Written by Lakshita Handa from Rajiv Gandhi National University of Law, Punjab
‘I disapprove of what you say, but I’ll defend to the death your right to say it’——Voltaire
Freedom of speech and expression is widely regarded as the cornerstone of a developed and democratic society. It allows all members of the society to freely formulate opinions and discuss them, thereby enabling them to participate as decision-makers. History is a testament to how freedom of thought and expression has brought forth some of the greatest revolutions in the world- it has allowed people to voice their concerns and break free from the shackles that had held them down for centuries altogether. The importance of free speech in a democracy was recognized by the Hon’ble Supreme Court of India in the case of Maneka Gandhi v. Union of India, where it was noted that the discussion of public matters is essential for every citizen to be able to effectively exercise their rights in a democratic set-up.
‘When people are denied public participation and voice, their issues, experiences and concerns are rendered invisible, and they become more vulnerable to bigotry, prejudice and marginalization’. In this sense, it can be said that freedom of speech and expression plays an instrumental role in realizing several other human rights. It also makes ‘a valuable contribution to other key areas of good governance, rule of law and democracy concern.’
Since right to freedom of speech and expression is vital for self-fulfillment and empowerment, the constitution-makers recognized the same as a fundamental right within the meaning of Part III of the Constitution of India. Article 19 of the constitution enlists certain freedoms and the right to free speech and expression has been embodied within the meaning of Article 19(1)(a). However, it must be noted that while this right is indispensable in modern society, unfettered freedom at the cost of social order can not be granted to any individual and thus Article 19(2) includes certain ‘reasonable restrictions’ to the exercise of this right. These restrictions range from those concerning security of state at a macro level to defamation at the micro-level.
Defamation as a concept
The inherent dichotomy that lies between striking a balance between defamation and freedom of speech and expression is that these concepts lie at two extreme ends of the spectrum, and yet the dissect each other in terms of individual rights. Therefore, while every individual has the right to freedom of speech and expression, every individual also has the right to protect his or her reputation.
‘Defamation is the publication of a statement which reflects on a persons reputation and tends to lower him in the estimation of right-thinking members of society generally or tends to make them shun or avoid him.’ The earliest defamation case was tried in the year 1884 by the Madras High Court, wherein the court noted that ‘mere hasty expressions spoke in anger or vulgar abuse, to which no hearer would attribute any set purpose to injure character would not be actionable’. Therefore, the ultimate test for maintaining a suit of defamation stands to be whether or not one’s reputation has been injured. Defamation is recognized as both a crime and a tort and can thus, be prosecuted under Sections 499 and 500 of the Indian Penal Code, 1860.
Defamation vis-à-vis Free Speech and Expression
While defamation qualifies as a reasonable restriction to the exercise of one’s right to free speech and expression, it has often been contended that according to defamation the status of a crime runs against the spirit of Article 19(1)(a) as it does not seek to serve any public interest and yet forms an irreparable dent on one’s right to freely express his/her views. Questioning the present law of defamation, critics have also argued that injury to one’s reputation is at max the violation of one’s private interest and cannot be couched as having consequences of a public nature unless such words result in a breach of peace at a larger level. Further, since the Indian law does not provide the distinction between erroneous and malicious falsehood, punishment is not excluded even in cases of fair comment. The Hon’ble Supreme Court of India had an opportunity to adjudicate on the constitutionality of Section 499 and 500 of the Indian Penal Code in the landmark decision of Subramanian Swamy v. Union of India. Following the principle of harmonious construction, the apex court laid down that ‘right to reputation’ falls within the ambit of ‘right to life’ as envisaged under Article 21 of the Constitution and since, one fundamental right cannot be said to prevail over another, both must be balanced against each other. In order to establish the importance of ‘right to reputation’ as a fundamental right, the court placed reliance on Board of Trustees, Port of Bombay v. Dilip Kumar, wherein the Apex Court noted that right to life under Article 21 does not mean mere animal existence or continued drudgery throughout life. Rather, it means a life of dignity and brings within its meaning several rights including the right to reputation, as if this right is injured, some of the finer graces of human civilization which make life worth living would be jeopardized.
