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Freedom of Speech – Defamation, Sedition, etc.

Criminal Defamation in India

Prelims Only | Polity | Mains Paper 2: Indian Constitution - historical underpinnings, evolution, features, amendments, significant provisions and basic structure

Why in the News?

Justice M.M. Sundresh of the Supreme Court remarked that the time has come to decriminalise defamation, reflecting concern over its growing misuse.

Free Speech and Defamation: Constitutional Provisions

  • Article 19(1)(a): Freedom of speech & expression.
  • Article 19(2): Allows reasonable restrictions in the interests of:
    • Sovereignty & integrity of India.
    • Security of the State.
    • Friendly relations with foreign States.
    • Public order, decency or morality.
    • Contempt of court, defamation, or incitement to an offence.
  • Article 21: Right to reputation is part of right to life (Subramanian Swamy v. UOI, 2016).

What is Criminal Defamation?

  • Overview: Offence of harming a person’s character, fame, or reputation with false and malicious statements.

  • Forms:

    1. Libel: False defamatory statement in writing.
    2. Slander: False defamatory statement spoken orally.
  • Indian Context: Both libel & slander are criminal offences if made publicly.
  • Earlier IPC Section 499: Criminalised communication of false info harming reputation; punishment under IPC Section 500 – up to 2 years imprisonment.

  • Law under Bharatiya Nyaya Sanhita (BNS), 2023:

    • Section 354(2) – punishment up to 2 years simple imprisonment, or fine, or both, or community service.
    • Section 356 – covers words, signs, or visible representations harming reputation.
  • Scope: Applies to individuals, companies, and deceased persons if family reputation is harmed.
  • Essential Elements: False statement, harm to reputation, communication to third party, and intent/knowledge of likely harm.
  • Nature of Offence: Non-cognizable and bailable – requires a warrant for arrest; bail available.
  • Digital Extension: Covers defamatory posts on social media, websites, and messaging platforms.
  • Defences/Exceptions: Truth in public interest, fair comment on public servants, judicial proceedings, public performances, and cautionary statements made in good faith.

Judicial Pronouncements related to Defamation:

  • Subramanian Swamy v. Union of India (2016): SC upheld constitutionality of IPC Sections 499 & 500; held that reputation is part of Article 21; criminal defamation valid under Article 19(2) restrictions.
  • Kaushal Kishore v. Union of India (2017): SC held no extra restrictions on free speech beyond Article 19(2).
  • Shreya Singhal v. Union of India (2015): SC struck down Section 66A of IT Act, calling it vague and violative of free speech.
  • Imran Pratapgarhi Case (March 2025): Court adopted the “reasonable person” test (Clapham omnibus standard), not that of overly sensitive individuals.
  • Recent Stays: SC stayed multiple cases (incl. against Rahul Gandhi and Shashi Tharoor) stressing courts should not be tools for political vendetta.
[UPSC 2014] 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.

[UPSC 2021] ‘Right to Privacy’ is protected under which Article of the Constitution of India?

Options: (a) Article 15 (b) Article 19 (c) Article 21 * (d) Article 29

 

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