TEAM CCODE:

TEAM ODE: TC-10_R

TC-10_R

MEMORIAL ON B EHALF OF RESPONDENTS

6TH RGNUL NATIONAL MOOT COURT COMPETITION-2017

IN THE HON'BLE SUPREME COURT OF GANRAJYA

AT GANRAJYA

WRIT PETITION NO. ****/2016

CASE CONCERNING CONSTITUTIONAL VALIDITY OF SECTION 499 & 500 OF GANRAJYA PENAL
CODE

IN THE MATTERS OF

ARJUN PANDIT AND OTHERS ..PETITIONERS

V.

UNION OF GANRAJYA & OTHERS.....RESPONDENTSS

MEMORIAL ON BEHALF OF RESPONDENTS

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TABLE OF CONTENTS

TABLE OF CONTENTS .......................................................................................................... II

THE LIST OF ABBREVIATIONS ..........................................................................................V

LIST OF AUTHORITIES ....................................................................................................... VI

STATEMENT OF JURISDICTION .........................................................................................X

STATEMENT OF FACTS...................................................................................................... XI

QUESTIONS PRESENTED .................................................................................................XIII

SUMMARY OF ARGUMENTS ......................................................................................... XIV

ARGUMENTS ADVANCED................................................................................................... 1

1. WHETHER THE LAW ON DEFAMATION SERVES THE LARGER INTEREST

OF PUBLIC. .......................................................................................................................... 1

[1.1] CRIMINAL DEFAMATION LINKS INDIVIDUAL RIGHTS AND SOCIETAL

HARMONY ....................................................................................................................... 1

[1.2] LIMITATIONS SAVE SOCIAL INTERESTS. ...................................................... 2

[1.3] BALANCING OF THE INTERESTS: ..................................................................... 2

2. INGREDIENTS OF THE OFFENCE OF DEFAMATION ARE WELL DEFINED IN

THE PENAL CODE AND ARE CONSTITUTIONALLY VALID. .................................... 3

[2.1] REASONABLE RESTRICTION UNDER ARTICLE 19 (2). ................................. 3

(2.1.1) TEST OF REASONABILITY............................................................................ 4

(2.1.1.1) THE NATURE OF THE RIGHT ALLEGED TO HAVE BEEN

INFRINGED. .............................................................................................................. 4

(2.1.1.2) PURPOSE OF THE RESTRICTIONS IMPOSED: .................................... 4

(2.1.1.3) THE EXTENT AND URGENCY OF THE EVIL SOUGHT TO BE

REMEDIED THEREBY, THE DISPROPORTION OF THE IMPOSITION. .......... 5

(2.1.1.4) THE PREVAILING CONDITIONS AT THE TIME. ................................ 5

[2.2] SECTION 499 AND 500 HAVE A DIRECT AND PROXIMATE NEXUS TO
ITS OBJECT ...................................................................................................................... 5

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[2.3] DOCTRINE OF PROPORTIONALITY: ................................................................. 6

[2.4] FUNDAMENTAL DUTIES AND DIRECTIVE PRINCIPLES OF STATE

POLICY: ............................................................................................................................ 6

3. WEITHER THE PROCEDURE TO DEAL WITH COMPLAINT OF

DEFAMATION MEETS THE REQUIREMENT OF ART.21 OF THE CONSTITUTION.
7

[3.1] THE INGREDIENTS OF SECTION 499 AND 500 GPC AND THE
PROCEDURE UNDER SECTION 199 OF CRPC ARE CONSTITUTIONALLY
VALID. .............................................................................................................................. 7

(3.1.1) THE INGREDIENTS ARE NOT VAGUE IN NATURE ................................. 7

(3.1.2) THE PROVISIONS AS PROVIDED UNDER CRPC ARE NEITHER

ARBITRARY NOR UNREASONABLE. ..................................................................... 8

(3.1.3)GOLDEN TRIANGLE: ....................................................................................... 8

(3.1.3.1) CRIMINAL DEFAMATION LACKS ARBITRARY ELEMENT. ........... 9

(3.1.3.2) CRIMINAL DEFAMATION PROVIDES A REASONABLE

RESTRICTION. ......................................................................................................... 9

(3.1.3.3) DEFAMATION DOES NOT VIOLATE RIGHT TO LIFE ..................... 10

[3.2] FOLLOWS THE PRINCIPLE OF DUE PROCEDURE ESTABLISHED BY

LAW ................................................................................................................................ 10

(3.2.1) ANY PROCEDURE AUTHORISED BY ENACTED LAW WOULD BE A

PROCEDURE ESTABLISHED BY LAW. ................................................................. 11

(3.2.2) THE PROCEDURE OF COMPLAINT STANDS THE TEST OF ART 21. .. 11

[3.3] POSSIBILITY OF ABUSE DOES NOT RENDER IT UNCONSTITUTIONAL . 12

4. WHETHER SECTION 499 AND 500 OF GPC SAFEGUARDS THE

FUNDAMENTAL RIGHT OF REPUTATION. ................................................................ 12

[4.1] RIGHT TO REPUTATION IS AN INSEGREGABLE PART OF ARTICLE 21 OF

THE CONSTITUTION ................................................................................................... 13

[4.2]THE RIGHT ENSHRINED UNDER ARTICLE 19(1)(a) SHOULD BE

BALANCED WITH ARTICLE 21. ................................................................................ 14

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[4.3]EXCEPTION NO. 1 OF SEC 499 AND 500 SAFEGUARDS THE RIGHT TO

PRIVACY OF AN INDIVIDUAL. ................................................................................. 14

PRAYER ................................................................................................................................... 1

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THE LIST OF ABBREVIATIONS

ABBREVIATION ACTUAL TERM

AC Appeal Cases

AIR All India Reporter

All. Allahabad

Art. Article

All ER All England Law Reports (United Kingdom)

Cr.L.J Criminal Law Journal

Cr.P.C Criminal Procedure Code

Ker. Kerala

Para. Paragraph

SCALE Supreme Court Almanac

SC Supreme Court

SCC Supreme Court Cases

SCJ Supreme Court Journal

SCR Supreme Court Reporter

SCW Supreme Court Weekly

Sec. Section

Supdt. Superintendent

GPC Ganrajya Penal Code

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LIST OF AUTHORITIES

THE CONSTITUTION

The Constitution of India, 1950.

STATUTES AND CONVENTIONS

Indian Penal Code, 1860.

The Code of Criminal Procedure, 1973.

Universal Declaration on Human Rights, 1948.

The International Covenant on Civil and Political Rights.

European Convention for the Protection of Human Rights and Fundamental Freedoms

BOOKS REFERRED

Shyam Divan, Armin Rosencranz, Environmental Law and Policy in India, Second
Edition 2004, Oxford.

D.D. Basu, Case Book on Indian Constitutional Law, Second Edition 2007, Kamal Law
House, Kolkata.

M. P Jain, Indian Constitutional Law, Fifth Edition 2008, Wadhwa and Co., Nagpur.

H.M. Seervai, Constitutional Law of India Volume 1,2,3, Fourth Edition 2002,
Universal, New Delhi.

Salmond & Heuston on the Law of Torts, 20th Edn.7.

Halsburys Laws of England, Fourth Edition, Vol. 28.