The same was further re-iterated in S. Nambi Narayanan v. Siby Matthews & Ors, where the court recognized that life commands self-respect and dignity in context of the humiliation and haranguing of an eminent ISRO scientist. Elaborating on ‘right to reputation’ as an in segregated facet of right to live with dignity, the court relied on a catena of judgments  to explain that reputation is the purest treasure and the most precious perfume of life which is a revenue generator for both present as well as posterity.
Thus, the Supreme Court of India has constantly strived to balance one fundamental right against the other to ensure that exercise of freedoms by one-person do not impinge on the freedoms of others in society. This approach is strikingly similar to J.S. Mill’s theory On Liberty which states that the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. In light of this, the right to freedom of speech and expression may be curtailed where one’s right to reputation is at stake.
‘In dealing with the complex strands in the web of freedoms which make up free speech, the operation and effects of the methods by which speech is sought to be restrained must be subjected to close analysis and critical judgement in light of the circumstances to which it is applied.’ Thus, provisions which seek to limit one’s right to free speech and expression must be imposed only after careful deliberation and it must further be ensured that the manner of imposition is fair and just. At the same time, it is also important to ensure that such restrictions should not be over the top and should be proportionate in nature. While the Supreme Court sought to strike a very clear balance between right to freedom of speech & expression and right to reputation in the case of Subramanian Swamy v. Union of India by pitting one fundamental right against the other, the judgement has still left several questions unanswered and hence, ambiguities persist in this regard. The most important issue which lurches even after this judgement is why defamation is considered to be a criminal wrong even though it only affects a private person. Criminal prosecution of a person for written or spoken word results in heavy costs and humiliation which becomes a blot on the person’s public profile-forever etched in state records thereby resulting in heavy prejudice and associated stigma throughout his/her lifetime. An analysis of this law on the threshold of the principle of proportionality indicates that the existing punishment is too harsh and is likely to be misused by eminent politicians and political parties to silence journalists or bloggers criticising them. While potential misuse of a provision cannot qualify as an ample ground for its striking off, the international trend which is arching towards decriminalization of defamation is considered to be a more pro-human rights approach. Nonetheless, even though ‘right to reputation’ qualifies as a fundamental right within the meaning of Article 21, there is a dire need to relook and develop evolved standards and tests as regards what constitutes defamation, particularly in light of R. Rajagopal v. State of Tamil Nadu which provides some slack for critical speech in cases of civil defamation.
‘Any attempt to proscribe speech, therefore, must be accompanied by procedural safeguards, upon which the validity of the restraint may turn’. 
 Maneka Gandhi v. Union of India, 1978 AIR 597.
 Article 19, The Camden Principles on Freedom of Expression and Equality (2009).
 Govindu, V., Contradictions in Freedom of Speech And Expression, 72 Ind. J. Pol. Sc. 641 (2011).
 MP Jain, Indian Constitutional Law, 7th Ed., Lexis Nexis (2016).
 Parvathi v. Mannar, (1884) ILR 8 Madras 175.
 Knox-Mawer, R., Defamation: Some Indian Precedents and the Common Law, 5 The Int’l and Comparative Law Quarterly 282 (1956).
Subramanian Swamy v. Union of India, (2016) 7 SCC 221.
 Board of Trustees, Port of Bombay v. Dilip Kumar, 1983 SCR (1) 828.
 S. Nambi Narayanan v. Siby Matthews & Ors (2018) 10 SCC 804.
 Vishwanath Agrawal v. Sarla Vishwanath Agrawal, (2012) 7 SCC 288; Kiran Bedi v. Committee of Inquiry and Another, (1989) 1 SCC 494.
 Speiser v. Randall, 357 U.S. 513 (1958).
 Supra Note, 7.
 R. Rajagopal v. State of Tamil Nadu, 1995 AIR 264.
 W.Wat Hopkins, Mr. Justice Brennan and Freedom of Expression, Greenwood Publishing Group (1991).