Time to Reform Defamation Laws in India

• 27 Sep 2025

This editorial is based on “​Penalty in proportion: On growing use of criminal defamation proceedings,” which was published in The Hindu on 24/09/2025.This article highlights that criminal defamation is often misused in India, creating hurdles for free expression, and suggests that civil remedies would be a fairer way to protect reputation in a democracy.

For Prelims:  Defamation, Section 356 of the Bharatiya Nyaya Sanhita, Article 21.Subramanian Swamy v. Union of India (2016), “Bonnard Standard”,Section 66A of IT Act

For Mains: Recent Cases Related to Defamation in India, Key Arguments in Favour & Against of Decriminalising Defamation in India

The Supreme Court of India has recently signalled a significant shift in its approach to criminal defamation, observing during a hearing that ‘time has come to decriminalise all this.’ This remark came while considering a plea by the Foundation for Independent Journalism, seeking to quash summons issued in a criminal defamation case. The remark reflects concern over the misuse of defamation laws to intimidate critics and journalists. It raises a crucial debate on balancing the protection of reputation with free speech in a democracy like India.

What is the Concept of Defamation in Law?

• About: Defamation refers to any oral or written statement, conveyed through words or expressions, that damages the reputation of another person.
  • Types of Defamation:
    • Libel: Defamatory statement that is written, published, or visible.
    • Slander: Defamatory statement that is spoken and causes loss of reputation.
• Legal Basis in India: Section 356 of the Bharatiya Nyaya Sanhita defines defamation as making or publishing any imputation intending to harm, or knowing it will harm, a person’s reputation.
• Constitutional Justification: Courts locate reputation within Article 21 (right to life and personal liberty), treating reputational harm as affecting social harmony.
• Scope of Offence: Applies to living individuals, the dead, companies, associations, and includes statements made ironically or by alternatives. 
  • Harm includes lowering moral/intellectual character, caste/calling reputation, creditworthiness, or causing belief that a person’s body is in a disgraceful state.
• Civil vs Criminal Defamation:
  • Civil: Private wrong; remedies include compensation for reputation damage.
  • Criminal: Public offence; punishable by fine or imprisonment to deter malicious attacks.
• Elements for Criminal Liability: For criminal liability to arise, three elements must be present: the statement must be defamatory, it must be directed at a specific person or clearly identifiable group, and it must be published or communicated to at least one person other than the claimant.
  • Unlike civil liability, criminal law requires proof of either an intention to cause harm or knowledge that harm is likely to occur.

What are the Recent Judicial Cases Related to Defamation in India? 

• Subramanian Swamy v. Union of India (2016): The Supreme Court upheld the constitutionality of criminal defamation under Sections 499 and 500 of the IPC (now Section 356 of BNS 2023), ruling that criminal defamation is a reasonable restriction on free speech under Article 19(2) and that the right to reputation is part of the right to life under Article 21. 
  • The Court emphasised balancing freedom of speech with protection of individual reputation, stating “Reputation of one cannot be allowed to be crucified at the altar of the other’s right of free speech”.
• MJ Akbar v. Priya Ramani (2021): In a prominent MeToo case, the Delhi court acquitted Priya Ramani of criminal defamation charges filed by MJ Akbar, holding that the right to dignity and protection from sexual harassment outweighed Akbar’s claim to reputation. 
  • Truth and public good were recognised as valid defences in defamation cases.
  • Similarly,in the recent Sameer Wankhede v. Netflix & Red Chillies Entertainment case (Delhi High Court, September 2025), the issue of defamation has resurfaced prominently, underscoring the tension between freedom of expression and the protection of individual reputation.
• Rahul Gandhi 'Modi' Case (2019–Present): Rahul Gandhi was convicted by a Surat Magistrate Court for remarks made about the “Modi” surname, allegedly referring to the Modi community. 
  • His conviction led to temporary disqualification from Parliament, with ongoing appeals to the Supreme Court. This case raised questions on group defamation and political speech.
• Adani Gag Order & Media Injunctions (2025): A Delhi court recently quashed a gag order restricting journalists from publishing allegedly defamatory content against Adani Enterprises. 
  • The Supreme Court reiterated the “Bonnard Standard”, stating that pre-trial injunctions should be rare and only justified if the defendant cannot defend the alleged defamation.
• Supreme Court’s 2025 Observation: In September 2025, the Supreme Court hinted at the possibility of decriminalizing defamation, suggesting the colonial-era offence might not fit a modern democracy. 
  • The ongoing case involves a JNU professor and ‘The Wire’, with the bench openly debating the relevance and necessity of Section 356 of BNS, previously Section 499 IPC.

