Why the Supreme Court’s Criminal Defamation Judgment is Per Incuriam

In common law, a judgment that is per incuriam has no legal force or validity, and does not count as precedent. Classically, per incuriam is a very narrow concept, applicable only in two circumstances: to a judgment that is passed in ignorance of a relevant statutory provision, or without considering binding precedent of a coordinate or larger bench. In 2015, however, in Sundeep Kumar Bafna v State of Maharashtra, the Supreme Court expanded the definition of per incuriam, noting that:

“It cannot be over-emphasised that the discipline demanded by a precedent or the disqualification or diminution of a decision on the application of the per incuriam rule is of great importance, since without it, certainty of law, consistency of rulings and comity of Courts would become a costly casualty. A decision or judgment can be per incuriam any provision in a statute, rule or regulation, which was not brought to the notice of the Court. A decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a Co-equal or Larger Bench; or if the decision of a High Court is not in consonance with the views of this Court. It must immediately be clarified that the per incuriam rule is strictly and correctly applicable to the ratio decidendi and not to obiter dicta. It is often encountered in High Courts that two or more mutually irreconcilable decisions of the Supreme Court are cited at the Bar. We think that the inviolable recourse is to apply the earliest view as the succeeding ones would fall in the category of per incuriam.”

The expansion of the doctrine of per incuriam in the Indian context makes sense, for at least two reasons. The first is the proliferation of two-judge benches of the Supreme Court pronouncing on important constitutional issues, and invariably at odds with each other. Recent examples include Koushal and NALSA, Devidas Tuljapurkar and Aveek Sarkar, and (as I shall explain) Subramaniam Swamy (the present judgment) and R. Rajagopal. As the Supreme Court correctly notes in Bafna, “certainty of law” and “consistency of rulings” is a very important principle (one of the basic constituents of the rule of law), and given the sheer volume of cases being decided by two-judge benches, it must be applied with greater rigour.

The second reason is that at present, judgments tend to reproduce submissions of counsel at great length, including cases cited by counsel. The reasoning of the judgment, however, fails to engage with those judgments in any meaningful way, apart from – once again – reciting them while describing the law on the point. A good example is Rajbala vs State of Haryana, where the Justice Chelameswar held that the arbitrariness doctrine under Article 14 could not be used to strike down legislation. This was contrary to the binding decision in Mardia Chemicals. That case was not considered while arriving at the above conclusion, but is nonetheless found in the judgment, in a footnote while reproducing counsel’s submissions. A strict application of per incuriam in such a situation would defeat the purpose of the doctrine itself, since what it stipulates is that a Court is bound to consider precedent (although, having once considered it, it can choose to read it in a way that is obviously incorrect – in such a situation, the latter decision will then become binding law.

It is my submission that Subramaniam Swamy vs Union of India is per incuriam on both the narrow and the broad conceptions of the doctrine. It is per incuriam because of its failure to consider the ratio of R. Rajagopal vs State of Tamil Nadu, that is, the finding that a regime of no-fault liability in defamation causes a chilling effect upon free speech.

Subramaniam Swamy vs Union of India mentions Rajagopal at exactly one point in the 268-page long judgment: at page 5 of the judgment (paragraph 2), where it cites the passage in Rajagopal stating that:

“In all this discussion, we may clarify, we have not gone into the impact of Article 19(1)(a) read with clause (2) thereof on Sections 499 and 500 of the Indian Penal Code. That may have to await a proper case.”

Let us now come to Subramaniam Swamy’s consideration of the chilling effect. The Court holds:

“Once we have held that reputation of an individual is a basic element of Article 21 of the Constitution and balancing of fundamental rights is a constitutional necessity and further the legislature in its wisdom has kept the penal provision alive, it is extremely difficult to subscribe to the view that criminal defamation has a chilling effect on the freedom of speech and expression.”

Previously, I have argued that this paragraph makes some fundamental conceptual errors in its understanding of what the chilling effect is. Be that as it may, let us now consider R. Rajagopal’s Case. 

In R. Rajagopal’s Case, the Supreme Court modified the common law of civil defamation. It replaced the no-fault liability standard with either a New York Times v Sullivan standard of actual malice, or the English standard of reasonable publication (I say “either” because the judgment seemingly adopts both tests, which are actually very different). Crucially, it cited New York Times v Sullivan, and cited that exact paragraph where Sullivan held that no-fault liability causes a chilling effect upon free speech. It then made the following finding:

“… in the case of public officials, it is obvious, right to privacy, or for that matter, the remedy of action for damages is simply not available with respect to their acts and conduct relevant to the discharge of their official duties. This is so even where the publication is based upon facts and statements which are not true, unless the official establishes that the publication was made (by the defendant) with reckless disregard for truth. In such a case, it would be enough for the defendant (member of the press or media) to prove that he acted after a reasonable verification of the facts; it is not necessary for him to prove that what he has written is true.”

In other words, Rajagopal holds that in case of statements defaming public officials, the standard is the (Sullivan) standard of reckless disregard for the truth. It’s reason for doing so is the chilling effect caused by a no-fault liability standard (and in fact, that can be the only reason for doing so, since that was at the heart of Sullivan). Consequently, the proposition that a no-fault liability standard causes a chilling effect in case of defamation is part of the ratio decidendi of Rajagopal. As recently as 2015, in M/s Fibre Boards v CIT, the Supreme Court clarified that the ratio of a case includes the reasons that form part of its conclusion (paragraph 27)

It may be argued at this stage that Rajagopal was a civil defamation case, and the question of what to do about criminal defamation was left open by that bench. That is true; however, that a no-fault liability provision for defamation causes a chilling effect upon speech is agnostic about whether the liability might take civil or criminal form. The reasoning given in Sullivan was that an individual who will be required to take the stand and prove the truth of his statement in order to avoid liability, will tend to self-censor, and “steer clear of the unlawful zone”, thus impoverishing public discourse. In other words, the chilling effect is caused by the legal standard (no-fault liability), and not by the nature of the liability (chilling effect).

For this reason, Subramaniam Swamy’s finding that criminal defamation’s no fault liability does not chill speech is reached in ignorance of Rajagopal, and is therefore per incuriam.

Even if this argument fails – i.e., even if one believes that since Rajagopal was about civil defamation, it’s ratio cannot be extended to cover cases of criminal defamation – Subramaniam Swamy remains per incuriam under the broader definition of Sundeep Kumar Bafna. This is a much simpler case to prove. After Swamy, the legal standard for imposing criminal liability (no-fault) is lower than civil liability (Sullivan) in case of public officials. This overturns the legal system on its head, and leads to an illogical position as long as both decisions continue to hold the field. In terms of Bafna, it is impossible to “reconcile the ratio” of Subramaniam Swamy with R. Rajagopal.

I submit, therefore, that Subramaniam Swamy vs Union of India is per incuriam, and therefore a judgment that has no legal validity and does not serve as precedent for future cases. It is to be hoped that on an appropriate occasion, a future bench of the Supreme Court will consider these arguments while deciding whether or not to refer another constitutional challenge to criminal defamation for resolution by a bench of five judges (as Article 145 of the Constitution requires).