RAJIV GANDHI NATIONAL UNIVERSITY OF LAW

CRIMINAL LAW - II: PROJECT

TOPIC: DEFAMATION: THIN LINE BETWEEN CRIMINAL LIABILITY AND

FREEDOM OF SPEECH AND EXPRESSION

SUB-TOPIC: ‘De-faming’ the Defamation Law: Analysing the Legal and Political
Exploitation

SUBMITTED TO: SUBMITTED BY:

DR. SHARANJIT KAUR A MOGH
MITTAL
ASSOCIATE. PROF. OF LAW R OLL NO.:
18223
SECTION : B

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 GROUP : 37

ACKNOWLEDGEMENT

This project has been made possible because of the guidance and wisdom of my professor Dr.
Sharanjit Kaur. The resources provided by the university library have been instrumental in
enabling me with the knowledge demanded by the topic assigned.
I would like to thank my Professor for giving me the opportunity to work on this topic for the
assigned project.

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 CERTIFICATE

This is to certify that Amogh Mittal, Batch of 2018-23, Roll No. 18223 is a bona fide student
of Rajiv Gandhi National University of Law, Patiala and has written this project on “‘De-
faming’ the Defamation Law: Analysing the Legal and Political Exploitation” under the
supervision of Dr. Sharanjit Kaur.

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TABLE OF CONTENT

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1. SCOPE OF THE PAPER......................................................................................................5

1.1. Research Questions..........................................................................................................5

1.2. Objectives of the Study......................................................................................................5

1.3. Research Methodology.....................................................................................................5

2. INTRODUCTION.................................................................................................................6

2.1. Elements of Defamation....................................................................................................6

2.2. Characteristics of Defamation..........................................................................................7

3. DEFAMATION LAW IN INDIA.........................................................................................7

3.1. Defamation as a Crime.....................................................................................................8

3.2. Defamation as a tort.........................................................................................................9

4. THE DEFAMATION DEBATE AND JUDICIAL INTERVENTION..........................10

4.1. Defamation: Public versus individual remedy...............................................................10

4.2. Conflict between article 19(1) (a) and right to reputation balancing of fundamental
rights …………………………………………………………………………………………………….11

4.3. Sections 499 and 500 of IPC versus reasonable restrictions.........................................11

5. INTERNET DEFAMATION: THE SHREYA SINGHAL CASE....................................12

5.1. Chilling effect and overbreadth......................................................................................13

5.2. Judiciary on Cyber Defamation......................................................................................14

6. POLITICAL EXPLOITATION OF THE DEFAMATION LAW.................................14

6.1. Petitions and Politicians....................................................................................................15

7. CONCLUSION....................................................................................................................16

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 1. SCOPE OF THE PAPER

In the beginning, it is essential to define or the limit the scope of the paper, considering the
reservoir of research that can be undertaken considering the ambit of the topic. In the paper, I
have analysed the law on defamation in India and how has it been applied by the Indian
courts. Further, its effect on the freedom of speech and thought is explored. Further, the
political exploitation of the defamation law has been analysed in detail.
1.1. Research Questions
 What are the elements of defamation under Indian law? Does it provide for civil and
criminal liability?
 How has the Indian judiciary interpreted various aspects of the defamation law? What
ingredients of the defamation law have been influenced by foreign jurisprudence?
 What are the aspects of cyber defamation? Are Indian laws equipped to deal with online
defamation?
 How has the defamation law been politically misused? What is the legality of such
incidents?

1.2. Objectives of the Study

 To analyse the elements of defamation law. Further, try to understand the differences
between the two categories of defamation.
 To scrutinize the two aspects of defamation, i.e., defamation as a tort, and defamation as
a crime
1.3. Research Methodology
The presented article will follow the ‘Doctrinal Method’ of research and will involve
consultation with both primary and secondary sources. The primary sources shall include the
case law relevant to topic at hand. The secondary sources will include reference to
commentaries, books, research papers and articles to analyse the primary research. The format
of citation will be Harvard Bluebook 19th ed.

