The 22nd Law Commission has recommended the retention of criminal defamation as an offence within the schemes of criminal laws in the country, emphasising that not all utterances and publications are worthy of protection of the free speech rights.

In its 285th report submitted to the Union law ministry on January 31, the Commission underlined that the right to reputation is a facet of Article 21 (right to life and live with dignity) of the Constitution that needs to be “adequately protected against defamatory speech and imputations”.

“Reputation is something which can’t be seen and can only be earned. It’s an asset which is built in a lifetime and destroyed in seconds. The whole jurisprudence around the law on criminal defamation has the essence of protecting one’s reputation and its facets,” the panel, headed by chairperson Ritu Raj Awasthi, said in its report titled “The Law of Criminal Defamation”.

Read here: Criminal defamation, vandalism of public property: What Law Commission recommends

According to the report, reputation cannot be allowed to be jeopardised just because a person must enjoy his freedom of speech at the expense of hurting the sentiments of others. “It is to be understood that the restriction is not completely on one’s thoughts and ideas. It is a protection that one can avail of in a situation where his reputation is hurt. There is no absoluteness in any of the rights and both have to be harmoniously construed in the spirit to make the society peaceful and livable,” it added.

The law acknowledges that harm to reputation is not only an attack on an individual but also an imputation on the whole society, for which the perpetrator may be punished to serve the community as an act of remorse, said the panel. “Through introduction of this punishment, Indian law has shown the most balanced approach in protecting one’s reputation and speech too,” the report added.

The panel also cited a report of the Organization for Security and Co-operation in Europe (OSCE) to highlight that most European countries provide for imprisonment as a possible punishment for up to two years and that criminal defamation provisions did not hinder the economic and political developments in the country. OSCE is a regional security-oriented intergovernmental organisation comprising member states in Europe, North America, and Asia.

The report has come close on the heels of the Parliament approving the Bharatiya Nyaya (Second) Sanhita, 2023, which aims to replace the existing Indian Penal Code, 1860 (IPC) and was passed in the recently concluded winter session. The new law, which is yet to be notified, has opted to retain defamation as a penal offence albeit providing for community punishment as an alternative sentence. Under Section 356 of the BNS, Sections 499 and 500 of the IPC, which dealt with defamation, have been consolidated and the punishment of community service has been added.

Under the new law, whoever defames another, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both or with community service.

Applauding BNS, the Commission stressed that the new law has accorded a balanced approach to the penal offence by striking a balance between safeguarding the right to reputation and neutralising the scope of misuse through the introduction of community service as punishment.

The Commission’s letter to the Union law minister Arjun Ram Megwal said it carried out an “extensive study” on the law of defamation following the Supreme Court’s decision in the Subramaniam Swamy Vs Union of India (2016) case.

“The 22nd law commission undertook an extensive study, analysing the history of the law of defamation, its relationship vis-a-vis the right to freedom of speech and expression, and the various judgments rendered by the Courts across the country. The Commission, inter alia (among other things), also studied the relationship between right to reputation and the right to freedom of speech and expression, and how the two need to be balanced. Further, the Commission looked into the treatment of criminal defamation across various jurisdictions,” the letter by panel chief Awasthi read.

The Supreme Court back in 2016 had dismissed challenges to the constitutionality of the criminal offence of defamation, holding that it was reasonable restriction on the right to freedom of expression. The apex court had also found that there existed a constitutional duty to respect the dignity of other.

The petitions filed under Article 32 of the Constitution, among whom Congress leader Rahul Gandhi, Aam Aadmi Party chief Arvind Kejriwal and Bharatiya Janata Party senior leader Subramaniam Swamy were the petitioners — contested the constitutionality of the offence of criminal defamation and argued that it inhibited their freedom of speech.

Reacting to the issue, senior criminal lawyer Sherbir Panag said:“Criminalisation of defamation has no place in a modern civilised society as freedom of speech is and must be absolute”.

“Defamation must have consequences and examplary monetary damages are the way to go. The problem is the delays in justice delivery on the civil side, which prevent adequate deterrence to be established; for which the solution cannot be to criminalise. It must be appreciated that the Indian legal system deals with over criminalisation which in turn belies the ability of the state to effectively prosecute,” Panag said.