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AFTER ARGUMENTS HAD CONCLUDED, A COPY OF THE DIVISION BENCH JUDGEMENT IN THE CASE OF SUBRAMANIAN SWAMY & ANR. VS. DELHI POLICE & ORS HANDED OVER

34. After the arguments had concluded, Mr. Salman Khurshid, learned senior counsel for plaintiff mentioned the matter and handed over a photocopy of the Division Bench judgment dated 26 th October, 2017 passed in the case of Subramanian Swamy & Anr. Vs. Delhi Police & Ors, W.P.(Crl) 1938/2017. By the said judgment, a Division Bench of this Court dismissed Dr. Swamy‟s Public Interest Litigation seeking constitution of a Special Investigation Team (SIT) to investigate the murder of Ms. Sunanda Pushkar on the ground that there were no rare and compelled circumstances warranting such a direction. The Division Bench in the aforesaid order also pointed out that a previous writ petition being W.P.(C) 769/2015 seeking similar relief had already been dismissed.

39. The Apex Court while upholding the constitutional validity of Sections 499 and 500 IPC in Subramanian Swamy Vs. Union of India, Ministry of Law and Others, (2016) 7 SCC 221 has held as under:-

"195. One cannot be unmindful that right to freedom of speech and expression is a highly valued and cherished right but the Constitution conceives of reasonable restriction. In that context criminal defamation which is in existence in the form of Sections 499 and 500 IPC is not a restriction on free speech that can be characterised as disproportionate. Right to free speech cannot mean that a citizen can defame the other. Protection of reputation is a fundamental right. It is also a human right. Cumulatively it serves the social interest. Thus, we are unable to accept that provisions relating to criminal defamation are not saved by doctrine of proportionality because it determines a limit which is not impermissible within the criterion of reasonable restriction. It has been held in D.C. Saxena v. Chief Justice of India [D.C. Saxena v. Chief Justice of India, (1996) 5 SCC 216] , though in a different context, that if maintenance of democracy is the foundation for free speech, society equally is entitled to regulate freedom of speech or expression by democratic action. The reason is obvious viz. that society accepts free speech and expression and also puts limits on the right of the majority. Interest of the people involved in the acts of expression should be looked at not only from the perspective of the speaker but also the place at which he speaks, the scenario, the audience, the reaction of the publication, the purpose of the speech and the place and the forum in which the citizen exercises his freedom of speech and expression. The Court had further observed that the State has legitimate interest, therefore, to regulate the freedom of speech and expression which liberty represents the limits of the duty of restraint on speech or expression not to utter defamatory or libellous speech or expression. There is a correlative duty not to interfere with the liberty of others. Each is entitled to dignity of person and of reputation. Nobody has a right to denigrate others' right to person or reputation."

89. Consequently, in the present case an interlocutory injunction cannot be granted at this prima facie stage to restrain publication.

DIVISION BENCH JUDGMENT IN SUBRAMANIAN SWAMY & ANR.(SUPRA) OFFERS NO ASSISTANCE TO THE PLAINTIFF AS THE PARAMETERS/TESTS STIPULATED THEREIN CANNOT BE APPLIED TO THE PRESENT CASE. THE DIVISION BENCH HELD THAT THE PUBLIC INTEREST LITIGATION WAS A POLITICAL INTEREST LITIGATION AND DR. SUBRAMANIAM SWAMY HAD NOT DISCLOSED THE FULL AND COMPLETE FACTS AND HAD NOT IMPLEADED THE PLAINTIFF DESPITE MAKING GRAVE AND SWEEPING ALLEGATIONS AGAINST HIM.

90. This Court is of the opinion that the Division Bench‟s judgment in Subramanian Swamy & Anr. (supra) has no relevance to the present case as in the said Public Interest Litigation, the petitioner had prayed for constitution of a multi-disciplinary SIT consisting of Intelligence Bureau, Enforcement Directorate, RAW, Delhi Police and headed by CBI to investigate the death of Late Sunanda Pushkar.

91. The parameters/tests stipulated in the said judgment cannot be applied to the present case. Moreover, in the said case the Division Bench held that the Public Interest Litigation was a „political interest litigation‟ and Dr. Subramaniam Swamy had not disclosed the full and complete facts and had not impleaded the plaintiff despite making grave and sweeping allegations against him. Consequently, the said division bench judgment offers no assistance to the plaintiff.