Existing Laws as to “Free Speech” and “Defamation” – A Critical Analysis.

By Y.SRINIVASA RAO, Research Scholar in Law of Torts., Principal Senior Civil Judge, Tirupati, Andhra Pradesh.

TABLE OF CONTENTS:—

  1. Introduction
  2. I. Free SpeechArticle 19 of the Constitution of India.
    – Right to Assemble – Case -Law Analysis
  3. II. Reasonableness of restrictions
  4. Global perception on ‘Defamation
  5. Existing Laws as to Defamation
    – Meaning of the term “defamation”
    -The perspective of the Supreme Court of India
    – Present position of law on free speech and defamation in India
  6. Conclusion

Introduction:—- Article 19 (1) (a) of the Constitution of India guarantees Right to freedom of speech and expression. Of course, such right is subject to reasonable restrictions under Article 19(2) of the Constitution of India. Earlier , during British period, some of important publications are —

  1. The Bengal Gazette ( 1780)
  2. The Calcutta Chronicle,
  3. The Bengal Journal, 
  4. The Bombay Herald and 
  5. The Madras Courier.


Later, An Act called “Censorship of Press Act, 1799” was introduced by Lord Wellesley which put wartime press restrictions as to freedom of speech. In this paper, I will discuss the existing Laws as to “Free Speech” and “Defamation” with support of landmark rulings of the Hon’ble Supreme Court of India , a fortiori, the author is of consistent view that there must be a legislation with regard to Civil Law of Defamation inasmuch as past two attempts ,for codification of the same , were failed.

I. Free SpeechArticle 19 of the Constitution of India.

To understand Article 19 of the Indian Constitution, it can be classified into two heads. One is ‘Fundmantal Freedoms’ (Article 19 (1) (a) to (e) and Another is Reasonable Restrictions’ (Article 19 (2) to Article 19 (6)). In fact, Article 19 ( 1 )(a)  guarantees to all its citizens including media “the right to freedom of speech and expression. Article 19 (2), at the same time provides: “nothing in sub-clause (a) of clause (1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interest of:- a) Sovereignty and Integrity of India. b) The Security of the State. c) Friendly relations with foreign states. d) Public order. e) Decency or Morality. f) Contempt of Court. g) Defamation. h) Incitement to an offence. 

John Milton, who served as a civil servant for the Commonwealth of England, about free-speech, says —-

Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties”.


I. Right to Assemble – Case -Law Analysis

i) Prior permission in writing from the police before holding a public meeting:—

The Apex Court considered the question as to whether the requirement that prior permission in writing from the police before holding a public meeting on a public street violated the Petitioners Article 19 ( 1) rights in the case of  Himat Lal K. Shah  (infra) and the Supreme Court held that “the right which flows from Art. 19 ( 1) (b) is not a right to hold a meeting at any place and time. It is a right which can be regulated.” See. Himat Lal K. Shah v. Commissioner of Police, 1973 SCR (2) 266.

ii). Menaka Gandhi’s case:—

Right to Freedom of Speech and Expression is a pivotal right. The right to freedom speech and expression is considered to be the first condition of liberty for an individual, and it is predominant for any democracy.  Democracy is based essentially on free debate and open discussion, for that is the only corrective of Governmental action in a democratic set up. If democracy means government of the people by the people, it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his right of making a choice, free and general discussion of public matters is absolutely essential. Manifestly, free debate and open discussion, in the most comprehensive sense, is not possible unless there is a free and independent press. Indeed the true measure of the health and vigour of a democracy is always to be found in its press. See. Maneka Gandhi vs Union Of India, 1978 SCR (2) 621 .

iii) National Anthem Case:—

In Bijoe Emmanuel’s case (National Anthem case), the Supreme Court held that the expulsion of the three children from the school for the reason that because of their conscientiously held religious faith, they do not join the singing of the national anthem in the morning assembly though they do stand up respectfully when the anthem is sung, is a violation of their fundamental right to freedom of conscience and freely to profess, practice and propagate religion. See. Bijoe Emmanuel’s case (National Anthem Case),  & Ors vs State Of Kerala & Ors, 1986 SCR (3) 518.

