Beyond Reputation vs. Speech: Why the Supreme Court’s Push to Decriminalise Defamation is a Watershed Moment for Indian Democracy 

In a significant shift, the Supreme Court of India has indicated it may be time to decriminalize defamation, questioning the prolonged nature of such cases during a hearing involving news portal The Wire. The court’s remarks signal a potential reconsideration of its own 2016 ruling that upheld criminal defamation as constitutional, noting that the current law often leads to drawn-out legal battles that act as a punishment in themselves.

This move aligns with a global trend where democracies are repealing similar laws, arguing that civil suits for damages are a sufficient remedy for protecting reputation without the chilling effect that criminal charges—and the threat of imprisonment—have on free speech, investigative journalism, and public discourse. The final decision could mark a watershed moment for balancing the right to reputation with the fundamental right to freedom of expression in India.

Beyond Reputation vs. Speech: Why the Supreme Court’s Push to Decriminalise Defamation is a Watershed Moment for Indian Democracy 

For decades, the threat of a criminal defamation case has hung like a sword of Damocles over the heads of journalists, activists, and ordinary citizens in India. Unlike a civil suit, where the remedy is typically financial compensation, a criminal charge carries the spectre of imprisonment, a stain on one’s record, and a protracted, expensive legal battle that can cripple dissent and silence criticism. This colonial-era legal relic, upheld as recently as 2016 by the Supreme Court itself, is now facing its most serious constitutional challenge from within the highest court. 

The recent observations by a Supreme Court bench, led by Justice M. M. Sundresh, asking “How long will you go on dragging these cases?” and stating that “the time has come to decriminalise all this,” are not merely procedural comments. They represent a potential paradigm shift in how India balances the fundamental right to freedom of speech and expression with the right to protect one’s reputation. 

The Case at the Heart of the Rethink: The Wire vs. Professor Amita Singh 

To understand the gravity of the moment, one must look at the specific case that prompted the bench’s remarks. The petition filed by The Wire, challenging summons in a defamation case filed by former JNU professor Amita Singh, is a textbook example of the systemic issues plaguing the law. 

The origins lie in a 2016 article referencing a dossier on alleged misconduct at JNU. Professor Singh claimed the article falsely attributed the dossier to her, leading to severe personal and professional repercussions, including public shaming and isolation. The genuine distress she experienced underscores why the right to reputation is protected under Article 21 of the Constitution (the right to life and personal liberty). 

However, the case also highlights the problematic nature of using criminal law to address such grievances. The summons was first issued in 2017. After nearly a decade of litigation—moving from trial court to Supreme Court and back—the case is still at the stage of challenging the summons. This “prolonged dragging,” as the bench termed it, is not an exception but the rule in criminal defamation. The process itself becomes the punishment, consuming judicial time and resources while creating a powerful chilling effect on public discourse. 

The 2016 Judgment: A Controversial Precedent 

The Supreme Court’s current willingness to reconsider the issue is particularly significant because it directly confronts its own precedent. In the landmark 2016 case of Subramanian Swamy v. Union of India, the court, by a 2:1 majority, upheld the constitutional validity of Sections 499 and 500 of the Indian Penal Code, which define and punish criminal defamation. 

The majority opinion argued that the “right to reputation” was an integral part of Article 21 and could not be sacrificed at the altar of free speech. It reasoned that criminal defamation was a necessary tool, especially for individuals who may not have the financial means to pursue a civil case for damages. The dissenting judge, however, presciently warned that the law was a vestige of colonial rule designed to suppress dissent and was ripe for misuse by the powerful to silence critics. 

Nearly a decade later, the practical consequences of the 2016 judgment have become starkly clear. The law has been weaponised, not by the impoverished and defenseless, but by politicians, corporations, and influential individuals to file strategic lawsuits against public participation (SLAPPs). The bench’s reference to tagging The Wire’s petition with a batch of cases involving Leader of Opposition Rahul Gandhi—who himself has been both a petitioner and a respondent in multiple high-profile defamation cases—illustrates how the law has become a common tool in political and corporate warfare. 

The Global Context: A Move Towards Decriminalisation 

India’s reconsideration places it within a growing global consensus. The United Nations, the Organisation for Security and Co-operation in Europe (OSCE), and the Human Rights Committee have all called for the decriminalisation of defamation, recognising it as a disproportionate interference with free speech. Many mature democracies have already taken this step. 

• The United Kingdom, from whom India inherited its defamation laws, abolished criminal libel in 2009, deeming it obsolete and oppressive. 

• Sri Lanka decriminalised defamation in 2002. 

• Ghana repealed its criminal libel law in 2001. 

These nations have shown that a robust civil justice system, where the aggrieved can sue for damages and seek orders for public apology or correction, is a sufficient and more proportionate remedy. It protects reputation without the threat of state-sanctioned imprisonment for expression. By clinging to criminal defamation, India finds itself in increasingly outlier company, alongside regimes that are often criticised for suppressing press freedom. 

The Chilling Effect: What’s at Stake for Indian Democracy? 

The core argument for decriminalisation is not that reputation is unimportant, but that criminal law is a blunt and dangerous instrument to protect it. The real cost of criminal defamation is the “chilling effect” it imposes on society. 

• Investigative Journalism: A journalist investigating corruption, corporate malfeasance, or political misconduct must tread extremely carefully. The threat of a criminal case, with its potential for arrest and years of court appearances, can deter news organisations from publishing stories that are in the public interest, even if they are factually accurate. The fear of legal retribution leads to self-censorship. 

• Academic and Public Discourse: Scholars, activists, and even private citizens are discouraged from engaging in robust debate. A critical comment on social media, a satirical piece, or a whistleblower’s disclosure can trigger a criminal complaint, effectively punishing citizens for participating in democracy. 

• Judicial Overload: With thousands of pending cases, India’s judiciary is already overburdened. Criminal defamation cases, often frivolous and vexatious, clog the courts, diverting precious time and resources away from more serious crimes like murder, rape, and corruption. 

The Path Forward: A Balanced Approach 

Decriminalisation does not mean that individuals will be left without recourse. The civil law of defamation would remain fully intact. A person whose reputation is wrongly tarnished can still file a suit to claim monetary damages, seek an injunction to stop further publication, and demand a public retraction. The standard of proof in civil cases is lower (balance of probabilities versus beyond reasonable doubt), making it a more accessible and efficient remedy for genuine victims. 

The Supreme Court’s re-evaluation presents an opportunity to modernise India’s legal framework. It could lead to a system that robustly protects reputation through civil remedies while unequivocally affirming that criticism, dissent, and public scrutiny are not crimes. It would be a decisive move away from a colonial mindset of control towards a democratic commitment to open dialogue. 

The question posed by Justice Sundresh—“How long will you go on dragging these cases?”—is, therefore, about more than legal efficiency. It is a profound question about the kind of democracy India aspires to be: one where the law empowers citizens to speak truth to power, or one where it remains a sheathed sword, ready to silence them. The court’s final decision will be a defining verdict for Indian liberty in the 21st century.