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The Law Commission has recommended retention of the criminal defamation law with the contention that the right to reputation is a facet of the right to life and personal liberty, guaranteed under Article 21 of the Constitution. The Commission has said that the right should be adequately protected against defamatory speech and the State has a responsibility for that. The Commission has expressed its opinion in its 285th report to the government. Article 19(2) provides for defamation as a ground for the imposition of ‘reasonable restrictions’ on the freedom of speech and expression guaranteed under Article 19(1)(a). The Commission’s recommendation is based on this. The Supreme Court has also upheld the validity of the law under Sections 499 and 500 of the IPC, which prescribed a maximum two-year jail term and fine for violation, and ruled that there was nothing wrong in punishing defamation with a jail sentence.
Citizens have the right to their reputation and it may be considered as part of their right to privacy. That is a basic requirement of civilised life and coexistence. Its importance is all the greater in times of expanded public life, possibility of greater access to private life through technology and explosion of the media, including social media. Public life has also become more competitive and therefore there is an increasing tendency to misuse the criminal defamation law to silence political adversaries, activists, journalists, and critics. It is wielded outside the political domain also for the same narrow purposes. The consequence is that it acts as a curb on free speech, which, too, is a fundamental right, and more important in a democracy. The panel says that the law “ensures a balance between freedom of expression and the right to reputation,” but this is not seen in actual practice.
There are many cases of the use of criminal defamation cases against rivals in politics and other fields, and against media houses. Even state governments have filed such cases. The case against Rahul Gandhi, which led to his disqualification from the Lok Sabha, is well-known. The Editors Guild of India has been demanding decriminalisation of defamation. Several countries, including the UK, Australia, New Zealand and Sri Lanka, have decriminalised defamation. Civil defamation will serve the purpose of adequately protecting the right to reputation of individuals and civil remedies are available for aggrieved persons. Criminal defamation is the legacy of an era and attitude which considered questioning of anything as a crime. It should have no place in a democracy which thrives on free expression of views and open criticism. The Law Commission has prepared a report which the government probably wanted.