GS Paper 2

The criminalisation of defamation in India has increasingly been criticised for fostering opportunistic litigation and curbing free expression. Elucidate

5 min read InclusiveIAS Editorial Team

Introduction
Issues with Criminalisation of Defamation
Way Forward / Solutions
Conclusion
Bharatiya Nyaya Sanhita – Section 356

Recently, the Supreme Court has voiced its unease at the growing use of criminal defamation proceedings by private individuals and political actors as an insurance against criticism and as a means of retribution

Issues with Criminalisation of Defamation

Fostering Opportunistic Litigation

Strategic Silencing of Critics:
- Powerful individuals, corporations, and public officials often use criminal defamation as a tool to harass, intimidate, and silence journalists, activists, and whistleblowers. The threat of prolonged criminal proceedings (non-bailable, punishable with up to two years imprisonment) forces critics into self-censorship.
- Weaponisation of defamation complaints for political vendetta (e.g., suits against opposition leaders).
- Statements often taken out of context to harass critics.
Process as Punishment:
- Unlike civil defamation, where the remedy is damages, criminal defamation places the accused at risk of imprisonment and social stigma. The process itself becomes punitive, with cases dragging for years, draining resources, and causing psychological distress.
Vague and Subjective Definitions:
- The broad language of Section 356 of BNS (e.g., “harm to reputation”) allows for frivolous complaints. Even satire, parody, or fair criticism is often framed as “defamatory,” enabling litigants to exploit legal ambiguity.

Chilling Effect on Free Expression

While the Indian Constitution guarantees freedom of speech (Article 19(1)(a)), the Supreme Court in Subramanian Swamy v. Union of India (2016) upheld criminal defamation, prioritizing “reputation” as a fundamental right under Article 21. This balance, however, disproportionately restricts dissent.
Fear of imprisonment discourages criticism of political leaders, public officials, and corporations.
Investigative journalism, political commentary, and exposure of corruption are stifled. For instance, media houses face repeated defamation cases for reporting on scams or human rights abuses.
Leads to self-censorship, especially among journalists and activists.
Global Contrast:
- Most democracies (e.g., the UK, USA) have decriminalized defamation, treating it as a civil wrong. India’s retention of criminal provisions is seen as regressive and out of sync with free-speech norms.

Disproportionate Punishment

Reputational harm can be compensated by civil remedies (damages, injunctions, retractions).
Criminal punishment is excessive compared to the injury caused.

Way Forward / Solutions

Shift from Criminal to Civil Defamation
Make civil remedies the primary tool for redressal—compensation, injunctions, retractions.
Judicial Safeguards
Ensure courts assess whether speech crosses the threshold of genuine defamation before issuing summons.
Protect Public Interest Speech
Exempt bona fide criticism, satire, and investigative journalism from criminal defamation actions.
Legislative Reform
Amend BNS to decriminalise defamation while retaining safeguards against hate speech and incitement.
Promote Balance
Protect individual dignity without undermining the constitutional guarantee of free expression, vital for democracy.

Conclusion

Criminal defamation in India, while aimed at protecting reputation, has morphed into a weapon for the powerful to curb expression. Its misuse underscores an urgent need for legislative reform to uphold democratic discourse and fundamental rights.

Bharatiya Nyaya Sanhita

Section 356:

(1)Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes in any manner, any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.

Explanation 1: It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives.

Explanation 2: It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.

Explanation 3: An imputation in the form of an alternative or expressed ironically, may amount to defamation.

Explanation 4: No imputation is said to harm a person’s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.

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Criminalisation of Defamation in India