Supreme Court's Stance on Decriminalising Defamation

Source:  Indian Express 

Introduction 

The question of whether defamation should remain a criminal offense continues to spark significant debate in India's legal landscape. Defamation laws represent a delicate balance between protecting individual reputation and preserving freedom of speech. Two fundamental rights often find themselves in tension. The recent observations by the Supreme Court suggesting it may be "time to decriminalise all this" have reignited discussions about the colonial-era offense and its relevance in modern democratic India. 

 What is the Current Issue before the Supreme Court?  

• On September 22, 2025, a Supreme Court bench comprising Justice M M Sundresh and Justice Satish Chandra Sharma made significant observations while hearing a criminal defamation case. 
• A JNU professor filed the case against The Wire's 2016 article. The case involves allegations that the publication linked the professor to preparing a dossier. 
•  The dossier accused the university of hosting a "sex racket" and supporting separatist causes. The court's comment about decriminalising defamation has brought  

What did the Court Observe About Decriminalising Defamation? 

• The Supreme Court's observation, "It's time to decriminalise all this," directly challenges the existing legal framework established in 2016.  
• This statement suggests judicial reconsideration of whether criminal defamation continues to serve a legitimate purpose in contemporary India.  
• The bench appears to be questioning the necessity of treating defamation as a criminal offense rather than merely a civil wrong. This potentially signals a shift in judicial thinking about balancing free speech against reputation protection. 

What is Defamation and Types of Defamation? 

• Defamation fundamentally involves publishing statements that injure another person's reputation.  
• These statements expose individuals to hatred, ridicule, or contempt. Indian law recognizes two distinct approaches to defamation: civil and criminal.  
• Civil defamation treats reputation damage as a private wrong requiring monetary compensation. 
• Criminal defamation considers it a public offense warranting deterrent punishment through fines or imprisonment.  
• This dual framework reflects the law's recognition that defamatory statements can harm both individual interests and broader social harmony. 

What are the Elements of Defamation and Legal Provisions? 

• Section 356 of the Bharatiya Nyaya Sanhita (BNS) defines defamation comprehensively.  
• The provision requires several key elements. The statement must be defamatory in nature, directed at an identifiable person or group, and communicated to third parties.  
• Unlike civil cases, criminal defamation demands proof of either intent to harm or knowledge that harm would likely result.  
• The law covers various forms of expression including spoken words, written statements, signs, and visible representations.  
• The offense extends to statements about deceased persons, companies, and associations. It encompasses even ironical or alternative expressions. 

What are the Exceptions to Defamation? 

• The law provides ten specific exceptions where statements don't constitute defamation.  
• These include truthful statements made for public good. Good faith opinions about public servants' official conduct are protected. 
• Fair criticism of public performances and substantially accurate court proceeding reports are allowed.  
• Other exceptions cover lawful authority exercising censure, good faith accusations to proper authorities, and cautions given for protection purposes. 
• These exceptions require "good faith" meaning honest intention without malice. They must serve legitimate purposes like public benefit or lawful authority. 

What was the Previous Ruling by Court? 

• The 2016 landmark case Subramanian Swamy v. Union of India (2016) established the current constitutional position on criminal defamation.  
• The two-judge bench rejected challenges arguing that Section 499 IPC (now Section 356 BNS) violated free speech rights. The court held that while Article 19(1)(a) guarantees freedom of expression, Article 19(2) permits reasonable restrictions including defamation. 
•  The judgment linked reputation to Article 21's right to life and liberty. It treated reputation damage as affecting both individual dignity and social cohesion.  
• The court rejected the "chilling effect" argument. It maintained that criminal sanctions were proportionate and necessary for protecting constitutional values of dignity and fraternity. 

How Can Defamation Be Decriminalised? 

• Decriminalising defamation would require substantial legal and procedural changes. The 2016 Subramanian Swamy precedent remains binding.  
• A fresh constitutional challenge must be filed by someone prosecuted under the current law.  
• A two-judge bench delivered the original verdict. Only a larger bench can overrule it. 
• The matter would likely require referral to the Chief Justice of India for constituting a Constitution Bench of at least five judges under Article 145(3). 
• This involves substantial constitutional interpretation questions. Any successful challenge would need to demonstrate that criminal sanctions are excessive, unreasonable, or disproportionate compared to civil remedies. 

Conclusion 

The Supreme Court's recent observations represent a potential watershed moment in India's defamation jurisprudence. The 2016 precedent established criminal defamation's constitutional validity. Evolving judicial thinking suggests possible reconsideration of this colonial-era offense. The fundamental challenge remains balancing free speech against reputation protection in a democratic society. Whether criminal sanctions are necessary beyond civil remedies continues to generate debate among legal scholars, journalists, and civil society advocates. The ultimate resolution will significantly impact how India navigates the tension between protecting individual dignity and preserving robust public discourse essential to democratic governance. The legal community awaits further developments as this constitutional question potentially moves toward comprehensive judicial review.