The 22nd Law Commission of India has recommended that criminal defamation be retained within the scheme of criminal laws in the country in its report No. 285 titled “The Law of Criminal Defamation” to the Government of India.
The Law Commission received a reference from the Ministry of Law & Justice, vide letter dated August 4, 2017, requesting the Commission to examine various issues relating to the Defamation laws and make recommendations thereon.
“Having considered the above in-depth, the Commission has recommended that criminal defamation be retained. In this regard, it is important to consider that right to reputation flows from Article 21 of the Constitution of India, and being a facet of right to life and personal liberty, needs to be adequately protected against defamatory speech and imputations.”
In pursuance of the reference, the 22nd Law Commission undertook an extensive study, analysing the history of the law of defamation, its relationship vis-à-vis the right to freedom of speech and expression, and the various judgments rendered by the Courts across the country. The Commission also studied the relationship between right to reputation and the right to freedom of speech and expression, and how the two need to be balanced. Further, the Commission looked into the treatment of criminal defamation across various jurisdictions.
The Hon’ble Supreme Court had also the occasion to examine the constitutionality of criminal defamation in Subramanian Swamy v. Union of India [(2016) 7 SCC 221]. Having examined the issue at length, the Hon’ble Supreme Court dismissed the challenge to Section 499 of the Indian Penal Code, 1860, and held it to be constitutionally valid on account of it being a reasonable restriction under Article 19(2) to the freedom of speech and expression enshrined in Article 19(1)(a), a release stated.
Having considered the above in-depth, the Commission has recommended that criminal defamation be retained. In this regard, it is important to consider that right to reputation flows from Article 21 of the Constitution of India, and being a facet of right to life and personal liberty, needs to be adequately protected against defamatory speech and imputations, the release added.