vi). A.K.Gopalan’s case:—

The, view, thus expressed in Gopalan Vs. State of Madras, 1950 SCR 88 , was affirmed by the Supreme Court in Ram Singh v. State of Delhi Ram, 1951 SCR 451 where it was held :

“Although personal liberty has a content sufficiently comprehensive to include the freedoms enumerated in Article 19 (1),  and its deprivation would result in the extinction of those freedoms, the Constitution has treated these civil liberties as distinct from fundamental rights and made separate provisions in  comprehensive to include the freedoms enumerated in and Arts. 21 and 22 as to the limitations and conditions subject to which alone they could be taken away or abridged … The interpretation of these Articles and their correlation was elaborately dealt with by the full court in Gopalan’s case.

Approving the interpretation of the Articles in Gopalan’s case it was held that law which authorises deprivation of personal liberty did not fall within the purview of Article 19 and its validity was not to be judged by the criteria indicated in that Article but depended on its compliance with the requirements of Arts. 21 to 22.

v). Auto Shankar’s case

       In  R. Rajagopal’s case (Auto Shankar case) , the Supreme Court held that the state and its officials do not have the right to impose prior restraints on the publication of materials that may be defamatory of the state. Therefore, “no such prior restraint or prohibition of publication can be imposed by the respondents upon the proposed publication of the alleged autobiography.” See. R. Rajagopal vs State Of T.N, 1994 SCC (6) 632.

In Kameshwar Prasad’s case, the Supreme Court held that “by accepting the contention that the freedoms guaranteed by Part Ill and in particular those in Article 19 (1) (a) apply to the servants of Government we should not be taken to imply that in relation to this class of citizens the responsibility arising from the official position would not by itself impose some limitations on the exercise of their rights as citizens. Article 19 (3) speaks about the restrictions on the freedom of assembly. See. Kameshwar Prasad v State of Bihar, 1962 SCR Supl. (3) 369.

vi). Shreya Singhal‘s case:—

In  Shreya Singhal v. Union of India,  the Supreme Court struck down Section 66- A of the Information and Technology Act  stating it to be vague and to have a chilling effect  the freedom of speech. See. Shreya Singhal v. Union of India, (2013) 12 SCC 73.

II. Reasonableness of restrictions-

(Art. 19 (2)-19 (6))

In Cellular Operators Assn.’s case, it was held that it is interesting to note that the original Constitution, while enumerating various rights under Article 19 (1),  when it referred to the right of freedom of speech in   Article 19 (1) (a),   laid down in  Article 19 (2) that any law abridging the right to freedom of speech could only pass constitutional muster if it related to any of the subjects laid down in clause (2). What was conspicuous by its absence was the phrase “reasonable restriction”, which was only brought in by the first amendment to the Constitution. See. Cellular Operators Assn. vs TRAI, (2016) 7 SCC 703.

The test of “manifest arbitrariness” is well explained in two judgments of this Court. In Khoday Distilleries  Ltd. Vs. State of Karnataka , (1996) 10 SCC 304, the Supreme Court held:-   “It is next submitted before us that the amended Rules are arbitrary, unreasonable and cause undue hardship and, therefore, violate  Article 14 of the Constitution. Although the protection of   Article 19 (1) (g) may not be available to the appellants, the rules must, undoubtedly, satisfy the test of  Article 14,  which is a guarantee against arbitrary action. However, one must bear in mind that what is being challenged here under  Article 14 is not executive action but delegated legislation. The tests of arbitrary action which apply to executive actions do not necessarily apply to delegated legislation. In order that delegated legislation can be struck down, such legislation must be manifestly arbitrary; a law which could not be reasonably expected to emanate from an authority delegated with the lawmaking power.

