Constitutionality of Defamation :A Critical Analysis of Subramanian Swamy Case


This article was written by Gaurika Khandelwal, a student of  National Law University, Delhi.


This essay critically analyses the legal jurisprudence developed on the issues surrounding constitutionality of defamation. In doing so, it presents comprehensive analysis of the origin of the law and the present status of defamation law in India. Further, the essay proceeds to review the judgments of the Apex Court Subramanian Swamy and R. Rajagopal cases apropos constitutionality of criminal and civil defamation respectively. It is argued that Subramanian Swamy case fails to appropriately apply the principle of “reasonableness”. Finally, the essay concludes that court should be cautious whenever restrictions are imposed on right to freedom of speech and the problems faced by journalists due to the bad effect of law.

I. Introduction

Blackstone J., has said ‘every man is entitled to have his reputation preserved inviolate.’[2] It is considered that a man’s reputation is more than this property. Reputation can be defined as a state of esteem and honor in the eyes of right members of the society. In simple words, reputation is having a good opinion about one on the part of others.

The question of one’s reputation is related to defamation. The word “defamation” is derived from Latin word “diffamare” which means “spreading evil report about someone”.[3] Defamation has been recognised from the early civilisation, from the time of the Indian king Chandragupta Maurya where Kautaliya in his book Arthshastra. It dealt with defamation and talks about the gravity of the one’s statement ,the person defaming ,the person defamed and the apportions the punishment.[4]

 Salmond says, “the wrong of defamation lies in the publication of a false and defamatory statement about another person without lawful justification”.[5] According to Underhills, “a statement becomes defamation if it is made about another without just cause or excuse, whereby he suffers injury to his reputation and not to his self esteem.”[6]

The rulebook says the law of defamation is to provide assistance to people when their reputation is tampered from unfair criticism from people. If one go through the application of this law, it’s motto is to hinder free speech of the people and to defend people who have powers from scrutiny. There is a crucial need to develop and enact the policy and rules to question the misuse of the defamation law.[7]

After going through several articles, one could understand what defamation is? It allows people who blemish the reputation of a person by publishing false and malicious comments. There are two forms of defamation- libel which is a published form of defamation and another slander which is an oral defamation in the eyes of right members of society. The fact is, almost everyone uses defamatory statement in their daily life. Only few are there who uses law as a tool for  such defaming statements.[8]

Defamation is civil as well as criminal wrong. There is codified criminal law subject, the civil law of defamation is not codified. Defamation under civil law comes under the law of torts but in criminal law the topic is contained in sectioned Section 499 to 502 of Indian Penal Code,1860.[9]

On one hand a person is entitled to right to reputation and not defamed. On the other hand, another person is entitled to freedom of speech and expression under Article 19 of the Constitution of India. Issues arise in determining the extent to which a person can exercise his right to freedom of speech and expression and not defame another person. Article 19 recognises that reasonable restriction on the ground of inter alia defamation can be imposed on such exercise of right to freedom of speech. Supreme Court in its judgements in cases of Subramaniam Swamy and R. Rajagopal cases has delved into this aspect as far as criminal and civil defamation is concerned. This essays analyses and points out the errors in the judgements.

In our increasingly networked world, defamatory speech may be beyond the power of the court to enjoin. Supreme Court has confirmed the constitutional validity of colonial era’s criminal law defamation laws and explaining the rights of free speech and how it is distinct from defamation and concluded that there is no “chilling effect” on free speech because of criminal sanctions. [10]

II. exploring the problematic aspects of constitutionality of defamation

In this part, two issues have been discussed in detail :

A. R. Rajagopal v State of Tamil Nadu

This case pertains to constitutionality of civil defamation. In this case, Supreme Court of India mentioned about one of the landmark judgement of the US Supreme Court in New York Times v. Sullivan[11] stated that government official who is on his duty can recover damages only when the truth claim is false and reckless regard for truth. Through this case, the judges examined the relationship between  free speech and civil defamation.[12]

The Supreme Court in the “Auto Shankar Case” notes all the interpretations by the US Court and thereby setting law for Indian people to respect their privacy law.[13] The test which proves “malice” by the defamed has been introduced into the Indian legal system. Though defamation case laws have been The court held that common law defamation stood unreasonably restricted under Article 19(1)(a) because it thrust undue advantage of no fault liability. After analysing the judgments of America and Europe which had revise the definition of civil defamation law in order to bring together it with guarantee of freedom of speech. The SC has laid down various rules and have adopted “Sullivan Test” where speakers were liable if they make public statements only when it is proved that what they said and the act they did was in consonance with “actual malice“. [14]

The primary assault against Section 499 was that by criminalizing what is basically a private wrong.The Section added upto limitation upon free discourse. Private wrongs – that is, wrongs to people because of different people – are intended to be sought after through the common courts, with harms and remuneration as the cure. It is noted when there is an open component to the wrong that the State ventures in.[15]

Secondly, the idea of “reasonableness” is the context of defamation was decided by court in this judgement. The present state of criminal offence, under Section 499 of the IPC, contains a far lower limit than this. It follows pre-Rajagopal law in criminalizing false proclamations without respect for due consideration, furthermore includes an extra “open interest” necessity to guard the truth. The main argument of this contention, subsequently, is that the administration of criminal risk set up by Sections 499 and 500 goes past the “sensibility” prerequisite of Article 19(2).

