CRIMINAL DEFAMATION: FREE SPEECH V. REPUTATION

1. INTRODUCTION 

• Why this topic matters?

The Freedom of Speech and Expression is a fundamental right envisaged under the Indian Constitution for the Indian citizens. However, this freedom is not absolute but is subject to certain reasonable restrictions, one of which is defamation. When words cross their line from fair comment to assail the dignity, the law of criminal defamation steps in to protect the reputation and dignity of the person. It holds the person accountable for the misuse of their freedom of speech and thereby raises a pressing question: How to balance the freedom of speech with the need to protect one’s reputation and dignity? 

• Know your rights 

The Indian Constitution guarantees to every Indian citizen the Freedom of speech and expression and also limits it by way of reasonable restrictions. Defamation is one such restriction, which is recognized as an offence under the Bharatiya Nyaya Sanhita, 2023(hereinafter referred to as “BNS”). This means that if a person steps on your dignity, under the guise of free speech, then you may charge such person for the offence of criminal defamation.

• Introduction to Freedom of Speech and Criminal Defamation

The Right of Free Speech empowers the Indian citizens to present and express their opinions, exchange their ideas, question the authority without fear. This freedom is the bedrock of the Indian democracy as it helps to hold the public servants and officials accountable for their actions and question their acts. On the other hand, the law of criminal defamation helps to safeguard the person’s reputation and dignity by penalizing the publication or expression of the derogatory statements thus, helping to regulate the freedom of speech. 

2. LEGAL BACKGROUND

• What the law says?

The Freedom of Speech and Expression is a fundamental right enshrined under Article 19(1)(a) of the Indian Constitution. This Article gives freedom to each and every citizen of India to express themselves, subject to the reasonable restrictions as laid down under Article 19(2). These restrictions are:-

1. Interest of sovereignty and integrity of India
2. The security of the State
3. Friendly relations with the Foreign States
4. Public order
5. Decency or morality
6. Contempt of the court
7. Defamation
8. Incitement of an offence.

The restriction of defamation, as a criminal offence, is laid down under Section 356 of BNS. This section provides a shield for protecting the reputation of the person. It penalizes the act of making or publishing any imputation concerning a person, by words—spoken or written—or by signs or visible representations, with the intention, knowledge, or reason to believe that it will harm such person’s reputation.

• Legal Provisions You Should Know

1. Section 356(2) BNS:- Punishment for Defamation.
2. Section 356(3):– Punishment for printing or engraving the defamatory matter knowing or having reason to believe it to be defamatory.
3. Section 356(4):– Punishment for selling printed or engraved substance containing defamatory matter after knowing it to contain such defamatory material.

• Exceptions of Defamation

There are ten exceptions to the offence of defamation laid down under Section 356 BNS:-

1. Imputation of truth for public good
2. Public conduct of the public servant
3. Public conduct of the public person other than the public servant
4. Comment on cases, the conduct of witnesses and others concerned in the case.
5. Merits and decisions and judicial proceedings
6. Opinion on merits performance of any author in good faith
7. Censure by the person in authority on the conduct of other, in good faith.
8. Complaint to any authority 
9. Imputation for the protection of interest
10. Caution in good faith 

3. KEY POINTS

• Your legal rights explained

Here is what this freedom and right means in your life:- 

• Right to Free Speech:- You have the right to share your opinions, participate in discussions, address the public at large and express your views without any fear or interference by others.
• Right to Reputation:- No one can publish, speak or even depict anything that can harm your reputation or lower your dignity in the eyes of others.
• Legal Action:- If someone does so, you have a right to file a criminal complaint for criminal defamation or take civil action to claim damages. 

• Key Provisions at Glance
  • Every Indian citizen is free to express himself in the manner he likes.
  • This freedom is subject to certain reasonable restrictions.
  • While exercising this freedom, you cannot harm the reputation of others.
  • Criminal actions can be taken for harming the reputation of others.

4. REAL LIFE APPLICATIONS

• How This Affects You?

Following are some examples of free speech and when that free speech transforms into defamation:-

• Fair Speech:- The student writing an Article in the School Magazine highlighting the poor infrastructure of the Campus. Since, this is an instance of fair criticism, without insulting anyone; it is protected under free speech.
• Transforming into Defamation:- If the same student write that their Principal is “corrupt and lazy”, without any proof for the same, it may amount to defamation.
• Social Media Example:– A person tweets about the ineffectiveness of the government policies and calls for changing the policies. This is use of the free speech. But if they accuse the ministers of corruption or theft, without any evidence, it is defamation.

• When Can You Use This Right?

Whenever you feel like your reputation is being damaged by false imputations, allegations, or rumors, you can use this right as a shield.

