The judges of the Hon’ble Supreme Court while hearing a criminal defamation case filed by a professor of Jawaharlal Nehru University on a news portal, has observed that the time has come to decriminalise the offence of defamation. The delicate balance between the right to freedom of expression guaranteed under Article 19(1)(a) of the Constitution and the right to protect one’s reputation, which is embedded in the right to life and personal liberty guaranteed under Article 21 of the Constitution, lies at the heart of this controversy.

It may be noted in this context that in 2016, a two-judge bench of the Supreme Court in its judgment in Subramanian Swamy v. Union of India had ruled that defamation is a criminal offence. In case, current bench wants to take this issue to logical conclusion, it will have to declare Subramanian Swamy judgment, to use legal jargon, “per incuriam”. What it means is that the decision was arrived at without taking into account any provision of law or any previous judgment. A rational explanation for the same, of course, will have to be given for this. Alternatively, it may be placed before Chief Justice of India for him to decide whether to refer the judgement to a bench of three or more judges for reconsideration. In addition, an accused can also request the court to reconsider the previous decision on substantive ground. 

Provisions of the law:

It can be said, without taking recourse to legalese, that according to the definition of defamation given in Section 356 of the Indian Penal Code, if a person makes such statement or sign or gesture publicly and by word or writing about another person, which is intended to defame him or does so knowing that the person will be defamed thereby, it is called defamation of that another person. Such defamation can also be of a company or institution. The reputation of that person must be sullied in the minds of others. It also includes sarcasm. This is however subject to ten exceptions to the definition, which include speaking the truth in the public interest or expressing an opinion in good faith about the conduct of a public servant. Section 356(2) provides for the offence of defamation simple imprisonment for a term which may extend to two years or fine or both or community service. A civil suit can also be filed for defamation in which compensation is awarded. Defamation of someone is considered a matter of public interest.

Claims and counterclaims

The section that argues that defamation should not be considered a crime argues that this has a chilling effect and it infringes upon the constitutional right to freedom of expression. This was the contention of the petitioners in Subramanian Swamy petition as well. At that time, the Supreme Court had clearly stated that reputation is inherent in the right to life and personal liberty guaranteed under Article 21 of the Constitution and that it is a constitutional requirement to maintain a balance between fundamental rights. Considering that Parliament has exercised its collective wisdom in retaining this criminal provision, we find it difficult to agree with the view that making defamation a crime creates an atmosphere of oppression or fear in the society and infringes the constitutional right to freedom of expression.

The court rejected the petitioners’ contention that defamation is a criminal offence only when it incites commission of crime, saying that the word defamation has its own identity and the law of defamation should be understood only as it was understood at the time when the constitution came into being. The court also rejected the argument that defamation committed by one person against another should be considered a civil offence and not a criminal offence in the name of a fundamental right because protection of private rights by private individuals should not be considered a fundamental right. The court also said that the right to freedom of expression under Article 19(1)(a) of the Constitution is indeed essential for democracy but it is not unconditional or unrestricted. Article 19(2) imposes restrictions on it one of which is defamation. When the interests of an individual are affected, it affects the entire society. The court also concluded that criminal defamation is constitutionally valid on the ground of the mutual proportionality of these two factors. However, fair comments, criticism of public servants and honest descriptions of judicial proceedings do not fall within the definition of criminal defamation. Speaking truth is permissible but must be in the public interest.

International scenario 

A comparative study of defamation and insult laws conducted by the Organization for Security and Co-operation in Europe (which includes the United States, the United Kingdom, France, Canada, and Germany) in March 2017 concluded that, despite recommendations from international human rights organizations and the organization’s own media freedom representatives, criminal defamation and insult laws still exist in seventy-five member countries, with penalties ranging from imprisonment, fine, corrective labour, or deprivation of certain political rights.

A January 2019 study by the Centre for Media Pluralism and Media Freedom, a European University Institute, found that only five countries in the European Union have decriminalised defamation, but two of them still have some defamation related offences. Ireland, Malta and Romania have decriminalised the offence.

Law Commission

In January 2024, the Law Commission, in its report on the subject, stated that monetary penalty is not a sufficient remedy and once defamed, reputation cannot be restored and the mental anguish caused by it cannot be repaired. Therefore, criminal proceedings, which shame and harm the defamer, are necessary. The 42nd Law Commission had even recommended the provision of rigorous imprisonment along with simple punishment. The Commission had concluded that this provision was not a restriction on the freedom of speech and expression but was a protective measure.

Conclusion:

The question that remains is whether the criminal nature would be weaponised? The answer is, that in a defamation case, it is the duty of the courts to balance constitutional freedoms and values ​​and to ascertain whether the claim is frivolous and or vexatious. Such a claim can be nipped in the bud by quashing it. The remedy is for the courts to deal with such claims on the basis of their judicial prudence and perception and not to remove the criminal nature.

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