cannot be any denial thereof), as a fortiori, it has also to be 
accepted that democracy is based on a balance between 
constitutionalrights and the public interests. In fact, such a provision 
in Article 19 itself on the one hand guarantee"S some· certain 
freedoms in clause (I) of Article 19 and at the same time empowers 
the State to impose reasonable restrictions on those freedoms in 
177 AIR 1958 SC 731 
11' < 1998) s sec 221 
17" Proportionality : Constitutional Rights and Their Limitation by Aharon Brarak, 
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186. One cannot be unmindful that right to freedom of speech 
and expression is a highly valued and cherished right but the Constitution 
conceives of reasonable restriction. In that context criminal defamation 
which is in existence in the form of Sections 499 and 500 !PC 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, we are unable to accept 
that provisions relating to criminal defamation are not saved by doctrine 
of proportionality because it determines a I im it which is not impermissible 
within the criterion of.reasonable restriction. It has been held in D. C. 
Saxena (Dr) v. Hon'ble The Chief Justice of1mlia' 80, though in a 
different context, that if maintenance of democracy is the foundation for 
free speech, society equally is entitled to regulate freedom of speech or 
expression by democratic action. The reason is obvious, viz., that society 
accepts free speech and expression and also puts limits on the right of 
the majority. Interest of the people involved in the acts of expression 
should be looked at not only from the perspective of the
speaker but also 
the place at which he speaks, the scenario, the audience, the reaction of 
the publication, the purpose of the speech and the place and the forum in 
which the citizen exercises his freedom of speech and expression. The 
Court had further observed that the State has legitimate interest, therefore, 
to regulate the freedom of speech and expression which liberty represents 
the limits of the duty of restraint on speech or expression not to utter 
defamatory or libellous speech or expression: There is a correlative duty 
not to interfere with the liberty of others. Each is entitled to dignity of 
person and of reputation. Nobody has a right to denigrate others' right to 
person or reputation. 
187. The submission of Mr. Datar, learned senior counsel is that 
defamation is fundamentally a notion of the majority meant to cripple the 
G 
freedom of speech and expression. It is too broad a proposition to be 
treated as a guiding principle to adjudge reasonable restriction. There is 
a distinction between social interest and a notion of the majority. The 
legislature has exercised its legislative wisdom and it is inappropriate to 
say that it expresses the notion of the majority. It has kept the criminal 
H 
""(1996)5 SCC216
SUBRAMANIAN SWAMY v. UNION Of INDIA, MINISTRY OF 1009 
LAW & ORS. [DJPAK MISRA, J.] 
defamation on the statute book as in the existing social climate it subserves 
the collective interest because reputation of each is ultimately inhered in 
the reputation of all. The submission that imposition of silence will rule 
over eloquence of free speech is a stretched concept inasmuch as the 
said proposition is basically founded on the theory of absoluteness of the 
fundamental right of freedom of speech and expression which the 
Constitution does not countenance. 
188. Now, we shall adve11 to Section 199 of CrPC, which pro-
vides for prosecution for defamation. Sub-section (1) of the said section 
stipulates that no court shall take cognizance of an offence punishable 
under Chapter XX! of the Indian Penal Code (45of1860) 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, 
or is a woman who, according to the.local customs and manners, ought 
not to be compelled to appear in public, some other person may, with the 
leave of the court, make a complaint on his or her behalf. Sub-section 
(2) states that when any offence is alleged against a person who is the 
President of India, the Vice-President of India, the Government of a 
State, the Administrator of a Union territory or a Minister of the Union 
or of
a 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 commit-
ted to it, upon a complaint in writing made by the Public Prosecutor. 
Sub-section 3 states that 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. Sub-section mandates that no complaint under 
sub-section (2) shall be made by the Public Prosecutor except with the 
previous sanction 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 Govern-
ment or_ any other public servant employed in connection with the af-
fairs of the State and of the Central Government, in any other case. 