The Law of Defamation Richard O Sullivan, QC and Roland Brown

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Cases

A.K. Gopalan v. The State of Madras A.I.R. 1950 S.C. 27. .................................................... 10
Acharya Maharajshri Narendra Prasadji Anandprasadji Maharaj and Ors. v. The State of
Gujarat and Ors (1975) 1 S.C.C. 11. .................................................................................... 14
Amar Chandra Chakraborty v. Collector Of Excise, Govt. Of Tripura, 1973 1 S.C.R. 533 ..... 3
Arunachala Nadar, M.C.V.S. v. State of Madras, A.I.R. 1950 S.C. 300 1952. ......................... 5
Axel Springer AG v. Germany (2011) 52 E.H.R.R. 36. .......................................................... 10
B.R. Enterprises v State of Uttar Pradesh, A.I.R. 1999 S.C. 1867........................................... 12
B.S. Yeddyurappa v. The Lokayukta of Karnataka Writ Petition No. 44071/2011. ................ 12
Babu Singh and Ors. v. State of U.P., (1978) 1 S.C.C. 579 .................................................. 4,10
Bansal Alloys And Metals Pvt. Ltd. V. Union Of India (UOI), (2011)ILR 1Punjab And
Haryana913 ............................................................................................................................. 6
Board of Trustees, port of Bombay v. Dilip Kumar, A.I.R. 1983 S.C. 109 .......................... 1,10
Chaman Lal v. State of Punjab, AIR 1970 SC 1372 .................................................................. 8
Charu Khurana and Ors. v. Union of India and Ors., (2015) 1 S.C.C. 192 ............................... 4
Chauvy v. France, (2005) 41 EHRR 29 ..................................................................................... 2
Chintaman Rao v. State of M.P, A.I.R. 1951 S.C. 118 ........................................................... 3,3
Confederation of Ex-serviceman Association v. Union of India, (2006) 8 S.C.C. 399. ............ 9
Delhi Transport Corporation v. D.T.C. Mazdoor Congress and Ors., A.I.R. 1991 S.C. 101.
........................................................................................................................................... 2,14
Divine Retreat Centre v. State of Kerala and Others, (2008) 3 S.C.C. 542. ............................ 12
Garrison v Louisiana, 379 U.S. 64, 69 (1964). .......................................................................... 2
Gopal Nath V. State of Punjab. A.I.R. 1967 S.C. 1643. ............................................................ 5
Harakchand Ratanchand Banthia and Ors. v. Union of India and Ors., AIR 1970 SC 1453. .... 8
Haridas Das v. Usha Rani Banik and Ors., (2007) 14 S.C.C. 1. ................................................ 4
Hill v. Church of Scientology of Toronto (1995) 2 S.C.R. 1130. ............................................ 13
I. C. Golaknath & Ors v. State Of Punjab & Anrs., A.I.R. 1967 S.C. 1643. .......................... 12
I.R. Coelho v. State of Tamil Nadu and Ors., A.I.R. 2007 S.C. 861. ................................... 9,12
Indian Express Newspapers Bombay (P) Ltd. v. Union of India, (1985) 1 S.C.C. 641 ............. 3
Indian Handicrafts Emporium and Ors. v. Union of India and Ors, A.I.R. 2003 S.C. 3240 ..... 1
Kavalappara Kottarathil Kochuni And Ors. v. The State of Madras And Ors, A.I.R. 1960 S.C.
1080 ........................................................................................................................................ 5
Kedar Nath Singh v. State of Bihar, A.I.R. 1962 S.C. 955. ....................................................... 2

MEMORIAL ON BEHALF OF RESPONDENTS

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Keshavananda Bharti v. State of Kerala, A.I.R. 1973 S.C. 1461 ............................................... 9

Khumalo v. Holomisa [2002] ZACC 12 : 2002 (5) SA 401 ...................................................... 1
Krishna Kakkanth v. Govt. of Kerala, A.I.R. 1997 S.C. 128.; ................................................. 10
M.J. Sivani v. State of Karnataka, A.I.R. 1995 S.C. 1770. ...................................................... 10
M.R.F. Ltd. v. Inspector Kerala Govt. and Ors, A.I.R. 1999 S.C. 188 ...................................... 3
Mehmood Nayyar Azam v. State of Chhatisgarh, (2012) 8 S.C.C. 1; ....................................... 1
Modern Dental College and Research Centre And Ors. v. State of Madhya Pradesh and Ors,,
(2009) 7 S.C.C. 751 ................................................................................................................ 6
Mohd. Hanif Qureshi v. State of Bihar, 1959 1 S.C.R. 629 ....................................................... 6
Mr X v. Hospital Z (1998) 8 S.C.C. 296............................................................................. 14
Mrs. Maneka Gandhi vs. Union of India (UOI) and Anr., A.I.R. 1978 S.C. 597. ................... 11
Municipal Corporation, City of Ahmedabad v. Jan Mohd. Usmanbhai, A.I.R. 1986 S.C. 1205
.............................................................................................................................................. 10
Narendra Kumar v. Union of India, A.I.R. 1960 S.C. 430....................................................... 10
Naz Foundation Case v. Government of NCT and Ors. A.I.R. 2014 S.C. 563. ....................... 15
Noise Pollution (V), In re (2005) 5 S.C.C. 733 ........................................................................ 14
O.K. Ghosh v. E.X. Joseph, A.I.R. 1963 S.C. 812. .................................................................... 5
Olga Tellis v. Bombay Municipal Corporation, A.I.R. 1986 S.C. 180. ................................... 12
Om Kumar v. Union of India, (2001) 2 S.C.C. 386. ............................................................... 1,6
Post Graduate Institute of Medical Education & Research, Chandigarh v. Faculty Association
and others (1998) 4 S.C.C. 1. ............................................................................................... 14
Prem Chand Garg v. Excise Commissioner, U.P., Allahabad A.I.R. 1963 S.C. 996 ................. 3
PUCL v. U.O.I, A.I.R. 1991 S.C. 207. ..................................................................................... 15
R.K. Garg v Union of India ,(1985) 1 S.C.C. 641...................................................................... 3
Radha Mohan Lal v. Rajasthan High Court, (2003) 3 S.C.C. 427 ............................................. 5
Rajgopal v. State of Tamil Nadu, 1994 6 S.C.C. 632. ....................................................... 14, 15
Ram Jethmalani and Ors. v. Union of India and Ors., ( 2011 ) 8 S.C.C. 1 ........................... 2,14
Ram Jethmalani v. Subramaniam Swami, A.I.R. 2006 Delhi 300. ............................................ 7
Ramlila Maidan Incident vs. Home Secretary, Union of India (UOI) and Ors., (2012) 5 S.C.C.
1 .............................................................................................................................................. 9
Ramlila Maidan Incident, (2012) 5 S.C.C. 1. ............................................................................. 6
Reynolds v. Times Newspapers Ltd [2001] 2 AC 127 ...................................................... 1,5,13
Rosenblatt v. Baer 383 U.S. 75 (1966). ................................................................................... 10
Saghir Ahmad v. State Of U.P, 1955 1 S.C.R. 707. ................................................................... 6

