Abstract
“Criminal defamation in India represents a significant intersection of two fundamental rights: the freedom of speech and expression, and the right to reputation, necessitating a nuanced equilibrium. This paper analyzes the offense of defamation as delineated in the Bharatiya Nyaya Sanhita, 2023 (BNS), which supersedes the colonial-era Indian Penal Code (IPC), and evaluates whether the new legislation reconfigures the balance between Article 19(1)(a) (freedom of speech) and Article 21 (right to life with dignity, encompassing reputation) of the Constitution. An examination of Section 356 BNS indicates that it predominantly preserves the defamation stipulations of the IPC, encompassing detailed definitions, exclusions, and sanctions. The constitutional analysis examines how Indian courts resolved the conflict, with a particular focus on the Supreme Court’s decision in Subramanian Swamy v. Union of India, which affirmed criminal defamation as a legitimate limitation on free speech, acknowledging reputation as an inherent component of Article 21. The study investigates the judicial perspective, specifically apprehensions that defamation laws are utilized to stifle dissent. A comparative analysis of jurisdictions, including the United States (where criminal defamation is nearly obsolete), the United Kingdom (which abolished it in 2009), and European and international human rights standards, indicates a growing endorsement for decriminalization. The paper concludes with an analysis of the endeavors of BNS and Indian jurisprudence to balance free speech with reputation, and suggests enhancements to protect individual dignity without unduly obstructing democratic discourse.”
Keywords: Criminal defamation, Bharatiya Nyaya Sanhita 2023, Section 356 BNS, freedom of speech, right to reputation, Article 19(1)(a), Article 21, Subramanian Swamy v Union of India, comparative defamation law, decriminalization of defamation, free speech and dignity, constitutional conflict in defamation law, global defamation jurisprudence
Introduction.
Defamation, defined as the act of damaging an individual’s reputation by false or malicious words, has been a criminal offense in India since the enactment of Sections 499–500[1] of the Indian Penal Code (IPC) in 1860.[2] The criminalization of defamation has perpetually been contentious, as it juxtaposes the right to free speech and expression with the right to safeguard one’s reputation. In a democratic culture that cherishes free expression, all restrictions on communication must be meticulously considered. Nonetheless, protecting one’s honor and dignity is considered essential to the right to life and personal liberty.[3]
The author examines the motivations behind the legislative shift: the trade-off between free expression and reputation associated with the new law. A review of recent sensational defamation actions emphasizes the relevance of the topic. Political and media agents frequently sue each other for criminal defamation, and in some cases, they are accused of weaponizing the law to silence political opposition. For instance, prominent figures such as Rahul Gandhi have been criticized or convicted of criminal defamation. Further, individuals potentially facing criminal actions raise alarms that the threat of incarceration is being used to suppress political discourse. These cases demonstrate the manipulation of the threat of criminal actions, which culminates in a desire to eliminate or reform the law in the first instance.
Conversely, proponents argue that in the absence of the deterrent effect of criminal law, reputations may be unjustly tarnished without retribution, and civil remedies, such as damages, may be insufficient or inaccessible to all.[4]
The recent ruling of the Supreme Court of India, Subramanian Swamy v. Union of India (2016) represents an important turning point. In that case, the Court upheld the constitutionality of criminal defamation, and indicated that free speech is important but not unlimited, and that it must not harm a person’s reputation, which is part of Article 21 . The ruling explicitly validated the government’s ability to punish defamation in order to protect the dignity of individuals. In some ways, it was criticized for relying on colonial logic that does not fully grasp the implications it has for discourse. The ruling and the varied responses to it exemplify the central inquiry of this paper: how should the law reconcile the public’s right to free speech with the individual’s right to reputation?[5]
[1] “Indian Penal Code, 1860, ss 499, 500, 501, 502.”
[2] “Robert C Post, The Social Foundations of Defamation Law, California Law Review, 1986.”
[3] “P D T O’Connor, ‘Defamation, Some Indian Precedents and the Common Law’ 1964, 6 Journal of the Indian Law Institute 323, JSTOR.”
[4] “Matthew Collins, Collins on Defamation, Oxford University Press, book.”
[5] “Carter-Ruck on Libel and Privacy, LexisNexis Butterworths, treatise.”
