I.

WHETHER OR NOT SECTIONS 499 AND 500 OF THE GANRAJYA PENAL

CODE ARE VIOLATIVE OF ARTICLE 19 (1) (a) OF THE CONSTITUTION OF
GANRAJYA?

It is humbly submitted that criminal defamation i.e sections 499 and 500 of the GPC are violative
of Article 19 (1) (a) of the Ganrajya Constitution.

A. Constitutional dispensation of Article 19(1) (a)

A1. Free Speech
Article19 of UDHR states: Everyone has the right to freedom of opinion and expression;
this right includes freedom to hold opinions without interference and to seek, receive and
impart information and ideas through any media and regardless of frontiers. This right
of free speech is guaranteed by the Constitution of Ganrajya under Article 19(1)(a).
It guarantees to all its citizens the right to freedom of speech and expression.1.
The freedom of speech under Article 19(1) (a) includes the right to express ones views
and opinions at any issue through any medium, e.g. by words, writing, printing, picture,
film, movie etc. It thus includes the freedom of communication and the right to
propagate or publish opinion.2

A2. Importance of free speech

The fundamental right to freedom of speech and expression is regarded as one of the
most basic elements of a healthy democracy for it allows its citizens to participate fully
and effectively in the social and political process of the country.
In the Preamble to the Constitution of India, the people of India declared their solemn
resolve to secure to all its citizen liberty of thought and expression. The Constitution
affirms the right to freedom of expression, which includes the right to voice ones
opinion, the right to seek information and ideas, the right to receive information and the
right to impart information.3

1 Article 19(1) in The Constitution Of India 1949(1) All citizens shall have the right
(a) to freedom of speech and expression;

2http://www.lawctopus.com/academike/freedom-of-speech-and-expression/
 For the existence of democracy, free speech is important. In Maneka Gandhi v. Union of
India4, it was observed by the Apex court that: Democracy is based essentially on free
debate and open discussion, for that is the only corrective of governmental action in a
democratic setup. 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.

A3.Priority of Free Speech over other Rights

In S. Rangarajanv.P.JagjivanRam5, it was observed that 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 situation created by allowing the freedom is pressing and the community interest is in
danger .It is evident from this case that scope of limitations, as provided under Article
19(2) is only to protect the community interest and not the private interests of the
individuals. Since protection against defamation/right to reputation is an individual
interest, therefore the same does not deserve to be a limiting factor under 19(2).

B. Criminal Defamation
B1.Defamation meaning
As per Blacks Law Dictionary, defamation means the offence of injuring a person's
character, fame, or reputation by false and malicious statements. .
The offence of defamation as defined by Section 499 of the GPC reads as follows: -
whoever, by words either spoken or intended to be read, or by signs or by visible
representations, makes or publishes any imputation concerning any person intending to
harm, or knowing or having reason to believe that such imputation will harm, the

3 SUPRA 2

4AIR 1978 SC 597: (1978) 1 SCC 248

51989 SCC (2) 574

 reputation of such person, is said, except in the cases hereinafter expected, to defame that
person.
B2. Essential Ingredients of defamation: -
There are three key ingredients of the offence of defamation-
(i) making or publishing any imputation concerning any person;
(ii) such imputation must have been made by-
(a) words, either spoken or intended to be read; or
(b) signs; or
(c) visible representations.
(iii) such imputation must be made with the intention of harming or with the knowledge
or with reasons to believe that it will harm the reputation of that person.
To constitute defamation under Section 499 of the Code, there must be an imputation
and such imputation must have been made with intention of having or knowing or having
reason to believe that it will harm the reputation of the person about whom it is made. In
essence, the offence of defamation is the harm caused to the reputation of a person.

