DECRIMINALISING DEFAMATION: A DEMAND FOR SERVILITY OF FREEDOM OF SPEECH SHACKLED AS A POLITICAL WEAPON

Updated: Sep 1

Defamation has become the ruling party's weapon of choice to silence political opponents. Rahul Gandhi, in 2023, was arrested for a political jibe he made—“How come all of these thieves have Modi in their names?” The result of the following sentence was that he was sentenced to the maximum punishment that criminal defamation provides, and to its concomitant disqualification from the Lok Sabha. It is imperative to remember that this happened just a year before the grand 2024 elections. Despite aiming to modernise India’s criminal laws, the Bharatiya Nyaya Samhita still clings to criminal defamation.

A similar incident occurred ahead of the 2025 Delhi elections, raising questions about the timing of defamation charges as a political tool. Herein, Arvind Kejriwal was charged under Sections 499 and 500 of the IPC for sharing a video on his Twitter account. The crime alleged against him was that he did not check the veracity of the video before sharing it. Criminal law traditionally addresses offences against society—like murder or theft—but defamation primarily affects individuals, not social order. And the law becomes a blemish on the constitutional right of free speech, and it becomes a stern issue when it is used to prevent criticism of the sacrosanct government.

A. THE MODERN WORLD DESPISING CRIMINAL DEFAMATION

Freedom of expression is a key human right, particularly because of its fundamental role in underpinning democracy. Article 19 of the United Nations Declaration of Human Rights (UDHR) verily defines this right as the freedom to hold opinions without any interference. The International Covenant on Civil and Political Rights, in a conspicuous manner, requires states to respect the provisions provided in the UDHR. International Law and various judgements have despised criminal defamation as a retrogressive law, and demanded a need to repeal it for modern democracies.

The United Kingdom, the sententious country that introduced India to the concept of criminal defamation, itself repealed it back in 1996 and passed a reasonable law in 2013. Along with the United Kingdom, many other countries have taken a positive step in this direction. Sri Lanka, another Commonwealth country, decriminalised defamation back in 2002. Countries have long used criminal defamation to curtail freedom of the press and thus undermine the core nature of a democratic government. In Herrera Ulloa v. Costa Rica and Ricardo Canese v. Paraguay, the Court emphasised that public figures should tolerate greater scrutiny. The Inter-American Court of Human Rights has repeatedly affirmed that criminal defamation violates the freedom of expression and undermines the democratic nature of the government. The African Court ruled in the Burkina Faso case that the restriction of a journalist’s right to expression through criminal defamation was superfluous to protect a legitimate state interest.

The US Supreme Court also abolished common-law criminal libel way back in 1966 in a case called Ashton v. Kentucky. Since then, the criminal defamation laws in 38 US states and territories (US territories are directly controlled by the federal government) have either been repealed or struck down as unconstitutional. In several other countries, such as those in South America, a strong trend of decriminalisation and non-enforcement of criminal defamation can be seen. These developments highlight that relying on civil remedies to address genuine cases of defamatory speech is the most effective way to protect citizens' honour and reputation while upholding freedom of expression.

B. CRIMINAL DEFAMATION IN INDIA AND ITS MISUSE

In 2016, the Jayalalitha government filed almost 1,000 cases to curb political dissent. The Supreme Court, looking over the stern matter, declared that criminal defamation must not be used to shackle free speech or to satisfy the imperious attitude of the ruling government. Justice Ramaswamy, commenting on the pertinent matter, quoted:

"Let her pursue these cases in the civil courts if she wants to—because the fear of being prosecuted in the criminal courts gives the message that nobody can question the government."

The rapid evolution of technology has made the law more prone to misuse. Tweets posted sarcastically or without any intent to defame are often weaponised to curb freedom of speech in lieu of the protection of reputation. In the case of Addictive Learning Technology Limited & Anr. vs. Aditya Garg & Ors., the Delhi High Court declared that “Mere vulgar abuse, insults, or disagreements on X do not constitute actionable defamation.” The plaintiff in this case sued for defamation after posting a provocative tweet about NLUs, which led to critical replies accusing them of profiteering and suppressing negative reviews.

