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A Supreme Court judge recently stressed the urgent need to decriminalise defamation, warning that its colonial-era misuse by powerful figures threatens free speech and democratic debate.
It is the act of expressing a false statement about a person that harms their reputation. This can be done through spoken words, writing, images, or other forms of publication. It can be directed at a living individual, a deceased person (where it affects their family), a company, or any other legally recognized entity.
Types of Defamation
Regulation in India
Civil Defamation: This is based on tort law and provides for monetary compensation (damages) to the victim for the harm caused to their reputation.
Criminal Defamation: This is defined under Section 356 of the Bharatiya Nyaya Sanhita (BNS), 2023 (which replaced Sections 499 and 500 of the Indian Penal Code). It is punishable with imprisonment for up to two years, a fine, or both. The BNS has also introduced community service as a potential punishment.
Protection of Freedom of Speech
The threat of criminal proceedings has a significant "chilling effect" on freedom of speech and the press, guaranteed under Article 19(1)(a) of the Constitution.
Journalists, activists, and citizens may be discouraged from expressing critical opinions for fear of facing imprisonment.
Preventing Misuse
Criminal defamation is frequently used as a weapon by powerful individuals and political figures to harass and threaten critics.
The legal process itself becomes a punishment, draining the accused of time, money, and mental peace. Such cases are referred to as Strategic Lawsuits Against Public Participation (SLAPP suits).
Disproportionate Punishment
Critics argue that imprisonment is an excessive and disproportionate penalty for what is essentially a private injury to reputation.
Sufficiency of Civil Remedies
Reputation can be adequately protected through civil lawsuits where the aggrieved party can claim financial damages. This approach avoids the harshness of the criminal justice system.
Reducing Judicial Burden
Decriminalising defamation would reduce the significant backlog of cases in criminal courts, allowing them to focus on more serious offenses.
Subramanian Swamy vs Union of India (2016)
The Supreme Court upheld the constitutional validity of criminal defamation. The Court ruled that the right to reputation is an integral part of the fundamental right to life under Article 21.
It held that criminal defamation was a "reasonable restriction" on the freedom of speech under Article 19(2), necessary to balance the two fundamental rights.
Recent Observations (2025)
A Supreme Court judge stated that there is a need to reconsider the criminalisation of defamation, especially in cases of private disputes. This observation reflects the judiciary's growing concern over the law's misuse and has reignited the debate.
United Kingdom: The UK, from which India inherited the law, decriminalised libel and slander in 2009.
United States: Defamation is a purely civil matter, with the First Amendment providing robust protection for free speech, especially concerning public figures.
Other Nations: Countries like Sri Lanka have also repealed their criminal defamation laws.
The UN Human Rights Committee has recommended that member states abolish criminal defamation as it is a disproportionate restriction on free expression.
The rise of the internet, social media, and AI has introduced new and complex challenges:
Decriminalise Private Defamation: Amend the law to restrict criminal liability to exceptional cases, such as those involving public order or incitement to violence, while directing all private defamation disputes to civil courts.
Strengthen Civil Remedies: Establish fast-track courts for civil defamation cases and set clear guidelines for awarding damages to ensure that victims receive timely and effective justice.
Enact Anti-SLAPP Legislation: Introduce specific laws to allow for the early dismissal of malicious lawsuits intended to silence critics and impose penalties on those who file them.
Safeguard Press Freedom: Create stronger legal protections for journalists, whistleblowers, and researchers who publish information in the public interest.
India must reform its defamation laws by decriminalising private disputes and strengthening civil remedies to safeguard both free speech and individual dignity in a democratic society.
Source: THEHINDUBUSINESSLINE
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PRACTICE QUESTION Q. Why does defamation remain a criminal offence in India when many democracies have abolished it? 150 words |
Defamation is the act of harming a person's reputation by making or publishing false statements. This can be through spoken words (slander) or written/published material (libel), which includes content shared online.
It is both. A victim can file a civil suit to claim monetary compensation for damages to their reputation under tort law. Alternatively, they can file a criminal complaint to have the accused punished with imprisonment or a fine under the Bharatiya Nyaya Sanhita (BNS). The BNS has replaced the Indian Penal Code (IPC).
Criminal defamation aims to punish the wrongdoer, requiring proof "beyond a reasonable doubt," with potential outcomes including fines, imprisonment, or both. Civil defamation seeks compensation for the victim, requiring proof based on a "balance of probabilities," and can result in monetary damages or injunctions.
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