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Defamation Law

Context: An Opposition Party MP was recently sentenced to two years of prison over a defamation case.

What is Defamation?

  • 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 ordinary man.
  • Defamation in India: In India, defamation can both be a civil wrong and a criminal offence.
    • In Indian laws, criminal defamation has been specifically defined as an offence under the Indian Penal Code (IPC) whereas the civil defamation is based on tort law.
    • In a criminal case, defamation has to be established beyond reasonable doubt but in a civil defamation suit, damages can be awarded based on probabilities.
    • Criminal Defamation: Section 499 of the Indian Penal Code (IPC) states defamation could be through words – spoken or intended to be read, through signs, and also through visible representations. These can either be published or spoken about a person.
      • Section 500 of IPC stipulates an imprisonment of up to two years, with or without fine for criminal defamation.
    • Civil Defamation: Defamation can take two forms libel (by writings) and slander (by spoken words).
      • A civil suit can be filed before a district court or a high court, depending on the quantum of damages being sought by the complainant.
  • Tort law is an area of law which does not rely on statutes to define wrongs but takes from ever-increasing body of case laws to define what would constitute a wrong.

Free Speech v/s Defamation Laws

  • Defamation laws act as a counter to the fundamental right to freedom of speech (Article 19(1)(a) guaranteed by the Indian constitution.
    • Defamation is one of the eight grounds listed as reasonable restrictions on right to free speech under Article 19(2) of the Constitution.
    • The fundamental right to freedom of speech and expression cannot be misused to tarnish the reputation of another individual.
  •  In order to sustain and protect the reputation of an individual, the State has kept the provision under IPC section 499 alive as a part of law.

Important Supreme Court Judgments

  • Subramanian Swamy v Union of India Case (2016): The Supreme Court held that the right to “reputation” was protected under Article 21 of the Constitution which guarantees “life and personal liberty”.
  •  The SC also held that criminal defamation law protected the feeling of fraternity or solidarity between members of a society.
  • Ram Jethmalani Vs. Subramanian Swamy (2006): The High Court of Delhi held Dr. Swamy guilty for defaming Ram Jethmalani in the Rajiv Gandhi assassination case.
  • Shreya Singhal Vs. Union of India (2015): It is a landmark judgment regarding internet defamation. It held Section 66A of the Information Technology Act, 2000 unconstitutional, which punishes for sending offensive messages through communication services.

Decriminalizing Defamation

  • Criminal defamation law has been abused by corporates filing ‘Strategic Lawsuits Against Public Participation’ (SLAPP) suits across the globe.
  • India:  In India even the political class has been using decriminalization law in form of baseless and false allegations.
    • The law has also been misused against the media on a large scale to silence legitimate criticism.
      • Law Commission in 2014 noted that threats of legal action with punitive damages under the laws of defamation put undue pressure on journalists and publishing houses.
      • Any change to the laws on defamation in India must balance these two considerations.
  • Global status: Many countries such as the UK, Sri Lanka, El Salvador and Jamaica have decriminalized defamation.
    • In 2022, Maldives Parliament passed a Bill to repeal a draconian law that had re-criminalised defamation in the South Asian nation.

Way Forward

  • Defamation laws have been enacted to prevent person from maliciously using their right to freedom of speech and expression.
  • But given its widespread misuse, India needs to move towards decriminalizing defamation and treat it as a civil wrong for which law already provides for damages.
  • Decriminalising it will bring the IPC in accord with Article 19(2), ensuring that the means used to discourage defamation do not end up damping legitimate criticism.

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