Authored By: Semparuthi Ravichandran
Government Law College, Chengalpattu
Introduction
In 2016, a constitutional bench of the Supreme Court of India upheld the validity of criminal defamation in Subramanian Swamy v. Union of India[1], rejecting the contention that Sections 499 and 500 of the Indian Penal Code, 1860 violated the freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution. The Bharatiya Nyaya Sanhita, 2023 (BNS), which came into force on 1 July 2024, re-enacted criminal defamation under Section 356 in substantially the same terms.[2] This legislative continuity is a missed opportunity for reform. This article argues that criminal defamation constitutes a disproportionate restriction on free speech that cannot be sustained under the proportionality standard articulated in K.S. Puttaswamy v. Union of India[3], and that the complete civil defamation remedy available in Indian law renders the criminal sanction both unnecessary and corrosive to public discourse. The article proceeds by mapping the legal framework, critiquing Subramanian Swamy in light of the proportionality doctrine, and demonstrating the chilling effects of the criminal sanction in practice, before concluding with a reform recommendation.
Legal Framework: Section 356 BNS and the Constitutional Position
Section 356 of the Bharatiya Nyaya Sanhita, 2023 defines defamation as the making or publishing of any imputation — by words, signs, or visible representations — that is intended to harm, or is known to harm, the reputation of a person.[4] The provision carries forward, with minor textual changes, the substantive definition and the twenty exceptions previously contained in Section 499 IPC. The corresponding penal provision, Section 357 BNS, prescribes simple imprisonment for a term extending up to two years, or a fine, or both.[5]
Article 19(1)(a) of the Constitution guarantees to every citizen the right to freedom of speech and expression.[6] Article 19(2) permits the State to impose reasonable restrictions on this right on several grounds, one of which is the interest of “defamation.”[7] In Subramanian Swamy, a five-judge bench held unanimously that the right to reputation — which it located within the right to life and personal liberty under Article 21 — provided sufficient justification for the criminal sanction, and that the existence of a parallel civil remedy did not render the criminal restriction unreasonable.[8] The Court further held that the twenty exceptions, including the defence of truth in the public interest, adequately protected legitimate speech.[9]
The Law Commission of India had previously examined the law of criminal defamation and made no recommendation for decriminalisation.[10] The legal landscape has, however, been materially transformed since 1971 by the proportionality doctrine in constitutional adjudication, a development the Subramanian Swamy bench did not have before it in its current form.
III. Proportionality and the Limits of ‘Subramanian Swamy’
The principal doctrinal weakness of Subramanian Swamy is that it was decided before the Supreme Court fully articulated the proportionality standard in constitutional adjudication. In K.S. Puttaswamy v. Union of India (2017), a nine-judge bench held that restrictions on fundamental rights must satisfy a four-stage test: the measure must be (i) sanctioned by law; (ii) in pursuit of a legitimate state aim; (iii) the least restrictive means necessary to achieve that aim; and (iv) accompanied by adequate procedural safeguards.[11] Applied to criminal defamation, this test reveals a significant proportionality deficit at the third stage.
The legitimate aim of protecting individual reputation is not in dispute. The critical question is whether imprisonment — even if rarely imposed — is the least restrictive means of achieving this aim. Civil defamation law provides a complete and effective remedy: the successful plaintiff may obtain compensatory and exemplary damages, injunctions restraining further publication, and a public correction. None of these outcomes require the coercive machinery of the criminal law. Defamation is, at its core, a private wrong between the defamer and the defamed. The transformation of this private wrong into a public crime, prosecuted by the state apparatus, cannot be justified under the proportionality standard when a civil remedy providing equivalent — and, in some respects, superior — relief is available.
This analysis finds strong support in international human rights law. The United Nations Human Rights Committee, in its General Comment No. 34 on Article 19 of the International Covenant on Civil and Political Rights, has stated that criminal defamation laws should not be maintained unless the State can demonstrate that civil sanctions are inadequate to protect the reputation in question.[12] The United Kingdom abolished criminal libel through the Coroners and Justice Act 2009,[13] and a significant number of states across Europe and the Americas have undertaken similar decriminalisation. India’s BNS, enacted in 2023, made no such reform, placing India at odds with this global consensus.
Chilling Effects and the Weaponisation of Criminal Defamation
Beyond the doctrinal argument, the retention of criminal defamation imposes a demonstrable chilling effect on freedom of expression. Unlike civil proceedings — where litigation risk is principally financial — a criminal defamation complaint triggers police processes, the possibility of arrest, and bail conditions, all of which impose immediate and severe reputational and practical costs on the accused irrespective of ultimate guilt. For journalists, academics, and civil society actors operating with limited resources, the mere filing of a criminal complaint is frequently sufficient to deter further publication.
