Can Defamation be a ground of Reasonable Restriction under Article 19(2) of Indian Constitution?

Can Defamation be a ground of Reasonable Restriction under Article 19(2) of Indian Constitution?

INTRODUCTION

Article 19(1)(a) guarantees freedom of speech and expression, and freedom of press is included therein. This freedom is not absolute but it is subjected to reasonable restrictions as provided in Article 19(2) of the Constitution. The freedom of speech and expression as guaranteed by the Constitution, does not confer an absolute right to speak or publish whatever one chooses and it is not an unrestricted or unbridled licence that may give immunity and prevent punishment for abuse of the freedom. The right has its own inherent limitation. The Freedom of Speech and Expression of an individual as guaranteed and protected under Article 19(1)(a) of the Constitution is manifold and multi-layered, with unbounded gamut and the restrictions. India’s Constitution allows the Government to restrict this freedom under Article 19(2) as long as the restrictions were prescribed by law, were reasonable, and were imposed for a legitimate purpose.

SCOPE OF ARTICLE 19(2) OF THE CONSTITUTION

The Constitution lists a comprehensive list of reasonable restrictions which includes “interests of the sovereignty, integrity, security, public order, decency or morality, defamation or incitement to an offence.”   By reviewing its jurisprudence concerning the application of Article 19(2), the Court in Anuradha Bhasin v. Union of India[1] concluded that

“Restrictions on free speech and expression could impose complete prohibitions. In such cases, the complete prohibition should not excessively burden free speech and the government has to explain why lesser alternatives would be inadequate. Lastly, whether a restriction amounts to a complete prohibition is a question of fact to be determined by the Court on the circumstances of each case.”

The ‘reasonable restriction’ are based on the paradigms and parameters of the Constitution that are structured and pedestalled on the doctrine of non-absoluteness of any fundamental right, cultural and social ethos; need and feel of the time, for every right engulfs and incorporates duty to respect others right and ensure mutual compatibility and conviviality of the individual based on collective harmony and conceptual grace of eventual social order. That is to say that Freedom of Speech and Expression is absolutely sacrosanct and not absolute. From this it can be inferred that the Freedom of speech and expression in India is not absolute but subjected to various restrictions mentioned in the Constitution itself. Article 19(1) (a) is subjected to the restrictions prescribed by Article 19(2) of the Constitution.

  Freedom of Speech and Expression cannot be understood and read in isolation. The Freedom of Speech and Expression is a robust right but nonetheless, not unrestricted. The restrictions have not been left out to the courts but have been comprehensively laid down in Article 19(2) of the Constitution. Article 19(2) protects the law by imposing reasonable restrictions on the exercise of right to freedom of speech and expression “in the interest of” public order, which is much wider than for maintenance of public order. If, therefore, certain activities have a tendency to cause public disorder, a law penalising such activities as an offence cannot but be held to be a law imposing reasonable restrictions “ in the interest of public order” although in some cases those activities may not actually lead to a breach of public order.

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Article 19(1) (a) of the constitution states that “all citizens shall right to freedom of speech and expression”. The freedom as guaranteed under Article 19(1)(a)

of the constitution on 11-06-50 was subjected to the right of the State to make any law relating to libel, slander, defamation, contempt of court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State. The Article was amended on 18-6-1951. The effect of the amendment was that the freedom of speech and expression is subject to the right of the State to make any law which imposes “reasonable restrictions” on the exercise of the right “in the interests of the security of the State or public order” etc.

In Chintaman Rao v. The State of Madhya Pradesh[2] the Supreme Court laid down the meaning of the term ‘reasonable restrictions’:

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.

It is further laid down in the amendment that no law in force immediately before the commencement of the Constitution which is consistent with Article 19 as amended shall be deemed to be void or ever to have become void on the ground only that being a law which takes away or abridges the freedom of speech and expression, its operation was not saved by Clause (2) of the Article as originally enacted. In other words, the amendment of Article 19 has been given retrospective effect.

DOES DEFAMATION COMES UNDER THE AMBIT OF ARTICLE 19(2)?

When Criminal Law Amendment Act came, its express object had nothing to do with the security of the state. Although, security of the state was of course, one of the several objectives of the Act which was required to be achieved. The law that is saved by Article 19(2) needs to relate either exclusively with the objectives of the act, or at least should principally be one of the objectives, which were specified in the Act therein. The very objective behind specifying the matters was that the law or the Act must deal either principally or exclusively with those matters had the framers of the constitution intended to save any general law which did not specifically deal with any of the matters mentioned in the Act, they would not have specified it. . The criminal Law Amendment Act does not relate to matters which undermine security of or tend to overthrow the state instead matters which disrupt public order of security of the state like defamation, are an offence under the Act.