Indian Express Newspapers‘s case:

In the case of Indian Express Newspapers (Bombay) (P) Ltd’s case, the Supreme Court said that a piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. A subordinate legislation may be questioned under  Article 14 on the ground that it is unreasonable; “unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary”. Drawing a comparison between the law in England and in India, the Court further observed that in England the Judges would say, “Parliament never intended the authority to make such Rules; they are unreasonable and ultra vires”. In India, arbitrariness is not a separate ground since it will come within the embargo of  Article 14  of the Constitution. But subordinate legislation must be so arbitrary that it could not be said to be in conformity with the statute or that it offends  Article 14 of the Constitution.” See. Indian Express Newspapers (Bombay) (P) Ltd. Vs. Union of India, (1985) 1 SCC 641.

In  Sharma Transport’s case,  the Apex Court held:

“… The tests of arbitrary action applicable to executive action do not necessarily apply to delegated legislation. In order to strike down a delegated legislation as arbitrary it has to be established that there is manifest arbitrariness. In order to be described as arbitrary, it must be shown that it was not reasonable and manifestly arbitrary. The expression “arbitrarily” means: in an unreasonable manner, as fixed or done capriciously or at pleasure, without adequate determining principle, not founded in the nature of things, non-rational, not done or acting according to reason or judgment, depending on the will alone. …” See. Sharma Transport Vs. State of A.P., (2002) 2 SCC 188.

Rustom Cavasjee Cooper’s case:

First and foremost, a sea change took place with the 11-Judge Bench judgment in Rustom Cavasjee Cooper (Banks Nationalisation)’s case,  in which the impact of State action upon fundamental rights was stated thus:

“We have carefully considered the weighty pronouncements of the eminent Judges who gave shape to the concept that the extent of protection of important guarantees, such as the liberty of person, and right to property, depends upon the form and object of the State action, and not upon its direct operation upon the individual’s freedom. But it is not the object of the authority making the law impairing the right of a citizen, nor the form of action taken that determines the protection he can claim: it is the effect of the law and of the action upon the right which attracts the jurisdiction of the Court to grant relief. If this be the true view and we think it is, in determining the impact of State action upon constitutional guarantees which are fundamental, it follows that the extent of protection against impairment of a fundamental right is determined not by the object of the Legislature nor by the form of the action, but by its direct operation upon the individual’s rights.” See. Rustom Cavasjee Cooper (Banks Nationalisation)  Vs. Union of India, (1970) 1 SCC 248.

Chintaman Rao’s case:

Under  Article 19 (6) of the Constitution, the State has to conform to two separate and independent tests if it is to pass constitutional muster – the restriction on the appellants’ fundamental right must first be a reasonable restriction, and secondly, it should also be in the interest of the general public. Perhaps the best exposition of what the expression “reasonable restriction” connotes was laid down in Chintaman Rao’s case , as follows:-

“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 choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in  Article 19 (1) (g) and the social control permitted by clause (6) of  Article 19, it must be held to be wanting in that quality.” See. Chintaman Rao Vs. State of M.P.,  1950 SCR 759.

Jamshed Ansari Vs. High Court of Allahabad, (2016) 10 SCC 554:—

 In this case of Jamshed Ansari, it was held that In applying the test of reasonableness (which is the most crucial consideration), the broad criterion is whether the law strikes a proper balance between social control on the one hand and the rights of the individual on the other hand. The court must take into account the following aspects:-

(a) nature of the right infringed;

(b) underlying purpose of the restriction imposed;

(c) evils sought to be remedied by the law, its extent and urgency;

(d) how far the restriction is or is not proportionate to the evil; and

(e) prevailing conditions at the time.

Global perception on ‘Defamation’:

The views of  the court in United States can be understood by referring to the famous judgments in Wisconsin v. Constantineau, 400 U.S. 433 (1971) and Rosenblatt v. Baer, 383 U.S. 75 (1966). To understand the outlook of the Courts in Canada, in regard to the reputation of the individual,  it is important to refer to the judgment in Hill v. Church of Scientology of Toronto, (1995) 2 SCR 1130. In the approach of the South African Courts, “human dignity” is one of the founding values of the South African Constitution (Clause 1). The Constitution protects dignity (clause 7), privacy (clause 14) and freedom of expression (clause 16). See also. In Khumalo v. Holomisa. As to the perception of the European Court of Human Rights is concerned, we have to study the cases inLindon v. France, (2008) 46 E.H.R.R. 35; Article 8 of the Convention; Chauvy and Others v. France, (2005) 41 EHRR 29 Abeberry v. France (dec.), no. 58729/00, 21 September 2004; and White v. Sweden, [2007] EMLR 1; Karak v. Hungary, (2011) 52 E.H.R.R. 36and Axel Springer AG v. Germany, (2012) 55 E.H.R.R. 6 .