• Examples From Real Life
  • It is often seen that the politicians criticize each other in their speeches. The fair criticism is protected under Article 19, the false allegations without any proof, on the other hand, amounts to defamation.
  • In the case of Sushant Singh Rajput, the news channels, under the guise of exercising freedom of speech, made unverified claims that harmed reputations. Thus, converting their right of free speech into defamation.
  • The Congress leader Rahul Gandhi was convicted for defamation in 2023 for making some remarks during an election rally. This case helped us to know the need of striking the balance between the free speech and protecting the reputation of others.  

5. LEGAL REMEDIES

• What to Do If Your Rights Are Violated?
  • You have every right to express yourself freely. But, if anyone infringes your right of free speech, you have a right to take actions against such person. You can file a petition directly before the High Court or the Supreme Court.
  • If while exercising their free speech, any person insults you, you can approach the court and may file criminal complaint against such person.
• How to File a Writ Petition/ Criminal Complaint?
  • Keep the record – written statements, audios, witnesses, documents, videos.
  • Approach the relevant authorities 
  • For the infringement of the free speech – you can go for filing the Writ Petition in the High Court or Supreme Court.
  • In case of Defamation – you may go with the Criminal Complaint Case before the Judicial Magistrate.

6. LANDMARK JUDGMENTS

• Emmannuel v. State of Kerala (1986) – Right to silence was held to be the part and parcel of Freedom of Speech and Expression.
• Anuradha Bhasin v. Union of India (2020) – The Supreme Court held the freedom of speech and expression under Article 19(1)(a) and freedom of trade under Article 19(1)(g), using the medium of internet, to be constitutionally protected and subjected to reasonable restrictions.
• Subramanian Swamy v. Union of India, Ministry of Law (2016) – The constitutionality of the offence of Defamation was upheld by the Supreme Court. 
• Manoj Kumar Tiwari v. Manish Sisodia (2022) – The Supreme Court held that the statement should not be vague and general. It should be specific in nature in order to call it defamatory.

7. ONGOING DEBATE OF DECRIMINALISING DEFAMATION

There is an ongoing debate world-wide on whether the criminal defamation should continue to exist or it should be treated only as a civil wrong. Many countries, including United Kingdom, New Zealand, USA, have decriminalized defamation and treat it only as a civil wrong. Treating it only as a civil offence implies that compensation can be claimed for defamation from the person who defamed but he will not be sentenced to imprisonment for the offence of defamation.

Critics in India argue that the criminalization of defamation violates one’s fundamental right of free speech and have chilling effects on it, especially for those who speak truth. While, the supporters argue that the law helps to protect the reputation and dignity of an individual which is the part and parcel of Article 21 of Indian Constitution. Perhaps the Indian judiciary and legislature will look into the necessity of criminal defamation in light of global trends

CONCLUSION 

• Know the Law, Use the Law

Understanding Article 19 of the Indian Constitution along with the Defamation laws is crucial. The Freedom of Speech and Expression acts as your shield to express your opinion fearlessly, while the law of defamation is the safeguard of your reputation and dignity in the society. Understanding both helps you to express yourself fearlessly while not harming other’s reputation and dignity.

• Final Thoughts

The debate between free speech and the defamation laws is not about choosing one over the other but balancing both. A democracy flourishes when the people are free to express themselves and criticize the people in authority but it collapses when the reputation of people are not safeguarded

• Stay Informed, Stay Empowered

In today’s era of technological advancement, where the rumors spread like fire, it is crucial to understand the freedom of speech and expression along with the law of criminal defamation. Speak with dignity, defend your dignity if harmed, and respect the boundaries which these laws have set. A responsible citizen not only exercises his rights correctly but also protects the rights of others. He takes them as their own duty to not to infringe the legal rights of others.

8. REFERENCES 

• Constitution of India –Article 19 (1)(a) and Article 19(2)
• Section 356 BNS
• Emmannuel v. State of Kerala AIR 1986 KER 32
• Anuradha Bhasin v. Union of India, AIR 2020 SC 1308
• Subramanian Swamy v. Union of India, AIR 2016 SC 2728
• Manoj Kumar Tiwari v. Manish Sisodia, on October 17, 2022
• https://indiankanoon.org – Indian Kanoon 
• What are the defamation laws around the world? | India News – Times of India

Written by Jagriti Handa, student of Panjab University Swami Sarvanand Giri Regional Centre, Hoshiarpur, Punjab, and an Intern under Legal Vidhiya. 

Disclaimer: The materials provided herein are intended solely for informational purposes. Accessing or using the site or materials does not establish an attorney-client relationship. The information presented on this site is not to be construed as legal or professional advice, and it should not be relied upon for such purposes or used as a substitute for advice from a licensed attorney in your state. Additionally, the viewpoint presented by the author is personal.

Karan Chhetri

‘Social Media Head’ and ‘Case Analyst’ of Legal Vidhiya.