A similar case arose in Chadda v. State, where a criminal defamation suit was initiated against AAP leader Raghav Chadha for a tweet he made alleging corruption against the then Finance Minister. A critical question that arose herein was whether social media posts could be governed by conventional defamation laws. The Delhi High Court affirmed the applicability of criminal defamation provisions to online content, observing that retweets could amount to republication and potentially attract liability, contingent upon the context, intent, and impact of the retweet.

Criminal defamation under Sections 499 and 500 of the IPC requires a false statement that harms reputation, is intentionally made, and is published to a third party. The Court emphasised that defamation laws under Sections 499 and 500 of the IPC (now Section 356 of Bhartiya Nyaya Samhita) should not be misused to suppress dissent. It stated that public figures must tolerate criticism and warned against the government using state machinery to file criminal defamation cases against political opponents, as it creates a chilling effect. However, the major debate becomes a pandemonium while balancing the complexities of dignity and reputation with those of individual freedom. Glancing at the same debate, the Court manoeuvred in Subramanian Swamy vs. Union of India that the former cannot be ruined by the latter. However, in M.J. Akbar v. Priya Ramani, the court acquitted Ramani while recognizing that the right to reputation cannot be protected at the cost of a woman’s right to dignity and her right to speak about sexual harassment, thereby demonstrating that freedom of expression can, in certain circumstances, override the right to reputation when it concerns matters of public interest and personal dignity.

But the problem that arises with criminal defamation is that, at certain times, it is used as a deterrent to free speech and criticism. And the democratic nature of our country feels disconsolate when it is used to attack political rivals for pure political purposes. Rahul Gandhi’s ignoble remark led to a sentence of two years of imprisonment, which is the minimum threshold for disqualification under Section 8(3) of the RPA. As a result, Gandhi was disqualified from serving as a Member of Parliament. The aforementioned section is used to weed out criminals from Parliament.

The concern deepens when one observes how criminal defamation has been repeatedly used to gag free speech across different contexts. For instance, in N. Ravi v. Union of India, the editors of The Hindu were dragged into multiple criminal defamation proceedings for publishing reports critical of the Tamil Nadu government, demonstrating how state machinery can stifle journalistic scrutiny. Similarly, several criminal defamation complaints were filed against journalist Arnab Goswami for his on-air remarks against political leaders, and against Rajdeep Sardesai for tweets and commentary on public issues, reflecting the precarious position of journalists engaging in public interest reporting. Investigative magazines like Outlook and Tehelka have faced criminal defamation suits after exposing corruption, indicating how such provisions are invoked to silence corruption reportage and critical narratives. These examples highlight how criminal defamation laws, intended to protect individual reputation, often end up being misused as tools of intimidation, thereby chilling the democratic spirit of criticism and accountability in India.

Raghav Chadda, Member of Parliament, introduced the Decriminalisation of Defamation Bill back in 2023 in the Rajya Sabha, particularly after the case of Rahul Gandhi. The bill talked about the retrogressive nature of defamation, especially criminal defamation. The argument therein was whether individuals accused and convicted of heinous offences and those accused of criminal defamation can be judged by the same standard, can also mention how the constant misuse of defamation laws in India harms her reputation in the global arena.

The Indian experience demonstrates that criminal defamation laws, retained from colonial rule, are frequently misused by powerful corporate and political entities to suppress journalistic scrutiny and legitimate criticism. For instance, the Adani Group’s criminal defamation case against journalist Ravi Nair exemplifies how the mere act of investigative reporting can result in criminal prosecution, subjecting journalists to prolonged legal harassment despite the absence of actual harm. Similarly, PEN International has noted that pursuing criminal defamation against independent news outlets signals a further decline in India’s press freedom, chilling critical reporting essential in a a vibrant democracy that relies on free speech and investigative journalism to hold power to account. The global community, observing India’s commitment to the rule of law and fundamental freedoms, cannot ignore how criminal defamation laws are leveraged to silence criticism, weakening India’s credibility as a democratic exemplar in the Indo-Pacific and beyond.

