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 NALSADevidas 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).

16 thoughts on “Why the Supreme Court’s Criminal Defamation Judgment is Per Incuriam

  1. A very welcome analysis, but I would go further and argue that the Subramanian Swamy defamation judgment is per incuriam at a more basic level. It omitted to apply the only test there is, that of the reasonableness of the restrictions under Article 19(2).
    The fact that the ‘substantive’ reasonableness under 19(2) of criminalizing defamation was not considered by the Court would conflict with several other SC decisions including larger Benches which have ruled that the Article 19(1) (a) right can only be restricted within the scope of 19(2).
    The submissions made by some of the counsel fell into a fallacy which comes out clearly in the following statement by Raju Ramachandran on the decision. See http://www.livemint.com/Politics/32ttVeh2x0KfRCeuzQEzRL/Criminal-defamation-is-necessary-to-protect-women-Raju-Rama.html
    “On the first part, considering the fact that Article 19(2) (of the Indian Constitution), which speaks of reasonable restrictions on fundamental right (to speech and expression), itself includes the law of defamation, it is clear that the Constitution makers had envisaged this as a reasonable restriction. The argument of the petitioners in the Subramanian Swamy case that only civil defamation was contemplated and not criminal defamation has been rightly rejected by the court. From the time the Constitution was framed to now (present day), the only codified law with regard to defamation was criminal defamation and clearly the Constitution makers had this in mind.”

    This statement by Raju Ramachandran is conceptually wrong in my opinion. 19(2) when it mentions the word defamation, does not refer to the law of defamation or to legislation on defamation or to remedies etc. It refers to the natural language concept of defamation, the act or result of defaming or being defamed. Therefore arguing that this word encapsulates civil and criminal defamation is conceptually wrong. So parliament can make a law to address the problem of defamation under 19(2) . The law so made can be a civil or a criminal law. The law must relate to defamation, but the nature of the law including its civil/ criminal character would fall for consideration under the reasonableness requirement. Therefore any law made to address the defamation problem would need to be tested on the issue of reasonableness. Now just because there was a pre-existing statute when 19(2) was enacted and when it was later amended, does not ipso facto imply that the pre-existing law gets saved by 19(2) without any need for further inquiry as to its reasonableness w.r. t 19(1)(a)
    Coming to the actual application of the reasonableness test, there are several grounds on which the criminal defamation law as it exists could be established as an unreasonable restriction on freedom of speech.
    Am trying to make a very basic but important point here.

    • Thanks for your comment. I agree with you that the question of whether “defamation” under 19(2) is limited to civil defamation is a complete red herring – the 19(2) sub-clause is agnostic about whether it is civil or criminal. It all depends upon the way the law is framed. For instance, if Parliament was to repeal S. 499 and bring in a criminal defamation law that had the defence of reasonable comment, on the lines of the holdings by the constitutional/supreme courts in Canada, South Africa (and, applying Sullivan, the US), I’m not sure whether a constitutional challenge would succeed.

      At the same time though, I’m not sure whether per incuriam would apply in the manner that you’ve stated. For that, we would need to show that the SC did not even consider reasonableness under Article 19(2). As I read the judgment, the SC did consider reasonableness – although, much like Koushal v Naz, its consideration involved a restatement of the law without any application of the law to the statute. But I don’t know if that is enough to show per incuriam…

      • I need to look at this more closely, but Subramaniann Swamy appears to have undertaken a very limited consideration of the reasonableness test and that too only on the procedural problems with the law.
        After stating that it would now consider reasonableness, the judgment appears to diverge into the balancing test. I think it says that because two fundamental rights needed balancing, there can be no unreasonableness. This in my view is wrong law and per incuriam. Any balancing should also have been undertaken as part of the reasonableness test. Here one could argue about the relative importance/ value of the right to free speech and the right to reputation.
        the judgment later comes back to reasonableness and then only looks at procedural problems.

  2. Another point not pressed or discussed in Subramanian Swamy’s judgment is what to make of a comparison between 19(2) as originally enacted and as amended in 1950.
    The original 19(2) read:
    “Nothing in sub-clause (a) of Cl.(1) shall affect the operation of any existing law in so far as it relates to, or prevents the state from making any law relating to, libel, slander, defamation, contempt of Court or any matter which offends against decency or morality or which undermines the security of, or
    tends to overthrow, the State.”
    19(2) as amended reads:
    “(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such
    law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of 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.”

    The difference between these two versions of 19(2) show that the original clause was a mere but automatic saving clause for existing laws. This version envisaged that 19(1)(a) might in the future prevent the enactment of new defamation laws.

    19(2) as amended, actually completely modified the position and expressly allowed laws contrary to 19(1)(a) to address expressly enumerated governance problems including defamation. However, a new requirement of reasonableness of the restriction was included.

    So under the amended 19(2), the reasonableness of the restriction imposed on freedom of speech by a criminal defamation law predating the Constitution was an open issue for adjudication.

    Therefore Raju Ramachandran’s point that the Constitution-makers themselves accepted the reasonableness of the criminal defamation law is wrong.

    After 19(2) was amended, the issue of whether the criminal defamation law was an unreasonable restriction on freedom of speech became an open question and this came up before the Supreme Court for consideration now in this batch of matters.

    However, the Subramanian Swamy decision does not seem to have undertaken this exercise of deciding whether criminal defamation law by very virtue of its criminal character is an unreasonable restriction on 19(1)(a).

    Instead of the test of balancing fundamental rights, the court should have undertaken a detailed examination of the reasonable restriction test taking into account all aspects of the law, and all other material facts and circumstances. This the Court failed to do and because of this the decision is per incuriam as it is settled law that 19(1)(a) can only be restricted within the limits prescribed by 19(2).

  3. If a decision by a smaller bench narrows down or expands the scope of the decision by a larger bench, while referring to it, would the former still be per incuriam, or bad law?

  4. Hi,

    The Sullivan case is in reference to conduct of a public servant. Exception 2 to Section 499 talks about good faith opinions on conduct of public servants not amounting to defamation. There is Exception 3 to Section 499 also which adds to the good faith opinion on conduct of persons on public questions. So do you think India already follows the Sullivan standard in criminal defamation as well?

    Also, do you believe exception 9 to Section 499 (public good + good faith) makes Exception 1 to Section 499 (truth + public good) redundant? If yes, I guess it would affect the course of the argument in this article.

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