Chilling effect – the issue of criminal defamation in India | 25th March 2023 | UPSC Daily Editorial Analysis

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What's the article about?

  • It talks about the issue of criminal defamation in India.


  • GS2: Governance;
  • Essay;
  • Prelims


  • The Surat Court recently sentenced Congress MP Rahul Gandhi to two years in prison in a 2019 Defamation Case for his remarks about Prime Minister Modi.
  • Rahul Gandhi was also disqualified from the Lok Sabha as a result of this.

What is defamation?

  • Defamation is the act of communicating false statements about a person that injure the reputation of that person when observed through the eyes of an ordinary man.
  • Anyone who feels he or she has been wrongly accused of something by someone in public, through words or gestures, spoken, written, or by inference can file a defamation suit in a court of law claiming that the accusation levelled deals a blow to his/her reputation.
  • There are two types of defamation in India:
    • Civil defamation:
      • Under this, a person who is defamed can move either High Court or subordinate courts and seek damages in the form of monetary compensation. There is no punishment in the form of a jail sentence.
    • Criminal Defamation:
      • Under this, the person against whom a defamation case is filed might be sentenced to two years’ imprisonment or fined or both.
      • IPC Section 499 lays down the definition of defamation and Section 500 lays down the punishment for criminal defamation (two years’ imprisonment for a person found guilty of defamation).

Supreme Court’s directives on defamation:

  • Defamation is one of the recognised exceptions to the fundamental right to free speech and expression under Article 19(1)(a) of the Constitution.
  • In Subramanian Swamy vs Union of India case, a bench of Justices Dipak Misra and P C Pant approved the Constitutional validity of sections 499 and 500 (criminal defamation) in the Indian Penal Code, underlining that an individual’s fundamental right to live with dignity and reputation “cannot be ruined solely because another individual can have his freedom”.
  • The ruling noted that “the right to freedom of speech and expression is not an absolute right” and has to be “balanced with the right to reputation” which is protected under Article 21 of the Constitution”.
  • The court held that criminalisation of defamation to protect individual dignity of life and reputation is a “reasonable restriction” on the fundamental right of free speech and expression.
  • The judgment holds far-reaching implications for political dissent and a free press.
  • In August 2016, the court also passed strictures on Tamil Nadu Chief Minister J Jayalalithaa for misusing the criminal defamation law to “suffocate democracy” and, the court said, “public figures must face criticism”.
  • However, it also underscored that criticism was not defamation, the bench accepted their plea that a trial court must be “very careful” in scrutinising a complaint before issuing summons in a criminal defamation case.

Way forward:

  • A modern democracy should not treat defamation as a criminal offence at all. It is a legacy of an era in which questioning authority was considered a grave crime.
  • In contemporary times, criminal defamation mainly acts as a tool to suppress criticism of public servants and corporate misdeeds.
  • In 2016, the Supreme Court upheld criminal defamation without adequate regard to the chilling effect it has on free speech, and to that, one must now add, political opposition and dissent.

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