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Sakal Papers (P) Ltd. v. Union of India, A.I.R. 1962 S.C. 305.................................................. 2
Shah Rukh Khan V State Of Rajasthan And Ors, R.L.W. 2008(1)Raj809 ................................ 4
Shreya Singhal v. Union Of India, A.I.R. 2015 S.C. 1523. .................................................... 6,7
Sivarajan v. Union of India, A.I.R. 1959 S.C. 556. ................................................................. 10
Smt. Indira Nehru Gandhi vs. Shri Raj Narain and Anr., A.I.R. 1975 S.C. 1590 ...................... 9
Smt. Kiran Bedi v. Committee of Inquiry, A.I.R. 1989 S.C. 714. ............................................. 2
State Of A.P. v. Mcdowell And Co., (1996) 3 S.C.C. 709......................................................... 6
State of Bihar v. Lal Krishna Advani and Others, (2003) 8 S.C.C. 361 .................................. 12
State of Gujarat and Anr. v. Hon'ble High Court of Gujarat, (1998) 7 S.C.C. 392. ................ 13
State of Madras v. V.G. Row, A.I.R. 1952 S.C. 196 ................................................................. 4
State of Maharashtra v. Rao Himmatbhai Narbheram, A.I.R. 1971 S.C. 1157 ......................... 9
State of Uttar Pradesh v. Kaushailiya and Ors., A.I.R. 1964 S.C. 416. ..................................... 9
Subramaniam Swamy V.Union Of India (UOI), Ministry Of Law, W.P (Crl) 184 of 2014
........................................................................................................................... 1,3,5,12,13,14
U.P.V. Jaikaran Singh, (2003) 9 S.C.C. 228. ............................................................................. 6
Umesh Kumar v. State of Andhra Pradesh, (2013) 10 S.C.C. 591. ........................................... 1
Union of India v Elphinstone Spinning and Weaving Co. Ltd, A.I.R. 2001 S.C. 724............... 3
Union Of India v. G. Ganayutham, A.I.R. 1997 S.C. 3387.; ..................................................... 6
Vishwanath Agrawal v. Saral Vishwanath Agrawal, (2012) 7 S.C.C. 288. ............................. 13
Wood v Cox, (1888) 4 T.L.R. 652, 654 ..................................................................................... 1

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STATEMENT OF JURISDICTION

It is humbly submitted that the respondents has appeared before the Honble Supreme court
of Ganrajya in response to the petition filed by the petitioner under Art. 32 of the
Constitution of Ganrajya.

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STATEMENT OF FACTS

1. The Accused:

Arjun Pandit and Manohar Lal Kashyap are two prominent leaders of the 'Jan Sevak' party.
Mr. Pandit is a young aspiring politician whereas Mr. Kashyap is a veteran leader who is
an MP from the State of Telhi.

2. The Debate:

The PM and Mr. Pandit were both invited by 'Special Rajya Forum' for an open discussion
on 'Corruption' in Public Life. Mr. Pandit instead of putting forward his claims, started
lashing out at BVP and its leaders. He criticized the PM on the basis of unproven
allegations of aiding rich businessmen in getting favourable deals and how he exploited his
office to garner unaccountable offers and money. The debate got intense and the party
workers of both the parties started hitting each other which forced. Such became the
situation that the PM had to leave the venue. A lot of damage was caused to the venue and
many party members were injured.

3. Retaliation against the Veteran Leader:

'The 'New Morning' interviewed Mr. Kashyap about the incident. He took a strong stand in
favour of Mr. Pandit and the allegations against the PM. It further angered the members of
BVP and retaliated by assembling outside his residence. Police had to intervene and stop
them from causing any trouble

4. The Ignition point:

2 weeks later, 'New Morning' organized a debate where the leaders of both parties were
invited. The atmosphere was heated again when Mr. Pandit started criticizing the PM on
the same alleged charges of corruption, misadministration and inefficiency. Elsewhere Mr.
Kashyap kept asking the reporter to stop the recording. This, however, wasnt aired on TV.
But on 24th Jan this feed was leaked to a newspaper, which published every single dialogue
of the debate.

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5. The Filing of the Charges:

A criminal complaint was filed by the Public Prosecutor after the sanction granted by
Govt. before the Session Court under s. 499, 500 GPC against Mr Pandit and Mr
Kashyap. After a preliminary inquiry the process was issued to call the accused before the
Court. Thereafter, the accused filed a Civil Writ under Art 32 of the Constitution before
the SC challenging the constitutional validity of s. 499 & 500 of GPC.

6. The contentions of the Petitioner are:

That s.499 & 500 of the GPC are violating Art.19 & 21 of the Constitution. These
provisions infringe the fundamental right to free speech conferred by Art.19 (1) (a) and it
cannot be said to be a reasonable restriction in a democratic setup as provided under Art.19
(2). Even speaking the truth is an offence under these penal provisions and the objective of
Art.51-A (b) stands defeated. Defamation is a civil wrong against an individual for there is
no remedy under the criminal law. Further defamation as a crime cant be included in the
word 'defamation' used in Art.19 (2) of the Constitution.

7. The contentions of the Defendant are:

The Respondents contended that the law on defamation serves the larger interest of the
public. The individual rights and societal harmony are linked. The law on defamation
under s.499 & 500 of GPC, do not affect Art.19 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 a complaint of defamation meets
the requirement of Art.21 of the Constitution.

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QUESTIONS PRESENTED

-I-

WHETHER THE LAW ON DEFAMATION SERVES THE LARGER INTEREST OF

PUBLIC

-II-

WHETHER INGREDIENTS OF THE OFFENCE OF DEFAMATION ARE WELL

DEFINED IN THE PENAL CODE AND ARE CONSTITUTIONALLY VALID

-III-

WEITHER THE PROCEDURE TO DEAL WITH COMPLAINT OF DEFAMATION

MEETS THE REQUIREMENT OF ART.21 OF THE CONSTITUTION

-IV-

WHETHER SECTION 499 AND 500 OF GPC SAFEGUARDS THE FUNDAMENTAL

RIGHT OF REPUTATION

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SUMMARY OF ARGUMENTS

I. WHETHER THE LAW ON DEFAMATION SERVES THE LARGER INTEREST

OF PUBLIC.

It is humbly submitted before this Honble Court that, Defamation is a publication to a

third party, without justification or lawful excuse, which is calculated to injure the
reputation of another, by exposing him to hatred, contempt or ridicule. "Reputation" of one
cannot be allowed to be crucified at the altar of the other's right of free speech. Such
sections impose social restraint on the liberty of an individual since an individuals liberty
is subordinated to the Liberty of the society. It will ensure for the liberty of the greater
number of the members of the society at the cost of one or a few. Democracy is based on a
balance between the constitutional rights and the public interests, with the end being the
continuation of peaceful public life cannot be said to be violative of Article 21.

II. THE LAW ON DEFAMATION UNDER SECTIONS 499 AND 500 OF GANRAJYA
PENAL CODE, DO NOT AFFECT RIGHT TO FREE SPEECH AND EXPRESSION
AND RESTRICTIONS ARE WITHIN CONSTITUTIONAL PARAMETERS.

Fundamental rights are not absolute, article 19 (2) guarantees for certain restrictions on
these rights. Liberty has to be limited in order to be effectively possessed. These
restrictions are meant to prevent the expression of a thought which is intrinsically
dangerous to public interest and would not include anything else. They need to be tested
against the scale of reasonableness. The phrase "reasonable restriction" connotes that the
limitation imposed on a person in the enjoyment of the right should not be arbitrary or of
an excessive nature, beyond what is required in the interests of the public which stands
true in the case of Defamation. Since Defamation limits the expression of thought that can
be intrinsically dangerous to the public interest it can be said that it also stands good
against the test of proportionality and has a direct and proximate nexus with the object it
was brought for. Hence a strong presumption in favour of the constitutionality of this
provision naturally arises.

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III. WHETHER THE PROCEDURE TO DEAL WITH COMPLAINT OF

DEFAMATION MEETS THE REQUIREMENT OF ART.21 OF THE
CONSTITUTION.

It is humbly submitted that Individual rights cannot be absolute in a welfare state .

Liberty is itself the gift of law and may bye-law be forfeited or abridged. Therefore sec
499 and 500 does not infringe but safeguard the right of freedom or liberty. The offence
of defamation stands the Goldern triangular rule of Art. 14, 19 and 21. As a public
wrong, it protects the larger interests of the society by providing reasonable restrictions
.Section 199 safeguards the interest of the aggrieved person and its kin. It safeguards the
freedom of speech by placing the burden on the complainant to pursue the criminal
complaint without involving the State prosecution machinery. The procedure to deal with
a complaint of defamation meets the requirement of Art.21 of the Constitution Moreover
criminal defamation cannot be said to be arbitrary or excessive. No restriction can be said
to be unreasonable merely because in a given case it operates harshly .Section 499 and
500 of GPC is a reasonable restriction under Article 19(2) and thereby Constitutional.