Doctrinal Analysis of Criminal Defamation under BNS, 2023.
The Bharatiya Nyaya Sanhita, 2023 (BNS), establishes criminal defamation as an offense in Section 356. This provision closely resembles Sections 499 and 500 of the previous IPC, as the content indicates. Section 356(1) delineates defamation in a manner nearly identical to the previous statute: “Whoever, through spoken or written words, signs, or visual representations, conveys or disseminates any imputation regarding an individual, with the intent to cause harm, or with knowledge or reasonable belief that such imputation will damage the individual’s reputation, is deemed to defame that individual.” Defamation occurs when an individual articulates or documents statements regarding another person, or conveys such information through alternative means, with the aim or awareness that it would damage that individual’s reputation.[1] There are certain exceptions to this rule, which will be discussed hereafter. The broad definition (“makes or publishes in any manner”) indicates that defamation can occur through various sources. The language is moderately neutral, thus it does not explicitly reference electronic or online communication[2]. Nonetheless, the overarching definitions of the BNS, when interpreted alongside the Bharatiya Nagarik Suraksha Sanhita, 2023, which delineates “electronic communication,” indicate that digital and online defamation would also be encompassed. The new criminal law was drafted considering contemporary publishing methods. Section 356 can be employed to prosecute defamatory social media posts, emails, and other electronic communications in the same manner as it is applied to newspaper articles and spoken statements.[3]
[1] “David Rolph, Defamation Law, Thomson Reuters, book.”
[2] “Bharatiya Nagarik Suraksha Sanhita, 2023, relevant definitional provisions on electronic communication.”
[3] “Ratanlal and Dhirajlal, The Indian Penal Code, latest ed, commentary on s 499 IPC and BNS s 356, LexisNexis.”
Definitions and scope .
Section 356 contains several elucidations that enhance its clarity and broaden its applicability. Explanation 1 posits that disparaging remarks about a deceased individual may constitute defamation if such statements would damage their reputation were they alive and are intended to cause emotional distress to their relatives.[1] The emotions of the living safeguard the legacy of the deceased.[2] Explanation 2 indicates that defamation can occur against a collective entity, such as a corporation or a group of individuals, so demonstrating that organizations and legal entities own reputations recognized by the law. Explanation 3 asserts that an imputation presented as an option or in a satirical manner can nevertheless be considered defamatory. Explanation 4 asserts that an imputation is reputationally detrimental when it leads others to have negative perceptions of the individual or to harbor unfavorable opinions about them, such as viewing them as immoral or dishonorable.[3] These elucidations parallel the IPC’s clarifications, indicating that the fundamental concept of “harm to reputation” is predicated on societal perceptions of the individual. In other words, the statement would diminish the regard of rational thinkers for the individual. The legal examples illustrate that indirect or insinuative remarks, such as A sarcastically stating, “Z is honest; he never stole B’s watch,” imply that Z did indeed steal it and can be detrimental. The 10 exceptions to slander enumerated in BNS are integral to Indian defamation law.[4]
These exceptions act as defenses, specifying circumstances in which a comment, albeit damaging to reputation, will not be deemed “defamation” due to prevailing social value or fairness.[5] The exceptions in Section 356 closely resemble those in the IPC. In summary, the exceptions are: (1) Truth for the public good: It is not considered defamation to make a truthful remark about an individual if it serves the public interest; but, truth alone does not constitute a defense; the statement must also fulfill a public benefit.[6] (2) The public conduct of public servants—an earnest view or critique expressed in good faith regarding a public official’s actions while performing their duties, or concerning their character as evidenced by such conduct, is not unlawful. (3) Discourse on public issues – similarly, a sincere assessment of an individual’s conduct in public affairs and their character within that framework is safeguarded. Reports on court cases: Publishing predominantly accurate accounts of court cases or their results does not constitute defamation. (5) Commentary on case rulings – it is permissible to express your views regarding the merits of a resolved case (civil or criminal) or the conduct of the parties or witnesses involved, provided that such opinions are grounded in the events that transpired during those processes. (6) Perspective on public performances: A good-faith critique of the merits of a literary or artistic performance, presented for public evaluation, does not constitute defamation, nor does it impugn the performer’s character as depicted in that performance. (7) Censure by authority – if an individual with legal authority over another (such as a parent, teacher, or boss) reprimands that person for their conduct while in a position of oversight, it is not unlawful.