Sanctions in relation: On the increasing utilization of criminal defamation actions

Criminal defamation contradicts the principles of democratic discourse

Context: The escalating use of criminal defamation proceedings in India has once again brought to the forefront the contentious debate surrounding the constitutional validity of criminalizing defamation and its chilling effect on the fundamental right to freedom of speech and expression. A recent observation by the Supreme Court has highlighted the rampant misuse of this colonial-era law, often employed as a tool for retribution and to stifle criticism, prompting a re-examination of its place in a modern democracy.

Introduction: A Colonial Relic in a Modern Democracy

Criminal defamation, enshrined under Section 499 of the Indian Penal Code (IPC) and now Section 356 of the Bharatiya Nyaya Sanhita, criminalizes any statement, spoken or written, that harms the reputation of an individual. While the intent is to protect an individual’s reputation, which the Supreme Court in the Subramanian Swamy vs. Union of India (2016) case held as an integral part of the right to life under Article 21, its application has raised serious concerns. The growing trend of its misuse by public figures and the powerful to quell dissent and critical journalism warrants a comprehensive analysis of its various dimensions.

The Legal Dimension: A Question of Proportionality

The core of the issue lies in the disproportionate nature of the remedy. Criminal defamation carries a punishment of up to two years of imprisonment, a fine, or both. Critics argue that reputational harm, unlike physical injury, can be adequately addressed through civil remedies such as monetary damages, injunctions, or retractions. The criminalization of what is essentially a private wrong is seen as an excessive restriction on the freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution.

While the Supreme Court upheld the validity of criminal defamation in 2016, recent judicial anxiety suggests a potential shift in perspective. On September 22, 2025, Justice M.M. Sundresh of the Supreme Court voiced his unease at the growing use of criminal defamation proceedings by private individuals and political actors as a means of retribution.  This observation came during the proceedings against the Foundation for Independent Journalism, echoing a broader concern within the judiciary about the law’s misuse.

The Political Dimension: A Tool to Silence Dissent

The political arena has become a prime theater for the misuse of criminal defamation. Political actors frequently resort to filing defamation cases against their rivals and critics to entangle them in protracted legal battles, thereby diverting their attention and resources. The process itself becomes a punishment, regardless of the eventual outcome of the case. This has been evident in numerous cases involving prominent political figures, where the judiciary has had to intervene to stay proceedings, emphasizing that courts should not be used to settle political scores. The use of state machinery by public servants and constitutional functionaries to initiate defamation proceedings against adversaries has also been a matter of concern, as it throttles democracy and the spirit of public accountability.

The Social Dimension: A Chilling Effect on Free Speech

The most significant social repercussion of the rampant use of criminal defamation is the creation of a “chilling effect” on free speech. Journalists, especially those working in smaller towns and reporting on local politicians or business interests, face the constant threat of arrest and the burden of traveling to distant courts, fostering an environment of self-censorship. This not only undermines the freedom of the press but also deprives the public of vital information and diverse perspectives. The fear of being dragged through a cumbersome legal process deters individuals from engaging in open and critical discussions on matters of public importance.

The Way Forward: Towards Decriminalization and Proportionality

The recent remarks from the Supreme Court, suggesting that the “time has come to decriminalise all this,” signal a crucial opportunity for legislative reform. The primary argument for decriminalization is that civil defamation offers a more proportionate and just remedy for reputational harm. Civil proceedings, which focus on damages, injunctions, and retractions, can effectively restore the reputation of the aggrieved without resorting to the drastic measure of imprisonment.

Decriminalizing defamation would align India with many other democracies that have moved away from treating it as a criminal offense. This would not only safeguard the cherished right to freedom of speech and expression but also unclog the already overburdened criminal justice system. A robust civil defamation law, which balances the right to reputation with the freedom of expression, would be a more fitting legal framework for a vibrant and functioning democracy. The focus should be on fostering a culture of open debate and criticism, where reputation is protected through proportionate civil remedies rather than the heavy hand of criminal law.

UPSC mains exam question based on the provided topic:

GS Paper II: Polity & Governance

GS Paper II: Polity & Governance

GS Paper IV: Ethics

Question 1. While the Supreme Court has upheld the constitutionality of criminal defamation, its growing misuse as a tool for retribution and silencing dissent has raised concerns about its disproportionate impact on the freedom of speech and expression. Critically analyse the arguments for and against the decriminalization of defamation in India. (250 words, 15 marks)

Question 2. The increasing weaponisation of criminal defamation proceedings has a ‘chilling effect’ that extends beyond individual court cases, impacting the very fabric of public discourse and media freedom. Elaborate on the socio-political implications of this trend. (150 words, 10 marks)

(Source – The Hindu)