IV. WHETHER SECTION 499 AND 500 OF GPC SAFEGUARD THE RIGHT TO
REPUTATION.

It is humbly submitted that section 499 and 500 of GPC safeguard the fundamental right
to reputation. The right to reputation is an insegregable part of Article 21 of the
Constitution. The right to reputation is a natural right. To defame someone is to cause
prejudice to personal enjoyment of the right to respect for private life. Various
international conventions have acknowledged the importance of the right to reputation
and the need to protect it. art 19(1)(a) and art 21 are important rights and in light of
decriminalizing sec 499 and 500 of GPC, art 21 cannot be neglected, Reputation being an
inherent component of Article 21, should not be allowed to be sullied solely because
another individual can have its freedom. The right to privacy is considered as an integral
part of the right to reputation under Art. 21. The right to privacy includes an individual's
right to control the dissemination of information about him, it is his own personal
possession. Defamation being a restriction on freedom of speech and expression is,
therefore, a safeguard to the right to privacy rather than being a procedure for curtailing
the same. It also acts as a balance between fundamental rights under article 19(1)(a) and
article 21,hence constitutionally valid.

MEMORIAL ON BEHALF OF RESPONDENTS

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ARGUMENTS ADVANCED

1. WHETHER THE LAW ON DEFAMATION SERVES THE LARGER INTEREST

OF PUBLIC.

It is humbly submitted that the law on defamation serves the larger interest of the public
and hence the individual rights and societal harmony are linked since [1.1] The
fundamental purpose of criminal defamation is to punish the defamer and to protect the
community1; and; [1.2] Limitations, such as these2, save social interests that take in its
sweep to confer protection to rights of the others to have social harmony founded on social
values.3[1.3] At times of conflict, the Court has to balance the direct impact on the
fundamental right of the citizens as against the greater public or social interest sought to be
ensured.4

[1.1] CRIMINAL DEFAMATION LINKS INDIVIDUAL RIGHTS AND SOCIETAL HARMONY

It is submitted herein that reputation is an integral and important part of the dignity of the
individual5 and forms the basis of many decisions in a democratic society which are
fundamental to its well-being.6 Thus, judicial precedents observe that reputation has been
a facet of article 21 since its inception7 so the protection of reputation is conducive to the
public good.8 Defamation does not partake only of individual interest. It protects the
reputation which is the persons estimation in the eyes of the general public.9 It is
necessary for social stability. It is what one lives for, swears by, works his skin off for,
fights for and dies for. Even the ICCPR mandates certain restrictions against the right to
speech and expression for the protection of public order.10

1
Wood v Cox, (1888) 4 T.L.R. 652, 654.
2
Subramaniam Swamy v.Union Of India (UOI), Ministry Of Law, W.P (Crl) 184 of 2014 (India).
3
Om Kumar v. Union of India, (2001) 2 S.C.C. 386.
4
Indian Handicrafts Emporium and Ors. v. Union of India and Ors, A.I.R. 2003 S.C. 3240.
5
Board of Trustees, supra note 5.
6
Reynolds v. Times Newspapers Ltd., (2001) 2 AC 127.
7
Mehmood Nayyar Azam v. State of Chhatisgarh, (2012) 8 S.C.C. 1; Umesh Kumar v. State of Andhra Pradesh,
(2013) 10 S.C.C. 591.
8
Reynolds, supra note 6.
9
Khumalo v. Holomisa [2002] ZACC 12 : 2002 (5) SA 401
10
The International Covenant on Civil and Political Rights, Article 19.

MEMORIAL ON BEHALF OF RESPONDENTS

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[1.2] LIMITATIONS SAVE SOCIAL INTERESTS.

Criminal Defamation is a reasonable restriction on freedom of speech and expression. This

jurisprudential evolution culminated with Chauvy v. France, where the Court favoured
criminal defamation; it balanced the publics interest in being informed and the need to
protect the reputation of the victims.11 Freedom of speech can be restricted only in the
interests of the security of the State, friendly relations with foreign State, public order,
decency or morality or in relation to contempt of court, defamation or incitement to an
offence.12

Criminal Defamation may punish libellous statements on matters of public concern, only
when those statements are made with knowledge of falsity or reckless disregard of the
truth.13 Criminal defamation promotes for more responsible exercise of freedom of speech
and expression by checking its abuse via exceptions provided in the statute.14

[1.3] BALANCING OF THE INTERESTS:

The rights of citizens, to effectively seek the protection of fundamental rights have to be
balanced against the rights of citizens and persons Under Article 21. The latter cannot be
sacrificed on the anvil of fervid desire to find instantaneous solutions to systemic problems
through defamation speech, for it would lead to dangerous circumstances and anarchy may
become the order of the day.15 Fundamental rights are all parts of an integrated scheme in
the Constitution and their waters must mix to constitute that grand flow of unimpeded and
impartial justice.16

Reputation being an inherent component of Article 21,17 it should not be allowed to be

sullied solely because another individual can have its freedom. The offence would only be
complete if the words complained of have a tendency of creating public disorder by
violence.18 Considering public interest is the object of the reasonable restrictions, in the
ultimate conclusion, one may come to hold that applying the doctrine of balancing of

11
Chauvy v. France, (2005) 41 EHRR 29.
12
Sakal Papers (P) Ltd. v. Union of India, A.I.R. 1962 S.C. 305.
13
Garrison v Louisiana, 379 U.S. 64, 69 (1964).
14
The Indian Penal Code, 1860, Section 499.
15
Ram Jethmalani and Ors. v. Union of India and Ors., ( 2011 ) 8 S.C.C. 1.
16
Delhi Transport Corporation v. D.T.C. Mazdoor Congress and Ors., A.I.R. 1991 S.C. 101.
17
Smt. Kiran Bedi v. Committee of Inquiry, A.I.R. 1989 S.C. 714.
18
Kedar Nath Singh v. State of Bihar, A.I.R. 1962 S.C. 955.

MEMORIAL ON BEHALF OF RESPONDENTS

 3

fundamental rights, existence of defamation as a criminal offence is not beyond the

boundary of Article 19(2) of the Constitution, especially when the word "defamation" has
been used in the Constitution.

2. INGREDIENTS OF THE OFFENCE OF DEFAMATION ARE WELL DEFINED IN

THE PENAL CODE AND ARE CONSTITUTIONALLY VALID.

The Honble Court may strike down any provision provided.19 [2.1] these provisions are
either unreasonable or they fall outside the scope of the reasonable restrictions as provided
in Article 19 (2) of the Constitution, or [2.2] does not enjoy any direct or reasonable nexus
to the object of the provision or [2.3] the said provisions defeat the object of doctrine of
proportionality20 or [2.4] it hampers the fundamental duties as provided under part IV of
the constitution. The provisions of Defamation do not amount to excessive restrictions and
since it stands good against the above tests, hence it does not serve the ground for
withholding the constitutionality of these sections. The offence of Defamation is
constitutionally valid as it does not transgress any constitutional provision let alone article
19(1).21

[2.1] REASONABLE RESTRICTION UNDER ARTICLE 19 (2).