[7] Complaints to authorities—submitting charges or grievances in good faith to the appropriate entities (such as reporting misconduct to a supervisor) is safeguarded. (9) Safeguarding one’s own or another’s interests—asserting a claim in good faith to defend one’s own or another’s interests, or for the benefit of the public, does not constitute defamation. (10) Exercising good faith caution—advising an individual to exercise care or cautioning them regarding another individual (for their own benefit or the welfare of the public) does not constitute a criminal act.[8]
These 10 exclusions demonstrate that the law seeks to ensure that defamation claims do not inhibit socially beneficial discourse or expressions made in good faith, such as truthful reporting, equitable criticism, or lodging complaints to effectuate change. They encompass conventional common law defenses, including truth (in the context of public interest), fair comment, and privilege (pertaining to court proceedings and communications in the course of official duties).[9] Indian law imposes a more stringent criterion for truth as a defense by necessitating the supplementary component of public benefit. A true assertion regarding private affairs may still incur penalties if deemed not to serve the public interest. Certain researchers have condemned this aspect for prioritizing privacy and reputation over factual accuracy in specific instances. This differs from other jurisdictions where truth alone serves as a defense against defamation.[10]
[1] “Patrick O’Callaghan, Refining Privacy in Tort Law, Reputation and Autonomy, Springer, book.”
[2] “David Lindsay, Liability of Internet Intermediaries, Law and Regulation, Hart, book, defamation chapters.”
[3] “K I Vibhute, P S Atchuthen Pillai’s Criminal Law, revised ed, commentary on defamation.”
[4] “S Sarkar and P C Sarkar, The Law of Evidence, discussion on reputation and character evidence in defamation prosecutions.”
[5] “Andrew T Kenyon and Megan Richardson eds, New Dimensions in Privacy Law, comparative essays on reputation and speech, book.”
[6] “Jason Bosland, A Comparative Analysis of the Serious Harm Threshold in Defamation, law journal article.”
[7] “Andrew Scott, Reforming Defamation Law, Public Figure Doctrine and Responsible Journalism, law journal article.”
[8] “Eric Barendt, Defamation Law and Freedom of Speech, International and Comparative Law Quarterly, article.”
[9] “Dario Milo, Defamation and Freedom of Speech, Oxford University Press, book.”
[10] “Rodney A Smolla, The Law of Defamation, practitioner treatise, multiple vols, book.”
Crimes and penalties pursuant to Section 356.
Section 356 delineates slander and prescribes penalties for it and other offenses. This aligns with a broader tendency in recent legislation to incorporate community service as a penalty for certain offenses, aimed at modernizing punitive measures. The IPC system imposed an identical maximum penalty: two years of imprisonment, a monetary fine, or both (community service was not permissible). Although the sentence remains severe, BNS grants judges greater discretion in selecting the appropriate penalty.[1]
Furthermore, Section 356(3) criminalizes the act of printing or engraving derogatory information with knowledge of its defamatory nature. [2]
The punishment is the same as for other crimes: up to two years in prison, a fine, or both (community service may also be an option because of general sentencing rules). This is the same as Section 501 of the old IPC. Section 356(4) punishes dealers or vendors who sell or offer for sale printed or engraved materials that contain false information, as long as they know it is false. This is similar to IPC Section 502. By following these rules, BNS agrees that both the person who made a false statement and the people who spread it through print media could be held responsible. “Printing or engraving” may seem old-fashioned in today’s world, but these rules could also apply to publishers and maybe even owners of digital platforms.
[1] “Eric Barendt, Balancing Freedom of Expression and Reputation, the European Context, Journal article.”
[2] “David Howarth, Libel, Free Speech and Public Interest, Public Law, article.”
Constitutional Analysis: Free Speech (Art. 19(1)(a)) vs. Right to Reputation (Art. 21)
Two key constitutional safeguards exist in Indian defamation law. Article 19(1)(a) of the Constitution confers every citizen with the fundamental right to speak and write freely. This right is the basis for supporting free speech in a democracy, and protects not only agreeable or popular speech, but also unpleasant one, dissenting speech, and expressions that may be essential in holding the influential accountable and to finding the truth. The Constitution does not guarantee this right, however. Article 19(2) states that the government may impose “reasonable restrictions” of free speech and expression for specific reasons, one of which is “defamation.”