Existing Laws as to Defamation:-

Meaning of the term “defamation”:—

The word ‘defamation’ has been defined by the famous Jurists and in several books. See. Salmond & Heuston; Halsburys Laws of England; Justice Cave; Chambers Twentieth Century Dictionary; Salmond; Winfield & Jolowics; Richard O’ Sullivan, QC and Roland Brown, Parmiter v. Coupland, Fraser; Carter Ruck. The Hon’ble Supreme Court, in Subramanina Swamy’s case (supra) noted the aforesaid definitions, descriptions and analytical perceptions only to understand how the concept has been extensively dealt with regard being had to its ingredients and expanse, and clearly show the solemnity of `fame’ and its sapient characteristics. Be it stated, Section 499 IPC defines fame and covers a quite range of things but the reference to the term `fame’ is to ostracise the saying that “fame is a food that dead men eat”. As to the ‘concept of reputation’ is concerned, having dealt about “defamation”, the Apex Court would like to refer to the intrinsic facets of “reputation” and what constitutes reputation. 

To know the vision of the ancients, the Apex Court referred to the ancient texts of  Bhagawad Gita;Subhashitratbhandagaram; Surah 49 Aayaat 11 of the Holy Quran; Proverb 15 of the Holy Bible. The Hon’ble Apex Court held that though the aforesaid sayings have different contexts, yet they lay stress on the reputation, individual honour and also the need of gentleness of behavior on the part of each one.Besides the above, we seminal to refer to the thoughts of the creative writers and thinkers. William Shakespeare in Othello expressed his creative thoughts on character; in Richard II, while enhancing the worth of individual reputation, achieved his creative heights; Equally important to refer to the creative thoughts of the famous Greek philosopher and thinker Socrates, Aristotle, William Hazlitt.

The perspective of the Supreme Court of India:

The Hon’ble Supreme Court mentioned several judgments whicle discussing the value of reputation and importance attached to it. It is profit worth to have a look at these judgments. In Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni and others, (1983) 1 SCC 124 the Court has opined that expression “Life” does not merely connote animal existence or a continued drudgery through life. In this context one can recall the famous words of Chapter II of Bhagwad-Gita:”Sambhavitasya Cha Kirti Marnadati Richyate”. In Kiran Bedi v. Committee of Inquiry and another, (1989) 1 SCC 494 a three-Judge Bench, referred to the words of caution uttered by Lord Krishna to Arjun in Bhagwad Gita with regard to dishonour or loss of reputation. 

The Court also referred to series of rulings such as  D.F. Marion v. Davis, 55 ALR 171; Gian Kaur v. State of Punjab, (1996) 2 SCC 648 ;

Vishwanath Agrawal v. Saral Vishwanath Agrawal, (2012) 7 SCC 288; Umesh Kumar v. State of Andhra Pradesh and another, (2013) 10 SCC; Kishore Samrite v. State of Uttar Pradesh and others, (2013) 2 SCC 398; Nilgiris Bar Association v. T.K. Mahalingam and another, (1998) 1 SCC 550. In Om Prakash Chautala v. Kanwar Bhan and others, (2014) 5 SCC 417 it has been held that reputation is fundamentally a glorious amalgam and unification of virtues which makes a man feel proud of his ancestry and satisfies him to bequeath it as a part of inheritance on posterity. In State of Gujarat and another v. Hon’ble High Court of Gujarat, (1998) 7 SCC 392 the court opined:- “An honour which is a lost or life which is snuffed out cannot be recompensed”.

