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Defamation law

GS Paper 2

 Syllabus: Indian Constitution—Historical Underpinnings, Evolution, Features, Amendments, Significant Provisions and Basic Structure


Source: TH


Context: The defamation law in India has come under scrutiny once again following the conviction of a Congress leader (Rahul Gandhi) in a 2019 defamation case.


Background: In 1860, the British imported their idea of criminal defamation into the newly-minted Section 499 of the Indian Penal Code (IPC).

Defamation – Meaning (Section 499)A person is said to be defamed when someone makes or publishes any accusations about them with the intent of damaging their image through words, signs, or other visible representations.


Types – Civil and Criminal:


In civil defamation, a person who is defamed can move either HC or subordinate courts and seek damages in the form of monetary compensation.In criminal defamation (Section 500), the person against whom a defamation case is filed might be sentenced to two years imprisonment or fined or both.


The law of defamation and right to free speech [Article 19 (1)(a)]:

  • Exceptions to defamation: Absolute truth and what is for the public good.
  • The criminality of defamation was challenged in the SC on the grounds that it was an unreasonable restriction on the constitutionally-guaranteed right to freedom of speech and expression.
  • However, the apex court upheld the British-era Section (Subramanian Swamy V. The Union of India 2016).


Analysing the 2016 SC verdict:

Article 21 vs 19 (1)(a):

  • The court held that the right to “reputation” was protected under Article 21 of the Constitution which guarantees “life and personal liberty”.
  • The right under Article 19(1)(a) had to be “balanced” against the right to “reputation” under Article 21.
  • Thus, the court elevated “reputation” to the level of a fundamental right and made it prevail over free speech.
  • Over the years, the court has expanded the scope of Article 21 to force the state to undertake various “social justice” measures.
  • But in this case, the SC used Article 21 as a sword to cut down the fundamental right to freedom of speech and expression (“death by Article 21”).


Invoking ‘constitutional fraternity’:

  • The court held that criminal defamation law protected the feeling of fraternity (mentioned in the preamble as an aspirational goal alongside “liberty” and “equality”)/solidarity between members of society.
  • However, “constitutional fraternity” is not a part of Article 19(2), which specifically limits the circumstances under which the state can restrict speech.
  • “Liberty cannot be divorced from equality; equality cannot be divorced from liberty. Nor can liberty and equality be divorced from fraternity.” (B.R. Ambedkar)


Issues with the court’s verdict:

  • No mention of the fact that Section 499 does not allow for “honest mistake” as a defence.
    • The SC (previously) had found the civil law of defamation unconstitutional/disproportionate restriction upon free speech since it did not allow for “honest mistake”.
  • Dismissal of the claim that criminal defamation creates a chilling effect upon speech.
  • The SC has always had an ambivalent relationship with the freedom of speech and expression.


Conclusion: The court had to construct novel arguments which will have serious and unfortunate implications for the freedom of speech and expression in the coming years.


Insta Links:

Making sense of the disqualification of a Lok Sabha MP


Prelims Links: (UPSC 2020)

Consider the following statements:

  1. According to the Constitution of India, a person who is eligible to vote can be made a minister in a State for six months even if he/she is not a member of the Legislature of that State.
  2. According to the Representation of People Act, 1951, a person convicted of a criminal offence and sentenced to imprisonment for five years is permanently disqualified from contesting an election even after his release from prison.


Which of the statements given above is/are correct?

  1. 1 only
  2. 2only
  3. Both 1 and 2
  4. Neither 1 nor 2


Ans: 4