The Constitution explicitly states that safeguarding an individual’s reputation constitutes a valid justification for restricting communication. Article 19(2)[1] encompasses defamation, indicating that legislation penalizing defamation (such as Section 356 BNS or its predecessor Section 499 IPC) are constitutionally permissible, if they are equitable and intended to safeguard reputation.[2] Speech that unjustly damages an individual’s reputation constitutes an abuse of freedom, and the government is obligated to prevent and rectify such injury to maintain civility and uphold individual dignity within society.[3]
Article 21 states, “No individual shall be deprived of life or personal liberty except in accordance with procedures established by law.” Over decades of interpretative development, the Supreme Court of India has concluded that the “right to life” in Article 21 includes not just basic existence but also the right to live with human dignity. Article 21 explicitly asserts that reputation constitutes an integral component of the right to life.[4] It is intricately connected to an individual’s dignity and honor. In Subramanian Swamy v. Union of India (2016), the Supreme Court unequivocally said that “the right to reputation is encompassed within the right to life safeguarded by Article 21.” Past decisions have shown that having a good reputation is part of personal safety and freedom. As a result, damage to a person’s reputation could affect their freedom and quality of life, as stated in Article 21. The constitutional status of reputation supports the claim that the government has the right to make laws to protect people’s reputations. In its 2024 report on criminal defamation, the 22nd Law Commission of India said, “the right to reputation comes from Article 21…as part of the right to life and personal liberty, it needs enough protection against defamatory speech.” Indian law creates a conflict between two basic rights: the right of the speaker to free speech (Article 19(1)(a)) and the right of the victim to a good name (Article 21).
When fundamental rights are at odds with each other, courts usually try to find a way to make them work together. This is called “balancing.” The Supreme Court said in Swamy that neither right can be given absolute priority: “the right to freedom of speech and expression cannot be permitted such latitude that it entirely excludes the reputation of an individual, which is encompassed within Article 21.”
While freedom of speech is paramount, it does not provide the right to devastate lives through false allegations. Conversely, the right to reputation cannot serve as a justification for suppressing legitimate criticism or matters of public concern.[5] The objective is to achieve equilibrium among these values to facilitate their coexistence to the greatest extent possible. The Court in Swamy and related instances perceives criminal defamation as a mechanism to attain this equilibrium, essentially viewing it as the legislature’s determination on how to reconcile the two rights.[6]
[1] “K S Puttaswamy v Union of India, 2017, 10 SCC 1, privacy, dignity and reputation as facets of art 21.”
[2] “Lyrissa Barnett Lidsky, Defamation, Reputation, and the Mythology of Proof, Washington University Law Review, article.”
[3] “People’s Union for Civil Liberties v Union of India, 2003, 4 SCC 399, speech, surveillance and proportionality, supportive.”
[4] “Randall P Bezanson, The Libel Suit and the First Amendment, law review article.”
[5] “Paul Wragg, Free Speech as a Right of Democracy, Cambridge University Press, book, defamation interfaces.”
[6] “Devashri Mishra and Muskan Arora, ‘The Movement Against Criminal Defamation, Lessons for a Postcolonial India’ 2019, Indian Journal of Constitutional Law 62.”
Examination of justifiable limitations.
Article 19(2) stipulates that any legislation restricting expression, such as defamation laws, must be deemed “reasonable.” The Supreme Court has established a criterion: a legislation must have a legitimate goal (one of the justifications in 19(2)), and the restriction must be proportional, meaning it must be precisely defined and not excessive for that purpose. In this scenario, the objective is unequivocally acceptable, as safeguarding reputation is permitted by Article 19(2) and the stipulation of Article 21.[1] The central inquiry is whether criminalizing defamation, with the potential for incarceration, constitutes a just method of safeguarding an individual’s reputation.[2] The Supreme Court stated in Swamy that it does. It argued that society has a shared interest in protecting reputations because “society is made up of individuals, and the well-being of individuals affects society at the same time.” Consequently, defamation was perceived not solely as a personal affront but as a disruption of societal cohesion, necessitating criminal sanctions as a public offense. The Court decided that IPC (now BNS) criminal defamation has reasonable requirements, like having to show intent or knowledge of likely harm, and that there are exceptions and defenses. This means that the law only applies to statements that are really bad. The statement made it clear that the punishment (up to two years, usually bailable and not cognizable) is not too harsh and that the law is clear, so it does not stop people from talking about things that are legal.