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 2. INTRODUCTION

Defamation has become a burning issue in the present times; courtesy the growing media frenzy
which has been created over the freedom of speech and expression as envisaged under article 19
(1) (a). There exists an apprehension in the mind of individuals whether in their individual or
public capacity as to which statement of theirs might constitute a furor or land them behind bars. 1
The law of defamation is based upon the fundamental principle that the reputation of a member
of society, the esteem in which he is held by it the credit and trust it reposes on his intelligence,
honour and integrity, all these constitute a valuable asset for him and it deserves protection at the
hands of law. The love of reputation is the great moving principle of human action and as such it
should be protected and encouraged for the progress of society. The right of every person to the
reputation which his conduct deserves stands on the same footing with the right to the enjoyment
of his life, liberty, health, property and all the comforts and advantages which appertain to a state
of civil society inasmuch as security to reputation is indispensably essential to the enjoyment of
every right and privilege incident to such a state.2
2.1. Elements of Defamation
Defamation in law, is attacking another’s reputation by a false publication (communication to a
third party) tending to bring the person into disrepute. The concept is an elusive one and is
limited in its varieties only by human inventiveness. Although defamation is a creation of
English law, similar doctrines existed several thousand years ago.3 In Roman law, abusive chants
were capitally punishable. In early English and German law, insults were punished by cutting out
the tongue. As late as the 18th century in England, only imputation of crime or social disease and
casting aspersions on professional competence constituted slander, and no offences were added
until the Slander of Women Act in 1891, made imputation of unchastity illegal. French
defamation law, required conspicuous retraction of libelous material in newspapers and allowed
truth as a defence only when publications concerned public figures. Modern German defamation
is similar but generally allows truth as a defence. In Italy, truth seldom excuses defamation,
which is criminally punishable there.4
1
Shivi, Defamation Laws And Judicial Intervention: A Critical Study, ILI L. REV. (2016)
2
UNDERHILL, TORTS, 13th Edn. (1937) 230.
3
Robert C. Post, The Social Foundations of Defamation Law: Reputation and the Constitution (1986), Faculty
Scholarship Series, Paper 217, available at http://digitalcommons.law.yale.edu/fss_papers/217.
4
Rajeev Dhawan, Private Lives and Public Reputations: Career and Prospects of the Law of Defamation in India,
in PUBLISH AND BE DAMNED (2008).

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As for the essentials of Defamation: the statement in question must be defamatory and injure a
person’s reputation.5 The statement should be defamatory in its ordinary and natural meaning -
unless it constitutes an innuendo. Further, any person aggrieved by the offence may make a
complaint of defamation, not necessarily the defamed parties themselves. The statement in
question must further be published by the defendant. Said publication may take place in a variety
of ways such as conversation, verbally, through gestures, by a letter, in a magazine or a
newspaper, book, television, film or through the internet.6
2.2. Characteristics of Defamation
Generally defamation requires that the publication be false and without the consent of the
allegedly defamed person. Words or pictures are interpreted according to common usage and in
the context of publication. Injury only to feelings is not defamation; there must be loss of
reputation. The defamed person need not be named but must be ascertainable. A class of persons
is considered defamed only if the publication refers to all its members particularly if the class is
very small- or if particular members are specially imputed.7
 The statement must be defamatory.
 The said statement must refer to the plaintiff.
 The statement must be published i.e., communicated to at least one person other than the
claimant.8

3. DEFAMATION LAW IN INDIA

In India, there is no such distinction between libel and slander. Both libel and slander are
criminal offence. For better understanding, it can be divided into two categories:
i. Criminal
ii. Civil
3.1. Defamation as a Crime
The IPC under chapter XXI sections 499-502 protects an individual’s / person’s reputation.
Defamation against the state is contained in section 124A [Sedition], Section 153 of the Code
5
Madhavi Goradia Diwan, Defamation in FACETS OF MEDIA LAW (Eastern Book Company, Lucknow)
6
Lawrence M. Friedman, “Truth or Fiction”, Sticks and Stones – The Law of Defamation, in GUARDING LIFE’S
DARK SECRETS: LEGAL AND SOCIAL CONTROLS OVER REPUTATION, PROPRIETY AND PRIVACY, Stanford
University Press, 2007.
7
Van Vechten Veeder, The History and Theory of the Law of Defamation, Columbia Law Review, 3 (1903).
8
David A. Anderson, Reputation, Compensation and Proof, 25 Wm. & Mary L. Rev. 747 (1984).

