INTRODUCTION
Defamation is an imperative legal matter of statements that damage the reputation of the individual where individuals, business and famous personalities are concerned. It entails giving a false statement which is conveyed to a third party and harms reputation by diminishing the status of the individual in the society. Defamation may be in two types, libel (written statements, including publications and social media) and slander (verbal statements).
In India, there is a distinction of defamation because it is not only a civil wrong (tort) but also a criminal offence. The tort law on civil defamation is aimed at compensating the person wronged and, in most cases, they are monetary damages. On the other hand, criminal defamation, which is codified in India in Section 356 of the Bhartiya Nyaya Sanhita (BNS), 2023 (previously the IPC), aims at punishing the offender and is accompanied by the threat of incarceration. The issue of contention is whether defamation, especially when it is done in the form of political and public criticism, should remain a criminal issue.
BACKGROUND
Formulation of Free Speech Principles: In the United States, New York Times Co. v. Sullivan 376 U.S. 254 (1964), gave a landmark that provided many safeguards against criticism of a government official. The Supreme Court also reasoned that a State cannot recover damages against a defamatory falsehood against the conduct of an official, until the official demonstrates that it is a result of actual malice–that the statement was made with the knowledge that it was false or the statement was made recklessly without regard to whether it was false or true. This decision established that the public debate must be free, healthy and open even when it contains an attack that is vehement, caustic and sometimes even ugly on government and public officials.
Status in India: In spite of this international move in restricting criminal libel, in Subramanian Swamy v. Union of India (2016) 7 SCC 221 the Supreme Court of India restricted this move. The criminal defamation was held to be constitutional in (2016). The Court suggested that the safeguarding of reputation is an inseparable component of the right to life provided in Article 21 of the Constitution and that a balancing mechanism of free speech and dignity must be provided by a deterrent mechanism. In India, criminal defamation is currently prescribed with a two-year imprisonment, or a fine, or both.
KEY POINTS
The major argument on criminal defamation is whether it clashes with freedom of expression and whether practical use of criminal defamation supersedes reputation protection.
Decriminalisation Arguing points:
- Chilling Effect: The criminal defamation laws have the chilling effect on free expression and especially press freedom since journalists, writers and critics risk being jailed simply because they have observed to disagree. This intimidating impact is capable of killing healthy discussion.
- Process itself as Punishment: The criminal process itself (FIRs and bailable bonds, traveling to distant courts, appearing on that case again and again) can be the punishment, whether the guilty are acquitted or not.
- The Powerful: Criminal defamation is often abused as a tool of destruction by the rich and powerful or the political elite on its critics and dissenters, and media houses.
- Disproportionate Punishment: Prison will be deemed to be too excessive in cases where speech crimes are committed, yet other effective civil actions exist.
- International Standards: The international human rights agencies such as the U.N. Human Rights Committee insist on decriminalisation as well as state that no one should spend time in prison as a form of punishment for defamation. The criminal defamation has been eliminated by many mature democracies (e.g. the UK and Sri Lanka).
Arguments Opposing Decriminalisation:
- Protecting Reputation: Reputation is viewed as a lifelong asset and a part of the right to life (Article 21).
- Weak Civil remedies: Civil actions are also perceived as ineffective against common citizens because of the time consumption and cost involved in pursuing legal actions, yet criminal charges would offer remedy faster and offer greater deterrence.
- Deterrence in the Digital Age: In the digital world, negative information disseminates quickly, and the concept of criminal law acts as a needed deterrent in a competitor to false statements and unstrained slanders.
Civil Law as the Proper Tool:
Defamation is essentially a tort of reputation and harm is already treated with a reasonable framework of civil law. General, special, or aggravated damages may be awarded by civil courts, and, can be corrected, apologize, and a right of reply, remedies that can be determined by how great the actual harm in fact is.
RECENT DEVELOPMENT
The most recent event happened on September 22, 2025, when one Supreme Court Bench (Justices M. M. Sundesh and Satish Chandra Sharma) made orally the comment, “I believe time has come to decriminalize all this. How long shall you continue dragging these cases?
This was noted when the court was listening to a plea that the online news portal, The Wire was filing against summons in a defamation case.
The Wire Case Background: The article is based on a dossier of sex rackets at JNU and was submitted by a retired JNU professor, Amita Singh, who denied the charges. The case had been dragged and the first summons was served in 2017 and a second summons with renewed summons upheld by the Delhi High Court saw The Wire file a petition in Supreme Court in 2025.
Digital Age Implications: The court has made an observation that represents a mature comprehension as compared to the 2016 Subramanian Swamy case. In the present digital environment, where a post can be seen across the country, the venue provisions of cases being brought in whichever location the consequence takes place allow those in power to initiate the case in multiple jurisdictions, compelling opponents (such as journalists or the small-town publisher) to spend enormous amounts on time and money and counsel fees.
Political Impact: A criminal libel law, especially two-year imprisonment, proved to have dire democratic effects when as much as a Leader of Opposition Rahul Gandhi was convicted under the law in March 2023 and sentenced to immediate disqualification in the Lok Sabha, only to have the conviction overturned by the Supreme Court a few months after.
CONCLUSION
Criminal defamation laws which are still in force, encourage an atmosphere of harassment of journalists, news companies, and other critics, jail time or crippling fines that undermine the rights of free speech and the right to know on the part of the populace. In 1964, Justice William O. Douglas noted that the laws on criminal defamation were the instruments of destruction to free speech.
In order to create a more robust democracy, criticism should not be censored but it should be nurtured. The way forward is to decriminalise the act of defamation and substitute the criminal remedies with low cost and easily accessible civil litigation alternatives.
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WRITTEN BY Manisha Kunwar
