Law Commission recommends retaining criminal defamation law

Satya Prakash

New Delhi, February 2

The Law Commission has recommended retaining criminal defamation law, saying the right to reputation needed to be protected as it’s a facet of right to life and personal liberty guaranteed under Article 21 of the Constitution.

In its 285th Report submitted to the Government, the 22nd Law Commission headed by Justice Ritu Raj Awasthi 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.”

However, the law panel sought to emphasise that “Any form of speech should not be illegal in general unless there are very specific and unusual circumstances. Indeed, utmost caution needs to be exercised while doing so. A speech ought to be illegal only where it is meant to do substantial harm and when such harm materializes.

It said, “Criminal defamation serves to protect the reputation and dignity of individuals. Under Article l9(2) of the Constitution of India, reasonable restrictions can be imposed in relation to defamation for safeguarding the reputation of individuals. Criminal defamation acts as a deterrent against false and malicious statements, preventing damage to one’s reputation that civil remedies might not adequately address.

“Moreover, the law ensures a balance between freedom of expression and right to reputation, essential to maintain social harmony and protecting individuals from unwarranted harm caused by defamatory statements,” it added.

Reputation being an integral facet of Article 2l, 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, said the Law Commission which advises the Government on legal issues and makes non-binding recommendations

“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,” it said.

Section 499 of the IPC defines criminal defamation and Section 500 of the IPC prescribes a “simple imprisonment for a term which may extend to two years, or with fine, or with both.”

Acting on a criminal defamation complaint filed by BJP MLA and former minister in Gujarat government Purnesh Modi against Rahul Gandhi over his ‘How come all thieves have Modi as the common surname?’ remark made during an election rally in Karnataka on April 13, 2019, a Surat court had on March 23, 2023, held the Congress leader guilty and sentenced him to two years in jail, leading to his disqualification as a Lok Sabha MP.

However, the Supreme Court had on August 4 stayed Gandhi’s conviction, saying no reasons had been given by the trial judge for imposing the maximum sentence of two-year imprisonment that led to his disqualification as a Lok Sabha MP. Later, his membership of the Lok Sabha was restored.

Maintaining that publications that harm a person’s reputation are an inherent part of the political process in a democracy, the Commission said, “stifling the same would be endangering the political process.”

It said, “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.”