Freedom of Speech and Expression
Free Speech which is guaranteed by Article 19(1)(a) and made subject to certain limitations in Article 19(2) is essential to a democracy, for democracy is fundamentally based on free debate and open discussion, and a citizen has a right to exercise his right to free speech in a democracy by discerning the information and eventually making a choice and, if it is curtailed by taking recourse to colonial laws of defamation, the cherished value under the Constitution would be in peril and, therefore, the provisions pertaining to criminal action which create a dent in free speech are unconstitutional.
Free speech encapsulates the right to circulate one’s independent view and not to join in a chorus or sing the same song. It includes the right of propagation of ideas; and the freedom of speech and expression cannot brook restriction and definitely not criminal prosecution which is an anathema to free speech. Free speech has priority over other rights and whenever and wherever conflict emerges between the freedom of speech and other interest, the right to freedom of expression can neither be suppressed nor curtailed unless such freedom endangers community interest and that apart the said danger should have immediate and proximate nexus with expression.
Reasonable restriction is founded on the principle of reasonableness which is an essential facet of constitutional law. 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 of the Indian Penal Code is clearly demonstrative of infringement in excess and hence, the provisions cannot be granted the protection of Article 19(2) of the Constitution. Freedom of expression is quintessential to the sustenance of democracy which requires debate, Transparency, criticism and dissemination of information; and the prosecution in criminal law pertaining to defamation strikes at the very root of democracy, for it disallows the people to have their intelligent judgment. The intent of the criminal law relating to defamation cannot be the lone test to adjudge the constitutionality of the provisions and it is absolutely imperative to apply the “effect doctrine” for the purpose of understanding its impact on the right to freedom of speech and expression, and if it, in the ultimate eventuality, affects the sacrosanct right of freedom, it is ultra vires. The basic concept of “effect doctrine” would not come in the category of exercise of power, that is, use or abuse of power but in the compartment of direct effect and inevitable result of law that abridges the fundamental right.
Reputation is part of Article 21 of the Constitution
Freedom of thought and expression includes a dissent because disagreement or expression of a contrary opinion has significant constitutional value which is engrafted under Article 19(1)(a) and also is an acceptable pillar for a free and harmonious society.
Control of free speech by the majority is not an acceptable principle and, therefore, the provision pertaining to defamation is fundamentally a notion of the majority to arrest and cripple freedom of thought and expression which makes the provision unconstitutional. Criminal prosecution as envisaged under Section 499 of the Code of Criminal Procedure, cannot be based on the principle of the State to take appropriate steps when an offence of this nature is committed, for an offence of this nature is really not an offence against the State, because it does not encompass the ultimate facet of criminal prosecution which is meant for “protection of the society as a whole”.
Reputation at its best can be equated with an element of personal security or a significant part of one’s life and unification of virtues which makes the person proud to protect such private interest but that cannot be regarded as a justification to whittle down freedom of speech and expression which subserves the public interest. The language in which Section 499 of the Indian Penal Code is couched does not incorporate the seriousness test which has the potentiality of provoking breach of peace by instigating people, as a consequence of which the public interest is endangered but, on the contrary, it subserves only the private interest and caters to individual revenge or acrimony which in the ultimate eventuate, makes imposed silence to rule over eloquent free speech.
Though reputation has been treated to be a facet of Article 21 of the Constitution, yet the scheme of the said Article is quite different and a distinction is required to be drawn for protection of reputation under article 21 and enabling the private complainant to move the criminal court for his sense of self-worth. The individual reputation can very well be agitated in a civil court. But fear of a complainant who on the slightest pretext, can file criminal prosecution, that too, on the basis of subjective notion, the fundamental value of freedom of speech and expression gets paralysed and the resultant effect is that Sections 499 and 500 of the Indian Penal Code cause unnecessary discomfort to Article 19(1)(a) and also to Article 14 of the Constitution.
Right to freedom of speech and expression is a highly valued and cherished right but the Constitution conceives of reasonable restriction. In that context criminal defamation which is in existence in the form of Sections 499 and 500 of the Indian Penal Code is not a restriction on free speech that can be characterized as disproportionate. Right to free speech cannot mean that a citizen can defame the other. Protection of reputation is a fundamental right. It is also a human right. Cumulatively it serves the social interest.