CONTENTION 1: THAT THE LAW OF CRIMINAL DEFAMATION AND THE PROCEDURE TO DEAL WITH IT

DOES NOT VIOLATE THE PROVISIONS OF THE CONSTITUTION

It is humbly contended before the Hon’ble Court that Sections 499 and 500 of the Indian Penal Code
(IPC) do not violate Article 19(1)(a), which guarantees freedom of speech and expression, or Article 21,
which guarantees the right to life and personal liberty. These provisions, which criminalize defamation,
are consistent with the constitutional framework and are valid restrictions on the freedom of speech
under Article 19(2).

1.1 That Presumption is Always in Favour of Constitutionality

It is a well-established principle of constitutional law that any statute, when challenged on the grounds
of its constitutionality, carries with it a presumption in favor of its validity. This presumption ensures
that courts do not lightly interfere with the laws passed by the legislature, which, as the elected
representatives of the people, are presumed to have acted within the constitutional framework.

When a law is challenged, the burden of proof lies with the party challenging the statute, to
demonstrate beyond a reasonable doubt that the law violates constitutional principles. As per Ashutosh
Gupta v. State of Rajasthan1, the Hon’ble Supreme Court emphasized that the presumption of
constitutionality means that courts will interpret the law in a manner that upholds its validity, unless it is
shown that there has been a clear transgression of constitutional provisions. In the case of defamation
laws, the burden lies with the petitioners to show that Section 499 and Section 500 of the Indian Penal
Code (IPC) violate fundamental rights, particularly the right to freedom of speech and expression under
Article 19(1)(a).

It is further important to recognize that the legislature, in enacting laws, is presumed to have
understood and considered the needs of society, and therefore, the law must be interpreted in a way
that harmonizes with the constitutional framework. In K.K. Verma v. Union of India 2, the Court made it
clear that the judiciary must exercise restraint in striking down statutes, especially when there is no
clear and convincing evidence of unconstitutionality.

1
(2013) 4 SCC 12
2
AIR 1954 SC 520
Moreover, courts have the power to “read down” provisions of a law to ensure that it conforms to
constitutional principles. In Shreya Singhal v. Union of India,3 the Supreme Court held that while a law
could not be struck down on the grounds of vagueness alone, it could be interpreted in a way that
removes any ambiguity, thereby preserving its constitutionality. This judicial approach ensures that the
law remains effective while safeguarding constitutional rights. Therefore, in the context of criminal
defamation, the Court should interpret Sections 499 and 500 to ensure that they are applied in a
manner that does not violate the core principles of free speech, balancing it with the protection of
reputation, which is also a fundamental right.

1.2 That Article 19(1)(a) Does Not Confer an Absolute Right

The respondent respectfully submits that the right to freedom of speech and expression under Article
19(1)(a) of the Constitution of India is not absolute. While this right is fundamental and vital to a
democratic society, it is subject to the reasonable restrictions outlined in Article 19(2) of the
Constitution. This provision explicitly allows the State to impose restrictions on speech and expression in
the interests of the sovereignty and integrity of India, public order, decency, morality, and the
protection of the rights of others, including the right to reputation.

1.2.1 The Concept of Reasonable Restrictions

The right to freedom of speech and expression, while paramount, must be balanced against other
fundamental rights, particularly the right to reputation. The right to reputation is closely tied to an
individual’s dignity, and any unjust defamation can lead to harm to one’s personal and professional life.
Article 21 guarantees the right to life and personal liberty, which includes the right to live with dignity.
Defamation directly impinges on this right, and therefore, the law provides a mechanism to protect
individuals from unwarranted and harmful statements.

As per Charanjit Lal Chowdhury v. Union of India4, the Supreme Court acknowledged that the exercise of
one’s rights must not infringe upon the rights of others. The right to freedom of speech must be
exercised with caution, particularly when it involves the potential to harm the dignity and reputation of
3
(2015) 5 SCC 1
4
AIR 1951 SC 41
another individual. In this context, Section 499 of the IPC, which defines defamation, is a reasonable
restriction on the absolute freedom of speech, ensuring that the exercise of free expression does not
harm the fundamental right of an individual to protect their reputation.

