Editor: I. Mallikarjuna Sharma Volume 11: 15-31 March 2015 No. 5-6

ISC-148 Shreya Singhal v. Union of India [IND-SC] (2015) 1 LAW
38. We have echoes of it in our law as well [in]
S. Rangarajan v. P. Jagjivan & Ors., (1989) 2 SCC
574 at paragraph 45:
“45. The problem of defining the area of freedom
of expression when it appears to conflict with the
various social interests enumerated under Article
19(2) may briefly be touched upon here. There
does indeed have to be a compromise between
the interest of freedom of expression and special
interests. But we cannot simply balance the two
interests as if they are of equal weight. Our
commitment of freedom of expression demands that it
cannot be suppressed unless the situations created by
allowing the freedom are pressing and the community
interest is endangered. The anticipated danger should
not be remote, conjectural or far-fetched. It should have
proximate and direct nexus with the expression. The
expression of thought should be intrinsically dangerous
to the public interest. In other words, the expression
should be inseparably locked up with the action
contemplated like the equivalent of a "spark in a
powder keg".”
(emphases ours)
39. This Court has used the expression “tendency”
to a particular act. Thus, in State of Bihar v.
Shailabala Devi, [1952] S.C.R. 654, an early
decision of this Court said that an article, in order
to be banned must have a tendency to excite
persons to acts of violence (at page 662-663). The
test laid down in the said decision was that the
article should be considered as a whole in a fair
free liberal spirit and then it must be decided
what effect it would have on the mind of a
reasonable reader. (at pages 664-665)
“"True threats" encompass those statements where the
speaker means to communicate a serious expression of an
intent to commit an act of unlawful violence to a
particular individual or group of individuals.”
“The speaker need not actually intend to carry out the
threat. Rather, a prohibition on true threats protects
individuals from the fear of violence and from the
disruption that fear engenders, in addition to protecting
people from the possibility that the threatened violence
will occur. Intimidation in the constitutionally
proscribable sense of the word is a type of true threat,
where a speaker directs a threat to a person or group of
persons with the intent of placing the victim in fear of
bodily harm or death.”
See Virginia v. Black (Supra) and Watts v. United States
22 L. Ed. 2d. 664 at 667.
40. In Ramji Lal Modi v. The State of U.P., [1957]
S.C.R. 860 at page 867, this court upheld Section
295A of the Indian Penal Code only because it was read
down to mean that aggravated forms of insults to
religion must have a tendency to disrupt public order.
Similarly, in Kedar Nath Singh v. State of Bihar,
1962 Supp. (2) S.C.R. 769, Section 124A of the
Indian Penal Code was upheld by construing it
narrowly and stating that the offence would only be
complete if the words complained of have a tendency of
creating public disorder by violence. It was added that
merely creating disaffection or creating feelings of
enmity in certain people was not good enough or else it
would violate the fundamental right of free speech
under Article 19(1)(a). Again, in Dr. Ramesh
Yeshwant Prabhoo v. Prabhakar Kashinath Kunte &
Ors., 1996 (1) SCC 130, Section 123 (3A) of the
Representation of People Act was upheld only if
the enmity or hatred that was spoken about in the
Section would tend to create immediate public disorder
and not otherwise.
(emphases ours)
41. Viewed at either by the standpoint of the clear and
present danger test or the tendency to create public
disorder, Section 66A would not pass muster as it has
no element of any tendency to create public
disorder which ought to be an essential ingredient
of the offence which it creates.
DEFAMATION
42. Defamation is defined in Section 499 of the
Penal Code as follows:
“499. Defamation. – Whoever, by words either
spoken or intended to be read, or by signs or by
visible representations, makes or publishes any
imputation concerning any person intending to
harm, or knowing or having reason to believe
that such imputation will harm, the reputation of
such person, is said, except in the cases
hereinafter excepted, to defame that person.
Explanation 1. – It may amount to defamation to
impute anything to a deceased person, if the
imputation would harm the reputation of that
person if living, and is intended to be hurtful to
the feelings of his family or other near relatives.
Explanation 2. – It may amount to defamation to
make an imputation concerning a company or an
association or collection of persons as such.
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