The Supreme Court, on Monday (September 22), observed that it may be time for the courts to decriminalise defamation. The bench of Justice M M Sundresh and Justice Satish Chandra Sharma was hearing a criminal defamation matter filed by a JNU professor against an article published by The Wire in 2016. The court’s observation, “It’s time to decriminalise all this,” refers to a long-standing precedent from 2016, when a two-judge SC bench upheld criminal defamation as constitutional in Subramanian Swamy v. Union of India. But as the present bench has signalled, the question of whether this colonial-era offence continues to serve a purpose in a democracy remains open. At the heart of the matter lies the need for a balance between two fundamental rights: the freedom of speech guaranteed under Article 19(1)(a), and the right to reputation recognised under Article 21. What is defamation under the law? Defamation involves publishing a statement without lawful justification that injures another’s reputation by subjecting them to hatred, ridicule, or contempt. Section 356 of the Bharatiya Nyaya Sanhita states, “Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes in any manner, 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.” Such an offence extends to the dead, companies or associations, and to statements made ironically or by way of alternatives. The harm that is contemplated has to be on the reputation of the person, “lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.” What is the difference between civil and criminal defamation? Under civil law, defamation is treated as a private wrong which can be remedied through compensation for any damage to a person’s reputation. However, under criminal law, defamation is treated as a public offence which can be punished with either a fine or imprisonment to deter malicious attacks on reputation. For criminal liability, three elements must exist: the statement must be defamatory; it must be directed at a person or a clearly identifiable group; and it must be published or communicated to at least one person other than the person who is making the claim. Unlike civil liability, criminal law requires proof of either an intention to cause harm or knowledge that harm is likely to occur. The truth of a statement is a defence only if it is made for the public good. This has long been debated: while civil defamation allows truth as an absolute defence, the criminal law narrows its scope. The courts have justified this by locating reputation within the right to life and personal liberty under Article 21, thereby treating damage to reputation not just as an individual grievance but as an offence that affects social harmony. This legal framework has often been criticised for casting a wide net. Journalists, activists, and politicians have frequently argued that criminal defamation exposes them to harassment and creates a chilling effect on speech, particularly when it is used to silence criticism. What is the present case in the SC? The Wire in 2016 reported on a dossier believed to have circulated within JNU, and linked a professor to its preparation. The report had allegedly implied that the professor led efforts to compile a dossier accusing the university of hosting a “sex racket” and backing separatist causes. The professor sued for criminal defamation, alleging that the report had injured their reputation. Following a summons by a Delhi magistrate in 2017, The Wire challenged it before the higher judiciary. In 2023, the Supreme Court asked the magistrate to reconsider the matter after carefully analysing the contents of the article. In an encore of earlier events, the magistrate issued a summons in January 2024, which the Delhi High Court upheld this May. The present appeal has brought the issue back to the Supreme Court, which must now deliberate on a precedent it had laid in a separate case in 2016. What did the SC say in the 2016 case? The constitutionality of criminal defamation was directly tested in Subramanian Swamy v. Union of India in 2016. The petitioners argued that Section 499 of the IPC (now Section 356 BNS) violated the right to free speech and expression. They said that the provisions were relics of colonial rule, unreasonably restricted criticism, and had “a chilling effect on the freedom of speech and expression that shall lead to a frozen democracy.” The two-judge bench of Justice Dipak Misra and Justice Prafulla C Pant rejected these challenges. The court held that while freedom of speech under Article 19(1)(a) is essential to democracy, it is not absolute. Article 19(2) expressly permits reasonable restrictions, including defamation. The court went beyond a narrow understanding of “defamation” as incendiary speech, and held that the framers intended it to have an independent identity that includes criminal liability. The court also rejected the contention that defamation is against an individual, which is regarded as a civil wrong under Article 19(2). It held this narrow understanding as “unacceptable and insupportable”, and that it must instead be understood within its independent meaning. It further emphasised the link between individual rights and society, saying, “when harm is caused to an individual, the society as a whole is affected.” Describing reputation as central to dignity and inseparable from life and liberty under Article 21, the court said its protection was integral not only to safeguard individuals, but also to preserve trust and cohesion in society. “Reputation being an inherent component of Article 21, we do not think it should be allowed to be sullied solely because another individual can have its freedom,” it said. Courts rely on proportionality to balance the limitations on fundamental rights to determine the constitutional validity of an action aimed at limiting that right. On proportionality, the bench held that criminal defamation passed constitutional muster, with exceptions to protect fair comment, criticism of public servants, and reports of judicial proceedings made in good faith. The court also viewed the requirement that truth must also serve the public good as a legitimate safeguard to prevent vindictive disclosures. “Court can strike down a provision if it is excessive, unreasonable or disproportionate, but the Court cannot strike down if it thinks that the provision is unnecessary or unwarranted,” it said. The court also rejected the “chilling effect” argument, reiterating that comments with malicious intent or reckless statements were subject to restrictions. It asked the petitioners to exercise caution before making accusations consistent with constitutional values of dignity and fraternity. It also said that the existence of criminal defamation enforces the “constitutional assurance” of mutual respect and social stability, as laid out in the Preamble. “Reputation of one cannot be allowed to be crucified at the altar of the other’s right of free speech,” the judgment noted. The essence of the court’s holding was the necessity of balancing the fundamental right to freedom of speech and expression against the equally fundamental right to reputation. What will it take for the court to decriminalise defamation? Decriminalising defamation in India would require a major shift from the current constitutional position. The SC maintained its point on law in Subramanian Swamy, and reaffirmed this through the 2024 Law Commission report, which examined various issues about defamation laws, making recommendations. The court treats damage to reputation as a matter of public interest and sees civil remedies as insufficient to fully protect dignity and honour. Since the court does not revisit settled questions on its own, a fresh petition must be filed by a person prosecuted under the law, raising a constitutional challenge. In this case, the party facing trial for criminal defamation could argue that the 2016 precedent requires reconsideration. Given that a two-judge bench delivered the 2016 verdict, a bench of equal strength cannot overrule it; only a larger bench may do so. However, a smaller bench may refer the matter to the Chief Justice of India, who may decide to constitute a Constitution Bench. Under Article 145(3) of the Constitution, a case involving a substantial question of law about constitutional interpretation must be heard by a bench of at least five judges.