Sub-section 5 bars Court of Session from taking cognizance of an of-
fence under sub-section (2) unless the complaint is made within six months 
from the date on which the offence is alleged to have been committed. 
Sub-section (6) states that nothing in this section shall affect the right of 
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the person against whom the offence is alleged to have been committed, 
to make a complaint in respect of that offence before a Magistrate hav-
ing jurisdiction or the power of such Magistrate to take cognizance of 
the offence upon such complaint. 
· 189-. The said provision is criticized on the ground that "some 
person aggrieved" is on a broader spectrum and that is why, it allows all 
kinds of persons to take recourse to defamation. As far as the concept 
of"some person aggrieved" is concerned, we have referred to plethora 
of decisions in course of our deliberations to show how this Court has 
determined the concept of "some person aggrieved". While dealing 
with various Explanations, it has been clarified about definite identity of 
the body of persons or collection of persons. In fact, it can be stated 
that the "person aggrieved" is to be determined by the courts in each 
case according to the fact situation. It will require ascertainment on due 
deliberation of the facts. In Joltn Tltomas v. Dr. K. Jagadeesan' 8' 
while dealing with "person aggrieved", the Court opined that the test is 
whether the complainant has reason to feel hurt on account of publication 
is a matter to be determined by the court depending upon the facts of 
each case. In S. Kltusltboo (supra), while dealing with "person 
aggrieved", a three-Judge Bench has opined that the respondents therein 
were not "person aggrieved"
within the meaning of Section 199( I) Cr PC 
as there was no specific legal injury caused to any of the complainants 
since the appellant's remarks were not directed at any individual or readily 
identifiable group of people. The Court placed reliance on M.S. Jayaraj 
v. Commr. of Excise'"c and G Narasimlum (supra) and observed that 
if a Magistrate Were to take cognizance of the offence of defamation on 
a complaint filed by one who is not a "aggrieved person", the trial and 
conviction of an accused in such a case by the Magistrate would be void 
and illegal. Thus, it is seen that the words "some person aggrieved" are 
dete1mined by the courts depending upon the facts of the case. Therefore, 
the submission that it can include any and everyone as a "person 
aggrieved" is too spacious a submission to be accepted. 
190. It has als9 been commented upon that by giving a benefit to 
public servant employed in connection with the affairs of the Union or of 
a State· in respect of his conduct in the discharge of public functions to 
file the case through public prosecutor, apart from saving his right under 
sub-section (6) of Section 199 CrPC, the provision becomes 
"' (2001 J 6 sec 30 
'" (2000J 7 sec ss2
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
1011 
LAW & ORS. [DIPAK MISRA, J.] 
discriminatory. In this regard, it is urged that a public servant is treated 
differently than the other persons and the classification invites the frown 
of Article 14 of the Constitution and there is no base for such classification. 
Thus, the attack is on the base of Article 14 of the Constitution. In Speci"/ 
Courts Bill, 1978, In re 183 Chandrachud, CJ, speaking for the majority 
of the Constitution Bench after referring to series of judgments of this 
Court, culled ·Out certain principles. We may refer to a few of them:-
"(1) 
x 
x 
x 
x 
x 
(2) The State, in the exercise of its governmental power, has of 
necessity to make laws operating differently on different groups 
or classes of persons within its territory to attain particular ends in 
giving effect to its policies, and it must possess for that purpose 
large powers of distinguishing and classifying persons or things to 
be subjected to such laws. 
(3) The constitutional command to the State to afford equal 
protection of its laws sets a goal not attainable by the invention 
and application of a precise formula. Therefore, classification need 
not be constituted by an exact or scientific exclusion or inclusion 
of persons or things. The comis should not insist on delusive 
exactness or apply doctrinaire tests for detennining the validity of 
classification in any given case. Classification is justified if it is 
not palpably
arbitrary. 