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provides for defamation of a class i.e., community [Riot], while section 295A deals with hate
speech with regards to outraging religious sentiments. [Hate Speech]9
Section 499 of the IPC defines ‘defamation’ as being committed:
i. Through: (i) words (spoken or intended to be read), (ii) signs, or (iii) visible
representations;
ii. Which: are a published or spoken imputation concerning any person10;
iii. If the imputation is spoken or published with: (i) the intention of causing harm to the
reputation of the person to whom it pertains, or (ii) knowledge or reason to believe that
the imputation will harm the reputation of the person to whom it pertains will be
harmed.11
This broad definition is subject to four explanations and ten exceptions. 12 If a person is found
guilty of having committed defamation in terms of section 499 of the IPC, the punishment is
stipulated in section 500, simple imprisonment for up to two years or fine or with both. The Cr
PC, which lays down the procedural aspects of the law, states that the offence is non-cognizable
and bailable. Those who are accused of the offence would generally not be taken into custody
without a warrant, and as such, an aggrieved person would not be able to simply file a police
complaint but would, in most cases, have to file a complaint before a magistrate. As far as the
'truth defence' is concerned, although ‘truth’ is generally considered to be a defence to
defamation as a civil offence, under criminal law, only truth is a defence to defamation as a
crime (assuming, of course, that it is demonstrably true) only in a limited number of
circumstances. This can make persons particularly vulnerable to being held guilty of having
committed defamation under the IPC even if the imputations they made were truthful.
3.2. Defamation as a tort
As far as defamation under tort law is concerned, as a general rule, the focus is on libel (i.e.,
written defamation) and not on slander (i.e., spoken defamation). In order to establish that a
statement is libelous, it must be proved that it is (i) false, (ii) written; (iii) defamatory, and (iv)
published.13

9
A. G. Noorani, “Law of Libel in Pakistan, The Nation Case” ECONOMIC AND POLITICAL WEEKLY, May 11, 2002.
10
Manmohan Kalia v. Yash, (1984) 3 SCC 499.
11
Shivi, supra note 1.
12
Indian Penal Code, 1860, s. 499.
13
RATANLAL AND DHIRAJLAL, THE LAW OF TORTS 279 (LexisNexis, New Delhi, 26th edn., 2013).

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 An interesting aspect of defamation as a tort is that it is only a wrong if the defamation is of a
nature which harms the reputation of a person who is alive. In most cases, this translates to
saying that it is not a tort to defame a deceased person since, as a general rule, the plaintiff needs
to be able to prove that the defamatory words referred to him. However, this does not mean that
there can be no cause of action if a dead person is defamed — if, for example, a defamatory
statement negatively impacts the reputation of a deceased person’s heir, an action for defamation
would be maintainable.
Further, if an action for defamation is instituted, and defamation is found to have been
committed, damages will be payable to the plaintiff (usually, the person defamed). In addition to
this, a person apprehensive of being defamed in a publication may seek the grant of an injunction
to restrain such publication. However, prepublication injunctions are rarely granted as Indian
courts have tended to follow the principle laid down in the 1891 case of Bonnard v. Perryman.14
This principle has been followed by a division bench of the Delhi High Court in the 2002 case of
Khushwant Singh v. Maneka Gandhi.15 As such, even if there is an apprehension that content
may be of a defamatory nature, it is likely that publication would not be restrained except in
exceptional cases — presumably, those cases where the later payment of damages would clearly
not suffice to set right the wrong done to the person defamed. In nonexceptional circumstances,
Indian courts have shown a tendency to support free speech, and have not displayed a tendency
to grant injunctions which would have the effect of muzzling speech on the ground of possible
defamation.16

4. THE DEFAMATION DEBATE AND JUDICIAL INTERVENTION

The apex court’s judgement in Swamy’s17 case which was delivered on May 13 put a rest on the
speculation of defamation being decriminalised when the constitutional validity of the contended

14
Bonnard v. Perryman, (1891) 2 CH 269.
15
Khushwant Singh v. Maneka Gandhi, AIR 2002 Delhi 58.
16
S.P. Sathe, Defamation and Public Advocacy, ECONOMIC AND POLITICAL WEEKLY, Vol. 38, No. 22 (May 31 -
Jun. 6, 2003), pp. 2109-2112, http://www.jstor.org/stable/4413610.
17
Subramanian Swamy v. Union of India (Writ Petition (Crl.) No. 184/2014), available at:
http://supremecourtofindia.nic.in/outtoday/wr18414p-2014_10_30.pdf (last visited on Feb. 9, 2016).

