New Delhi: The Law Commission of India, In its 285th report, recommended that the offence of criminal defamation should be retained within the scheme of criminal laws in the country.
The Commission headed by Justice (Retd) Ritu Raj Awasthi, in its report on the law on criminal defamation submitted to Law Minister Arjun Ram Meghwal, said: "It is important to keep in mind that right to reputation flows from Article 21 of the Constitution of India, and being a facet of right to life and personal liberty, needs to be adequately protected against defamatory speech and imputations."
The Law Commission received a reference from the Ministry of Law and Justice, via letter dated August 4, 2017, requesting it to examine various issues relating to the defamation laws and make recommendations thereon.
The Commission said reputation being an integral facet of Article 21, it cannot be allowed to be jeopardised just because an individual has to enjoy his freedom of speech at the expense of hurting the sentiment of another.
"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 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 its spirit to make the society peaceful and liveable," said the Commission, in its 114-page report.
"Reputation is something which can't be seen and can only be earned. It's an asset that 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," said the Commission.
The Commission noted that it may be argued that criminal prosecution for defamatory statements is opposed to the right of freedom of speech and expression.
"However, the protection of reputation is not the only impetus behind criminalising defamation as avoiding public disturbances is an equally important motivation," it said.
The Commission said publications that harm a person's reputation are an inherent part of the political process in a democracy, and stifling the same would be endangering the political process.
"Consequently, it is absurd to argue for states to have the unchecked authority to prosecute publishers of any such material because their publications constitute defamation….. Speech ought to be illegal only where it is meant to do substantial harm and when such harm materializes," said the Commission.
The Commission said a report by the Organization for Security and Co-operation in Europe (OSCE) found out that forty-two of the fifty-seven OSCE member countries have criminal defamation provisions in one form or other.
It also found out that nearly all OSCE member countries having criminal defamation provisions provide for imprisonment as a possible punishment, and that the majority of these countries provide for imprisonment for a period of up to two years. "Most of the member countries of the OSCE are economically developed nations, and it is seen that the presence of criminal defamation provisions in such countries has not hindered the economic and political development," the Commission noted.
The Commission said the Bharatiya Nyaya Sanhita,2023 has added a provision of community service as an additional punishment and this law itself gives a balancing approach, wherein it has safeguarded the interest of the victim and has also neutralised the scope of misuse by giving an alternate punishment of community service.
"The law acknowledges that harm to reputation is not only an attack on an individual, rather an imputation on the whole society, for which the perpetrator may be punished to serve the community as an act of remorse. Through the introduction of this punishment, Indian law has shown the most balanced approach in protecting one's reputation and speech too," it said.
The Commission said the Supreme Court had examined the constitutionality of criminal defamation in the Subramanian Swamy v. Union of India (2016) and, having examined the issue at length, the court dismissed the challenge to Section 499 of the Indian Penal Code, 1860, and held it to be constitutionally valid on account of it being a reasonable restriction under Article 19(2) to the freedom of speech and expression enshrined in Article 19 (1)(a).
"In pursuance of the same, 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, 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," it said, and recommended that criminal defamation be retained within the scheme of criminal laws in the country.
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