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46. The Indian Constitution guarantees freedom of speech and expression under Article 19(1)(a), which includes the freedom of the press. This right is not absolute and is subject to reasonable restrictions under Article 19(2), including defamation. The press, often referred to as the Fourth Estate, plays a vital role in democracy by scrutinizing public institutions and disseminating information.

47. The constitutionality of criminal defamation was challenged in Subramanian Swamy v. Union of India8, 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 pivotal in protecting media entities from frivolous defamation suits while preserving the dignity of individuals.

(2016) 7 SCC 221 Dr.YLR,J Crl.R.C.No.502/2025 & batch 27.10.2025

48. In Subramanian Swamy supra at paragraph No. 150 it was observed that the excerpt underscores that while Shreya Singhal v. Union of India9 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.,10 and Kedar Nath Singh v. State of Bihar 11 pertain to different offences and cannot be extended to redefine defamation. Furthermore, reliance on S. Rangarajan v. P. Jagjivan Ram 12 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.

Dr.YLR,J Crl.R.C.No.502/2025 & batch 27.10.2025

69. In this context, it is apposite to refer the decision of the Hon'ble Apex Court in K.K. Mishra v. State of M.P., 17 wherein while referring about 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 peruse 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.

"14. There is yet another dimension to the case. In Subramanian Swamy v. Union of India (2016) 7 SCC 221 one of the grounds on which the challenge to the constitutional validity of Sections 499 and 500 IPC was sustained by this Court was the understanding that Sections 199(2) and 199(4) CrPC provide an inbuilt safeguard which require the Public Prosecutor to scan and be satisfied with the materials on the basis of which a complaint for defamation is to be filed by him acting as the Public Prosecutor. In this regard, an earlier decision of this Court in Bairam Muralidhar v. State of A.P. (2014) 10 SCC 380 while dealing with Section 321 CrPC (i.e. withdrawal from prosecution) was considered by this Court and it was held as follows : (Subramanian Swamy case [Subramanian Swamy v. Union of India, (2016) 7 SCC 221 : SCC p. 349, para 203) Dr.YLR,J Crl.R.C.No.502/2025 & batch 27.10.2025 "203. ... It is ordinarily expected that the Public Prosecutor has a duty to scan the materials on the basis of which a complaint for defamation is to be filed. He has a duty towards the court. This Court in Bairam Muralidhar v. State of A.P. (2014) 10 SCC 380 while deliberating on Section 321 CrPC has opined that the Public Prosecutor cannot act like a post office on behalf of the State Government. He is required to act in good faith, peruse the materials on record and form an independent opinion. It further observed that he cannot remain oblivious to his lawful obligations under the Code and is required to constantly remember his duty to the court as well as his duty to the collective. While filing cases under Sections 499 and 500 IPC, he is expected to maintain that independence and not act as a machine."