New Wave of Defamation Charges: A Cause for Concern

In light of an influx of cases under it, the matter of criminal defamation has, rather unceremoniously, been pushed into the limelight. While previously not a very common offence to be convicted for, there is a worrying trend of such charges being levied against politicians, journalists and activists. 

Background

Defamation is an offence under both civil and criminal law, charged when malicious and false imputations cause injury to the reputation of individuals. While defamation as a civil wrong involves compensation, the consequence of defamation as a criminal offence is far more serious. Under Section 500 of the former Indian Penal Code (IPC), punishment includes up to two years of imprisonment, a fine or both. Under the recently passed Bharatiya Nyaya Sanhita, the same provisions come under Section 356.

Article 19(1)(a) of the Constitution provides freedom of speech and expression as a fundamental right. However, defamation is one of the reasonable restrictions provided in Article 19(2) to the freedom of speech. Thus, it becomes clear that there is a fundamental purpose for establishing defamation as an offence, which was clear to law makers. This purpose is the protection of reputation, akin to a vital property of an individual. When someone is defamed, they face damage to their reputation, and this damage must be addressed, hence the provision of both civil and criminal remedies for the same.

As an offence, criminal defamation is not an exceedingly common ground for conviction, with only 14.29% of such cases resulting in the defendant being found guilty. This is why the recent string of defamation cases comes as a surprise, an anomaly in the usual treatment of defamation as wrongful, but amenable through compensation.

Current Influx

The most prominent of these was the case against Rahul Gandhi, filed in 2023 for defaming the Modi community, which resulted in a conviction at the Gujarat High Court. While this was overturned in the Supreme Court, he currently has another pending case against him, filed by RSS member Vijay Mishra, for remarks he allegedly made in 2018 against BJP leader Amit Shah.

Aam Aadmi Party leaders, Arvind Kejriwal and Sanjay Singh also had defamation charges levied against them by Gujarat University for allegedly making false remarks about Narendra Modi’s educational qualification. Recent pleas against summons issued by the trial court have been dismissed by the Supreme Court, but it ordered a stay on the proceedings. Kejriwal also has a summon issued for a defamation case filed over a post on X, where he reshared a video made by controversial YouTuber Dhruv Rathee, alleging corruption claims against certain individuals.

Activist Medha Patkar, best known for her participation in the Narmana Bachao Andolan, was sentenced to five months of imprisonment by Delhi High Court, for allegedly defaming Delhi’s Lieutenant Governor, VK Saxena, in a press release in 2001. While there are several valid reasons for charging someone with defamation, and cases may justifiably hold parties guilty for the damage caused, the criminal nature of punishment is the main area of concern. 

Existing precedent

To understand this, it is pertinent to examine current principles surrounding defamation. In R Rajagopal v State of Tamil Nadu, the Court ruled that government officials cannot bring charges for defamation for acts done in discharge of their public functions, unless the speech involved was both false and made with reckless disregard for the truth. 

MJ Akbar v Priya Ramani also brought up a notable principle, where the court stated that even if the content was defamatory, a victim of sexual abuse could not be punished under the guise of defamation for raising her voice. But even though the court has made allowances for defamatory content, it still takes a rather strict stance in setting basic boundaries.

The primary relationship between defamation and right to freedom of speech and expression was articulated in Subramanian Swamy v Union of India, where the significance of free speech was recognized, but it was observed that defamation cannot be excused under this freedom. The main reason for this is the damage that it causes on reputation, which is often seen as the vital property of an individual. Whether the defamation was carried out in good faith or bad faith does not matter, as ruled in Chaman Lal v State of Punjab, as long as it has caused damage to reputation in the eyes of a third party or parties.

Concerning aspects in political and legal context

In the larger framework of freedom of speech, defamation seems like a necessary caveat, to ensure freedom of speech without causing harm to others. But criminal defamation specifically, seems to occupy an interesting position. When a plaintiff wins a case of civil defamation, they are redeemed in the court of public opinion and it is established that their reputation was falsely damaged, the defending of which is the main purpose of making defamation a crime. They also receive compensation for the damage caused.

Meanwhile criminal defamation charges provide the same restoration of reputation, but provide a graver punishment, especially in cases where an entire community or organization has been defamed. However, the worrying aspect of recent cases is not just the sudden influx of such cases but the context they take place in.

There has already been controversy in the past year, over a number of bills, including the Telecommunications Act, 2023, Broadcast Services (Regulation) Bill, 2024 and the Digital Personal Data Protection Act, 2023. More specifically, there have been major concerns raised over how these bills are diminishing the freedom of speech by giving the executive significant powers of censorship, with a review process which is also extremely government-centric. The purview of censorship has further been expanded to include digital content; a troubling fact given how India has ranked 159th in the World Press Freedom Index.

In the political arena where statements are often echoed without much care, there is an obvious need for regulation and structure. However, criminal defamation cases against politicians and activists, resulting in potential imprisonment, may not be the best path to take. In the case of imbalance of power, it may set a worrying precedent of misusing such charges to further censor dissent, under the guise of defamation, and further stifle criticism. 

Conclusion

Thus, while it is crucial to preserve the right to reputation, there must be a balance between this protection, and the freedom of speech. It is vital to maintain this balance, and for that, there must be some level of reflection on how criminal defamation charges are levied. While certain boundaries must be maintained, there has to be fair use of such charges and what their larger impact is, in a democratic society.