C. Defamation is violative of Free speech

1. It has been expressly quoted in R. Rajagopal vs State Of T.N (Auto Shankar Case) 6
referring to the decision of the Privy Council in Leonard Hector v. Attorney General
of Antigua and Barbuda: In a free democratic society it is almost too obvious to
need stating that those who hold office in government and who are responsible for
public administration must always be open to criticism. Any attempt to stifle or fetter
such criticism amounts to political censorship of the most insidious and objectionable
kind. The Court next considered the judgment of the House of Lords in the United
Kingdom in Derbyshire County Council vs. Times Newspapers Ltd. 7 The House of
Lords ruled that not only was there no public interest in allowing governmental
institutions to sue for libel, but it was even "contrary to the public interest because to
admit such actions would place an undesirable fetter on freedom of speech". Further
an action for defamation or threat of such action "inevitably has an inhibiting effect
on freedom of speech."
2. Further the Apex Court has clearly said that Anyone calling a government corrupt or
unfit cannot be slapped with defamation case. The Supreme Court went on to say

61995 AIR 264, 1994 SCC (6) 632

7 1993 (2) W.L.R. 449.

 that there has to be tolerance to criticismdefamation cases cannot be used as a
political counter weapon. Cases for criticizing the government or bureaucrats create
a chilling effect.8
3. In a prosecution for defamation under Section 499 GPC, fair comment and criticism
which is not covered by the Exceptions would not be protected. The prospect of
punishment may sometimes act as a deterrent on the freedom of speech.
4. In the case at hand P1, Arjun Pandit was invited by 'Special Rajya Forum' on
21.11.2015 to participate in an open discussion on 'Corruption' in Public Life: How
will Ganrajya fight Back'?9Rather than putting forward his claims, he started to
speak in a very loud voice about the different instances where the Prime Minister was
allegedly helping rich businessmen to get rewarding deals and how he is using his
Political Office to collect unaccountable offers and money.It is submitted that P1
instead of putting forward any of his own claims and views, simply spoke about the
various instances where the Prime Minister was alleged to be doing the above acts.
He has not made any kind of imputations or allegations to the Prime Minister himself.
This in no way leads to show that P1 has in any way defamed the Prime Minister and
the law of defamation which is used as a weapon to prosecute a person against any
statement which he makes is absolutely curtailing the right of a person to freely
express and hold opinions.
5. In the second incident as well P2, Manohar Kashyap during an interview by the
national daily New Morning did not make any statement maligning or defaming the
reputation of the Prime Minister. However, his own stand in favour of P1s support
has been used against him under the garb of defamation.
6. It is humbly submitted that the Special Rajya Forum was an open discussion which
requires persons to voice not only the positives but also their thoughts and views
about any shortcomings and as these discussions are for the public good and public
has the right to know everything in respect of the representative chosen.

D. Arbitrariness of Section 199 of Code of Criminal Procedure, 1973

9 Fact sheet, p. 1
Section 199 (1) of the CrPC mandates that only an Aggrieved Person can file for Criminal
Defamation. The Apex Court defined Aggrieved Person in S. Khushboo v. Kanniammal&Anr10:

"The `person aggrieved' means a person who is wrongfully deprived of his entitlement which he
is legally entitled to receive and it does not include any kind of disappointment or personal
inconvenience. `Person aggrieved' means a person who is injured or one who is adversely
affected in a legal sense."

But in case of group legal, it does not matter to whom that impugned statement is addressed,
anyone could file a case who believes him to be hurt by the statement. In John Thomas v. K.
Jagadeesan11, the collection of words by the persons aggrieved in section 199(1) CrPC was
held to indicate that complainant need not be necessarily be the defamed person himself.
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. It is unclear after considering two
Apex court judgments as to whether only the person deprived of a legal right is aggrieved person
or a person even hurt by the impugned statement can be considered as the aggrieved person. This
makes the scope of criminal defamation vague and arbitrary. Moreover, this question is decided
at trial and not at the prima facie stage depending on facts and circumstances of the case. On the
same lines, an accused cannot even rebut the allegations or avail to the exceptions on the face of
it. This ensures that a mere prima facie allegation is sufficient to kick-start the criminal process
as held in BalrajKhanna v. Moti Ram.12

Further, Section 199(2) to (4) CrPC protects public servants and government officials and creates
a separate class and this classification has no rationale and this distinction has no basis to
withstand the constitutional scrutiny. Section 199(2) CrPC may also give an unfair disadvantage
to have a public prosecutor in cases of a libel against a Minister or a public servant. Differential

102010 (5) SCC 600

11 (2001) 6 SCC 30

12AIR 1971 SC 1389. At para 10 page 403

treatment granted to them is an unacceptable discrimination and therefore, provisions contained
in Section 199(2) to (4) CrPC are liable to be struck down. 13

E. Reasonableness

Article 19(1)(a) of the Constitution of India guarantees all Indian citizens the right to freedom of
speech and expression. Article 19(2) allows the state to make laws which impose reasonable
restrictions on this right-

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.

