Need To Decriminalise Defamation

Syllabus: GS2/Polity & Governance

Context

• Recently, the Supreme Court of India has remarked that it is ‘high time’ to  reconsider the criminalisation of defamation.

About Defamation in India

• It refers to any spoken, written, or published statement that harms the reputation of an individual or group. 
• It can be directed at both living persons and the deceased, where harm to the family or immediate relatives is considered relevant.
• Two Forms:
  • Libel (written): Defamatory statements in a permanent form (e.g., writing, images, publications);
  • Slander (spoken): Spoken or transient defamatory statements.
• Legal Status:
  • Civil Defamation: It is governed by tort law, allowing the aggrieved party to seek monetary compensation for reputational harm.
  • Criminal Defamation: It is codified under Section 356 of Bharatiya Nyaya Sanhita (BNS), 2023. It prescribes up to two years of imprisonment, a fine, or both.

Arguments for Decriminalisation

• Freedom of Speech & Expression (Article 19(1)(a)): Criminal defamation chills free expression and press freedom.
  • Writers, journalists, and critics risk imprisonment merely for voicing dissent.
  • Criminal defamation was introduced by the British in the 19th century to curb nationalist voices.
• 22nd Law Commission of India (2023 Report): It recommended retaining criminal defamation, arguing that reputation is a lifelong asset that deserves legal protection.
• Disproportionate Punishment: Imprisonment for speech-related offences is excessive when civil remedies exist.
  • It can discourage investigative journalism and whistleblowing.
• Misuse by Political Class: Cases often target dissenters, media, and whistleblowers.
• International Standards: The UN Human Rights Committee and global free speech bodies recommend decriminalisation.
  • Criminal penalties for speech are inconsistent with International Covenant on Civil and Political Rights (ICCPR) standards (to which India is a signatory).

Arguments Against Decriminalisation

• Protection of Reputation (Article 21): The Supreme Court (2016, Subramanian Swamy v. Union of India) upheld criminal defamation, holding that reputation is an integral part of the right to life.
  • Hence, balancing free speech with dignity requires a deterrent mechanism.
• Civil Remedies May Be Inadequate: Lengthy and expensive litigation and compensation claims may not offer effective protection, especially for ordinary citizens without resources.
  • Criminal prosecution provides quicker relief and stronger deterrence.
• Protection Against Irresponsible Speech: In the digital era, defamatory content spreads rapidly and irreversibly.
  • Criminal law acts as a stronger deterrent against malicious falsehoods.
• Checks on Media & Political Speech: While press freedom is vital, unchecked allegations and slander could damage reputations beyond repair.
  • The government’s stance emphasizes safeguarding individuals from reckless media trials.
• Indian Social Context: In a society where reputation directly impacts livelihood, marriages, and community standing, criminal defamation is seen as necessary for protection.

Way Forward

• Gradual Decriminalisation: Replace imprisonment with fines or community service.
• Civil Law Strengthening: Fast-track civil defamation cases and provide reasonable caps on damages.
• Safeguards for Reputation: Introduce mediation and apology mechanisms before litigation.
• Community Service: It was introduced by Bharatiya Nyaya Sanhita, 2023 as an alternative punishment aiming to reduce the punitive burden while safeguarding victims’ rights.

Source: TH