Fundamental rights are not absolute.22 Liberty has to be limited in order to be effectively
possessed.23 Article 19 (1) guarantees certain fundamental rights to the citizens however
the subsequent sub-clause provides for certain restrictions. These restrictions are meant to
prevent the expression of a thought which is intrinsically dangerous to public interest24 and
would not include anything else.25 Hence (2.1.1), they are tested against the scale of
reasonableness. The phrase "reasonable restriction" connotes that the limitation imposed
on a person in the enjoyment of the right should not be arbitrary or of an excessive nature,
beyond what is required in the interests of the public.26 Hence the fundamental rights are

19
R.K. Garg v Union of India ,(1985) 1 S.C.C. 641; Union of India v Elphinstone Spinning and Weaving Co.
Ltd, A.I.R. 2001 S.C. 724 .
20
Chintaman Rao v. State of M.P, A.I.R. 1951 S.C. 118; Indian Express Newspapers Bombay (P) Ltd. v. Union
of India, (1985) 1 S.C.C. 641.
21
Subramanian supra note 2.
22
Prem Chand Garg v. Excise Commissioner, U.P., Allahabad A.I.R. 1963 S.C. 996.
23
M.R.F. Ltd. v. Inspector Kerala Govt. and Ors, A.I.R. 1999 S.C. 188.
24
Amar Chandra Chakraborty v. Collector Of Excise, Govt. Of Tripura, 1973 1 S.C.R. 533.
25
Subramanian, supra note 2.
26
Chintaman, supra note 20.

MEMORIAL ON BEHALF OF RESPONDENTS

 4

subject to the power of the state to impose reasonable restrictions.27 Defamation is one
such ground which circumscribes the Fundamental Rights under Article 19 (1) of the
Constitution.28

(2.1.1) TEST OF REASONABILITY

The test of reasonableness should be applied to each individual statute impugned and no
general pattern of reasonableness can be laid down as applicable to all cases. (2.1.1.1) The
nature of the right alleged to have been infringed, (2.1.1.2) the underlying purpose of the
restrictions imposed, (2.1.1.3) the extent and urgency of the evil sought to be remedied
thereby, the disproportion of the imposition, (2.1.1.4) the prevailing conditions at the time,
should all enter the consideration when deciding validity.29

(2.1.1.1) The nature of the right alleged to have been infringed.

The Right to reputation is an inalienable part of Article 21 of the Constitution.30 Even the
courts have stated that good name is better than good riches. 31 Dignity is the quintessential
quality of a personality, for it is a highly cherished value. Thus perceived, right to honour,
dignity and reputation are the basic constituents of right under Article 21. There is no
denial that individual rights form the fundamental fulcrum of collective harmony and
interest of a society.32

(2.1.1.2) The Purpose of the restrictions imposed:

Under Article 19(2), a restriction can be imposed in the interests of public order, etc. The
expression in the interests of gives a greater leeway to the legislature to curtail freedom
of speech and expression, for a law penalising activities having a tendency to cause, and
not actually causing public disorder, may be valid as being in the interests of public
order. However, the restrictions imposed must have a reasonable and rational relation to
the public order, security of the state, etc.

27
BASU D.D., COMMENTARY ON CONSTITUTION OF INDIA, Page 2101(Butterworths Wadhwa Lexis
Nexis) 8th Edition, Vol 2.
28
Shah Rukh Khan v. State Of Rajasthan And Ors, R.L.W. 2008(1)Raj809.
29
State of Madras v. V.G. Row, A.I.R. 1952 S.C. 196.
30
Babu Singh and Ors. v. State of U.P., (1978) 1 S.C.C. 579.
31
Haridas Das v. Usha Rani Banik and Ors., (2007) 14 S.C.C. 1.
32
Charu Khurana and Ors. v. Union of India and Ors., (2015) 1 S.C.C. 192.

MEMORIAL ON BEHALF OF RESPONDENTS

 5

(2.1.1.3) The extent and urgency of the evil sought to be remedied thereby, the
disproportion of the imposition.

Free expression cannot be equated or confused with a license to make unfounded and
irresponsible allegations against the judiciary.33 Under the veil of free speech and
expression, Reputation of one cannot be allowed to be crucified at the altar of the other's
right of free speech.34 Defamation of an individual doesnt just affect him but also affects
the society, i.e. both the society as well as the individual is the loser.35 Hence these
provisions restrict the abuse of a right which is capable of dismantling the public order and
may risk the security of the state.

(2.1.1.4) The prevailing conditions at the time.

The prevailing conditions of the time and the principles of proportionality of restraint are
to be kept in mind by the court before judging the constitutional validity of a provision.
The standard is an elastic one, can vary with time, space and conditions and from case to
case.36 In a decade where people transgress the thin line of the right and abuse, where
sedition and malicious defamation has become the order of the day, the need for restricting
such an important right is still persistent.

[2.2] SECTION 499 AND 500 HAVE A DIRECT AND PROXIMATE NEXUS TO ITS OBJECT

The limitation imposed in the public interests, to be a reasonable restriction, should be one
which has a proximate connection or approximate and reasonable connection37 or nexus
with the object it was brought for. If there is a direct nexus between the restrictions and the
object of the Act,38 then a strong presumption in favour of the constitutionality of the
provision will naturally arise.39 Defamation limits the expression of thought that can be
intrinsically dangerous to the public interest and hence has a direct or proximate nexus to
its object.

33
Radha Mohan Lal v. Rajasthan High Court, (2003) 3 S.C.C. 427.
34
Subramanian, supra note 2.
35
Reynolds, supra note 6.
36
Gopal Nath v. State of Punjab. A.I.R. 1967 S.C. 1643.
37
Arunachala Nadar, M.C.V.S. v. State of Madras, A.I.R. 1950 S.C. 300 1952.
38
Kavalappara Kottarathil Kochuni And Ors. v. The State of Madras And Ors, A.I.R. 1960 S.C. 1080.
39
O.K. Ghosh v. E.X. Joseph, A.I.R. 1963 S.C. 812.

MEMORIAL ON BEHALF OF RESPONDENTS

 6

[2.3] DOCTRINE OF PROPORTIONALITY:

In Om Kumar v. Union of India,40 the Court held that while regulating the exercise of
fundamental rights it is to be seen whether the legislature while exercising its choice has
infringed the right unreasonably or disproportionately41 or excessively42. The doctrine
emphasizes that there must be a balance of fundamental rights on the one hand and the
restrictions imposed on the other is considered43. Emphasis is on recognition of affirmative
constitutional rights44 along with its limitations.45

[2.4] FUNDAMENTAL DUTIES AND DIRECTIVE PRINCIPLES OF STATE POLICY:

While testing the reasonableness of a statutory provision46, it is observed whether there is

a violation of Fundamental Right guaranteed under Article 19 and one cannot lose sight of
the Directive Principles of State Policy.47 A common thread runs through Parts III, IV and
IVA of the Constitution of India. One Part enumerates the fundamental rights, the second
declares the fundamental principles of governance and the third lays down the
fundamental duties of the citizens. While interpreting any of these provisions, it shall
always be advisable to examine the scope and impact of such interpretation on all the three
constitutional aspects emerging from these parts.48

The concept of the fundamental duty has been dealt, as they constitute core constitutional
values. Respect for the dignity of another is a constitutional norm. It would not amount to
an overstatement if it is said that constitutional fraternity and the intrinsic value inhered in
fundamental duty proclaim the constitutional assurance of mutual respect and concern for
each other's dignity.49

40
Om Kumar, supra note 3.
41
U.P.v. Jaikaran Singh, (2003) 9 S.C.C. 228.
42
Shreya Singhal v. Union Of India, A.I.R. 2015 S.C. 1523.
43
Bansal Alloys And Metals Pvt. Ltd. v. Union Of India (UOI), (2011)ILR 1Punjab And Haryana913
44
Union Of India v. G. Ganayutham, A.I.R. 1997 S.C. 3387.; State Of A.P. v. Mcdowell And Co., (1996) 3
S.C.C. 709.
45
Modern Dental College and Research Centre And Ors. v. State of Madhya Pradesh and Ors,, (2009) 7 S.C.C.
751.
46
Saghir Ahmad v. State Of U.P, 1955 1 S.C.R. 707.
47
Mohd. Hanif Qureshi v. State of Bihar, 1959 1 S.C.R. 629.
48
Ramlila Maidan Incident, (2012) 5 S.C.C. 1.
49
INDIA CONST. Art. 51, cl.A- 2.