1.2.2 Judicial Precedents Supporting Restrictions on Free Speech

The Supreme Court in R. Rajagopal v. State of Tamil Nadu,5 emphasized that the freedom of speech and
expression is not without limits. The Court observed that while the press enjoys significant freedom, it is
subject to restrictions when it comes to defamatory content that affects an individual’s reputation. This
principle is also applicable to the general right to free speech, as expressed under Article 19(1)(a). The
defamation law seeks to strike a balance between these two competing rights—the right to free speech
and the right to reputation.

In Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd.6, the Supreme Court held that the right to free
speech is subject to reasonable restrictions for the protection of reputation. The judgment clarified that
defamatory statements cannot be protected under the right to free speech and expression, as they
violate an individual’s right to dignity and reputation, which are inherent in the right to life under Article
21.

1.2.3 International Perspective on Defamation

International human rights law also recognizes that freedom of speech is not absolute and may be
restricted to protect the reputation of others. Article 19 of the International Covenant on Civil and
Political Rights (ICCPR)7, which India is a party to, guarantees the right to freedom of expression but also
allows for restrictions, particularly to protect the rights of others, including the right to reputation. The
European Court of Human Rights has consistently held that defamation laws are compatible with
freedom of expression, as long as they are necessary to protect the reputation of others (e.g., Lingens v.
Austria8, This international framework supports the view that defamation laws are a valid restriction on
the right to free speech.

5
(1994) 6 SCC 632
6
(1995) 5 SCC 139
7
Andrew Clapham, Human Rights: A Very Short Introduction (Oxford University Press, 2015)
8
[1986] 8 EHRR 407
Thus, while Article 19(1)(a) guarantees freedom of speech, this right is circumscribed by the reasonable
restrictions under Article 19(2). The law of criminal defamation serves as a necessary check on the
absolute exercise of this right, ensuring that an individual’s reputation is not unjustly harmed. The Court,
therefore, must consider the broader constitutional vision, which includes both the protection of speech
and the dignity of individuals, and uphold the law of defamation as a constitutional measure for
balancing these interests.

1.3 That the law on defamation is a reasonable restriction under Article 19(2) and complies with
Article 21.

The law is valid under reasonable restrictions on freedom of speech and expression under Article 19 (2)
and also protects the Right to reputation under Article 219.
1.3.1 Reasonable restrictions under Article 19 (2).
Article 19 (2) states that “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 interests of the sovereignty and integrity of India, 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 grounds mentioned in Article 19(2) for imposition of restrictions such as security of the State, public
order, law in relation to contempt of court, defamation etc. are ultimately referable to societal interest
which is another name for “public interest." And these grounds are in the public interest 10.
Laws with respect to libel & slander were existing at the time of coming into force the Constitution of
India were saved under the phrase ‘existing law.’ Therefore, it is not open at all to the petitioners to
contend that section 499 is ultra vires to Article 19 of the Constitution of India. Section 499 was in
existence at the time of commencement of the Constitution & section 499 of IPC is in chapter XXI which
deals with ‘of defamation’. Therefore, it seems to be an untenable view to apply the principle of
‘noscitor a sociis’, it is nothing but an embodiment of the broader rule of ‘context’. In the present case
the principle is not applicable because the aforesaid principle of interpretation was merely a rule of
construction to be applied when the meaning of the words used was doubtful. However, where the
legislature has used wide words of which the meaning is clear & free of ambiguity that rule of

