Context: 

This article is based on the news “Law Commission recommends retaining criminal defamation ‘within the scheme of criminal laws” which was published in the Hindu. Recently, the 22nd Law Commission of India has submitted its report number 285 titled “The Law of Criminal Defamation” to the Government of India.

Law Commission Report On Law of Criminal Defamation: Key Highlights

• Examination of Issues: The Law Commission received a reference from the Ministry of Law & Justice in 2017, requesting the Commission to examine various issues relating to the Defamation laws and make recommendations thereon.
• Review of Impact of Criminal Defamation: A request was made highlighting the need for a review related to the impact of the law of criminal defamation on the freedom of speech and expression. 
  • The reference suggested a need to reform the law on defamation, stating that existing laws neither serve the interests of the aggrieved person nor the principle of free speech.
• Law Commission Report On Criminal Defamation: The 22d Law Commission decided to take up this issue and review the law relating to criminal defamation in light of the existing criminal laws, including the Bharatiya Nyaya Sanhita, 2023 and the Bharatiya Nagarik Suraksha Sanhita, 2023, as well as the judgments concerning the subject matter, released its report.

What is Defamation?

• Defamation: It is the communication of a false statement that harms the reputation of an individual person, business, product, group, government, religion, or nation.
• Defamation Law: It professes to protect personal character and public institutions from destructive attacks, without sacrificing freedom of thought and the benefit of public discussion.
• Categorisation of Defamation Laws in India: In India, defamation is an offence under both the civil and criminal law.
  • Civil defamation law in India: Defamation is punishable under the Law of Torts by imposing punishment in the form of damages to be awarded to the claimant. 
    • A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits a tortious act.
  • Criminal defamation law in India: Defamation is a bailable, non-cognizable and compoundable offence. 

• Defamation Laws in India

• • Bharatiya Nyaya Sanhita, 2023 (BNS): The offence of defamation carries a simple imprisonment of up to two years or a fine, or both or with community service.
    • Section 354 of the BNS defines defamation and corresponds to Section 499 of the IPC.
  • Indian Penal Code (IPC): The offence of defamation carries a punishment of simple imprisonment of up to 2 years or a fine or both. The law of criminal defamation is enumerated in Sections 499, 500, 501 and 502 of the IPC, 1860.
  • Information Technology (IT) Act, 2000: All defamation related criminal and civil laws are applicable to defamation done by use of social media under the IT Act, 2000.

Need for Criminal Defamation Laws

• Balancing Constitutional Values: The need for a legal provision addressing criminal defamation arises from the essential task of balancing the constitutional values:
  • In a democratic society, the right to free speech and expression is revered as a foundational tenet. 
  • Further, the protection of individual reputations is a fundamental facet of human dignity. 
• Stronger Deterrent Effect: Compared to possible monetary damages in civil lawsuits, criminal punishment, such as fines or imprisonment, have a greater deterrent effect against intentional and destructive defamation. 
• Public Interest in Protecting Reputation: A person’s reputation and general well-being can be seriously impacted by defamation. Criminal prosecution conveys a message stating that such injury is not acceptable and acknowledges the public interest in protection of reputation.
• Protecting Vulnerable Groups: Criminal laws pertaining to defamation can provide important safeguards against discrimination and hate speech directed towards marginalized communities or minorities, among other vulnerable groups. 
• International Practice: The international human rights treaties have emphasised on the right to reputation. 
• • Article 12 of the Universal Declaration on Human Rights, 1948, stipulates that no one shall be subjected to attack on his honour and reputation.
  • International Covenant on Civil and Political Rights (ICCPR), to which India is a signatory, recognises reputation of an individual as a restriction upon the right of expression. 

Issues Relating to Defamation Law in India

• Right to Free Speech vs Right to Reputation: The law of defamation has been described as ‘a tale of two interests.’ In the first, the right holders possess the constitutional right of ‘free speech‘, and on the other end, lies the crucial right to reputation. 
• Criminalization of Defamation: It remains a topic of debate, with some advocating for a shift towards civil remedies to address reputational harm while others emphasising on maintaining the stringent protection against one’s reputation.
• Colonial Legacy: Criminal defamation traces its origin from the colonial era and is in conflict with the democratic values and free speech as enshrined under Article l9(1)(a) of the Constitution of India.
• Constitutional Validity of Restrictions: The offence of defamation seeks to protect the reputation of an individual. It is held in a series of judgments, the right to reputation is an integral part of the right to life and liberty under Article 21. 
• • The issue does not require the prevalence of a particular right, rather it evaluates whether one’s right of unrestricted speech encroaches upon another’s right to reputation.
• Misuse and Harassment: There have been instances where defamation cases have been filed against journalists, activists, and whistleblowers to silence them or deter them from exposing wrongdoing.

• • Further, Right to Information (RTI) could involve filing malicious requests to tarnish someone’s reputation.

Way Forward

• Recommendation of the Law Commission: 22nd Law Commission of India recommended that criminal defamation be retained within the scheme of criminal laws in the country. 
  • In its report on the law on criminal defamation, the commission said that the right to reputation flows from Article 21 of the Constitution, and being a facet of right to life and personal liberty, it needs to be “adequately protected” against defamatory speech and imputation.
• Balancing of Fundamental Rights by Courts: The argument of giving more weight to a particular right does not stand tall. Thus, balancing of the two fundamental rights is done in order to give a harmonious construction to both. 
• • For instance, in the case of Ram Jethmalani v. Union of India, the court held that the rights of citizens to effectively seek the protection of fundamental rights under Article 32 have to be balanced against the rights of citizens and persons under Article 21.
  • Further, the Bharatiya Nyaya Sanhita, 2023 has added a provision of community service as an additional punishment. This law itself gives a balancing approach.
• Principles of Proportionality: As long as the law satisfies the principles of proportionality, it is deemed to be falling within the permissible limits for violating the constitutional right.
  • The Indian Supreme Court in K.S. Puttaswamy v. Union of India, has laid down the test for proportionality: 
    • The action must be sanctioned by law. 
    • The proposed action must be necessary in a democratic society for a legitimate aim. 
    • The extent of such interference must be proportionate to the need for such interference. 
    • There must be procedural guarantees against abuse of such interference. 
• Prevent Misuse: Preventing the misuse of criminal defamation, with its potential to cover dissent and restrain free expression, is important to ensure democracy. 
  • When criminal defamation provisions are exploited as tools to silence individuals, journalists, or critics, it not only hampers the free flow of information but also impedes the democratic principles of accountability and transparency.
  • For example, the Supreme Court, in Vijaykant v. City Public Prosecutor remarked that defamation cases should not be used as a political counter weapon against critics of the government. 
• Following Principle of Mediating Maxims: The political theorist, Joel Feinberg, in his principle of “mediating maxims” stated that the need to prevent harm (private or public) to parties other than the actor is always an appropriate reason for legal coercion.