MEMORIAL ON BEHALF OF RESPONDENTS

 7

3. WEITHER THE PROCEDURE TO DEAL WITH COMPLAINT OF

DEFAMATION MEETS THE REQUIREMENT OF ART.21 OF THE
CONSTITUTION.

It is humbly submitted before this honble court that [3.1] Ingredients of the offence of
defamation are well defined in the Penal Code and are constitutionally valid and as they
stand the golden triangular rule of Art. 14, 19 and 21. Hence the provision stands valid in
the eyes of law. [3.2] The offence of Defamation is constitutionally valid and the
procedure to deal with a complaint of defamation meets the requirement of Art.21 as it
follows the principle of due procedure established by law. [3.3] The mere possibility of
abuse does not render it unconstitutional.

[3.1] THE INGREDIENTS OF SECTION 499 AND 500 GPC AND THE PROCEDURE UNDER

SECTION 199 OF CR.P.C ARE CONSTITUTIONALLY VALID.

The issue of free speech and the right to reputation and the arguments regarding the
constitutional validity of the provisions of defamation must be considered in the context of
the social climate of a country. The constitutional validity of a statute would have to be
determined on the basis of its provisions and on the ambit of its operation as reasonably
construed.50 (3.1.1) 499 and 500 of Indian Penal Code continue to serve a public purpose
(3.1.2) Section 199 safeguards the interest of the aggrieved person and its kin. (3.1.3)
Defamation also fairs well and stands justified against the golden triangle test. As a public
wrong, it protects the larger interests of the society by providing reasonable restrictions
Under Article 19(2) of the Constitution on the basis of its provisions and on the ambit of
its operation as reasonably construed.51

(3.1.1) THE INGREDIENTS ARE NOT VAGUE IN NATURE

Defamation as defined under section 499 GPC, has three essential ingredients that make it
specific and further Explanation 4 to Section 499 also limits the scope of the offence of
defamation contained in the section.52 It makes only such imputations punishable which
lower a person's reputation in the estimation of others.53 The concepts like "in good faith"

50
Shreya supra note 42.
51
Id.
52
The Indian Penal Code, 1860, No. 35, Acts of Parliament, 1860 Section 499.
53
Ram Jethmalani v. Subramaniam Swami, A.I.R. 2006 Delhi 300.

MEMORIAL ON BEHALF OF RESPONDENTS

 8

or "for the public good" are the mainstay of the exceptions available to the accused,54
which, if proved to the extent of the preponderance of probability, enable him to avoid
conviction, and these facets make the provision reasonable and definitely not vague.55
Truth ought not to be an absolute defence because it can be misutilised to project a
negative image to harm the reputation of a person without any benefit to the public at
large.

(3.1.2) THE PROVISIONS AS PROVIDED UNDER CRPC ARE NEITHER ARBITRARY

NOR UNREASONABLE.

Section 199(1) Cr.P.C. safeguards the freedom of speech by placing the burden on the
complainant to pursue the criminal complaint without involving the State prosecution
machinery.56 This filters out many frivolous complaints as the complainant should be
willing to bear burden and pain of pursuing the criminal complaint about defamation only
when he has a clear case.

Under the aforesaid provision, the cognizance of an offence, which pertains to defamation,
cannot be taken except upon a complaint made by "some person aggrieved by the
offence". "Some person aggrieved" in Section 199(1)57 is neither vague nor is it
unreasonably wide as it gives the right to the next kin to institute a motion against the
derogatory comment targeted at those who have already lost their life, thereby providing a
remedy that something like civil remedy does not offer.

(3.1.3)GOLDEN TRIANGLE:

Rule of Law is a basic concept which originated from the Common Law in England. In
Indian law, this has been encapsulated in what is called the Golden Triangle of the
Constitution - Articles 14, 19 and 21. Article 14,58 deals with the right to equality and says
that no one shall be deprived of the right to equality and the equal protection of laws.
Article 19,59 enumerates basic freedoms afforded to every citizen - such as freedom of
speech, freedom of movement, freedom to carry out trade or profession etc. Article 21,60

54
Chaman Lal v. State of Punjab, AIR 1970 SC 1372.
55
Harakchand Ratanchand Banthia and Ors. v. Union of India and Ors., AIR 1970 SC 1453.
56
The Code of Criminal Prodedure, 1972, Section 199, sub cl. 1.
57
Id.
58
INDIA CONST. art. 14.
59
INDIA CONST. art. 19.
60
INDIA CONST. art. 21.

MEMORIAL ON BEHALF OF RESPONDENTS

 9

says that no one shall be deprived of life or personal liberty except in accordance with the
procedure established by law.

(3.1.3.1) Criminal Defamation lacks Arbitrary Element.

Article 21 read with Article 14 and Article 19, sought to eliminate not only the 'essence of
right' test but also the 'rights test' has to apply, particularly when Keshavananda Bharti61
and Indira Gandhi62 cases have expanded the scope of basic structure to cover even some
of the Fundamental Rights.63 It has been well settled that Article 14 does not prohibit
reasonable classification for the purpose of legislation and that a law would not be held to
infringe Article 14 of the Constitution if the classification is founded on an intelligible
differentia and the said differentia has a rational relation to the object sought to be
achieved by the said law.64 A restriction imposed in any form has to be reasonable and to
that extent, it must stand the scrutiny of judicial review. It cannot be arbitrary or
excessive.65

The mere fact that the offence under Section 499 of GPC66 is non-cognizable or that the
complainant can only be filed by "some person aggrieved" does not create an arbitrary
distinction between it being an offence of a private character as opposed to an offence
against society. It gives a certain degree of protection to a group of people against
unwanted and malicious accusations. Section 500 of GPC67 does not impose any
mandatory minimum punishment and when a penal law does not mandate a minimum
sentence but provides only for simple imprisonment with discretion vested in the Court,
the provision will not be struck down as arbitrary or unreasonable.

(3.1.3.2) Criminal Defamation Provides A Reasonable Restriction.

Individual rights cannot be absolute in a welfare state. It has to be subservient to the

Rights of the public at large.68 A restriction which is commensurate with the need for
protection of the public cannot be said to be unreasonable,69 even though it may cause

61
Keshavananda Bharti v. State of Kerala, A.I.R. 1973 S.C. 1461.
62
Smt. Indira Nehru Gandhi vs. Shri Raj Narain and Anr., A.I.R. 1975 S.C. 1590.
63
I.R. Coelho v. State of Tamil Nadu and Ors., A.I.R. 2007 S.C. 861.
64
State of Uttar Pradesh v. Kaushailiya and Ors., A.I.R. 1964 S.C. 416.
65
Ramlila Maidan Incident vs. Home Secretary, Union of India (UOI) and Ors., (2012) 5 S.C.C. 1.
66
The Indian Penal Code, 1860, No. 35, Acts of Parliament, 1860 Section 499.
67
The Indian Penal Code, 1860, No. 35, Acts of Parliament, 1860 Section 500.
68
Confederation of Ex-serviceman Association v. Union of India, (2006) 8 S.C.C. 399.
69
State of Maharashtra v. Rao Himmatbhai Narbheram, A.I.R. 1971 S.C. 1157.