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In case Romesh Thappar[3] and Brij Bushan[4], the court held that cl. (2) of Art. 19 of the Constitution were amended. Clause (2), as amended, protects a law in so far as such law imposes reasonable restrictions on the exercise of the right conferred by sub-cl. (a) of cl. (1) of Art. 19 “in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.”

The word “law” in Article 19(2) means the entire enactment and not a particular provision of it that is impugned. In order to decide whether an existing law is covered by the saving clause or not, the court must take into consideration the entire enactment and not only a particular provision of it in isolation. An enactment may contain some sections which are only incidental, auxiliary or collateral to or support, others which form the principal feature of the enactment and we affirm that it could not have been intended by the framers of the Constitution that they should be considered in isolation and that their constitutionality should be judged by deciding whether they themselves relate to any of the specified matters or not.[5] The right to free speech under Article 19(1)(a) of the Constitution is itself conditioned/qualified by the restrictions contained in the article 19(2) of the Constitution which includes “defamation” as one of the grounds of restrictions and the term “defamation” has to include criminal defamation, and there is nothing to suggest its exclusion. Article 19(2) has to be perceived as an integral part of the Right to Free Speech as Article 19(1)(a) is not a standalone right, and, therefore, it cannot be said that there is an unbridled right to free, much less defamatory speech.

DETERMINING THE NEXUS BETWEEN INDIAN PENAL CODE AND THE CONSTITUTION

A constitution must not be construed in a narrow and pedantic sense. The constitutional provisions are to be understood and expounded with an object-oriented approach. This approach has also been followed in Constituent Assembly debates as well. To further our argument, we would like to quote the assertions and contentions made regarding defamation above, has also been discussed in the Constituent Assembly Debates.

Mr. Rohtagi, learned Attorney General for India has canvassed that to understand the ambit of the word “defamation” in the context of the language employed in Article 19(2) of the constitution, in the Constituent Assembly Debates. He has referred to certain aspects of the debates and we think it appropriate to reproduce the relevant parts:

The Honorable Dr. B.R. Ambedkar sir, said that this Article is to be read along with Article 8 (now Article 13)

Article 8 says-

  1. All laws in force immediately before the commencement of this Constitution in the territory of India, in so far as they are inconsistent with the provision of this Part, shall, to the extent of such inconsistency be void.
  2. And all that this Article says is this, that all laws, which relate to libels, slander, defamation or any other matter which offends against decency or morality or undermines the security of the State shall not be affected by Article 8. That is to say, they shall continue to operate. If the words “contempt of court” were not there, then to any law relating to contempt of court Article 8 would apply, and it would stand abrogated. It is to prevent that kind of situation that the words “contempt of court” are introduced, and there is, therefore, no difficulty in this amendment being accepted.[6]

In the case of Subramanian Swamy v Union of India[7] the courts recognized the importance of the Constituent Assembly Debates. The court held that

  1. It is a settled position that debates in the Constituent Assembly may be relied upon as an aid to interpret a constitutional provision because it is the function of the court to find out the intention of the Framers of the Constitution. It was also highlighted that the Constitution is not just a document in solemn form, but a living framework for the Government of the people exhibiting a sufficient degree of cohesion and its successful working depends upon the democratic spirit underlying it being respected in letter and in spirit.

Constituent Assembly Debates play a pivotal role in shaping and framing of the constitution. And therefore when we talk about the significance of Fundamental rights mentioned in Part III of the constitution it is important to take into consideration these debates as they have a pervasive value and also it helps to find the intention of the constitution makers.

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CONCLUSION

To conclude the test of reasonableness this has been invariably applied while deciding the constitutionality of a plenary legislation. As Article 19(2) itself uses the words “existing laws” and “defamation”, and as the offence of defamation as defined in Section 499 of the Penal Code, it must have been incorporated in the Constitution at least to the extent it is defined in Section 499 of the Penal Code (‘nomen juris’).[8] As mentioned earlier, Article 19(2) has to be perceived as an integral part of the Right to Free Speech as Article 19(1)(a) is not a standalone right, and, therefore, it cannot be said that there is an unbridled right to free, much less defamatory speech.

Therefore the, constitutionality of defamation is thus, not open to challenge as being an unreasonable restriction for there is no other law that defined “defamation” and therefore defamation defined in IPC is legitimate as the objective of section 499 in IPC is to protect reputation and public interest.

[1] WRIT PETITION (CIVIL) NO. 1031   OF   2019

[2] AIR 1951 SC 118.

[3] 1950 AIR 124, 1950 SCR 594

[4] 1950 AIR 129, 1950 SCR 605

[5] [5] https://www.casemine.com/judgement/in/581180e72713e179479dd9f3

[6]CAD Vol. 10, p. 402

[7] AIR2016 SC2728

[8] AIR2016 SC2728

Author: bhumika khandelwal,
Navrachana University, Third year BBA-LLB

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