Context:
On 22 September 2025, a bench of the Supreme Court of India, comprising Justices M. M. Sundresh and Satish Chandra Sharma, made a strong observation that the law on criminal defamation needs reconsideration, hinting that its time has come to decriminalise defamation.
Background
This came up while hearing a plea by the Foundation for Independent Journalism (which runs The Wire) against summons issued in a defamation case filed by former JNU professor Amita Singh over a report published years ago.
About Criminal Defamation:
- Defamation in India can be both a civil wrong and a criminal offence. Criminal defamation occurs when a person makes false and malicious statements, either written (libel) or spoken (slander) that harm another individual's reputation.
- Defamation was criminalised under Section 499 of the Indian Penal Code (IPC) and its punishment under Section 500 IPC (now replaced by Section 356 of the Bharatiya Nyaya Sanhita) which allows for imprisonment (up to two years), or fine, or both.
- In 2016, in Subramanian Swamy vs Union of India, the Supreme Court upheld the constitutional validity of criminal defamation under these sections, observing that reputation is part of the right to life and dignity under Article 21, and that criminal defamation is a “reasonable restriction” on free speech (Article 19).
Arguments for and against retaining criminal defamation laws in India:
· For Retaining:
o Provides stronger deterrence than civil lawsuits by imposing fines or imprisonment.
o Protects public interest by acknowledging the importance of reputation.
o Offers safeguards to vulnerable groups against discrimination and hate speech.
· Against Retaining:
o May infringe upon the fundamental right to freedom of speech (Article 19(1)(a)).
o Can be misused by powerful individuals or entities to silence dissent, intimidate journalists, and suppress criticism.
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- Free Speech vs Reputation
- Criminal defamation laws are often seen as chilling speech: people and media outlets may self‑censor out of fear of criminal sanctions.
- Decriminalising would reduce this fear, while still leaving civil remedies available for reputation harms.
- Criminal defamation laws are often seen as chilling speech: people and media outlets may self‑censor out of fear of criminal sanctions.
- Legal Reform & Colonial Legacy
- Many laws in India (like criminal defamation) date back to pre‑Constitution or colonial period, and may not reflect modern democratic norms. The Court is signalling that the legal framework needs updating.
- Many laws in India (like criminal defamation) date back to pre‑Constitution or colonial period, and may not reflect modern democratic norms. The Court is signalling that the legal framework needs updating.
- Speedy Justice & Reducing Misuse
- Criminal defamation cases are slow, resource‑intensive, and sometimes misused (for political or personal vendettas). Decriminalisation could reduce backlog and misuse.
- Criminal defamation cases are slow, resource‑intensive, and sometimes misused (for political or personal vendettas). Decriminalisation could reduce backlog and misuse.
- Media & Journalism
- Media, especially digital media, could benefit: less fear of criminal liability might lead to more robust investigative reporting.
- But balance will be needed to ensure media also has responsibilities (truth, verification) so that defamation in serious cases can still be addressed via civil law.
- Media, especially digital media, could benefit: less fear of criminal liability might lead to more robust investigative reporting.
- Free Speech vs Reputation
Conclusion:
The Supreme Court’s recent remarks mark a crucial juncture in India’s legal and democratic evolution. It suggests an openness to move away from criminal penalties for defamation, fitting into global trends favouring free speech and protecting reputation through civil law. Whether this becomes law depends on future judicial orders or legislative reform. Either way, the development is highly relevant for India’s constitutional values, press freedom, and citizens’ rights.