MEMORIAL ON BEHALF OF RESPONDENTS

 10

hardship in individual cases.70 No restriction can be said to be unreasonable merely

because in a given case it operates harshly.71 Also, the word restriction includes
prohibition. Under certain circumstances, therefore, a law depriving a citizen of his
Fundamental Right may be regarded as reasonable,72 if the same is in the interest of the
public. Since section 499 and 500 of GPC caters for the larger public interest by limiting
the reckless application of Art 19 (1), hence the restriction imposed by Section 499 and
500 of GPC is a reasonable restriction under Article 19(2) and thereby Constitutional.

(3.1.3.3) Defamation does not violate right to life

The Constitution of Ganrajya guarantees right to life with dignity73 to every person. The
Right to live with dignity includes right to ones reputation, as the loss of ones reputation
would disable one from enjoying right to live with dignity.74 This right allows a man to
protect his own reputation from unjustified invasion and wrongful hurt, which reflects the
basic concept of the essential dignity and worth of every human being.75 An attack on a
persons reputation must attain a certain level of seriousness and in a manner causing
prejudice to personal enjoyment of the right to respect for private life. 76 Since Sections
499 and 500 have been enacted to achieve that end which is tantamount to peaceful
interactions between members of the society without violating public order, it does not
transgress Art 21 but saves the reputation of an individual, which forms an integral part of
the Right guaranteed under Art 21.77

[3.2] FOLLOWS THE PRINCIPLE OF DUE PROCEDURE ESTABLISHED BY LAW

Procedure means the manner and form of enforcing the law. It is said that article 21
affords no protection against competent legislative action in the field of substantive
criminal law.78 All legal proceedings which are in furtherance of public good and which
preserve the principle of liberty and justice are held to be in accordance with the

70
Sivarajan v. Union of India, A.I.R. 1959 S.C. 556.
71
Krishna Kakkanth v. Govt. of Kerala, A.I.R. 1997 S.C. 128.; Municipal Corporation, City of Ahmedabad v.
Jan Mohd. Usmanbhai, A.I.R. 1986 S.C. 1205.; M.J. Sivani v. State of Karnataka, A.I.R. 1995 S.C. 1770.
72
Narendra Kumar v. Union of India, A.I.R. 1960 S.C. 430.
73
INDIA CONST. art. 21.
74
Board of Trustees, port of Bombay v. Dilip Kumar, A.I.R. 1983 S.C. 109.
75
Rosenblatt v. Baer 383 U.S. 75 (1966).
76
Axel Springer AG v. Germany (2011) 52 E.H.R.R. 36.
77
Babu Singh and Ors. v. State of U.P., (1978) 1 SCC 579.
78
A.K. Gopalan v. The State of Madras A.I.R. 1950 S.C. 27.

MEMORIAL ON BEHALF OF RESPONDENTS

 11

requirements as to the due process of law.79 In this sense, (i) any procedure authorised by
enacted law would be a procedure established by law. (ii) The procedure to deal with a
complaint of defamation meets the requirement of Art.21 of the Constitution. Article 21
affords protection not only against executive action but also against legislation and any
law which deprives a person of his life or personal liberty would be invalid unless it
prescribes a procedure for such deprivation which is reasonable fair and just.80

(3.2.1) ANY PROCEDURE AUTHORISED BY ENACTED LAW WOULD BE A

PROCEDURE ESTABLISHED BY LAW.81

The Legislature appreciates and understands the needs of the people, that it knows what is
good or bad for them,82 the laws are directed to problems which are made manifest by
experience, and only appreciates those which they consider to be reasonable, for the
purposes for which these laws are enacted and that a legislature would not deliberately
flout a constitutional safeguard or right.83

As the Supreme Court has stated: What form a regulatory measure must take is for the
legislature to decide and the court would not examine its wisdom or efficacy except to the
extent that article 13 of the constitution is attracted.84 Therefore usually the presumption
is in the favour of the Constitutionality of the statute and the onus to prove that it is
unconstitutional lies upon the person who is challenging it.85 In these cases under the
GPC, imprisonment or fine or both can be levied and therefore it cannot be said to be
arbitrary.

(3.2.2) THE PROCEDURE OF COMPLAINT STANDS THE TEST OF ART 21.

Section 199 (2)of Cr.P.C. was met in the case as a criminal complaint was filed by the
Public Prosecutor after the sanction granted by Central Government, before the Court of
Session under sections 499, 500 Ganrajya Penal Code against Arjun Pandit and Manohar

79
BASU D.D., COMMENTARY ON CONSTITUTION OF INDIA, Page 4806 (Butterworths Wadhwa Lexis
Nexis) 9th Edition, Vol 5.
80
Mrs. Maneka Gandhi vs. Union of India (UOI) and Anr., A.I.R. 1978 S.C. 597.
81
BASU D.D. supra note, Page4807.
82
State of Andhra Pradesh v. McDowell & Co., A.I.R. 1996 S.C. 1628.
83
Ram Krishna Dalmia v. S.R. Tendolkar, A.I.R. 1958 S.C. 638.; Vrajlal Manilal & Co. v. State of Madhya
Pradesh, A.I.R. 1970 S.C. 129;Bachan Singh v. State of Punjab, A.I.R. 1982 S.C. 1325.
84
Delhi Cloth and Gen. Mill Co. Ltd. V. Union of India, A.I.R. 1983 S.C. 937.
85
Charanjit lal Chowdhary v. Union of India, A.I.R. 1951 S.C. 41.; Bombay v. F.N. Balsara, A.I.R. 1951 S.C.
318 (India).; Mahant Moti Das v. S.P. Sahi, A.I.R. 1959 S.C. 942.; Delhi Transport Corporation, supra note
16.

MEMORIAL ON BEHALF OF RESPONDENTS

 12

Lal Kashyap. The Public Prosecutor has a right to initiate a motion against the accused in
the capacity of the aggrieved party under this provision.

[3.3] POSSIBILITY OF ABUSE DOES NOT RENDER IT UNCONSTITUTIONAL

The possibility of abuse of a power is not the test of its existence and hence is no ground
for denying the authority to confer such power.86 The remedy is not to deny the grant of
power but to structure it so as to eliminate the potential for abuse.87 The provisions of
Criminal Defamation should not be seen as a weapon to kill the voices but as a shield to
protect oneself from reckless imputations targeted at ones reputation. Reputation is what
one lives for, swears by, works his skin off for, fights for and dies for.88 The Right to
reputation is a facet of right to life.89 Suspicion would not be ground to tarnish image and
reputation of the person who was holding the constitutional post.90 If there exists any
possibility of abuse First an attempt should be made by the Courts to uphold the charged
provision and not invalidate it merely because one of the possible interpretations leads to
such a result, howsoever attractive it may be.91 The Reputation of one cannot be allowed
to be crucified at the altar of the others right of free speech.92

4. WHETHER SECTION 499 AND 500 OF GPC SAFEGUARDS THE

FUNDAMENTAL RIGHT OF REPUTATION.

The objective of section 499 and 500 of GPC is to safeguard the fundamental right of the
reputation of the citizens. A persons reputation is an inseparable element of an
individuals personality and it cannot be allowed to be tarnished in the name of the right
to freedom of speech and expression because the right to free speech does not mean right
to offend.93 The sweep of the right to life conferred by article 21 is wide and far-
reaching.94 [4.1] Right to reputation is an insegregable part of Article 21 of the
Constitution [4.2] the right enshrined under Article 19(1)(a) should be balanced with
article 21.[4.3] Exception no. 1 of sec 499 and 500 safeguards the right to privacy of an
individual.
86
I. C. Golaknath & Ors v. State Of Punjab & Anrs., A.I.R. 1967 S.C. 1643.
87
I.R. Coelho, supra note 63.
88
Divine Retreat Centre v. State of Kerala and Others, (2008) 3 S.C.C. 542.
89
State of Bihar v. Lal Krishna Advani and Others, (2003) 8 S.C.C. 361.
90
B.S. Yeddyurappa v. The Lokayukta of Karnataka Writ Petition No. 44071/2011.
91
B.R. Enterprises v State of Uttar Pradesh, A.I.R. 1999 S.C. 1867.
92
Subramanian supra note 2.
93
Id.
94
Olga Tellis v. Bombay Municipal Corporation, A.I.R. 1986 S.C. 180.

