Time to decriminalise defamation, says Supreme Court

While hearing a petition challenging summons issued to an online news portal in a defamation case filed by Prof Amita Singh of Jawaharlal Nehru University (JNU), the Supreme Court on Monday remarked that the time has come to decriminalise defamation.

As Justice MM Sundresh said, “I think time has come to decriminalise all this…,” senior counsel Kapil Sibal, representing The Wire, agreed with the observation.

Justice Sundresh headed a Bench that also included Justice Satish Chandra Sharma. The Bench issued notice to Prof Singh on a petition filed by the Foundation for Independent Journalism which runs the news portal.

Section 356 of the Bharatiya Nyaya Sanhita (BNS), which replaced Section 499 and Section 500 of the Indian Penal Code (IPC), criminalises defamation and prescribes two-year jail or fine or both as punishment.

Article 19(1)(a) of the Constitution guarantees the right to freedom of speech and expression. But defamation is one of the eight grounds (under Article 19(2) of the Constitution) on which the state can impose reasonable restrictions on the right to free speech.

In May 2016, the Supreme Court upheld the constitutional validity of criminal defamation law, saying the right to free speech was not an absolute right. It had dismissed petitions filed by BJP leader Subramanian Swamy, Congress leader Rahul Gandhi and the then Delhi Chief Minister Arvind Kejriwal who had challenged the validity of Section 499 and Section 500 of the IPC.

“The right to free speech cannot mean that a citizen can defame the other. Protection of reputation is a fundamental right. It is also a human right. Cumulatively it serves the social interest,” the top court had said.

The present case related to a news report which alleged that Professor Amita Singh was at the helm of a group of JNU teachers who had compiled a 200-page dossier titled ‘Jawaharlal Nehru University: The Den of Secessionism and Terrorism’.

The article stated that the dossier was submitted to the JNU administration, where some JNU teachers were accused of encouraging a decadent culture in JNU by legitimising separatist movements in India.

Acting on a criminal defamation case filed by Prof Singh in 2016, a magistrate court issued summons to The Wire in 2017.

However, the Supreme Court in 2024 set aside the summons and asked the magistrate to re-examine the news articles in question and decide afresh if summons should be issued.