Of these, defamation protects the private interest in protecting an individuals reputation. All the
other interests are essentially public and national interests. The test in determining the
constitutionality of a law under Article 19(2) is whether the law is a reasonable restriction on
free speech.14

In order to be reasonable, the Supreme Court in Shreya Singhal v. Union of India15 has laid
down that a restriction must be narrowly tailored or narrowly interpreted so as to abridge or
restrict only what is absolutely necessary. Reasonable restriction means 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. In other words, the restriction must be
narrow and restrict only what is necessary and should not be arbitrary or excessive. If the
restriction is too broad, it will have a chilling effect on speech which will make it
unconstitutional.16

13 http://supremecourtofindia.nic.in/FileServer/2016-05-13_1463126071.pdf

14https://thewire.in/8465/seven-reasons-why-criminal-defamation-should-be-
declared-unconstitutional/

15(2013) 12 SCC 73

16Supra 13
Reasonable restriction is founded on the principle of reasonableness which is an essential facet of
constitutional law and one of the structural principles of the constitution is that if the restriction
invades and infringes the fundamental right in an excessive manner, such a restriction cannot be
treated to have passed the test of reasonableness. The language employed in Sections 499 and
500 IPC is clearly demonstrative of infringement in excess and hence, the provisions cannot be
granted the protection of Article 19(2) of the Constitution.17

Sections 499-500 of the code do not constitute a reasonable restriction on speech because even
an iota of truth is not a defence. Even if a person has spoken the truth, he can be prosecuted for
defamation. Under the first exception to section 499, truth will only be a defence if the statement
was made for the public good, which is a question of fact to be determined by the court. This is
an arbitrary and over-broad rule that deters people from making statements regarding politicians
or political events even which they know to be true because they run the risk of a court not
finding the statement to be for the public good. Instead of making the plaintiff prove that the
accused made a false statement, section 499 gives the accused the burden of proving that the
statement was not only true but also for the public good.18

It is therefore humbly submitted that defamation is a harsh penal offence under which anyone
can prosecute another for making any statement or comment and the need of the hour is to
decriminalise it so as to protect and prioritise our fundamental right to freedom of speech and
expression.

II. WHETHER OR NOT DEFAMATION IS A CIVIL WRONG AGAINST AN

INDIVIDUAL FOR WHICH REMEDY CANNOT BE SOUGHT UNDER
CRIMINAL LAW?

It is humbly submitted that defamation is a civil wrong against an individual for which remedy
cannot be sought under criminal law.

17http://supremecourtofindia.nic.in/FileServer/2016-05-13_1463126071.pdf

18SUPRA 12
 A. Defamation as a civil wrong

Section 19 provides for Suits for compensation for wrongs to person or movables. It reads:

Where a suit is for compensation for wrong done to the person or to movable property, if the
wrong was done within the local limits of the jurisdiction of one Court and the defendant resides,
or carries on business, or personally works for gain, within the local limits of the jurisdiction of
another Court, the suit may be instituted at the option of the plaintiff in either of the said Courts.

According to the above mentioned provision a person who is defamed can recover damages from
the person who has defamed him.

Thus, in India, both a civil suit for defamation under the common law and a criminal suit under
sections 499-500 IPC can be filed with respect to the same allegedly defamatory statement. Since
a remedy exists at common law, it is both excessive and overbroad to make defamation a
criminal offence punishable by up to two years imprisonment. It is absolutely unnecessary to
put people who damage a persons reputation in jail with hard-core criminals. In fact, monetary
damages recoverable in a civil suit should be a sufficient legal deterrent against defamation.19
Thus, criminal defamation seems unreasonable because a much less restrictive but equally
adequate alternative exists i.e. a civil suit for damages.

Further, defamation is a dispute between two individuals in which ones reputation is attacked by
another. It is therefore an offence against a private individual and not against the state or the
society as is required to constitute a crime. Therefore, the right to sue for damages as a civil
wrong is sufficient and appropriate to provide remedy to the affected person. And in a
democracy, the public interest in protecting political speech must surely outweigh a public
officials private interest in protecting his reputation. The right to sue for defamation must exist
as a right of a private citizen which public officials and institutions cannot exercise, since, by
doing so, one can easily suppress political speech in the name of protecting the reputation of a
public official or institution.20.

