Defamation in India

In one line

In India defamation is both a civil wrong and an offence, the criminal provision has been held constitutional, and the internet has made the tort a daily one.

In the wording a student can write in an exam: in India a defamed person may sue for damages in tort and may also set the criminal law in motion under section 356 of the Bharatiya Nyaya Sanhita 2023; the Supreme Court upheld the constitutionality of criminal defamation in Subramanian Swamy v. Union of India, holding that reputation is an integral part of the right to life under article 21 and that the provision is a reasonable restriction under article 19(2); the civil and criminal defences differ, since truth alone suffices in the civil action while the criminal exception requires truth and publication for the public good; and publication on the internet is publication wherever the statement is read.

The two remedies, side by side

The two proceedings are independent. An acquittal does not bar the suit, as chapter [Tort Distinguished from Crime] explains.

The constitutional challenge

Facts. Subramanian Swamy v. Union of India, (2016) 7 SCC 221, decided on 13 May 2016. Writ petitions challenged the validity of the criminal law of defamation, then sections 499 and 500 of the Indian Penal Code 1860 together with section 199 of the Code of Criminal Procedure 1973, on the ground that making defamation an offence is an unreasonable restriction on the freedom of speech and expression under article 19(1)(a).

Held. The Court upheld the provisions. It held that reputation is an integral part of the right to life guaranteed by article 21, that the interest in reputation must be balanced against free speech rather than subordinated to it, and that criminal defamation is a reasonable restriction saved by article 19(2). It left the petitioners free to challenge the issue of summons in their individual cases before the High Court under article 226 or section 482 of the Code.

Why it matters here. It settles that the criminal remedy stands beside the civil one in India, and it supplies the constitutional footing for reputation which chapter [Defamation: What It Is] uses.