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provisions were upheld.18 However, the judgement has received a mixed response and there
appears to be ex-facie a bent towards negative. It is observed by some intellectuals that by not
decriminalizing defamation, unfettered powers will vest especially with the political fora and
corporations who can manipulate according to their own whims which would further
unnecessarily hassle while there are others who advocate that in the present times it becomes
imperative to replace the colonial provisions as their application has become redundant. In this
regard, it becomes imperative to revisit the case and analyse the verdict so that an informed
consensus can be formulated.
4.1. Defamation: Public versus individual remedy
The arguments advanced by the petitioners emphasized that defamation is a dispute between two
individuals in which the reputation of one individual is attacked by another. Hence, follows the
rationale aforementioned. The apex court meticulously goes into each and every aspect.
Reference is made to the constitutional assembly debates through which the court tries to
establish that the framers of the Constitution too had no intention to confer a restricted meaning
on the term defamation. With regard to the application of principle of noscitur a socii, the court
rules out its application by clarifying that defamation has its own identity and cannot be given a
restricted meaning.19
As far as the dichotomy of defamation being a public or individual remedy is concerned, it was
contended that reputation has been held to be a facet of article 21 in Dilipkumar
Raghavendranath Nadkarni,20 Mehmood Nayyar21 and Umesh Kumar.22 Now since, defamation
involves marring the reputation of an individual, therefore, criminal defamation cannot form a
public remedy. To this, the apex court gives reasoning that individuals constitute the collective
and the law relating to defamation protects the reputation of each individual in the perception of
the public at large. Further, a nexus is sought to be established via definitions of crimes that
every crime is an injury; every public offence is also a private wrong, and somewhat more. It
affects the individual, and it likewise affects the community.26 For instance, the Sexual
Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, the
Noise Pollution (Regulation and Control) Rules, 2000 under the Environment (Protection) Act,
18
Id.
19
Mohanlal V. Ramchanran 1928 26 A.L.J.R. 361
20
Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni (1983) 1 SCC 124
21
Mehmood Nayyar Azam v. State of Chhatisgarh (2012) 8 SCC 1
22
Umesh Kumar v. State of Andhra Pradesh (2013) 10 SCC 591.

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1986 regulate the fundamental rights of citizens vis-a-vis other citizens. So, the petitioners
contention that that treating defamation as a criminal offence can have no public interest and
thereby it does not serve any social interest or collective value holds no ground.23
4.2. Conflict between article 19(1) (a) and right to reputation balancing of fundamental
rights
Another question which arose before the court was whether reputation of another individual or a
group or a collection of persons absolutely ephemeral, so as to hold that criminal prosecution on
account of defamation negates and violates right to free speech and expression of opinion. To
answer this, the apex court goes into the interpretational analysis of freedom of speech and
expression under article 19(1) (a), 19(2), right to reputation vis-à-vis article 21.24 After a detailed
scrutiny and references to plethora of cases on each subject matter, the court resorts to the rule of
harmonious interpretation and adopts the doctrine of balancing of fundamental rights. With
regard to the permissibility of criminal defamation, the Court opines that it can be tested on the
touchstone of constitutional fraternity (preamble) and fundamental duty. However, the court
finds it difficult to come to a conclusion that the existence of criminal defamation is absolutely
obnoxious to freedom of speech and expression but concludes that it does not invite the frown of
any of the articles of Constitution nor its existence can be regarded as unreasonable restriction.25
4.3. Sections 499 and 500 of IPC versus reasonable restrictions
The pertinent question which arose before the court was whether sections 499 and 500 of the IPC
go beyond the scope of the reasonable restrictions imposed under article 19(2) of the
Constitution of India? While answering in negative, the Supreme Court gave a detailed reasoning
of the explanations and exceptions appended to section 499. It was submitted by the petitioners
that on two earlier occasions, R.R. Gopal v. State of Tamil Nadu 26 it had been observed as
follows: “In all this discussion, we may clarify, we have not gone into the impact of Article 19(1)
(a) read with clause (2) thereof on Sections 499 and 500 of the Indian Penal Code. That may
have to await a proper case”.27

23
Subramaniam Swamy, Defamation Litigation: A Survivor’s Toolkit, The Hindu, available at
http://www.hindu.com/2004/09/21/stories/2004092103551000.htm.
24
Gordon Rayner, How Libel Tourism became an embarrassment to Britain’s reputation, THE TELEGRAPH,
available at http://www.telegraph.co.uk/news/7301403/How-libeltourism-became-an-embarrassment-to-Britains-
reputation.html.
25
Subramanian Swamy v. Union of India AIR 2016 SC 2728.
26
R.R. Gopal v. State of Tamil Nadu (1994) 6 SCC 632.
27
Id, at 651.