(4) The principle underlying the guarantee of Article 14 is not that 
the same rules of law should be applicable to all persons within 
the Indian territory or that the same remedies should be made 
available to them irrespective of differences of circumstances. It 
only means that all persons similarly circumstanced shal I be treated 
alike both in privileges conferred and liabilities imposed. Equal 
laws would have to be applied to all in the same situation, and 
there should be no discrimination between one person and another 
if as regards the subject-matter of the legislation their position is 
substantially the same. 
(5) By the process of classification, the State has the power of 
determining who should be regarded as a class for purposes of 
legislation and in relation to a law enacted on a particular subject. 
This power, no doubt, in some degree is likely to produce some 
inequality; but if a law deals with the liberties of a number of well-
'" ( 1979) 1 sec 380 
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defined classes, it is not open to the charge of denial of equal 
protection on the ground that it has no application to other persons. 
Classification-thus means segregation in classes which have a 
systematic relation, usually found in common properties and 
characteristics. It postulates a rational basis and does not mean 
herding together of certain persons and classes arbitrarily. 
(6) 
x 
x 
x 
x 
x 
(7) The classification must not be arbitrary but must be rational, 
that is to say, it must not only be based on some qualities or 
characteristics which are to be found in all the persons grouped 
together and not in others who are left-out but those qualities or 
characteristics must have a reasonable relation to the object of 
the legislation. In order to pass the test, two conditions must be 
fulfilled, namely, (I )that the classification must be founded on an 
intelligible differentia which distinguishes those that are grouped 
together from others, and (2) that differentia must have a rational 
relation to the object sought to be achieved by the Act. 
(8) 
x 
x 
x 
x 
x 
(9) 
x 
x 
x 
x 
x 
(10) 
x 
x 
x 
x 
x 
( 11) Classification necessarily implies the making of a distinction 
or discrimination between persons classified and those who are 
not members of that class. It is the essence of a classification that 
upon the class are cast duties and burdens different from those 
resting upon the general
public. Indeed, the very idea of 
classification is that of.inequality, so that it goes without saying 
thatthe mere fact of inequality in no manner detei;mines the matter 
of constitutionality." 
191. Recently, in Yogemlra Kunwr Jaisw({/ & otlters v. State 
of Bilwr and otlters 184, the Court, after referring to Ram Krisllna 
Dalmia v. S.R. Tendo/k({r 185, S({tyuw({ti Sfl({rm({ v. Union of bu/i<l186, 
Reitman Slta1:00 v. State of J&K181 and C./. Emden v. State of U.P. 188 
in the context of challenge to the constitutional validity of the Orissa 
Special Courts Act, 2006 and the Bihar Special Courts Act, 2009, repelled 
the contention that there was no justification for trial of offence under 
'" (2016) 3 sec 183 
'"AIR 1958 SC 538 
"" (2008) 5 sec 287 
"'AIR 1960 SC I 
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'"'AIR 1960 SC 548
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 1013 
LAW & ORS. [DIPAK MISRA, J.] 
Section 13(1)(e) and the rest of the offences enumerated in Section 13 
in different Act and ultimately opined:-
" ... Section 13( I)( e) targets the persons who have disproportionate 
assets to their known sources of income. This conceptually is a 
period offence, for it is not incident-specific as such. It does not 
require proof of corruption in specific acts, but has reference to 
assets accumulated and known sources of income in a particular 
period. The test applicable and proof required is different. That 
apart, in the context of the present Orissa Act it is associated with 
high public office or with political office which are occupied by 
people who control the essential dynamics of power which can 
be a useful weapon to amass wealth adopting illegal means. In 
such a situation, the argument that they being put in a different 
class and tried in a .separate Special Court solely because the 
alleged offence, if nothing else, is a self-defeating one. The 
submission that there is a sub-classification does not remotely 
touch the boundaries of Article 14; and certainly does not encroach 
thereon to invite the wrath of the equality clause." 
192. Be it stated that learned counsel for the petitioners stated 
that there can be no cavil about_the President oflndia, the Vice-President 
oflndia, the Governor of a State, the Administrator of a Union territory 
but about others whose names
find mention in the provision there is no 
justification to put them in a different class to enable them to file a case 
through the public prosecutor in the Court of Session. A studied scrutiny 
of the provision makes it c;lear that 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. Be it clarified here that criticism is different 
than defamation. One is bound to tolerate criticism, dissent and 
discordance but not expected to tolerate defamatory attack. 
