Defamation Law Under Scrutiny
The Supreme Court’s observation that it may be time to decriminalise defamation opens up a range of possibilities, especially as courts across the country grapple with a surge in such cases.
A two-judge bench led by Justice MM Sundresh, along with Justice SC Sharma, made this remark while issuing a notice to a Jawaharlal Nehru University (JNU) professor in a case against a news portal. The professor had filed a defamation suit in 2016 over an article alleging that he, along with a group of professors, had compiled a dossier claiming JNU was a “den of organised sex rackets” and other wrongdoings. This is the second litigation round in the matter.
The Supreme Court asked senior counsel Kapil Sibal, representing the news portal, how long the case might continue, hinting that the law might need to be decriminalised. Sibal agreed, noting that many individuals are currently facing prosecution under the defamation law. He also referred to a high-profile case against Congress leader Rahul Gandhi, which is under the court’s consideration.
Criminal defamation remains a punishable offence under Section 356 of the recently enacted Bharatiya Nyaya Sanhita, which replaced Section 499 of the Indian Penal Code. India is among the few democracies where defamation is treated as a criminal offence; most other countries handle defamation through civil remedies.
In 2016, the Supreme Court upheld the constitutionality of criminal defamation after challenges from Subramanian Swamy, Rahul Gandhi, and Arvind Kejriwal. However, recent years have seen a sharp rise in criminal defamation cases, often involving criticism of political leaders. Many cases are filed in distant courts, making it difficult for the accused to defend themselves.
This surge has significant implications for free speech, as the fear of litigation may deter individuals from exercising their right to express opinions freely.
One notable example is Rahul Gandhi’s conviction in a defamation case filed by BJP functionary Purnesh Modi over a remark Gandhi made at a rally in Karnataka, which was considered a slight to Prime Minister Narendra Modi. A Gujarat court convicted him and sentenced him to two years in jail, leading to his disqualification from the Lok Sabha.
The Supreme Court subsequently stayed the conviction. A bench headed by Justice BR Gavai noted that neither the trial court nor the Gujarat High Court had provided reasons for imposing the maximum sentence of two years’ imprisonment on the Congress leader. This stay overturned Rahul Gandhi’s disqualification, and he was reinstated as a Member of Parliament.
If decriminalisation of defamation is realised, it would have far-reaching consequences for free speech and the media. Amid pressure from an increasingly litigious political class that reacts strongly even to mild criticism, the media faces the challenge of reporting fearlessly and impartially.
The move towards decriminalisation could thus reinforce the foundations of free expression, protecting individuals and the press alike from the threat of criminal prosecution over defamation complaints.
https://www.freepressjournal.in/analysis/defamation-law-under-scrutiny