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In N. Ravi v. Union of India28 wherein it had been observed as follows: “Strictly speaking on
withdrawal of the complaints, the prayer about the validity of Section 499 has also become
academic, but having regard to the importance of the question, we are of the view, in agreement
with the learned counsel for the petitioners, that the validity aspect deserves to be examined”.29
As defamatory speech is one such restriction prescribed under article 19(2) (1) of the
Constitution. Therefore, in order to curb speech that is defamatory, court observed that the
restriction imposed should be ‘reasonable’.30 Also, whether the law that imposes the restriction is
reasonable should be judged in accordance with current social, economic and political
circumstances of the nation. One of the rules of statutory interpretation is to interpret the words
of a statute in light of the current facts and situations and not based on the facts/situations of the
past.31
It had been the one of the contentions that the exceptions make the offence more rigorous,
thereby making the concept of criminal defamation extremely unreasonable. Further, truth was
not a defence and unnecessary stress on ‘public good’. The apex court, after a detailed discussion
concluded that neither the main provision nor the explanation nor the exceptions remotely
indicated any vagueness and thus cannot be called unreasonable. 32 It also rejected the argument
that criminal defamation was not saved by the doctrine of proportionality.33

5. INTERNET DEFAMATION: THE SHREYA SINGHAL CASE

The accessibility of internet to common man has changed everyone's lives. The platform
provided by the internet has made human interaction easier than ever before. However, such
increase in convenience of communication has proportionally increased the inconvenience
caused by the abuse of the mediums of communication. 34 Section 66A of Information &
Technology Act 2000 (IT Act), was quashed by the Supreme Court of India in Shreya Singhal v.
Union of India35, due to ambiguity in the definition of the word 'offensive' in the Section. The

28
N. Ravi v. Union of India, (2007) 15 SCC 631.
29
Id, at 631.
30
Chintaman Rao v. The State of Madhya Pradesh, AIR 1951 SC 118.
31
The Senior Electric Inspector v. Laxminarayan Chopra, AIR 1962 SC 159.
32
Swamy, supra note 25, at ¶ 186.
33
Swamy, supra note 25, at ¶ 184.
34
S. Raj, Defamation On Social Media- What Can You Do About It?, MONDAQ, (Jan. 7, 2020),
https://www.mondaq.com/india/libel-defamation/880758/defamation-on-social-media-what-can-you-do-about-it
35
Shreya Singhal v. Union of India, AIR 2015 SC 1523

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section stated that sending any offensive message to a computer or any other communication
device would be an offence. Such unfettered power, under section 66A, was misused by the
Government in curtailing and suppressing people's freedom of speech and expression and hence
repealed.36
5.1. Chilling effect and overbreadth
The term ‘chilling effect’ in legal context basically describes a situation where a speech or
conduct is suppressed by fear of penalisation at the interests of an individual or group. It is the
inhibition or discouragement of the legitimate exercise of natural and legal rights by the threat of
legal sanction. Regarding over breadth, apex court opined that the net cast by section 66A was so
wide that virtually it covered any opinion on any subject.37
Article 19(1) (a) of the Constitution guarantees to citizens right to freedom of speech and
expression. The immediately succeeding clause, Article 19(2), however limits this right in
allowing the state the power to impose by law reasonable restrictions in the interests, among
other things, of the sovereignty and integrity of India, the security of the state, public order,
decency or morality, defamation, or incitement to an offence.38 The Supreme Court agreed with
the petitioners on each of these arguments. According to the court, none of the grounds, which
the state sought to invoke in defending the law, in this case, public order, defamation, incitement
to an offence and decency or morality, each of which is contained in article 19(2), was capable of
being justifiably applied..39 The court pointed out that there was no nexus whatsoever between
the criminalization of “grossly offensive” or “annoying” speech and the restrictions permitted
under the Constitution were self-evident.
5.2. Judiciary on Cyber Defamation
In its first ever case on Cyber Defamation in SMC Pneumatics (India) Pvt. Ltd. v. Jogesh
Kwatra40, wherein a disgruntled employee sent derogatory, defamatory, vulgar and abusive
emails to the company's fellow employers and to its subsidiaries all over the world with an intent
to defame the company along with its managing director, the High Court of Delhi granted ex-