The Court asserts that the law’s explicitly delineated exceptions, such as truth in the public interest and fair comment, constrain the limitations to what is necessary for safeguarding reputation.[3]
[1] “Kavita, ‘Criminal Defamation and the Media in India, Need for Reform’ 2024, Journal of Law and Contemporary Issues.”
[2] “UN Human Rights Committee, General Comment no 34, article 19, freedom of opinion and expression, 2011.”
[3] “Samantha Besson and Andreas Ziegler eds, Human Rights Law, reputation as a human right, collected essays, book.”
Subramanian Swamy v. Union of India (2016): Upholding Constitutionality.
The Supreme Court affirmed the constitutionality of criminal defamation in Swamy, directly contesting IPC Sections 499–500 (now BNS Section 356). Dr. Subramanian Swamy and other petitioners, including politicians Rahul Gandhi and Arvind Kejriwal, asserted that criminalizing defamation discourages free expression and does not constitute a “reasonable restriction” under Article 19(2). The prospect of criminal sanctions deters individuals from criticizing authority figures, so undermining the principle of free speech within a democratic framework. The Court, conversely, emphatically dismissed these arguments.[1]
Justice Dipak Misra wrote the decision for the Bench, and it was based on a number of important factors: The Court said that the word “defamation” in Article 19(2) is a separate constitutional limit that the people who wrote the Constitution knew included the current defamation law.
The Court used discussions in the Constituent Assembly to demonstrate that the term “defamation” was intentionally included, and that the contemporaneous law categorizing the act as a criminal was not inherently irrational. Secondly, as previously discussed, the Court regarded reputation as an integral component of the right to life under Article 21.[2] It stated that “the right to reputation is a fundamental right” and of equal significance to the right to free speech. Thus, safeguarding reputation via criminal law was regarded as upholding a fundamental right for individuals who may lack alternative means to defend themselves against defamation.[3]
Third, the verdict highlighted the concept of constitutional fraternity and mutual respect among citizens. It referenced Article 51A, which stipulates that it is a fundamental obligation of people to uphold the dignity of others, asserting that free speech that damages an individual’s reputation contravenes this obligation.[4] The Court notably asserted that fundamental rights must “co-exist in harmony” with the rights of others, emphasizing that individual dignity is both a constitutional principle and an objective. Thus, criminal defamation law was not considered “obnoxious” to free expression; rather, it was portrayed as a constitutionally sanctioned means to enforce the obligation to avoid defaming others.
The Supreme Court rejected the notion that the prospect of a criminal proceeding would deter individuals from voicing their opinions. Defamation legislation is distinguished from less precise or expansive prohibitions, such as the invalidated Section 66A of the IT Act in Shreya Singhal[5], due to its clarity and inherent defenses. The Court stated that truth (in the interest of public welfare), critique of public conduct, and similar factors constitute safe harbors. It further stated that individuals are not need to demonstrate purpose or awareness of probable harm to be prosecuted for a crime.
The Swamy case unequivocally demonstrated that Sections 499 and 500 of the IPC met constitutional scrutiny. The assertion that reputation equates to dignity and that the limitation was justifiable effectively sanctioned the ongoing application of criminal defamation law in India. The prevailing authority continues to endorse the legitimacy of criminal defamation, and any subordinate court addressing a challenge to the law’s validity is obligated to adhere to this verdict.[6]
Worries After Swamy and the High Court got involved, Subramanian Swamy talked about the constitutional issues. However, this does not mean that all courts agree with every use of defamation law. On the other hand, later court decisions show that judges are very aware of the potential for abuse in criminal defamation and support its careful use. Recently, even Supreme Court justices have expressed concerns about how the law is used outside of court, especially in obiter dicta. In September 2025, Supreme Court Justice M. M. Sundresh said, “Politicians and private individuals are using criminal defamation more and more as a way to defend themselves against criticism and as a way to get back at people.” He said that the protection of reputation that was meant to be in place has turned into a way to stop criticism. The comments from the bench show concern that the balance that was struck in Swamy may be falling apart in practice, since powerful litigants often file defamation lawsuits to scare off journalists, critics, and dissenting voices. The phrase “imprisonment prescribed as a penalty” is a strong sign that the chilling effect is real and not just an idea.
