Context
A sitting judge of the Supreme Court, Justice M.M. Sundresh, has observed that India should reconsider the continuance of criminal defamation, highlighting its misuse against journalists, critics, and political opponents. The remark has revived a long-standing debate on freedom of speech vs. protection of reputation in Indian democracy.
Background of the Case
- The observation was made during a hearing involving the Foundation for Independent Journalism (The Wire) and one of its journalists.
- The petition sought to quash criminal defamation proceedings initiated by former JNU professor Amita Singh.
- Notably, the Supreme Court has recently stayed criminal defamation summons in several cases involving political leaders like Rahul Gandhi and Shashi Tharoor, reflecting judicial unease over growing misuse.
Legal Position on Defamation in India
| Type | Provision | Punishment |
| Civil defamation | Tort law | Financial compensation |
| Criminal defamation | Sections 499–500 IPC | Up to 2 years imprisonment, fine, or both |
- In Subramanian Swamy v. Union of India (2016), a two-judge Supreme Court bench upheld the constitutional validity of criminal defamation.
- The Court ruled that reputation is part of Article 21 (Right to Life) and criminal defamation is a “reasonable restriction” on free speech under Article 19(2).
Why the Debate Has Reopened
- Justice Sundresh questioned whether defamation by private individuals, which causes no public harm, should attract criminal punishment.
- He noted its growing misuse by political parties and powerful individuals to silence critics.
- The Court is increasingly concerned about the chilling effect criminal defamation has on journalism, dissent, and democratic debate.
Recent Judicial Trends
- In Imran Pratapgarhi vs. State (2025), the Supreme Court held that allegedly defamatory statements must be evaluated from the perspective of a “reasonable and courageous person”.
- Courts have also emphasised that criticism of public officials does not automatically amount to defamation.
Broader Constitutional Debate
- Freedom of expression (Article 19(1)(a)) vs. Right to reputation (Article 21) remains a key constitutional tension.
- Critics argue that criminal defamation:
- Is colonial in origin and outdated.
- Suppresses free speech and investigative journalism.
- Is used as a harassment tool via legal intimidation.
Conclusion
Justice Sundresh’s remark may pave the way for revisiting the 2016 Swamy judgment through a larger Constitution Bench. The debate now centres on whether civil remedies are sufficient to address defamation without criminalising speech in a democracy.