Decriminalize defamation, defend reputation, fortify free speech.....by KBS Sidhu  

On September 22, 2025, while hearing The Wire’s challenge to criminal-defamation summons in the JNU “dossier” case, a Supreme Court Bench (Justices M.M. Sundresh and Satish Chandra Sharma) observed that “the time has come to decriminalise all this.” It was a short, clear sentence—but it landed with the weight of experience.

Nine years earlier, in Subramanian Swamy v. Union of India (2016), a Constitution Bench had upheld criminal defamation as a “reasonable restriction” on free speech. The Court’s fresh candour in 2025 reflects what India’s digital public square has learnt the hard way: the criminal process—FIRs, travel, bailable bonds, repeated appearances in far-off courts—can itself become the punishment.

Free speech is a fundamental right, not a favour

We must begin with first principles. Article 19(1)(a) guarantees to every citizen the freedom of speech and expression; any restriction must be reasonable, specific, necessary and proportionate under Article 19(2). The United Nations Human Rights Committee, in General Comment No. 34, calls freedom of expression “the foundation stone for every free and democratic society,” and cautions states against using criminal penalties for defamation when civil remedies are available. That is not airy idealism; it is a tried and tested rights-based blueprint.

Reputation truly matters—Shakespeare said it best

We do ourselves no favours by trivialising reputation. Shakespeare returns to it again and again. As Cassio laments in Othello: “Reputation, reputation, reputation! O, I have lost my reputation! I have lost the immortal part of myself, and what remains is bestial.” In Richard II, Mowbray is equally stark: “The purest treasure mortal times afford / Is spotless reputation; that away, / Men are but gilded loam or painted clay.” Reputation is precious. Precisely for that reason, the remedies we choose must be effective, fair—and proportionate.

What changed between 2016 and 2025?

Two things, chiefly. First, India’s new criminal code—the Bharatiya Nyaya Sanhita (BNS)—has re-badged defamation as Section 356, carrying forward the old IPC text and two-year jail threat virtually in pari materia.

Second, the Bharatiya Nagarik Suraksha Sanhita (BNSS) retains venue rules that allow a case to be tried where an act is done or where its “consequence ensues.” In an era where a report, video, or post is viewed nationwide, “consequence” can be claimed almost anywhere.

For a journalist, YouTuber, student editor, or small-town publisher, that means multiple complaints in multiple places—each demanding time, money, and counsel. The larger your audience, the wider the net that can be cast around you.

This is not a theoretical harm. The continued filing of criminal cases for online speech shows how easily the state’s coercive machinery can be enlisted to chill criticism. The wealthy and influential can afford to pursue overlapping complaints; independent critics often cannot afford to defend them.

Why civil law is the right balance

None of this denies the importance of reputation. Rather, it insists on the right tool for the job. Defamation is a reputational tort.

Civil law already provides a sensible architecture: a plaintiff must prove a defamatory imputation, that it refers to them, and that it was published; the standard is preponderance of probabilities.

Courts can award general, special, and in egregious cases, aggravated damages; they can order corrections, apologies, and “right of reply”; they can calibrate remedies to real harm. Nothing in that remedial toolkit requires an FIR, arrest risk, or long-distance criminal litigation.

Indeed, a robust civil pathway better serves both dignity and debate. If a false statement ruins a person’s standing or business, a civil court can make the speaker pay—and pay dearly. If the statement is true, or fair comment on a matter of public interest, it is better that the public hears it unafraid. A criminal threat does not add truth to true speech; it adds fear to public life.

Rahul Gandhi’s case shows what is at stake

In March 2023, Rahul Gandhi was convicted by a Surat court for a 2019 remark about the “Modi” surname and sentenced to two years—triggering immediate disqualification from the Lok Sabha. In August 2023, the Supreme Court stayed the conviction, noting the absence of adequate justification for the maximum sentence and recognising the democratic implications of disabling an elected representative.

Whatever one’s politics, the episode illuminated how criminal defamation—especially with a two-year cap—can distort representative democracy itself. The point is not who spoke, or whom they offended; the point is that a criminal conviction for defamation is a sledgehammer where a scalpel would do.

The proportionality test now fails

Even if Swamy (2016) found criminal defamation constitutional then, proportionality is not frozen in time. Today, criminal defamation fails three tests:

1. Overbreadth and chilling effect. The combination of a two-year jail term and venue rules that follow “consequence” everywhere creates a procedural dragnet for a reputational harm that civil courts can remedy.
2. Less-restrictive alternative. Effective civil remedies—corrections, injunctions in rare cases, declaratory relief and calibrated damages—protect reputation without criminal stigma or incarceration.
3. Comparative and normative consensus. Mature democracies have shed criminal defamation (the UK abolished the offences in 2009–10; Sri Lanka repealed them in 2002), and the UN’s guidance leans decisively towards civil law.

The Supreme Court’s 2025 oral observation seems to recognise this evolved landscape: in the digital age, process can eclipse punishment, and the very existence of criminal defamation chills scrutiny.

Abolish the crime; modernise the civil remedy

A credible reform package is straightforward:

• Legislative repeal. Strike down or repeal BNS Section 356 and cognate references. Reputation remains protected—just not by jail.
• Serious-harm threshold. Borrow the UK’s “serious harm” filter to weed out trivial spats and tactical suits early.
• Anti-SLAPP tools. Allow early dismissal of lawsuits aimed at silencing public participation, with full cost-shifting against vexatious claimants.
• Venue rationalisation & single-publication rule. For online content, fix venue to the defendant’s residence or the place of substantial harm, and start the limitation clock once—stopping multiplicative litigation.
• Defence clarity & fast corrections. Codify and modernise defences of truth (for public good), honest opinion, and responsible publication on a matter of public interest; encourage rapid corrections and apologies as first-line remedies.
• Intermediary certainty. Provide safe harbours for platforms and publishers who act promptly on specific and credible notices, so that liability follows actual notice and inaction, not mere hosting.

This agenda does two things at once: it vindicates genuine reputational harm better and protects democratic speech more fairly.

A pragmatic path for Parliament—and the Courts

Parliament can move first: repeal the offence and pass a short civil-modernisation bill. Should litigation arrive before legislation, the Supreme Court can revisit Swamy on proportionality grounds, taking judicial notice of the digital expansion of “consequence,” the availability of less-restrictive civil alternatives, and international guidance under the ICCPR.

Either way, the destination is the same: consign criminal defamation to the history books; invest in a faster, fairer civil remedy.

The jewel of reputation and the pulse of democracy

Public discourse is the lifeblood of a democracy. Politicians, private citizens, and journalists all share the right to speak freely, to criticise, and to be criticised. Reputation matters, yes—but the balance must be struck in the court of public opinion, not through vexatious FIRs that conscript the state machinery into settling what is essentially a private grievance. When criminal defamation is invoked, the process itself—police, bail, travel, endless summons—becomes repression disguised as justice.

As Shakespeare reminds us, reputation is “the immediate jewel” and “the purest treasure.” If we value that jewel, we should polish it with truth, apology, correction, and proportionate civil remedy—not threaten it with handcuffs. In a confident democracy, criticism is not a crime, and dignity is not a pretext for silencing the public’s right to know. The path forward is clear: decriminalise defamation, modernise civil law, and let both reputation and free speech breathe.

September 23, 2025