Criminal Defamation: Legal Panel Advocates Vigorous Retention as a Crime

legal panel suggests that criminal defamation be kept as a crime.In its 285th report submitted to the Union law ministry on January 31, the Commission underlined that the right to reputation is a facet of Article 21.

Criminal defamation:

making false statements to harm someone’s reputation, facing legal consequences.

22nd Law Commission:

• The 22nd Law Commission, highlighting the fact that not all statements and publications are worthy of the protection of the right to free speech, has suggested keeping criminal defamation as an offense within the regulations of the nation’s criminal laws.
• The report was almost immediately after the Parliament approved the Bharatiya Nyaya (Second) Sanhita, 2023, which was passed during the just ended winter session and intends to replace the current Indian Penal Code, 1860 (IPC).

285th report:

• The Commission highlighted in its 285th report, which was submitted in to the Union Law Ministry on January 31, that the right to reputation is an essential part of Article 21 of the Constitution, which guarantees the “right to life and live with dignity,” and that it must be “adequately protected against defamatory speech and imputations.“

Chairperson Ritu Raj Awasthi

• Reputation is something that cannot be seen, only earned. It is an asset that is created over a lifetime and destroyed in seconds. The entire jurisprudence surrounding the law on criminal defamation is of the essence of protecting one’s reputation and its aspects,” the panel headed by chairperson Ritu Raj Awasthi said in its report titled “Law of Criminal Defamation”.

According to the report:

• According to the report, permission to jeopardize reputation cannot be granted solely because an individual should enjoy the freedom of expression at the cost of hurting others’ sentiments. “It must be understood that censorship is not entirely against someone’s thoughts and opinions. It is a safeguard that a person can leverage in situations where their reputation has been harmed. No right is absolute, and both individuals should be understood harmoniously with the intention of making society peaceful and habitable,” emphasized the statement.

How does the legal panel suggest freedom of speech?

• The legal panel stated that the law recognizes that causing harm to reputation is not just an attack on an individual but a stigma on the entire society. Offenders can be penalized with community service as a form of repentance. The report emphasizes, “Through the initiation of this penalty, Indian law has demonstrated the most balanced perspective in protecting both reputation and freedom of speech.”

Referring to a report from the Organization for Security and Co-operation in Europe (OSCE), the panel also highlighted that most European countries provide for the possibility of imprisonment for up to two years as a potential penalty and do not impose economic or political hindrances for criminal defamation. The OSCE is a regional security-focused intergovernmental organization involving member countries from Europe, North America, and Asia.

Punishment for defamation under the new law:

• Under the new law, anyone committing defamation may face up to two years of simple imprisonment, a fine, or both, or be penalized with community service.

Commending the move, the commission emphasized that the new law has struck a balance by curbing misuse through the initiation of community service as a form of punishment, ensuring the protection of the right to reputation and introducing a balanced perspective for penalizing criminal defamation.

Central Law Minister Arjun Ram Meghwal, as mentioned in the commission’s letter, stated that he conducted a “comprehensive study” on defamation laws after the Supreme Court’s decision in the Subramanian Swamy vs. Bharat Sangh (2016) case.

The 22nd Law Commission conducted a comprehensive study, analyzing the history of defamation laws, their relationship with the rights of free speech and expression, and various decisions by courts across the country. The commission studied the relationship between the right to reputation and the rights of free speech and expression, examining how to balance both. Additionally, the commission focused on the treatment of criminal defamation in various judicial domains, as stated in the letter from the panel’s chief, Avasthi.

In 2016, the Supreme Court had dismissed constitutional challenges to the criminalization of defamation, holding that it was a reasonable restriction on the right to freedom of expression. The apex court also recognized the constitutional duty to respect the dignity of others.

Petitions under Article 32 of the Constitution,

including those filed by Congress leader Rahul Gandhi, Aam Aadmi Party chief Arvind Kejriwal, and Bharatiya Janata Party’s senior leader Subramanian Swamy, challenged the constitutionality of criminal defamation, arguing that it hindered their work in the exercise of freedom of expression.

Responding to this issue, senior criminal lawyer Sherbir Panag stated, “There is no place for criminalization of defamation in a modern civilized society because freedom of expression is absolute and should be.”

Consequences:

The consequences of defamation will undoubtedly be felt, and tangible harm is indeed its inevitable outcome. The delay in dispensing justice in civil cases exacerbates the problem, hindering the establishment of adequate remedies; a resolution that cannot be achieved through criminalization. It should be acknowledged that the Indian legal system grapples with excessive criminalization, which weakens the state’s capacity to effectively prosecute cases in exchange for meaningful solutions,” remarked Panag.

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