Supreme Court Signals Shift Towards Decriminalising Defamation in India

The Supreme Court’s recent suggestion to decriminalise defamation in India lends weight to a long-standing demand for reform. In its observation, the apex court highlighted that criminal defamation has often been used as a tool to intimidate and harass individuals over prolonged periods, raising concerns about its fairness and application.

While delivering the observation, Justice M.M. Sundresh, heading a bench along with Justice Satish Chandra Sharma, also expressed concern over the mounting pendency of defamation cases. The bench was hearing a petition filed by the Foundation for Independent Journalism, which operates a news portal, challenging a summons issued in connection with a defamation case arising from a 2016 article.

Criminal defamation, governed under Sections 499 and 500 of the Indian Penal Code, was upheld as constitutional in a 2016 Supreme Court ruling, which cited the protection of reputation under Article 21 of the Constitution. The recently enacted Bharatiya Nyaya Sanhita (BNS) retains similar provisions under Section 356.

However, in practice, criminal defamation is increasingly being wielded to harass individuals, particularly public figures and journalists, by dragging them through prolonged court proceedings while maintaining the looming threat of imprisonment. Political leaders such as Congress’s Rahul Gandhi have been among those affected. Media organisations and journalists have also been targeted, raising direct concerns over freedom of expression.

The procedural burdens are considerable: accused persons are required to make personal appearances in multiple courts, detention before trial is possible, and trials can stretch for years. Moreover, truth is not an automatic defence; the accused must demonstrate that the allegedly defamatory statement was made in the public interest. By design, the provision disproportionately disadvantages the accused, undermining fundamental principles of justice and constitutional rights.

Critics argue that the law is a colonial legacy, undemocratic in spirit, and misaligned with modern notions of free expression. Despite the Supreme Court’s previous advisories to lower courts on judicious handling of such cases, criminal defamation continues to be used punitively.

Legal experts note that civil remedies, including damages, already provide adequate protection for reputational interests without encroaching on free speech. Many democracies worldwide have eliminated criminal defamation from their statutes, balancing the protection of reputation with the preservation of free expression. The Supreme Court’s latest observation signals that India, too, may be poised to move in this direction.