The Law Commission of India has recommended that criminal defamation be retained within the scheme of criminal laws. The reasoning given by the law panel for this is that it is important to keep in mind that right to reputation flows from Article 21 of the Constitution, and since it is a part of right to life and personal liberty, it needs to be adequately protected against defamatory speech and imputations.
The 22nd Law Commission of India has made the recommendation in its report number 285 titled 'The Law of Criminal Defamation' to the Union government. As per the report, the right to freedom of speech and expression has to be harmoniously construed with the right to reputation to make the society peaceful and livable. It noted that there is no absoluteness in either right.
“The whole jurisprudence around the law on criminal defamation has the essence of protecting one's reputation and its facets,” the law panel said.
“Criminal defamation acts as a deterrent against false and malicious statements, preventing damage to one's reputation that civil remedies might not adequately address,” it further said.
The panel said a criminal law alone can provide a framework where behaviour that could seriously harm someone else can be penalised. It also said protection of reputation is not the only impetus behind criminalising defamation as avoiding public disturbances is an equally important motivation.
It said reputation is an important facet of Article 21, and it cannot be jeopardised in favour of giving any individual an absolute right to freedom of speech even when it results in hurting the sentiments of another individual.
The panel has also recommended that speech ought to be considered illegal only when it is meant to do substantial harm and when such harm materialises.
The Commission had received a reference from the ministry of law and justice through a letter dated August 4, 2017, requesting it to examine various issues relating to the defamation laws and make recommendations thereon.
According to an official statement, the 22nd Law Commission undertook an extensive study, analysing the history of the law of defamation, its relationship vis-à-vis the right to freedom of speech and expression, and the various judgments rendered by the courts across the country. The Commission 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 panel noted that the Supreme Court had also examined the constitutionality of criminal defamation in Subramanian Swamy v. Union of India [(2016) 7 SCC 221], and had 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).
The recommendation of the Law Commission to retain defamation in the criminal laws comes in the backdrop of a growing criticism that the defamation law is being misused to settle political scores and to curtail the freedom of the press.