Introduction
“India ranks 159/180 in the World Press Freedom Index (2025), reflecting shrinking democratic space, where criminal defamation—validated in Subramanian Swamy v. Union of India (2016)—increasingly curtails constitutionally guaranteed free speech.”
The Nature of Criminal Defamation
- Defined under Sections 499–500 of IPC, prescribing imprisonment up to 2 years.
- Intended to protect individual reputation as part of Article 21 (right to life).
- However, it clashes with Article 19(1)(a) freedom of speech, since restrictions under Article 19(2) must be “reasonable.”
Growing Use & Judicial Concerns
- Justice M.M. Sundresh (2025) expressed unease at rising misuse of criminal defamation to intimidate critics.
- Cases:
- Rahul Gandhi (2023, Surat court conviction) leading to disqualification.
- Editors of The Hindu (Jayalalithaa govt.) facing multiple summons.
- Defamation cases by political leaders (Nitin Gadkari, Arun Jaitley vs. Arvind Kejriwal, 2012–14) delaying governance.
- Trial courts often issue summons mechanically, without assessing the “threshold of defamatory speech.”
Why It Undermines Democratic Debate
- Chilling Effect on Free Speech: Threat of imprisonment fosters self-censorship, particularly among journalists, activists, and opposition leaders. Small-town journalists face harassment through distant court appearances.
- Tool of Political Retribution: Weaponisation of defamation suits to silence rivals. Example: Criminal complaints used as lawfare—strategic litigation to exhaust opponents.
- Disproportionate Remedy: Reputational harm is intangible and reparable via civil remedies (damages, injunctions, retractions). Criminal sanction with jail is disproportionate under “principle of proportionality” (Justice K.S. Puttaswamy v. Union of India, 2017).
- Global Practice: U.K. (2009), Ghana, and the U.S. have decriminalised defamation. UN Human Rights Committee (General Comment No. 34) urges states to abolish criminal defamation as inconsistent with ICCPR Article 19.
Way Forward
- Decriminalisation & Civil Remedies: Shift to civil defamation ensuring compensation and apology as proportional remedies. Strengthen fast-track civil courts to address reputational harm.
- Judicial Safeguards: Supreme Court guidelines for trial courts to apply prima facie speech thresholds before issuing summons. Adopt “actual malice” standard (New York Times v. Sullivan, U.S.) in political speech cases.
- Institutional Support for Free Press: Strengthen Press Council of India and create independent ombudsman for media grievances. Support whistleblowers under Whistleblower Protection Act, 2014.
- Democratic Maturity: Encourage tolerance for dissent as part of “marketplace of ideas” (Justice Holmes, U.S. SC). Political actors must use counter-speech, not criminal law, to address criticism.
Conclusion
As John Stuart Mill argued in On Liberty, silencing opinion robs society of truth; abolishing criminal defamation is essential to protect India’s democratic discourse, constitutional morality, and informed citizenship.
