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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