C. FUTURE DIRECTION - A NEED FOR REFORM

The conflict between the right to freedom of speech under Article 19(1)(a) and the protection of individual reputation under Article 21 has long been at the centre of the defamation debate in India. While Subramanian Swamy v. Union of India upheld the constitutionality of criminal defamation, concerns remain regarding its chilling effect on free speech, particularly for journalists and political dissenters. The contrasting approach in MJ Akbar v. Priya Ramani, where the right to dignity and the freedom to speak out against sexual harassment were prioritised, underlines the need to recalibrate the defamation framework in India to prevent misuse and undue harassment while ensuring reputational safeguards.

Therefore, it is argued that a proper balance between the right to freedom of expression and the protection of individual reputations can—and must—be maintained through a more liberal judicial application of civil remedies. This approach ensures that journalists and politicians fulfil their duty to act in good faith and provide accurate, reliable information while safeguarding individual reputations, without subjecting them to imprisonment alongside common criminals. The government supports keeping defamation a criminal offence, arguing that civil remedies alone are ineffective, especially with the rise of social media and the slow pace of civil cases. It also questions how compensation would work if the defamer cannot afford to pay. However, this argument is flawed.

While the current legal framework for defamation allows for monetary compensation, reputation remains an intangible asset that cannot be easily quantified in financial terms. For instance, if an individual claims defamation resulting in a loss of ₹2 crore, it becomes challenging to accurately assess and attribute such a precise monetary value to reputational harm. Given the subjective nature of reputational damage, the burden of proof on the prosecuting party should be substantially higher. In ITC Limited v. Aashna Roy, the Supreme Court of India held that the ₹2 crore compensation awarded by the National Consumer Disputes Redressal Commission (NCDRC) for a bad haircut suffered by a model at a five-star hotel salon was excessive and disproportionate. The Court emphasised that the quantification of compensation must be based on substantive material evidence rather than being granted solely on the claimant's demand. This would require the claimant to substantiate the financial impact of the alleged defamation with concrete evidence for every rupee claimed. This approach would prevent frivolous claims and ensure greater judicial scrutiny in defamation cases.

Proponents of criminal defamation believe that legal remedies alone may not be enough to prohibit defamatory speech, especially in an age of rapid information distribution via social media. They argue that criminal fines serve as a stronger deterrent to deliberate falsehoods that can permanently harm a person's reputation. Furthermore, detractors of decriminalization point to the inefficiencies of civil courts in India, where cases can drag on for years, making monetary compensation an insufficient remedy, particularly when the defaming side lacks the financial resources to pay damages.

However, these issues can be addressed through judicial changes that speed up civil cases and the implementation of proportional compensation mechanisms depending on the offender's financial capacity. Internationally, several democratic cultures, including the United Kingdom and Sri Lanka, have successfully decriminalized defamation while improving civil remedies. These jurisdictions strike a compromise between free speech and individual dignity by imposing significant financial penalties for proven defamation without resorting to incarceration.

This paradigm safeguards personal reputation while upholding the basic democratic concept that speech, particularly political speech, should not be criminalised. India may adopt a similar structure, ensuring that public conversation stays vibrant while offering proper remedies for individuals who are truly hurt by defamatory words. To decriminalize defamation effectively, the legal system must provide stronger civil remedies, faster legal processes, and protection against state-sponsored censorship. This approach will grant more power to two of the major pillars of democracy—the opposition and journalists. And to treat them alongside common criminals for the remarks they have made is rogue and pernicious to the concept of democracy.

By Udit Jain & Akshat Pal

Udit Jain is a third-year student at National Law University, Jodhpur. He writes on subjects exploring the humanistic side of law, reflecting his interest in constitutional law and public interest law. He has also authored articles relating to commercial disputes and arbitration law. Beyond law, Udit shares a deep interest in music, art, cinema, and poetry.

Akshat Pal is a second-year student at National Law University, Jodhpur, with academic interests in arbitration law, constitutional law, and competition law. He writes on constitutional jurisprudence and corporate legal frameworks, focusing on research-driven analysis. Outside the classroom, Akshat engages with debates at the intersection of law, policy, and technology while actively contributing to peer mentorship.