What are the Key Arguments in Favour of Decriminalising Defamation in India?

• Protecting Freedom of Speech: Criminal defamation laws have a “chilling effect” on free speech, inhibiting journalists, whistle-blowers, and citizens from expressing legitimate criticism or dissent resulting in self censorship. 
  • In September 2025, the Supreme Court itself noted that fear of criminal prosecution restricts the exercise of Article 19(1)(a) rights and that civil remedies sufficiently address reputational harm.
  • The Supreme Court in Shreya Singhal v. Union of India (2015) struck down the criminal section on online defamation (Section 66A of IT Act) precisely because it was vague and had a chilling effect on free speech.
• Preventing Abuse and Harassment: Criminal defamation has become a weapon for powerful individuals like politicians, actors, and industrialists to file Strategic Lawsuits Against Public Participation (SLAPP).
  • Recent examples include multiple FIRs registered against investigative journalists for reporting on government and corporate conduct, with the Editors Guild noting that even the process of responding to criminal summons acts as a “punishment by process” and suppresses free journalism.
• Reducing Judicial Backlog and Delays: Defamation trials clog lower courts and consume vast judicial resources for private disputes. 
  • The Supreme Court, while hearing the Wire-JNU case in September 2025, observed protracted litigation and delays in thousands of criminal defamation cases, often lasting for years, wasting valuable judicial time that could be reserved for serious offences.
• Safeguarding Press Freedom: Legal experts highlight that criminal defamation risks gagging the media and stifling democratic debate.
  • The quashing of criminal cases against Punjabi Tribune and Tribune editors in April 2025 illustrates that responsible reporting should not be criminalised, especially when journalists face strategic lawsuits designed to silence them.
  • India is ranked 151st out of 180 countries in the World Press Freedom Index (2025), highlighting significant challenges to journalistic freedom and media independence.
• Upholding Democratic Values: The Supreme Court, in its recent remark, emphasised that the dignity of reputation should be protected, but not at the cost of democratic pluralism and critical discourse. 
  • Decriminalisation realigns the law with constitutional values of dignity, fraternity, and mutual respect, ensuring neither right is “crucified at the altar” of the other.
• Conformity with Global Standards: International human rights organisations, including the Committee to Protect Journalists and UNHRC, urge India to repeal criminal defamation laws. 
  • Reputational injury is primarily a civil wrong (tort) that can be adequately remedied through monetary damages, injunctions, public apologies, or retractions.
  • Many countries have abolished such criminal provisions, recognising that they disproportionately impact free media and civic activism. 

What are the Key Arguments Against the Decriminalisation of Defamation in India?

• Protection of Reputation as a Fundamental Right: The Supreme Court, in Subramanian Swamy v. Union of India (2016), declared that reputation is an essential facet of the right to life under Article 21, and criminal defamation is a reasonable restriction under Article 19(2). 
  • Maintaining criminal penalties helps ensure rapid redressal for unjust attacks on reputation.
• Deterrence against Malicious and Irresponsible Speech: In the digital era, false information can spread instantly and irreparably. 
  • Legal experts and the Law Commission (2023) argued that criminal law serves as a powerful deterrent against the deliberate and reckless spread of defamatory content, helping curb fake news and irreparable harm to individuals.
    • Law Commission of India's 285th Report recommended retaining criminal defamation as a part of new criminal laws.
  • In SMC Pneumatics v. Jogesh Kwatra (2004), the Delhi High Court issued the first Indian cyber defamation injunction, recognising defamatory emails and internet posts as actionable under defamation law.
• Safeguarding from Social Ostracism: Civil defamation cases are lengthy and costly, which can disadvantage ordinary people lacking resources. 
  • Criminal prosecution, in contrast, provides a cost-effective and accessible remedy, empowering those who might otherwise face social ostracism or livelihood loss due to damaging rumours.
• Protection of Vulnerable Groups: Criminal defamation can serve as a safeguard for marginalized or vulnerable communities whose reputations are particularly susceptible to harm. 
  • For instance, defamatory statements targeting women, Dalits, or minority groups can lead to social stigma or harassment.
  • Criminal provisions ensure swift accountability and redress, which civil litigation might delay or make inaccessible.
• Preserving Public Order: Reckless or malicious statements have the potential to stoke community unrest and escalate conflict, particularly in India’s socially sensitive climate. 
  • Criminal defamation provisions serve as a check on such behaviour, mitigating the risk of widespread discord and protecting public order.