36
Id.
37
Id.
38
D. Keller, Shreya Singhal case was one of the defining rulings of modern internet law, INDIAN EXPRESS, (Jan. 17,
2020), https://indianexpress.com/article/opinion/columns/filtering-out-free-speech-shreya-singhal-case-supreme-
court-6220277/
39
S. Parthasarthy, The judgment that silenced Section 66A, THE HINDU, (Sept. 6, 2016),
https://www.thehindu.com/opinion/lead/the-judgment-that-silenced-section-66a/article7032656.ece
40
SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra, Original Suit No. 1279 of 2001

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parte ad interim injunction restraining the defendant from defaming the Plaintiff in both the
physical and in the cyber space.41
Further, in the case of Kalandi Charan Lenka v. State of Odisha 42, the Petitioner was stalked
online and a fake account was created in her name. Additionally, obscene messages were sent to
the friends by the culprit with an intention to defame the Petitioner. The High Court of Orissa
held that the said act of the accused falls under the offence of cyber defamation and the accused
is liable for his offences of defamation through the means of fake obscene images and texts.43
In another case, M/S Spentex Industries Ltd. & Anr. vs. Pulak Chowdhary44, the petitioner had
filed for a compulsory and prohibitory injunction along with the recovery of Rs. 50,00,000/ as
damages for loss of reputation and business due to defamatory emails sent by the defendant to
the International Finance Corporation, World Bank, President of Republic of Uzbekistan and
UZEREPORT (a news website portal and publisher of monthly news reports).45
Very recently, in the case of Swami Ramdev & Anr. v. Facebook Inc. & Ors.46, Justice Pratibha
Singh had passed an order to remove all defamatory content posted online against yoga guru
Baba Ramdev, without any territorial limit, stating that if the content is uploaded from India or
such content is located in India on a computer resource, then the Courts in India should have
international jurisdiction to pass worldwide injunctions.

6. POLITICAL EXPLOITATION OF THE DEFAMATION LAW

Two kinds of defamation actions have emerged to capture popular attention. First, political
interests have adopted defamation law to settle scores and engage in performative posturing for
their constituents. And, second, powerful entities such as large corporations have exploited
weaknesses in defamation law to threaten, harass, and intimidate journalists and critics. 47 The
former phenomenon is not new. Colonial India saw an explosion of litigation as traditional legal
structures were swept away and native disputes successfully migrated to the colonial courts.
These included politically-motivated defamation actions that had little to do with protecting
41
Id.
42
Kalandi Charan Lenka v. State of Odisha, BLAPL No.7596 of 2016.
43
Id.
44
M/S Spentex Industries Ltd. & Anr. vs. Pulak Chowdhary, Civil Suit No. 219/18.
45
Id.
46
Swami Ramdev & Anr. v. Facebook Inc. & Ors, CS (OS) 27/2019.
47
B. Acharya, Criminal Defamation and the Supreme Court’s Loss of Reputation, THE WIRE, (May 14, 2016),
https://thewire.in/law/criminal-defamation-and-the-supreme-courts-loss-of-reputation

