Because defamation is a fundamental component of Article 21 of the Constitution and cannot be compromised because someone must exercise their right to free speech at the risk of offending someone else, the Law Commission has recommended that it remain illegal under the country’s criminal code. 

“Many languages, concepts, and thoughts are skillfully and happily sustained in India. Because of the nature of society, people desire both to enjoy their independence and to keep the things they value most. One thing that cannot be seen and must be gained is reputation. An asset can be created in a lifetime and destroyed in a matter of seconds. Protecting one’s reputation and all of its aspects is at the heart of the jurisprudence surrounding the law on criminal defamation, according to the Commission led by Justice Ritu Raj Awasthi.

According to the panel’s 285th report, it might be argued that criminal prosecution for making defamatory remarks goes against the freedom of speech and expression. Generally speaking, communication of any kind shouldn’t be prohibited unless there are really rare and particular circumstances. In fact, extreme caution must be used when doing so. It was stated that speech should only be prohibited when it has the potential to cause significant harm and when such harm actually occurs.

Nevertheless, preventing public disruptions is a significant incentive for criminalising defamation, making reputational protection not the primary one. A democratic system of government requires publications that damage people’s reputations; suppressing such publications would jeopardise the system. Thus, it is ludicrous to contend that states should have unrestricted jurisdiction to pursue legal action against publishers of any such content on the grounds that such releases amount to defamation,” the statement read.

On August 4, 2017, the Ministry of Law and Justice sent a reference to the Commission, asking it to look into a number of defamation law-related concerns and offer suggestions.

“After giving the issue careful thought, the Commission suggests that criminal defamation remain a part of the nation’s penal code. In this context, it’s critical to remember that the Indian Constitution’s Article 21 guarantees the right to reputation, which is a component of the right to life and personal liberty and hence requires sufficient protection from libel and slander.”

The panel further stated that civil law sanctions should not be applied to activity that poses a severe risk of harm to others. 

“While it is perfectly acceptable for the act to result in tort consequences, it should also be appropriately considered in the context of criminal law, since this is the legal framework in which such behaviour can be appropriately condemned and punished,” concluded the Commission.

The panel also cited a report from the Organisation for Security and Co-operation in Europe (OSCE), which discovered that 42 out of the 47 member countries have some sort of criminal defamation law. Additionally, it was discovered that almost every OSCE member country with laws against defamation allows for incarceration as a potential penalty, with the majority of these nations allowing for a two-year sentence. The majority of OSCE member nations are economically developed nations, and it is seen that the presence of criminal defamation provisions in such countries has not hindered economic and political development.

The Commission noted that community service has been included in the Bharatiya Nyaya Sanhita, 2023, as an extra penalty for defamation. 

“The law itself employs a balancing strategy, protecting the victim’s interests while also limiting the potential for abuse through the alternative punishment of community service. According to the law, damage to one’s reputation is an attack on society as a whole rather than just on the victim, and as a token of contrition, the offender may be sentenced to community service. Indian law has demonstrated the best balanced approach to preserving one’s speech and reputation with the implementation of this punishment, the statement read.

The panel further noted that, in ‘Subramanian Swamy Vs Union of India’ (2016), the Indian Supreme Court affirmed criminal defamation, striking a balance between the right to free speech and the need to preserve one’s reputation. “Criminal defamation protects people’s dignity and reputation. Relative to defamation, appropriate limitations may be imposed under Article l9(2) of the Indian Constitution to protect people’s reputations,” it stated.

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