9
Constitution of India, 1950
10
Secretary, Ministry of Information & Broadcasting, Govt. of India v. Cricket Association of Bengal,
(1995) 2 SCC 161 : AIR 1995 SC 1236
construction could not be pressed into service 11. The words in the Constitution are to be understood in
their literal dictionary meaning & in any case not to be narrowly construed as suggested. The argument
that the word “defamation” occurring in Article 19(2) must be read in the light of the other grounds
mentioned therein by applying the rule of noscitur a sociis is not correct, for the said rule has a very
limited application. Applying the principle of ‘nomen juris’ the word “defamation” must necessarily
refer only to IPC, since there is no other statute in existence that defines “defamation”. Hence, the
intention of the framers of the constitution becomes very clear when the words of the said article are
interpreted. For the purpose of reasonable restrictions the State can impose these by exercising its
legislative power. it provides:

a) The restriction can be imposed only by or under the authority of law. It cannot be imposed by
exercise of executive power without any law to back it up.
b) Each restriction must be reasonable.
c) A restriction must be related to the purpose mentioned in Article 19(2).

Hence in the pertinent case every requirement is fulfilled by the legislation. Besides, a mere possibility of
abuse of a provision cannot be a ground to declare a provision invalid. In a modern progressive society it
would be unreasonable to confine the intention of a Legislature to the meaning attributable to the word
used at the time the law was made & unless a contrary intention appeared, an interpretation should be
given to the words used to take in new facts & situations, if the words are capable of comprehending
them.

1.3.2 Reasonable restrictions and law on defamation.

Now, considering the law on defamation (499, 500 of the IPC), the essential ingredients of the offence of
defamation are; making or publishing any imputation concerning any person, such imputation must
have been made by words either spoken or intended to be read, or by signs, or by visible
representations, and such imputation must have been made with the intent to harm, or with knowledge
or belief that it will harm the reputation of the person concerned. It is simple that if expression or
speech is not defamatory no liability for criminal defamation arises. Furthermore, there are ten
exceptions which do not account for the crime of defamation. These exceptions are as follows:—

11
Tata Motors Limited v. Pimpri Chinchwad Municipal Corporation, (2006) 3 Bom LR 2679
  Whereby the first exception provides for imputation of truth which public good requires
publication, it would not be a defamation.The petitioner's claim to make truth an absolute
exception is opposed because truth ought not to be an absolute defence as it can be misused.
As it has been held in R. Rajagopal's case 12that the right to privacy and right of freedom of press
have to be balanced, which could be through the limitation of the public interest. Therefore, it
would be dangerous if truth without further qualifications is made a defence in an action against
defamation. The sond exception provides that to express in good faith any opinion for discharge
of functions i.e. public conduct of public servants.

 Similarly there are other exceptions such as Conduct of any person touching any public question
(Third Exception). It is not defamation to express in good faith any opinion whatever respecting
the conduct of any person touching any public question (Fourth Exception). The fifth exception
provides for the Merits of case decided in Court or conduct of witnesses and others concerned,
the sixth exception : Merits of public performance. Whereas the seventh, eighth, ninth and
tenth exception deals with accusation preferred in good faith to authorised person, imputation
made in good faith by person for protection of his or other's interests, caution intended for good
of person to whom conveyed or for public good, respectively. The concepts like “in good faith”
or “for the public good” are the mainstay of the exceptions which enable him to avoid
conviction, and these facets make the provision reasonable and definitely not vague.

In Chaman Lal v. The State of Punjab 13the Court observed, “in order to establish good faith and bona
fide it has to be seen first the circumstance under which the letter was written or words were uttered;
secondly, whether there was any malice; any enquiry was made before he made the allegations;
fourthly, whether there are reasons to accept the version that he acted with care and caution and finally
whether there is preponderance of probability that the appellant acted in good faith.” So, the
respondent humbly pleads on that the law on defamation serves the larger interest of public. The
individual rights and societal harmony are linked. The law on defamation under section 499 and 500 of
Indian Penal Code, do not affect right to free speech and expression and restrictions are within

12
R. Rajagopal alias R.R. Gopal v. State of Tamil Nadu, (1994) 6 SCC 632 : AIR 1995 SC 264; Mr ‘X’ v.
Hospital ‘Z’, (1998) 8 SCC 296 : AIR 1999 SC 495

13
(1970) 1 SCC 590 : AIR 1970 SC 1372
constitutional parameters. Ingredients of the offence of defamation are well defined in the Penal Code
and are constitutionally valid.