19 SUPRA 13

20SUPRA 13
The UN Special Rapporteur on freedom of expression has also called on countries to abolish
criminal defamation laws, on the grounds that civil defamation laws provide adequate
protection.21

BNeed for Change

B1. Law Commission and Amnesty

Amnesty International India in its suggestions to the Indian Law Commission has said that:

Criminal defamation laws in India are open to misuse, and are in practice deployed to harass
and intimidate journalists, critics of large businesses, and human rights defenders. Criminal
trials tend to take years to be completed, and prolonged pre-trial detention of suspects is
common. Compensation for wrongful arrests is rarely awarded. The threat of being arrested,
held in pre-trial detention, and subjected to tortuous criminal trials create a situation where the
process is the punishment.

B2. International Standards

The International Covenant on Civil and Political Rights, to which India is a state party, requires
states to guarantee to everyone the right to freedom of expression.22
States are permitted to impose restrictions including those seeking to respect the rights and
reputations of others.23 However, such restrictions are nevertheless an interference with freedom
of expression and so must serve a legitimate aim, be proportionate to that aim and be the least
restrictive available option. They should be drafted in a narrow manner, provide legal clarity, and
be construed strictly to ensure that they do not directly violate or have a chilling effect on

21 SUPRA 26

22 Article 19(2) of the ICCPR states: Everyone shall have the right to freedom of expression; this right
shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of
frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

23Article 19(3) of the ICCPR states: The exercise of the rights provided for in paragraph 2 of this article carries
with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be
such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the
protection of national security or of public order (ordre public), or of public health or morals.
freedom of expression.
There is growing international consensus that the criminalization of defamation is an
unnecessary restriction on freedom of expression, and imprisonment for defamation a
disproportionate sanction.
The UN Human Rights Committee (HRC), the expert body which monitors state compliance
with the ICCPR, has urged states to consider decriminalizing defamation because the
application of the criminal law should only be countenanced in the most serious of cases and
imprisonment is never an appropriate penalty.24
In Indian Oil Corporation v. NEPC25: The Committee, in interpreting Article 19 of the ICCPR,
states that defamation laws must be crafted with care to ensure that they comply with paragraph
3, and that they do not serve, in practice, to stifle freedom of expression.26
The Committee also warns against subjecting persons to prolonged criminal prosecution. In its
jurisprudence, the Committee has found that keeping defamation cases open for long periods of
time and not proceeding to trial expeditiously can have a chilling effect on freedom of
expression.27
Restrictions on freedom of expression must not be overbroad, and must be the least intrusive
instrument possible to achieve their protective function. The Committee has stated that the
ICCPR places a high value on public debate in a democratic society concerning figures in the
public and political domain.28 It has specifically recommended reform of criminal defamation

24Human Rights Committee, General Comment No. 34: Article 19: Freedoms of Opinion and Expression, 12
September 2011, UN Doc. CCPR/C/GC/34. Available athttp://www2.ohchr.org/english/bodies/hrc/docs/GC34.pdf.

25Indian Oil Corporation v. NEPC, (2006) 6 SCC 736.

26Id.

27Communication No. 909/2000, Kankanamge v. Sri Lanka, Views adopted on 27 July 2004. Available
athttp://www.ccprcentre.org/wp-content/uploads/2013/02/909-2000-Kankanamge-v.-Sri-Lanka-.2004.pdf.

