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Dr.YLR,J Crl.R.C.Nos.1287, 1336, 1339 & 1340 of 2025 20.12.2025

39. The decision of the Hon'ble Apex Court in K.K. Mishra v. State of M.P.,9 wherein while referring to the decision of the Hon'ble Apex Court in Subramanian Swamy supra observed that the Public Prosecutor has got a duty towards the Court to scan the material based on which a complaint for defamation is to be filed. As per the understandings of Sections 199(2) and 199(4) of 'the Cr.P.C.,' there is an in-built safeguard which requires the Public Prosecutor to scan and be specific with the materials based on which a complaint for defamation is to be filed by him acting as the Public Prosecutor of the Court concerned. The Public Prosecutor cannot act like the post office on behalf of the State Government. He is required to pursue the materials on record and form an independent opinion. The Hon'ble Apex Court in Subramanian Swamy case supra at paragraph No.203 in categorical terms observed that the Public Prosecutor is required to act in good faith, he cannot remain oblivious to his lawful obligation under 'the Cr.P.C.,' and is required to constantly remember his duty to the Court as well as his duty to the collective while filing cases under Section 499 and 500 of 'the I.P.C.,' he is expected to maintain that independence and not act as a machine.

43. Further, to constitute defamation, as envisaged in Section 499 of 'the I.P.C.,' either the imputation should have been intended to harm the reputation of such person or at least the person making the said imputation should have had knowledge or reasons to believe that the same will harm the reputation of the other. One of the essential ingredients to constitute an offence under Section 499 of 'the I.P.C.,' is "mens rea".

44. The constitutionality of criminal defamation was challenged in Subramanian Swamy v. Union of India11, wherein the Supreme Court upheld Sections 499 and 500 of 'the I.P.C.' The Court emphasized that the right to reputation is a facet of Article 21, Right to Life and Personal Liberty and must be balanced against the right to free speech. However, the judgment also clarified that criticism of government functioning, even if harsh, cannot be equated with defamation unless it is shown to be malicious and false. It is observed that defamation cannot be used as a political tool, and that calling a government inefficient or unfit does not attract criminal liability. This ruling is (2016) 7 SCC 221 Dr.YLR,J Crl.R.C.Nos.1287, 1336, 1339 & 1340 of 2025 20.12.2025 pivotal in protecting media entities from frivolous defamation suits while preserving the dignity of individuals.

45. In Subramanian Swamy supra at paragraph No. 150 it was observed that the excerpt underscores that while Shreya Singhal v. Union of India12 emphasized the need for narrowly tailored restrictions on free speech, criminal defamation does not fall within that narrow scope. The term "defamation" in Article 19(2) has existed since the inception of the Constitution and includes criminal defamation, which is a pre-constitutional law. Attempts to interpret defamation as requiring a nexus with public disorder are inconsistent with constitutional principles. Precedents like Ramji Lal Modi v. State of U.P.,13 and Kedar Nath Singh v. State of Bihar 14 pertain to different offences and cannot be extended to redefine defamation. Furthermore, reliance on S. Rangarajan v. P. Jagjivan Ram 15 must be contextualized, as that case dealt with censorship of a film addressing caste-based reservation, not defamation, and its observations were specific to the facts and sensitivities involved.

47. In Subramanian Swamy supra at para-No.168 it was stressed that to constitute the offence of defamation under Section 499 of 'the IPC.,' there must be a specific imputation made with intent, knowledge, or reasonable belief that it would harm the reputation of the person concerned, thereby establishing mens rea as a prerequisite. Section 44 of 'the IPC.,' defines "injury" to include harm to reputation, thus reinforcing the foundational element of reputational damage in criminal defamation. Additionally, in Sahib Singh Mehra v. State of U.P., 16 the Supreme Court clarified that for defamation of a group under Explanation 2 to Section 499, the collection of persons must be clearly identifiable and definite, as was the case with the prosecuting staff of Aligarh or Uttar Pradesh, distinguishing them from the public.