1.4 That Freedom of speech and expression is subject to Right to reputation.

A protection has been carved out under Article 21 of the Constitution of india, which states ‘no person
shall be deprived of his life and personal liberty except according to the procedure established by law.’
the right to life include right to live with human dignity .In Kharak Singh v. State of U.P14. the Supreme
Court held that the term “life” as here used is something more, is meant than mere animal existence.
Article 19 of constitution of india expressly subjects the right of expression to the rights & reputation of
others. It reads thus : -Everyone shall have the right to hold opinions without interference. The
European Convention for the Protection of Human Rights & Fundamental Freedoms under Articles 8 &
10, state only law could restrict rights especially to the reputation of others respectively.

In Rosenblatt v. Baer15 it was observed that, “the right of a man to the protection of his own reputation
from unjustified invasion & wrongful hurt reflects no more than our basic concept of the essential
dignity & worth of every human being — a concept at the root of any decent system of ordered liberty.”
16
Similarly in Lindon v. France it was held “Accepting that respect for reputation is an autonomous
human right, which derives its source from the Convention itself, leads inevitably to a more effective
protection of the reputation of individuals vis-a-vis freedom of expression. Right to reputation is a facet
of right to life of citizen under article 21 of the constitution of India. It is a revenue generator for the
present as well as for the posterity. It has become an inseparable facet of Article 21 of the Constitution.
It is a revenue generator for the present as well as for the posterity. For instance Article 12 of the said
Declaration provides that, “No one shall be subjected to arbitrary interference with his privacy, family,
home or correspondence, nor to attacks upon his honour & reputation. Everyone has the right to the
protection of the law against such interference or attacks.”
In Reynolds v. Times Newspapers Ltd 17it was held that once besmirched by an unfounded allegation in a
national newspaper, a reputation can be damaged forever. When this happens, society as well as the
individual is the loser. Protection of reputation is conducive to the public good. A similar limitation is

14
AIR 1963 SC 1295.
15
383 US 75 (1966).
16
(2008) 46 E.H.R.R. 35.
17
[2001] 2 A.C. 127
contained under Article 21 which prescribes that everyone has a right to maintain his dignity in the
society. Article 19 cannot be pressed into service for defeating the fundamental right guaranteed by
Article 21.“Reputation” is an element of personal security & is protected by the Constitution equally
with the right to enjoyment of life, liberty & property. The expression “Life” does not merely connote
animal existence or a continued drudgery through life .It also stands for right to reputation is a natural
right.In Umesh Kumar v. State of Andhra Pradesh18 the Court observed that personal rights of a human
being include the right of reputation. In law, it has been accepted as personal property and it is just in
rem a right good against all the word. The Court therefore must draw a balance between freedom of
speech and protecting the reputation of an individual.”

When, reputation of one person cannot be taken to be crucified on the altar of exercise of a
fundamental right by another person. Therefore, the filing of criminal complaint by the public
prosecutor against Arjun Pandit (petitioner) & Mr. Manohar Lal Kashyap is valid because everyone has
the right to protect his/ her reputation. Since there were numerous imputation on the Prime Minister by
these people, the offence of defamation could easily be established & they could not take the defence
under Article 19.