The judicial system will continue to be watched. As new cases emerge particularly regarding the internet and political speech, how the courts apply the Swamy principles and other judicial precedent will determine whether India can endorse both strong free speech and effective reputation protection. The lens of comparative law can further elucidate this balance, to which we now focus our attention.[7]
[1] “Paul Mahoney, Freedom of Expression and Respect for the Reputation of Others, European Human Rights Law Review, article.”
[2] “Geoffrey Robertson and Andrew Nicol, Media Law, Penguin or Sweet and Maxwell, book, libel chapters”
[3] “Burkhard Hess and Cristina M Mariottini, The European Private International Law of Defamation, Journal of Private International Law, article.”
[4] “Mark Warby, Nicole Moreham and Iain Christie eds, The Law of Privacy and the Media, OUP, book, defamation links.”
[5] “Shreya Singhal v Union of India, 2015, 5 SCC 1, Supreme Court of India.”
[6] “Samantha Barbas, Laws of Image, Defamation and Privacy in an Age of Publicity, Stanford Law Books, book.”
[7] “Nani Palkhivala, We, The People, Strand Book Stall, book, speech and dignity themes.”
Outcome of the Study.
The analysis undertaken in this study reveals a complicated arena of criminal defamation in India today under the Bharatiya Nyaya Sanhita, 2023, particularly in relation to the constitutional balance between reputation, and free speech. The doctrinal analysis of Section 356 BNS establishes that the new code has retained the historic form of criminal defamation, just subject to some minor alteration, including the option of community service as a punishment. The offence broadly comprises any form of communication which may harm the reputation of another person, and recognizes defences for truth in the public interest, reasonable criticism and other forms of ‘privileged’ speech. This continuity indicates that India has opted to perpetuate the colonial-era framework at the legislative level, implying that the current equilibrium established in the IPC and endorsed by the judiciary is deemed suitable for modern society. [1]
The research highlights that, in terms of constitutional law, Indian law formally recognizes both competing interests: Free speech is a formally recognized fundamental right (Article 19(1)(a)), and the right to reputation is considered a not wholly-justified implied fundamental right under the right to life (Article 21). Indian Supreme Court jurisprudence, most significantly in Subramanian Swamy v. UOI, has established a clear balance by concluding that criminal defamation is a constitutionally legitimate limitation on free expression. The rationale of the Court is that the protection of personal reputation is both an individual interest and a societal interest and is consistent with the constitutional interests of dignity and fraternity.
[1] “Vikram Raghavan, The Colonial Origins of India’s Defamation Law, Indian law journal article.”
Conclusion and Suggestions.
The coexistence of criminal defamation and the right to free speech in India highlights a values tension between two fundamental principles: protection of reputation, and preservation of free expression. The fact that criminal defamation remains an enumerated offence under Section 356 of the Bharatiya Nyaya Sanhita, 2023 indicates that legislators are committed to protecting dignity as a value, and a type of desirable punishment. Judicial decisions, including most recently from the Supreme Court, have continued to uphold its constitutional legitimacy, based on the principle of proportionality, and the legitimate interest in protecting reputation as justified under Article 19(2).
However, academic and judicial review suggests that criminal defamation can be misused, and has sometimes stifled public criticism and interrogative conversations focused on public institutions or public officials. Such usage threatens the democratic value of free and fearless expression that is at the heart of Article 19(1)(a). The law equates the values of reputation with free speech in Article 19, but criminal defamation law tends to favour critical speech and free speech less than other types of speech, including non-critical speech.