28Human Rights Committee, General Comment No. 34: Article 19: Freedoms of Opinion and
Expression, 12 September 2011, UN Doc. CCPR/C/GC/34. Available at
http://www2.ohchr.org/english/bodies/hrc/docs/GC34.pdf.
laws in a number of countries, including recently the Philippines, Italy, Russia and Mexico.29
The UN Special Rapporteur on freedom of expression an independent human rights expert -
has also called on countries to abolish criminal defamation laws. In 2013, the Special Rapporteur
stated:
I strongly believe that defamation should be decriminalized completely and transformed from a
criminal to a civil action, considering that any criminal lawsuit, even one which does not foresee
a prison sentence, may have an intimidating effect on journalists. Furthermore, criminalising
defamation limits the liberty in which freedom of expression can be exercised. I would also like
to draw attention to the fact that if an economic penalty is applied through criminal law, it will
most likely also be followed by civil economic reparation to the victim, thus imposing a double
economic sanction.30
The UN Special Rapporteur, the OSCE (Organization for Security and Co-operation in Europe),
Representative on Freedom of the Media and the OAS (Organization of American States) Special
Rapporteur on Freedom of Expression have also jointly called for the repeal of criminal
defamation laws. In 2002, they said in a joint statement: Criminal defamation is not a justifiable
restriction on freedom of expression; all criminal defamation laws should be abolished and
replaced, where necessary, with appropriate civil defamation laws.31
The ACHPR (African Commission on Human and Peoples Rights) Special Rapporteur for
Freedom of Expression and the IACHR (Inter-American Court of Human Rights (IACHR)--OAS
Special Rapporteur on Freedom of Expression echo this view. With particular reference to
criticism of public officials, they state: In democratic societies, the activities of public officials

29Communication No. 1815/2008, Adonis v. The Philippines, Views adopted on 26 October 2011. Available
athttp://ccprcentre.org/doc/OP1/Decisions/103/1815%202008%20Adonis%20v.%20the%20Philippine_en.pdf;
Also see concluding observations on Italy (CCPR/C/ITA/CO/5); concluding observations on the Russian Federation
(CCPR/C/RUS/CO/6); concluding observations on Mexico (CCPR/C/MEX/CO/5).

30Preliminary observations and recommendations by the United Nations Special Rapporteur on the promotion and
protection of freedom of opinion and expression: Visit to Italy, 11-18 November 2013, available at
http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=14003&LangID=E.

31Joint Declaration by the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE
Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression, 10
December 2002. Available at http://www.osce.org/fom/39838?download=true.
must be open to public scrutiny. Criminal defamation laws intimidate individuals from exposing
wrongdoing by public officials and such laws are therefore incompatible with freedom of
expression. 32
Regional bodies including the Parliamentary Assembly of the OSCE 33 and the Council of Europe
Commissioner for Human Rights34 have also called for the decriminalization of defamation. The
European Court of Human Rights has ruled that criminal sanctions for defamation have a chilling
effect on journalistic freedom of expression.35
In Gramaphone company of India Ltd. v Birendra Bahadur Pandey & Ors:36 the court held
that Where the statute is silent international law can be taken into account by courts to declare
binding law.
Also in Vishakha &Ors.v State of Rajasthan & Ors.37 The court laid down that, To interpret
fundamental rights "rights enhancing treaties" can be incorporated by the judges into the
interpretation of these rights.
While many of the worlds most progressive countries have done away with their archaic
defamation laws and many are actively engaging in a reformist agenda, Indian defamation laws

32Joint Declaration by the ACHPR Special Rapporteur for Freedom of Expression and the IACHR-OAS
SpecialRapporteur on Freedom of Expression, March 2005. Available at
http://www.oas.org/en/iachr/expression/showarticle.asp?artID=394&lID=1.

33Paris Declaration of the OSCE Parliamentary Assembly, 10 July 2001, Available

athttp://www.oscepa.org/publications/declarations/2001-paris-declaration/214-2001-paris-declaration-eng/file.

34Thomas Hammarberg, Council of Europe Commissioner for Human Rights, in Human rights and a changing
media landscape, Council of Europe: December 2011, p. 11. Available
athttp://www.coe.int/t/commissioner/source/prems/MediaLandscape2011.pdf.

35Cumpn and Mazrev.Romania, Application No. 3334, 8/96 Judgment of 17 December 2004, para.
114.Available at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-67816.

361984 SCR (2) 664.

37http://judis.nic.in/supremecourt/imgs1.aspx?filename=13856.
continue to sit in the Criminal law books, relics from the countrys colonial past.
38

This clearly highlights the importance and applicability of international laws over the
fundamental rights of the citizens and the same interpretation is the need of the hour.
Therefore, is humbly submitted that the criminal defamation laws need to be struck down as they
are violative of our Fundamental right to Free Speech.

38 https://www.linkedin.com/pulse/decriminalizing-defamation-long-overdue-
surabhi-agarwal