Criminal Defamation vis-a-vis Freedom of Speech


This post has been written by Drishti Mehra, a student pursuing a B.A, LL.B. from Amity Law School, Noida.

Criminal defamation in India is recently in the news for various reasons, questions are being asked whether it’s a violation of Article 19 (1) (a) i.e. freedom of speech. It is also being argued that criminalizing defamation has a harsh effect on article 19, many requests were sent to the supreme court to decriminalize the section and make it only civil wrong. Despite the requests the supreme court upheld its decision and moving forward there are some terms which are needed to be explained.

 What is defamation?

According to section 499 of the Indian penal code 1860, defamation can be explained as any words spoken or intended to be read, signs, public representations made, or published any claims concerning any person to harm or knowing would harm the reputation of the person is expected as defamation. Also, section 499 cites exceptions i.e. any claim published for the public good or to reveal the truth by the activities of government, also any act done not in mala fide intention and not to harm anyone.

Also, section 500 of the Indian penal code,1860 defines the punishments for defamation which are imprisonment for a term which may extend to two years, with fine or both. In India, defamation is both civil and criminal offenses, torts cover the civil defamation and also in these cases, a person defamed can move either High Court or subordinate courts and seek damages in the form of monetary compensation. Whereas in criminal defamation cases there is a jail sentence for two years.

Why are sections 499 and 500 of IPC challenged?

Section 499 states, if the reputation of any person is damaged or intended to be damaged, it can sue the other person for damages. These sections are challenged on the ground that they are violative to article 19 (1) (a) of the Indian constitution i.e. to speak freely. Whereas the exception to article 19 (1) (a) i.e. 19 (2) which states that there can be reasonable restrictions and such restrictions must not be arbitrary or excessive, and also damage caused to the freedom of speech must be in little amount. Considering India, criminal prosecution can be harassing and intimidating, thus misuse of this right is possible to a great extent as an unreasonable restriction is imposed on the people.

Section 499 puts reasonable restrictions on saying the truth as believed even truth is not a defense. If truth is not spoken for public good then it is considered as damage to the reputation, this is termed as to restrict the voice of the people who are willing to say the truth. Also, a person can be summoned even if he or she didn’t say or wrote anything defamatory as the magistrate would act upon the mere complaint of conspiracy against the person. Defamation even amounts to ironical statements made as section 499 writes “any imputation concerning any person”, a criminal suit can be filed too for speeches of political parties which is considered the most protected speech in a democracy.

State of criminal defamation 

In recent reports of the law commission of India regarding this issue, a consultation paper posted that the respondents overwhelmingly showed dissatisfaction with the present state defamation law. It acknowledged the fact that it violates the international norms and the penalty of imprisonment for up to two years was clearly unjustified. In recent history, defamation laws are misused by politicians and corporations to silence the media, social workers, activists, etc. The spate of defamation cases filed during the 2014 Lok Sabha election is evidence of this. Even though section 499 provides safeguards by means of exception, the threat to criminal trials is always unreasonable and excessive. It is not that defamation must not be discouraged but decriminalizing the section will bring the IPC in accord with article 19 (2), ensuring that means used to discourage defamation do not end up damping legitimate criticism.

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Supreme Court of India on Criminal Defamation

In context to Criminal defamation, many questions have been raised whether defamation should be treated as civil wrong only as criminal prosecution includes imprisonment for two years. Many are of the view that criminal charges put unwanted restrictions on free speech when it is sufficient that civil suit for damages is protecting the reputation of the people. However, the Hon’ble Supreme Court of India upheld criminal defamation and its constitutional validity in the case of “Subramanian Swamy Vs Union of India”2, where Subramanian Swamy was charged with defamation for putting allegations of corruption against famous politician Jayalalitha in 2014. Then many politicians like Rahul Gandhi, Arvind Kejriwal filed petitions to decriminalize section 499 of IPC as it puts unreasonable restrictions on freedom of speech. A two-judge bench of the Supreme Court comprising Justice Dipak Mishra and P.C Pant heard the plea.

The challenge before the court was twofold – first, whether criminalizing defamation is an excessive restriction on freedom of speech, and second, whether the criminal defamation law under Sections 499 and 500 is vaguely phrased and hence arbitrary.

On 13th May 2016, the court held that section 499 of IPC is not an excessive restriction on freedom of speech, as society is a collection of individuals and what affects one will apply to others too. Hence, it is valid to treat defamation as a public wrong and by decriminalizing it would give freedom to humiliate others but in a society, everyone’s reputation is equally important and there is no need to decriminalize it. Also, judges quoting the judgments from other countries said that the right of freedom of speech cannot be allowed that much if it violates the right to live with dignity under Article 21 of the Indian Constitution Act.


Is criminal defamation a restriction to freedom of speech, is a very debatable topic and there are many reasons given, petitions filed in the Supreme Court which was supported by the renowned politicians of the country to decriminalize the offense and to be treated as a civil wrong only. Whereas the Supreme Court was of the opposite view and passed the judgment to upheld the constitutional validity of the criminal defamation, also gave the reason it would violate the article 21 of Indian constitution as everyone deserves to live with dignity and reputation of each and every person is important in the society.


  2. AIR2016SC2728


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