Which Reforms are Necessary for Defamation Law in India?

• Decriminalise Private Defamation, Retain Criminal Defamation for Public Interest: A balanced approach recommended by legal experts is to restrict criminal defamation only to cases involving public interest, national security, or public figures, while shifting private reputation disputes entirely to civil courts. 
  • This will protect freedom of speech for ordinary citizens while ensuring strong deterrents for reckless falsehoods affecting society.
  • Globally, most democracies treat defamation as a civil wrong, with victims seeking monetary compensation and corrective orders.
• Strengthen and Fast-track Civil Defamation Proceedings: Much of the harm in defamation arises from delayed justice. 
  • India should introduce fast-track courts or dedicated benches to handle civil defamation cases with clear timelines and reasonable compensation limits, thus offering effective and timely remedies without criminalising speech. 
  • Countries like the UK have relied on modernised civil laws, alongside Defamation Reform Acts, ensuring balanced protections without the threat of imprisonment.
• Introduce Anti-SLAPP (Strategic Lawsuit Against Public Participation) Legislation: SLAPP suits are used by powerful individuals and corporations to intimidate critics with costly litigation. 
  • Enacting anti-SLAPP laws, as done in jurisdictions such as the US, Canada, and Australia, would protect journalists, activists, and citizens from litigation abuse while allowing genuine defamation claims to proceed.
• Provide Specific Judicial Guidelines on Fair Criticism and Public Good: Drawing from the Supreme Court’s observations and international best practices, clear judicial principles should be codified to demarcate fair criticism, satire, and opinion from malicious defamation. 
  • This will help courts to fairly adjudicate defamation while avoiding arbitrary restrictions on speech.
• Promote Media Literacy and Public Awareness on Responsible Speech: Encouraging responsible speech and educating citizens on the distinction between criticism and defamation can reduce frivolous cases. 
  • Government, civil society, and media can collaborate on awareness campaigns, as seen in countries with active civic education, reducing societal tensions and legal disputes.

Conclusion:

Reforming defamation laws in India requires balancing freedom of expression with protection of reputation. As John Stuart Mill argued (in On Liberty), “silencing an opinion deprives humanity of the opportunity to exchange error for truth, thereby stifling critical thought and democratic accountability.”Thus, decriminalising private defamation, strengthening civil remedies, and enacting anti-SLAPP measures can protect journalists and citizens, foster responsible discourse, and uphold both constitutional freedoms and social justice. 

Drishti Mains Question: 

Criminal defamation laws in India have often been criticized for their chilling effect on free speech.How can India balance the constitutional right to free speech with protection of reputation through defamation law reforms?

UPSC Civil Services Examination, Previous Year Question (PYQ):

Prelims

Q. Right to Privacy is protected as an intrinsic part of Right to Life and Personal Liberty. Which of the following in the Constitution of India correctly and appropriately imply the above statement? (2018)

(a) Article 14 and the provisions under the 42nd Amendment to the Constitution.
(b) Article 17 and the Directive Principles of State Policy in Part IV.
(c) Article 21 and the freedoms guaranteed in Part III.
(d) Article 24 and the provisions under the 44th Amendment to the Constitution.

Ans: C

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Mains

Q. What do you understand by the concept of “freedom of speech and expression”? Does it cover hate speech also? Why do the films in India stand on a slightly different plane from other forms of expression? Discuss. (2014)