1.5 That procedure to deal with complaint of defamation meets the requirement of Article 21 of the
Constitution.
Article 21 which provides for the right to life & the personal liberty could only be deprived by the
procedure established by law. It may be reiterated here that in respect of the offence of defamation,
section 199 CrPC mandates that the Magistrate can take cognizance of the offence only upon receiving a
complaint by a person who is aggrieved. This limitation on the power to take cognizance of defamation
serves the rational purpose of discouraging the filing of frivolous complaints which would otherwise clog
the Magistrate's Courts. In Maneka Gandhi v. Union of India19 it was held by a seven Judge Bench that a
statute which merely prescribes some kind of procedure for depriving a person of his life or personal
liberty cannot ever meet the requirements of Article 21, the procedure prescribed by law has to be fair,
just and reasonable; not fanciful, oppressive or arbitrary. Bhagwati J. Observed “principally, the concept
of reasonableness must be projected in the procedure contemplated by Article 21, having regard to the

18
(2013) 10 SCC 591
19
(1978) 1 SCC 248 : AIR 1978 SC 597
impact of Article 14 on that article”. Any law interfering with the personal liberty of a person must
satisfy a ‘triple test’

(a) it must prescribe a procedure,

(b) the procedure must withstand the test of one or more fundamental rights conferred under Article
19,
(c) the procedure must be liable to be tested with reference to Article 14.

In the present case the procedure prescribed Section 199 CrPc, prima facie, does not provide for
anything that could be termed as arbitrary or violative of fundamental rights. Section 199 (1) provides
that only the ‘person aggrieved’ could file a complaint. A company ‘person aggrieved could be the
Manager, secretary. There is of course some room for complaints to be brought by persons other than
those who are aggrieved, for instance when the aggrieved person has passed away or is otherwise
unable to initiate legal proceedings. Defamation being a cognisable offence ensures that the filing of
false criminal cases is minimised by a large margin if not eradicated. For what is punitively outrageous,
scandalizing unusual or cruel and rehabilitative counter-productive, is unarguably unreasonable and
arbitrary and is shot down by Articles 14 and 19 and if inflicted with procedural unfairness, falls foul of
Article 21.

In Jamshed Ansari v. High Court of Judicature at Allahabad20 in applying the test of reasonableness the
Court must take into account,

(a) the nature of the right infringed, (b) underlying purpose of the restriction imposed, (c) evils sought to
be remedied by the law, its extent & urgency (d) how far the restriction is not proportionate to the evil
and prevailing conditions at that time. Under section 199(2), there has been a reasonable classification
based on intelligible differentia because the public servant performs special functions. Also, a mere
production of a document that sets out the person to be prosecution along with sanction of the
government, does not invest the Court with the jurisdiction to try the offence. If facts which constitute a
charge do not appear on face of the sanction under § 199(3) it must be established by extraneous
evidence that those facts were placed before the authority before obtaining sanction. Grant of sanction
is an administrative act which is set forth in section 199

20
(2016) 10 SCC 554
(4) The sanctioning authority only sees whether the facts would prima-facie constitutes the offence. In
Kalyanam v. Ramesh21, it was held that only on satisfying that the law casts liability or creates offence
against the person, 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, otherwise it would be an instrument in the hands of the private
complaint as vendetta to harass the person needlessly. When such kind of care & protection has been
carved out in procedure to deal with defamation, it seems to be an untenable view that the procedure
to deal with defamation under section 199 CrPC violates any provision of Article 21.

The imprisonment is valid because it aims at imposing a deterrent effect on the public. Furthermore, the
individual rights and societal harmony are linked. But the acts of Mr. Pandit & Mr. Kashyap clearly fall
under the offence so they are guilty of defamation. The law on defamation under section 499 and 500 of
Indian Penal Code, do not affect right to free speech and expression and restrictions are within
constitutional parameters. Ingredients of the offence of defamation are well defined in the Penal Code
and are constitutionally valid. The procedure to deal with complaint of defamation meets the
requirement of Article 21 of the Constitution. There has to be a harmonious interpretation of Article
19(1)(a) read with Articles 19(2) and 21. This has to be done by adverting to Articles 13(3), 366(10), 372
(Explanations I and II), and also Article 14, the Preamble, Part III and Part IV of the Constitution.
Therefore, relying on the maxim ‘Ut res magis Valeat quam pereat’ the Hon'ble Court is requested to
uphold the law on defamation.

21
2003 Cri LJ 3390