The strategic misuse of Section 499 IPC — and now Section 356 BNS — to suppress inconvenient reporting is well documented. In M.J. Akbar v. Priya Ramani[14], a criminal defamation complaint was filed by a former Union Minister against a journalist who had published allegations of sexual harassment against him in the public interest. The trial court ultimately acquitted the accused, explicitly recognising the public interest dimension of the impugned speech. The acquittal, however, came only after proceedings spanning over two years,[15] during which the accused bore the full burden of defending against a criminal charge. The case illustrates with precision how criminal defamation, even where ultimately unsuccessful, functions as an effective instrument of deterrence and harassment rather than genuine redress.
India’s press freedom ranking — 159th out of 180 countries in the World Press Freedom Index 2024 — reflects, in part, the legal environment in which journalists operate.[16] The twenty exceptions contained in Section 356 BNS are theoretically protective of legitimate speech; however, the burden of establishing an exception rests on the accused under Section 36 of the Bharatiya Sakshya Adhiniyam, 2023,[17] placing a substantial reverse burden on persons who have engaged in good-faith public interest speech. The practical effect is that the chilling effect is borne most heavily by those who have most to contribute to democratic discourse.
Conclusion
This article has argued that criminal defamation under Section 356 of the Bharatiya Nyaya Sanhita, 2023 constitutes a disproportionate restriction on the freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution of India. The Subramanian Swamy judgment, while binding authority, was decided before the proportionality standard was fully articulated in Puttaswamy and does not adequately address the question of whether criminal sanctions are the least restrictive means available, given the completeness of civil defamation remedies. The practical record of the criminal sanction as an instrument of strategic litigation against journalists and public interest speakers further undermines its legitimacy as a reasonable restriction on free expression.
It is submitted that Parliament should repeal Section 356 BNS and enact in its place a strengthened Civil Defamation Act providing for expedited proceedings, meaningful damages, and a robust statutory public interest defence. Such reform would align India’s law with international human rights standards, give full effect to the proportionality doctrine in constitutional adjudication, and protect the freedom of public discourse upon which democratic self-governance ultimately depends. The chilling effect of criminal defamation is not a theoretical abstraction; it is a measurable constraint on the investigative journalism, political commentary, and civic speech that a functioning democracy requires.
Reference(S):
Primary Sources: Cases
K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
M.J. Akbar v. Priya Ramani, CC No. 4085/2018 (ACMM, Patiala House Courts, New Delhi, Feb. 17, 2021).
Subramanian Swamy v. Union of India, (2016) 7 SCC 221.
Primary Sources: Statutes and Constitutional Provisions
Bharatiya Nyaya Sanhita, 2023 (Act 45 of 2023).
Bharatiya Sakshya Adhiniyam, 2023 (Act 46 of 2023).
Constitution of India, 1950.
Coroners and Justice Act 2009, c. 25 (Eng.).
Indian Penal Code, 1860 (repealed with effect from 1 July 2024).
Secondary Sources
Law Commission of India, 42nd Report: The Indian Penal Code (1971).
Reporters Without Borders, World Press Freedom Index 2024 (2024).
UNHRC, General Comment No. 34: Article 19: Freedoms of Opinion and Expression, UN Doc. CCPR/C/GC/34 (2011).
[1]Subramanian Swamy v. Union of India, (2016) 7 SCC 221.
[2]Bharatiya Nyaya Sanhita, 2023 (Act 45 of 2023), s. 356.
[3]K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
[4]Bharatiya Nyaya Sanhita, 2023, s. 356.
[5]Bharatiya Nyaya Sanhita, 2023, s. 357.
[6]Constitution of India, art. 19(1)(a).
[7]Constitution of India, art. 19(2).
[8]Subramanian Swamy v. Union of India, (2016) 7 SCC 221, ¶¶ 187–241.
[9]Id. ¶ 241.
[10]Law Commission of India, 42nd Report: The Indian Penal Code (1971).
[11]K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, ¶ 310 (Chandrachud J.).
[12]UNHRC, General Comment No. 34: Article 19: Freedoms of Opinion and Expression, ¶ 47, UN Doc. CCPR/C/GC/34 (2011).
[13]Coroners and Justice Act 2009, c. 25, s. 73 (Eng.).
[14]M.J. Akbar v. Priya Ramani, CC No. 4085/2018 (ACMM, Patiala House Courts, New Delhi, Feb. 17, 2021).
[15]Id.
[16]Reporters Without Borders, World Press Freedom Index 2024 (2024).
[17]Bharatiya Sakshya Adhiniyam, 2023 (Act 46 of 2023), s. 36.