193. 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 
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criticized o.n 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. This Court in Bairam Mura/idlwr. v. State of Amlltra 
Prades/i 189 while deliberating on Section 321 CrPC has opined that the 
Public Prosecutor cannot act like the post office on behalf of the State 
Government. He is required to act in good faith, peruse the materials on 
record and form an independent opinion. It further observed that he 
cannot remain oblivious to his lawful obligations under the Code and is 
required to constantly remember his duty to the court as well as his duty 
to the collective. While filing cases under Sections 499 and 500 lPC, he 
is expected to maintain that independence and not act as a machine. 
The other ground of attack is that when a complail1t is ti led in a Court of 
Session, right or appeal is curtailed. The said submission suffers f.rom a 
basic fallacy. Filing of a complaint before
the Court of Session has three 
safeguards, namely, (i), it is filed by the public prosecutor; (ii) obtaining 
of sanction from the appropriate Government is necessary, and (iii) the 
Court of Session is a superior court than the Magistrate to deal with a 
case where a public servant is defamed. In our considered opinion, 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 of the aforesaid, we do not perceive any 
justification to declare the provisions ultra rires. 
194. On behalf of petitioner-Foundation of Media Professionals, 
Mr. Bhambhani, learned senior counsel has submitted that the operation 
of the Press and Registration of Books Act, 1867 (for short" 1867 Act") 
must necessitate a Magistrate to accord due consideration of the provision 
of the 1867 Act before summoning the accused. Attention has been 
drawn to the Sections 3, 5, 6 and 8 of the 1867 Act and it is submitted 
that only person recognized under the said Act as editor, publisher, printer 
and owner could be summoned in the proceeding under Section 499 
Indian Penal Code (IPC), apart from the author or person who has made 
the offending statements. The submission of the petitioner, Mr. 
'" (2014) 10 sec Jso
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 
1015 
LAW & ORS. [DIPAK MISRA, J.] 
Bhambhani, learned senior counsel is that in all the proceedings under 
Section 499 of IPC against a newspaper the accused must be confined 
to those who are identifiable to be responsible under Section 5 of the 
1867 Act. In our considered opinion that the said aspects can be 
highlighted by an aggrieved perso1leither in a challenge for quashing of 
the complaint or during the trial. There is no necessity to deal with the 
said facet while deliberating upon the constitutional validity of the 
provisions. 
195. In the course of hearing, it has been argued that the multiple 
complaints are filed at multiple places and there is abuse of the process 
of the court. In the absence of any specific provisions to detennine the 
place of proceedings in a case of defamation, it shall be governed by the 
provisions of Chapter Xlll of the CrPC - Jurisdiction of the Criminal 
Courts in Inquiries and Trials. A case is ordinarily tried.where the Offence 
is committed (Section 177). The expression used in Section 177 is "shall 
ordinarily be inquired and tried" by a court within whose jurisdiction it 
was committed. Whereas "shall" brings a mandatory requirement, the 
word "ordinarily" brings a situational variation which results in an 
interpretation that the case may be tried as per the further provisions of 
the Chapter. In case the place of committing the offence is uncertain, 
the case may also be
tried where the offence was partly committed or 
continues to be committed (Section 178). The case may also be tried 
where the consequence of the act ensues (Section 179). The other 
provisions in the chapter also deal with regard to certain specific 
circumstances. Section 186 CrPC gives the High Com1 powers to 
determine the issue if two or more courts take cognizance of the same 
offence. If cases are filed in two or more courts in different jurisdictions, 
then the Jurisdiction to determine the case lies with the High Court under 
whose jurisdiction the first complaint was filed. Upon the decision 9f 
the High Court regarding the place of trial, the proceedings in all other 
places shall be discontinued. Thus, it is again left to the facts and 
circumstances of each case to determine the right forum for the trial of 
case of defamation. Thus, CrPC governs the territorial jurisdiction and 
needless to say, ifthere is abuse of the said jurisdiction, the person grieved 
by the issue of summons can take appropriate steps in accordance with 
law. But. that cannot be a reason for declaring the provision 
unconstitutional. 