The court observes that,

“Individuals constitute the collective. Law is enacted to protect the social 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 rights 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 between individual rights and the society ; and this connection gives rise to community interest at large.”

B. Subramanian Swamy v. Union of India

In the case, two judge bench of Supreme Court consisting of Justice Dipak Mishra and Justice P.C. Pant decided to maintain constitutional validity of the country’s criminal defamation laws, deciding that laws are not in disagreement with freedom of right to speech.[16]The decided judgment had put most of the politicians and the media figure on the blunt side. Some even argued that it could hinder freedom of speech.

The case will be remembered more for its vague colourful languages than for its educational values. It is clear from the notification that there has been a chilling effect on freedom of speech.[17]They communicated that through their analysis, there is a requirement of public for the loss of reputation they suffer and wanted to provide public remedies for private wrongs. The justification given by them provide good grounds to think that judgment is an atrocious blow against freedom of expression. [18]

Article 19(2) of the Constitution permits “reasonable restrictions” upon the freedom of speech,” in the interests of…defamation.” [19]But the Article does not say about the defamation whether it deals with criminal as well as civil defamation. The word “reasonable”, entails proportionality aspect in terms of  relationship between  the degree to which freedom of speech contravened and the interest of the public at stake.

In the judgment, Justice Mishra pronounced, “It is not necessary for all in the chorus to sing the same song. A magistrate should be extremely careful in issuing summons on a plea for the initiation of any criminal defamation case.”

It is noteworthy to note that to justify the penal provisions centre pronounced about the anarchical way of how Indian society works and opined about how criminal defamation deters people from practising freedom of speech and expression.
It has been logically deduced that mostly politicians are facing the criminal defamation case against their opponents.[20]


Over the years ,there has been so many attack on free speech in India. The problem occurs when it makes journalists and comedian under the ambit of facing criminal action for their alleged “defamation” of power individuals or corporations. Indian laws are shown as dysfunctional institutions and manifest penal provisions as attractive.

One of the irony of the present law system is it seems reluctant to interfere in cases that infringe upon the fundamental rights but it also rushes into policy matters which is not relevant for them. Defamation law i.e sections 499 and 500 of IPC is a double-edge sword. If a false criminal suit is lodged for defamation , the respondent can file a counter claims.

Replacing criminal sanction with the civil sanction cannot fulfil the criteria to balance the right of freedom of expression with the right to reputation. The main idea behind balancing should be exercise of individual’s freedom of speech and expression without compromising with the person’s reputation in the eyes of public.

[2] Sir William Blackstone,Commentaries on the law of England,101-04(2nd ed. 1769).

[3]charu srivastava, Role of Media in Preventing and Combating Corruption, 2 (2), 170-180 (Jan 2016),

[4] Franklin,M.A.,Winners and Losers and Why: A Study of Defamation litigation.Law and Social Inquiry,

[5] Neha Awasthi,Law of Defamation,(July 3,2010),

[6] kathuria, r.p., law of crimes and crimnlogy 3922-43 (Vinod Publication, Delhi. 2000).

[7] Pillia psa, Criminal; (Nagpur, Lexisnexis Butterworth Wadhwa, 2008).

[8] Brian Marin, Defamation law and free speech, Information Liberation London: Freedom Press, 1998,

[9] David s. Ardia,Review ,Freedom of Speech,Defamation and Injunctions,55 William & Mary Law Review(2013).

[10] The recent dispute on “defmatory statements” made by Indian politicians against provisions of criminal defamation  and also question the right granted to each individual as regard to freedom of speech and expression. See Subramaniam Swamy, Twitter –“though judgment  didn’t strike down criminal provisions (it)serves our purpose”.Vidhi Choudhary,Defamation is a criminal offence confirms Supreme Court, (May 13,2016),

[11] New York Times Co. v. Sullivan,376 U.S. 254(1964).

[12] R.Rajagopal v. State of Tamil Nadu,1995AIR264 (1994).

[13] Id. at 12.

[14] Anish Dayal,Inside law: How defamation works in India , (Nov 15,2012,9.41 am)

[15] gautam bhatia,The Supreme Court’s Criminal Defamation Judgment: Glaringly Flawed,Indian Constitutional Law and Philosphy,May 13,2016.

[16] Dr. Subramanian Swamy v Union Of India (Uoi) And Ors., 2004 118 CompCas 126 Delhi, (2003).

[17] Id. at 55.

[18] Pratap Bhanu Mehta, Supreme Court’s judgment on criminal defamation is the latest illustration of a syndrome, The Indian Express, May 18,2016.

[19] the constitution of india .art. 19(1(a) (1949).

[20] l.e. ambrouis,The Historian 7777-78 (June 1995).

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