Present position of law on free speech and defamation in India:

The Hon’ble Supreme Court opines that to appreciate the range and depth of the said right, it is essential to understand the anatomy of Articles 19(1)(a) and 19(2) of the Constitution. The Hon’ble Supreme Court appreciated ambit and purport of the word “defamation” in Subramania swamy’s case and elaborated, whether the word “defamation” includes both civil and criminal defamation. The Apex Court proceeded to advert to the aspect of reasonable restriction on the right of freedom of speech and expression as engrafted under Article 19(1)(a). The Apex court discussed how Article 19(2) was come in its original shape. The Constituent Assembly Debates came up for consideration in this case of Subramanian swamy’s case. The Apex court highlighted the intention of the founding fathers and also how contextually the word “defamation” should be understood and observed that 

‘…the word “defamation” may not even call for a civil action in the absence of a codified law.

In this regard, the Hon’ble Supreme Court to M.C. Setalvad’s Hamlyn Lectures (Twelfth Series) “The Common Law of India” wherein India’s first Attorney General expressed that:-


“an important branch of law which has remained uncodified in India is the law relating to civil wrongs.


The Apex Court also pointed out that 
one of the outstanding fact of English legal history for the last three centuries is the development of the law of torts from small beginnings to its present dimensions as a separate branch of law. The action for damages as a remedy for violations of rights and duties has been fashioned by lawyers, judges and juries of England as an instrument for making people adhere to standards of reasonable behavior and respect the rights and interest of one another. A body of rules has grown and is constantly growing in response to new concepts of right and duty and new needs and conditions of advancing civilization. The principles which form the foundation of the law of torts are usually expressed by saying the injuria sine damno is actionable but damnum sine (or absque) injuria is not. …”


The common law of England was the prevalent law being adopted before the Constitution came into force and it is declared as a law in force under Article 372 of the Constitution of India by a larger Bench decision in Superintendent and Remembrancer of Legal Affairs v. Corporation of Calcutta, AIR 1967 SC 997 = 1967 (2) SCR 170. The position has further become clear in Ganga Bai v. Vijay Kumar, (1974) 2 SCC 393. The Hon’ble Apex Court referred to this aspect only to clarify the position that it is beyond any trace of doubt that civil action for which there is no codified law in India, a common law right can be taken recourse to under Section 9 of the Code of Civil Procedure, 1908, unless there is specific statutory bar in that regard.

I have till now relied on the observations of the Hon’ble Apex Courts in series of judgments as to the concept of defamation. In Subramanian swamy’s (supra), the Apex Court the constitutional value of section 499 and 500 of IPC. But, the decision is silent about codification of civil defamation. This paper will now suggest certain principles of law for codification of civil defamation as a matter of academic discussion. Slander is a pure civil wrong as seen from common law perspective. But, in India, even for situations of Slander, police are booking criminal cases. Libel is not only civil wrong but also criminal wrong. It is pertinent to note that Slander and Libel are distinguished in Indian Penal Code,1860. Time is ripe for codification of civil law of defamation. See also. Article titled: “NEW DOCTRINE FOR CIVIL LAW OF DEFAMATION (Position of civil action in the absence of a codified law)”.

Conclusion:

More research is to be done for codification of doctrine of civil defamation even though the concept of defamation was codified in India as Criminal wrong under section 499 and 500 of IPC. It is also significant to note that all criminal courts in India are over burdened. Most of Indian people does not aware of remedies under the law of torts. Thousands of criminal offences arising out of rash or negligent act of accused (such as offences under secs. 337, 338, and 304-A of IPC) are pending in every criminal courts in India. If this type of cases are replaced with adequate civil laws, we can certainly reduce the pendency of criminal cases in India. Similarly, the offence of criminal trespass, defamation, assault etc may also be replaced with adequate civil laws to reduce pendency of criminal courts. We often see all cases of secs. 337and 338 of IPC are being ended with compromise in lok adalat. The compensation to the victim, in lok adalat, is not at all adequate as there is strict rule to impose compensation.

Constitutional LawLaw of Torts

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