196. Another aspect reqLiires to be addressed pertains to issue of 
summons. Section 199 CrPC envisages filing of a complaint in court. ln 
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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 Rlljim/ra Nllth Mlllwto v. T. Ganguly, Dy. 
Superi11tentle11t am/ lllwther190 , is a matter of judicial determination 
and before issuing a process, the Magistrate has to examine the 
con~plainant. In Put!illb Nlltionlll Bunk"'"' others v. Suremlra Prasad 
Sin/rn 191 it has been held that judicial process should not be an instrument 
of oppression or needless harassment. The Court, though in a different 
context, has observed that there lies responsibility and duty on the 
Magistracy to find whether the concerned accused should be legally 
responsible for the offence charged for. Only on satisfying that the law 
casts liability or creates offence against the juristic person or the persons 
impleaded then only process would be issued. At that stage the court 
would be circumspect and judicious in exercising discretion and should 
take all the relevant facts and circumstances into consideration before 
issuing process lest it would be an instrument in the hands of the private 
complaint as vendetta to harass the persons needlessly. Vindication of 
majesty of justice and maintenance of law and order in the
society are 
the prime objects of criminal justice but it would not be the means to 
wreak personal vengeance. In Pepsi Foods Ltd. wul another v. Special 
Judicial MaJ?istrate mu/ ot/1ers 19' a two-Judge Bench has held that 
. summoning of an accused in a criminal case is a serious matter and 
criminal law cannot be set into motion as a matter of course. 
197. We have referred to these authorities to highlight that 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. 
198. We will be failing in our duty if we do not take note of 
submission of Mr. Bhambhani, learned senior counsel. It is submitted by 
the learned senior counsel that Exception to Section 499 are required to 
1~· (1972) 1 sec 450 
'" 1993 Supp. ( 1 l sec 499 
,.,, <199&) s sec 749
SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF 1017 
LAW & ORS. [DIPAK MISRA, J.] 
be considered at the time of summoning of the accused but as the same 
is not conceived in the provision, ibs unconstitutional. It is settled position 
of law that those who plead Exception must prove it. It has been laid 
down in M.A. Rumug<m1 (supra) 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 forthe person who plead.s 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 ifthe said Exception should be taken into consideration at 
A 
the time of the issuing summons it would be contrary to established . C 
criminal jurisprudence and, therefore, the stand that it cannot be taken 
into consideration makes the provision unreasonable, is absolutely an 
unsustainable one and in a way, a mercurial one. And we unhesitatingly 
repel the same.· 
199. In view of the aforesaid analysis, we uphold the constitutional 
validity of Sections 499 and 500 of the Indian Penal Code and Section 
199 of the Code of Criminal Procedure. During the pendency of the 
Writ Petitions, this Court had directed stay of further proceedings before 
the trial court. As
we declare the provisions to be constitutional, we 
observe that it will be open to the petitioners to challenge the issue of 
summons before the High Court either under Article 226 of the 
Constitution of India or Section 482 CrPC, as advised and seek 
appropriate relief and forthe said pui'pose, we gr~nt eight weeks time to 
the petitioners. The interim. protection granted by this Court shall remain 
in force for a period of eight weeks. However, it is made clear that, if 
any of the petitioners has already approached the High Court and also 
become unsuccessful before this Court, he shall face trial and put forth 
his defence in accordance with law. 
200. The Writ Petitions and the Transfer Petitions are disposed 
of accordingly. All pending criminal miscellaneous petitions also stand 
disposed of. There shall be no order as to costs. 
Devika Gujral 
Writ Petitions and Transfer Petitions disposed of. 
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