In a pivotal recommendation, the 22nd Law Commission, in its 285th report submitted to the Union Law Ministry, has advocated for the retention of criminal defamation as an offense within India’s criminal laws. The commission’s report, emphasizing the need to strike a balance between freedom of speech and the right to reputation, sheds light on the intricacies of this legal debate.
The commission’s stance is grounded in the assertion that not all expressions and publications should enjoy unbridled protection under free speech rights, particularly when they jeopardize an individual’s reputation. According to the commission, safeguarding the right to reputation is intrinsic to Article 21 (right to life and live with dignity) of the Constitution, portraying it as an intangible asset deserving robust protection.
This recommendation follows the recent approval of the Bharatiya Nyaya (Second) Sanhita, 2023, designed to replace the existing Indian Penal Code, 1860. The commission argues that criminalizing defamation is not a hindrance to freedom of speech, citing examples from European countries and their utilization of imprisonment as a potential punishment for defamation without impeding societal progress.
The commission’s report aligns with the Bharatiya Nyaya (Second) Sanhita, 2023, which maintains defamation as a penal offense while introducing community service as an alternative punishment. This dual approach is applauded for its balanced nature, providing avenues for both protecting reputation and preventing misuse.
The comprehensive report is a result of an in-depth study by the commission, delving into the history of defamation law, its correlation with freedom of speech, and various court judgments. The 2016 Supreme Court decision in the Subramaniam Swamy Vs Union of India case, affirming the constitutionality of criminal defamation, has significantly influenced the commission’s perspective.
While some legal experts advocate for the elimination of criminalizing defamation, proposing significant monetary damages instead, the commission contends that the Indian legal system’s challenges in delivering timely civil justice necessitate a combination of civil and criminal measures for effective deterrence.