While the law may not go against the Constitution, it nevertheless requires a careful and cautious approach to ensure it is not a tool of tyranny. Protecting reputation ought not to interfere with free public discourse, particularly on matters of compelling public significance. Reforming the existing law of criminal defamation to reflect the reputation, dignity, and expressions that each individual would like to be treated with is a significant and necessary change.
Reforming the law would be the easiest way to reach this balance. Parliament might rethink how necessary or how much we even need criminal defamation at all. They might decide to legalize the behavior or only allow such behavior when the statements at issue are clearly injurious and very injurious. If the standard in law is the law serves the highest law of defamation. The only actions that would be considered crimes would be the only actions that cause “serious” and “intentional” harm, and even then, only for the most egregious or blatantly culpable behavior.
No protection of an individual or public interest would be protection against abuses of the system. At the cognizance stage, magistrates might have to analyze the complaints with a stricter lens and dismiss complaints that lack prima facie or appear to be politically or personally motivated. Before prosecuting certain types of complainants, especially public officials, it is necessary to obtain legal permission from the relevant authority. This would also stop people from using the criminal process for other purposes. At the same time, it is important to make the civil defamation system stronger. Civil processes can be more effective and rehabilitative when they include time limits, temporary relief measures, and the promotion of non-punitive solutions like retractions or apologies. Encouraging self-regulation in the media and making ethical reporting standards part of the law would make people less reliant on criminal penalties.
Overall, the challenge is not just managing or abolishing criminal defamation but ensuring that it is humane, reasonable, and does not violate our constitutional morality. A limited legal change must take place to allow public confidence in reputations, while allowing truth to emerge in public discourse. Free speech is critical to the lifeblood of India’s democracy.
(Bibliography)
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- “Vikram Raghavan, The colonial genealogy of India’s defamation law, National Law School Journal, 2007.”
VIII. Journal articles, comparative and theory –
- “Robert C Post, The social foundations of defamation law, California Law Review, 1986.”
- “Robert C Post, The social foundations of privacy, community and self, California Law Review, 1989.”
- “Andrew T Kenyon, Defamation, comparative law and speech, International and Comparative Law Quarterly, 2013.”
- “Andrew Scott, Public figure doctrine and responsible journalism, Journal of Media Law, 2012.”
- “Eric Barendt, Defamation law and freedom of speech, International and Comparative Law Quarterly, 2010.”
- “Gavin Phillipson, Transforming breach of confidence, dignity and defamation, Modern Law Review, 2003.”
- “David Howarth, Libel, free speech and public interest, Public Law, 2011.”
- “Eugene Volokh, Freedom of speech and tort law, Stanford Law Review, 2002.”
- “Lyrissa Barnett Lidsky, Defamation, reputation and the mythology of proof, Washington University Law Review, 1998.”
- “Russell L Weaver, David F Partlett, Mark S Dinh, The right to speak ill, John Marshall Law Review, 1992.”
- “Eric Descheemaeker, Protecting reputation, defamation and negligence, Legal Studies, 2009.”
- “James Q Whitman, The two Western cultures of privacy, dignity and liberty, Yale Law Journal, 2004.”
- “Jason Bosland, Serious harm and the Defamation Act 2013, Melbourne University Law Review, 2014.”
- “David Rolph, Publication, innocent dissemination and digital platforms, Sydney Law Review, 2016.”
- “T T Arvind and Jenny Steele, Liability for publication online, Oxford Journal of Legal Studies, 2015.”
- “Patrick O’Callaghan, Reputation, autonomy and tort theory, Legal Studies, 2010.”
- “Paul Mahoney, Freedom of expression and respect for the reputation of others, European Human Rights Law Review, 2008.”
- “Mary-Rose Papandrea, Social media, public officials and defamation, Boston College Law Review, 2012.”
- “Burkhard Hess and Cristina M Mariottini, The European private international law of defamation, Journal of Private International Law, 2014.”
IX. Databases and portals for citation copies –
- “Supreme Court Cases Online, SCC Online, case law database.”
- “Indian Kanoon, judgments database, Supreme Court and High Courts.”
- “HUDOC, European Court of Human Rights database.”
- “BAILII, British and Irish Legal Information Institute.”
- “JSTOR, scholarly journal archive.”
- “Google Scholar, legal scholarship index.”
- “HeinOnline, Law Journal Library.”