15 | P a g e
reputations. In fact, defamation litigation has long become an extension of politics, in many
cases a new front for political manoeuvring. The latter type of defamation action is far more
sinister. Powerful elites, both individuals and corporations, have cynically misused the law of
defamation to silence criticism and chill the free press. By filing excessive and often unfounded
complaints that are dispersed across the country, which threaten journalists with imprisonment,
powerful elites frighten journalists into submission and vindictively hound those who refuse to
back down. Such actions are called Strategic Lawsuits against Public Participation (SLAPPs)
which Rajeev Dhavan warns have created a new system of censorship.48
6.1. Petitions and Politicians
Defamation originates from the concept of scandalum magnatum – the slander of great men –
which protected the reputations of aristocrats. The crime was linked to sedition, so insulting a
lord was akin to treason. In today’s neo-feudal India, political leaders are contemporary
aristocrats. Investigating them can invite devastating consequences, even death. Most of the time,
they retaliate through defamation law. Since the criminal justice system is most compromised at
its base, where the police and magistrates directly interact with people, the misuse of criminal
defamation law hurts ordinary citizens. This is different from politicians prosecuting each other
since they rarely, if ever, suffer punishment.49 Of all the petitions before the Supreme Court
concerning the decriminalization of defamation, the three that received the most news coverage
were those of Subramanian Swamy, Rahul Gandhi, and Arvind Kejriwal. 50 They are all
politicians; their petitions were made in response to defamation complaints filed by rival
politicians. On the other hand, there are numerous cases which politicians have filed against
private members of civil society to silence them. When presented with these concerns, the
Supreme Court simply failed to seriously engage with them.
The frequent use of criminal defamation charges by the Tamil Nadu state government, led by
Chief Minister Jayalalithaa, against journalists, media outlets, and rival politicians is illustrative
of how the law can be used to criminalize critics of the government. The Tamil Nadu
government reportedly filed nearly 200 cases of criminal defamation between 2011 and 2016.
48
RAJEEV DHAVAN, PUBLISH AND BE DAMNED: CENSORSHIP AND INTOLERANCE IN INDIA (2008)
49
PTI, "Touch me not": Tamil Nadu government has filed over 70 defamation cases on media, THE NEWS MINUTE,
(Jan. 17, 2015), https://www.thenewsminute.com/article/touch-me-not-tamil-nadu-government-has-filed-over-70-
defamation-cases-media-24922
50
B. Sinha, Supreme Court upholds defamation law contested by Rahul, Kejriwal, Swamy, HINDUSTAN TIMES, (May
13, 2016), https://www.hindustantimes.com/india/supreme-court-cites-right-to-reputation-to-uphold-defamation-
law/story-wLqoqT00l37nv5DgTrtVoJ.html

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The Tamil-language magazines Ananda Vikatan and Junior Vikatan, both published by the
Vikatan group, face charges in 34 criminal defamation cases, including for a series of articles
assessing the performance of each cabinet minister.51
In many cases, successive Indian governments have failed to prevent local officials and private
actors from abusing laws criminalizing expression to harass individuals expressing minority
views, or to protect such speakers against violent attacks by extremist groups. Too often, it has
instead given in to interest groups who, for politically motivated reasons, say they are offended
by a certain book, film, or work of art. The authorities then justify restrictions on expression as
necessary to protect public order, citing risks of violent protests and communal violence. While
there are circumstances in which speech can cross the line into inciting violence and should
result in legal action, too often the authorities, particularly at the state level, misuse or allow the
misuse of criminal laws as a way to silence critical or minority voices.52

7. CONCLUSION

The law of defamation seeks to protect individual reputation. Its central problem is how to
reconcile this purpose with the competing demands of free speech. Since both these interests are
highly valued in our society, the former as perhaps the most dearly prized attribute of civilized
human beings while the latter the very foundation of a democratic society. The apex court gave
an interim time period of eight weeks to the petitioner within which they can challenge. 53 The
decision brings finality to the case but raises certain questions in its wake. For instance, in a
progressive economy like India, is resorting to penal provisions justified especially in an era,
where reformative justice is replacing retributive justice. Besides the growing intolerance in the
nation is another issue which might get a reason due to this judgement. In such situations, there
becomes a need to shed one’s inhibition and discuss viable solutions. One such proposition in
this area would be the right to reply. Of course, this has been debated earlier.
However, owing to the chilling effect which might be incumbent on the individual/organization;
right to reply has just added on the scepticism. However, right to reply appears as a civilized
manner to address matter rather than jumping on conclusions, convicting and seeking damages.

51
B. Adams, Stifling Dissent: The Criminalization of Peaceful Expression in India, HUMAN RIGHTS WATCH, (May
24, 2016), https://www.hrw.org/report/2016/05/24/stifling-dissent/criminalization-peaceful-expression-india#
52
Id.
53
Krishnadas Rajagopal, Supreme Court upholds validity of criminal defamation law, THE HINDU, May 14, 2016.

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Some US states and other countries have imbibed this concept. Certainly, we too can utilize this
concept.54 There is a dire need of a system which educates and makes people aware of what to do
and what not to do, what is wrong and what is right and what is defamatory and what is not
defamatory in the cyber space. Further, the intermediaries which provide such an open platform
should monitor the content posted on it and take appropriate actions against such users who post
such defamatory content in order to avoid repetition in the future.

54
Samudra Gupta Kashyap, Tarun Gogoi appears before court in Rs 100 crore defamation case, THE INDIAN
EXPRESS, January 18, 2016

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