MEMORIAL ON BEHALF OF RESPONDENTS

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[4.1] RIGHT TO REPUTATION IS AN INSEGREGABLE PART OF ARTICLE 21 OF THE

CONSTITUTION

The Reputation of a person is neither metaphysical nor a property in terms of mundane

assets, but an integral part of his sublime frame and a dent in it is a rupture of a
persons dignity, negates and infringes fundamental values of citizenry right.95
Reputation also forms the basis of many decisions in a democratic society which are
fundamental to its well-being, whom to employ or work for, whom to promote, whom to
do business with or to vote for. 96

No one shall be subjected to arbitrary interference and nor to attacks upon his honour
and reputation. Everyone has the right to the protection of the law against such
interference or attacks. 97 An honour which is a lost or life which is snuffed out cannot
be recompensed98. A good reputation is an element of personal security and is protected
by the Constitution equally with the right to the enjoyment of life, liberty and property
and as such it has been held to be a necessary element in regard to the right to life of a
citizen under Article 21 of the Constitution.99 A good repute enhances an individual's
sense of worth and value.100

European Convention for the Protection of Human Rights and Fundamental Freedoms
confers an individual the right to respect for his private and family life without
interference except procedure established by law.101 The International Covenant on
Civil and Political Rights102 states that Everyone shall have the right to freedom of
expression but the exercise of such right should subject to certain restrictions for respect
of the rights or reputations of others. No one shall be subjected to arbitrary interference
with the privacy and reputation of someone.103 The reference to international covenants
has a definitive purpose. They reflect the purpose and concern and recognize reputation
as an inseparable right of an individual.104

95
Subramanian supra note 2.
96
Reynolds, supra note 6.
97
Universal Declaration on Human Rights, 1948, Article 12 .
98
State of Gujarat and Anr. v. Hon'ble High Court of Gujarat, (1998) 7 S.C.C. 392.
99
Vishwanath Agrawal v. Saral Vishwanath Agrawal, (2012) 7 S.C.C. 288.
100
Hill v. Church of Scientology of Toronto (1995) 2 S.C.R. 1130.
101
European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 8.
102
International Covenant on Civil and Political Rights, Article 19.
103
Universal Declaration on Human Rights, 1948, Article 12.
104
Subramanian supra note 2.

MEMORIAL ON BEHALF OF RESPONDENTS

 14

[4.2]THE RIGHT ENSHRINED UNDER ARTICLE 19(1)(a) SHOULD BE BALANCED WITH

ARTICLE 21.

A particular fundamental right cannot exist in isolation and must co-exist in harmony with
the exercise of another fundamental right.105 Fundamental rights are all parts of an
integrated scheme in the Constitution and they must mix to constitute a flow of unimpeded
and impartial justice.106The Apex Court laid stress on the importance of balancing of
fundamental rights and further stated107 that it should be done by striking a balance
between several relevant considerations.108 It has been held that the rights of citizens, to
effectively seek the protection of fundamental rights have to be balanced against the rights
of citizens and persons under Article 21.109

It is a well observed fact that art 19(1)(a) and art 21 are important rights and in light of
decriminalizing sec 499 and 500 of GPC, art 21 cannot be neglected. Aforementioned
authorities clearly state that balancing of fundamental rights is a constitutional necessity.
Article 19(1)(a) cannot be pressed into service for defeating the fundamental right
guaranteed by Article 21110. Reputation being an inherent component of Article 21, should
not be allowed to be sullied solely because another individual can have its freedom.111

[4.3] EXCEPTION NO. 1 OF SEC 499 AND 500 SAFEGUARDS THE RIGHT TO PRIVACY OF AN
INDIVIDUAL.

It is humbly submitted that right to privacy is a right recognised world over.112 Privacy has
been defined as, "right to be left alone,113 or desire of people to choose freely under
what circumstances and to what extent they will expose themselves, their attitude and their
behaviour to others There is no specific law of privacy in India but SC in repeated

105
Acharya Maharajshri Narendra Prasadji Anandprasadji Maharaj and Ors. v. The State of Gujarat and Ors
(1975) 1 S.C.C. 11.
106
Delhi Transport Corporation supra note 16.
107
Mr X v. Hospital Z (1998) 8 S.C.C. 296.
108
Post Graduate Institute of Medical Education & Research, Chandigarh v. Faculty Association and others
(1998) 4 S.C.C. 1.
109
Ram Jethmalani,supra note 15.
110
Noise Pollution (V), In re (2005) 5 S.C.C. 733.
111
Subramanian supra note 2.
112
Universal Declaration on Human Rights, 1948 Art.12; European Convention for the Protection of Human
Rights and Fundamental Freedoms Art. 8
113
Rajgopal v. State of Tamil Nadu, 1994 6 S.C.C. 632.

MEMORIAL ON BEHALF OF RESPONDENTS

 15

pronouncements, has held that it is an integral part of right to life under Art. 21.114 SC has
remarked, proper balancing of freedom of the press as well as the right to privacy and
the defamation has to be done in terms of the democratic way of life laid down in the
constitution.115

The right to privacy includes an individual's right to control the dissemination of

information about him. It is his own personal possession. A citizen has a right to safeguard
the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and
education among other matters.116 No one can publish anything concerning the above
matters without his consent, whether truthful or otherwise whether laudatory or critical. If
he does so, he would be violating the right to privacy of the person concerned and would
be liable in the action of damages.117

It is most pertinent to note that, right to privacy cannot be curtailed except according to
procedure established by law118. Defamation being a restriction on freedom of speech
and expression is, therefore, a safeguard to the right to privacy rather than being a
procedure for curtailing the same.

114
Kharak Singh v. State of UP, A.I.R. 1963 S.C. 1295.; Govind v. State of Madhya Pradesh, A.I.R. 1975 S.C.
1378 (India).; PUCL v. U.O.I, A.I.R. 1991 S.C. 207.
115
Rajgopal v. State of Tamil Nadu, 1994 6 S.C.C. 632.
116
Naz Foundation Case v. Government of NCT and Ors. A.I.R. 2014 S.C. 563.
117
Rajgopal v. State of Tamil Nadu, 1994 6 S.C.C. 632.
118
PUCL v. U.O.I, A.I.R. 1991 S.C. 207.

MEMORIAL ON BEHALF OF RESPONDENTS

 PRAYER

Wherefore, in the lights of facts stated, issues raised, authorities cited and arguments
advanced, it is most humbly prayed and implored before the Honble Court, that it may be
graciously pleased to adjudge and declare -

That Section 499 and 500 of GPC are constitutional.

That the restriction imposed under Article 19 sub-clause (2) of The Constitution of
Ganrajya relating to Defamation is not in violation to Freedom of Speech and Expression
under Article 19 (1) (a) of The Constitution of Ganrajya.
That Section 199 (2) of Cr.P.C is not in violation of Article 14 of The Constitution of
Ganrajya.

And pass any other order as it deems fit in the interest of equity, justice and good
conscience.

All of which is most humbly and respectfully submitted.

COUNSEL FOR THE RESPONDENTS

MEMORIAL ON BEHALF OF RESPONDENTS