Manas Dasgupta
NEW DELHI, Sept 22: A Supreme Court judge voiced his exasperation at the increasing use of criminal defamation law by private individuals and political parties to get even, highlighting the need “to decriminalise” slur.
“I think time has come to decriminalise this,” Justice M.M. Sundresh remarked on Monday orally while hearing a plea challenging the summons issued by a Magistrate’s court in a case of alleged criminal defamation for an online article in relation to Jawaharlal Nehru University (JNU).
The bench, also comprising Justice S C Sharma, was hearing the appeal filed by the Foundation for Independent Journalism, which manages The Wire news website, and its journalist Ajoy Ashirwad Mahaprastha, seeking quashing of the summons issued to them by a court in a criminal defamation case filed by former Jawarharlal University professor Amita Singh over the 2016 article titled “Dossier Call JNU “Den of Organised Sex Racket”; Students, Professors Allege Hate Campaign.”
Singh had alleged that the impugned write-up by Mahaprastha indicated that the alleged dossier was prepared by her and that this had damaged her reputation. Acting on the complaint, a Delhi Metropolitan Magistrate’s court summoned the portal editor and the journalist on January 7, 2017. The Delhi High Court, however, quashed the summons in 2023.
On appeal by Singh, a Supreme Court bench of Justices Sundresh and Arvind Kumar on July 24, 2024 set aside the HC judgment and remitted the matter back to the HC. The SC then said, “We are of the view that the High Court has certainly exceeded its jurisdiction. Section 204 of the CrPC, as it then was, merely facilitates a Magistrate who, upon entertaining a private complaint, has to proceed further by issuing summons for which purpose he has to satisfy the existence of sufficient grounds.
“In such view of the matter, we have no hesitation in setting aside the impugned order. Suffice it is to state that the learned Magistrate has not looked into the actual publication. Law does not prohibit him to look into the same and, on the contrary, he ought to have looked into it before issuing the summons. In such view of the matter, without expressing anything on merits, we set aside the impugned order by remitting the issue of summons to the learned Magistrate after duly taking note of the publication said to have been made by the respondents.”
The trial court again summoned the duo, who challenged it in the HC, which, however, refused to give them any relief. Following this, they again moved the SC.
Senior Advocate Kapil Sibal, who appeared for the petitioners, referred to the multiple times the Leader of the Opposition in the Lok Sabha Rahul Gandhi had approached the apex court to stay summons issued against him by trial courts on the basis of criminal defamation complaints filed by various private individuals. The Bench tagged the Foundation’s petition with the batch of cases filed by Mr Gandhi.
Less than a decade ago, the Supreme Court had upheld the constitutional validity of the criminal defamation saying it protected reputation, a part of the fundamental right to life. The apex court, in Subramanian Swamy versus Union of India, in 2016, had concluded that the criminal defamation law was a “reasonable restriction” to the right to free speech and expression enshrined in Article 19(1)(a) of the Constitution.
A two-judge bench of the top court had, on May 13, 2016, in the case Subramanian Swamy vs. Union of India, Ministry of Law and Others, upheld the constitutional validity of Sections 499 and 500 of the Indian Penal Code and Section 199 of the Code of Criminal Procedure. Section 499 IPC deals with defamation, while Section 500 IPC outlines the punishment for defamation — simple imprisonment for a term which may extend to two years, or fine, or both.
The SC said, “Once we have held that reputation of an individual is a basic element of Article 21 of the Constitution and balancing of fundamental rights is a constitutional necessity and further the legislature in its wisdom has kept the penal provision alive, it is extremely difficult to subscribe to the view that criminal defamation has a chilling effect on the freedom of speech and expression.”
It added, “One cannot be unmindful that right to freedom of speech and expression is a highly valued and cherished right but the Constitution conceives of reasonable restriction. In that context criminal defamation which is in existence in the form of Sections 499 and 500 IPC is not a restriction on free speech that can be characterized as disproportionate.
“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. Thus, we are unable to accept that provisions relating to criminal defamation are not saved by doctrine of proportionality because it determines a limit which is not impermissible within the criterion of reasonable restriction.”
Justice Sundresh’s single remark on Monday, mirroring the court’s anxiety over the ramped-up use of the criminal defamation law, reopens the question raised in the Subramanian Swamy case as to whether “defamation of any person by a private person can be treated as a ‘crime’, for it does not subserve any public interest.”
Recent months have seen various Benches of the apex court stay summons in criminal defamation cases, with comments including “do not be so touchy” or “the court is not a forum to settle political scores.” Justice Sundresh’s comment is the latest addition to remarks from the Bench on the issue.
In January, the top court had stayed criminal defamation proceedings against Mr Gandhi for his remarks against Union Home Minister Amit Shah. The following months had seen Mr Gandhi move separate petitions against court summons in other criminal defamation cases over his alleged remarks during the Bharat Jodo Yatra on reported skirmishes between Indian and Chinese soldiers, and Hindutva ideologue V.D. Savarkar.
The top court had also stayed a similar defamation case against Congress MP Shashi Tharoor on the basis of a complaint over his ‘scorpion on Shivling’ comments allegedly targeting Prime Minister Narendra Modi. In August, the apex court dismissed an appeal filed by Karnataka Minister Shivananda S. Patil against a Karnataka High Court order quashing a defamation case against BJP MLA Basanagouda R. Patil Yatnal with a comment, “fight your political battles outside the court.”
In its March 2025 judgment in the Imran Pratapgarhi case, the Supreme Court had quoted that words or acts claimed to be criminally defamatory “must be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view.” A ‘reasonable person’, the apex court quoted, was “the man on the top of a Clapham omnibus.”