The offence of defamation is a hot topic of discussion in India and worldwide these days amid the concern for Freedom of Speech and Expression, Freedom of the Press, and other similar rights. Section 499 of the Indian Penal Code talks about the offence of defamation, which also provides 9 exceptions to it. It includes the defence of truth, public good, opinion against public conduct of public servants, the conduct of any person touching public question, publication of court proceedings, etc. The criminalization of the offence of defamation has attracted heated debate on both national and international platforms, where in India the judgment of Subramanian Swamy v. Union of India upheld the constitutionality of S. 499 of IPC, criminalizing this offence is seen as a tussle between freedom of speech and expression and the stringent law. The same has been contended in the above case. Offences like defamation can have an alternate punishment, that could be dealt with through civil proceedings, criminalising such an offence is an extra control over constitutional freedom. The cases of criminal defamation against the press, media houses, and the general public against the government and political figures keep on increasing. This is evident from the very recent cases. It remains a tool in the hands of the political figures to silence the voices against them. This article aims to point out the cases of criminal defamation against the government and its officials and the stand of the court in such proceedings. The article also tends to highlight the need for reformation in the laws to curb malicious prosecution and safeguard Constitutional and Human rights.
VINOD DUA V. UNION OF INDIA
In this case, the journalist was charged with sedition, public nuisance, defamation, and public mischief on a complaint made by a BJP Leader. He was alleged to make false statements against the Modi government, incite violence, and disrupt public order. He was also alleged of making remarks such as, where he called that PM Modi used “deaths and terror attacks” to get votes. The journalist in his plea in the apex court sought to form a committee to investigate the charges against him before filing an FIR. He plead that the court should issue guidelines that before the filing of an FIR against any journalist with over 10 years of experience, a committee should always be formed to investigate the charges. He also contended in the plea that “There is a recent trend against the media where state governments which do not find a particular telecast to be in sync with their political ideologies register FIRs against persons of the media primarily to harass them and to intimidate them so that they succumb to the line of the state or else face the music at the hands of the police,”
The apex court in this remarkable case struck down the charges against the journalist and held that the citizens have a right to criticize the government and it is guaranteed under freedom of speech and expression. While deciding on the sedition charges the court also referred to the case of Kedar Nath v. State of Bihar and remarked that S. 124A be applied only where “acts involving intention or tendency to create disorder, or disturbance of law and order; or incitement to violence”. This is a landmark judgment on the protection of the right to freedom of speech and expression guaranteed by the Constitution, however, the court refused the request of the journalist to set up a committee.
CRIMINAL DEFAMATION SUIT AGAINST RAVI NAIR
Recently journalist Ravi Nair was charged with criminal defamation on a complaint made by the Adani group. It was alleged that the journalist published defamatory articles against the Adani group claiming that the company uses its political influence to get the airport projects throughout India. He also authored a report about the same in July 2022.
In this case, The Committee to Protect Journalists came up in his support. Its director in Madrid, Mr. Carlos Martinez de la Serna said that – “The criminal defamation suit by Adani Group against freelance journalist Ravi Nair is an attack on press freedom and a part of the conglomerate’s tactic of initiating strategic litigation against journalists. India’s authorities must ensure that powerful business groups cannot abuse the country’s legal system to silence critics.”
CRIMINAL DEFAMATION SUIT AGAINST PRIYA RAMANI
The journalist accused the former Union Minister MJ Akbar of sexual misbehaviour during an interview in 1993. In 2018, she shared an article on Twitter by her, in which she described her experience of sexual harassment, the article did not mention Union Minister explicitly, but the tweet did. He filed a case of criminal defamation against her. In this case, Delhi High Court while acquitting the journalist remarked that the complainant (Union Minister) cannot be seen as a man of stellar reputation. Despite how highly esteemed certain people are in society, they might treat women severely harshly. The court further stated that it is unavoidable that those in positions of authority encourage impunity in the minds of abusers who anticipate no repercussions for the crimes they commit.
UPSURGE IN CRIMINAL DEFAMATION SUITS
A panel discussion was held at Taramani in the Asian College of Journalism on the topic of ‘Legal Challenges Faced by Journalists in India’. On the platform Mr. N. Ram representative from India in the Committee to Protect Journalists (CPJ) showed his concern regarding the increasing cases of criminal defamation in India against media. He said that where earlier journalists were charged with civil defamation charges, it has now taken one step ahead, where the press is now prosecuted for criminal defamation and the Unlawful Activities (Prevention) Act. This is a serious concern for India right now. The question lies in whether the charges of the offence of criminal defamation surpass its use than its misuse, as the court was of view in upholding its constitutional validity, to safeguard one’s right to reputation accommodating others’ right to freedom of speech and expression.
SUGGESTIONS FOR REFORM
Many progressive countries have taken steps to decriminalize defamation laws. The US has way earlier decriminalized the offence. Countries like the UK, Sri Lanka, El Salvador, Jamaica, and other nations have decriminalized defamation. This shows that the stringent law can be done away with and civil punishment for the offence would serve the purpose. It would ensure the balance between the right to freedom of speech and the right to reputation. UN and EU have also shown their concern regarding the same. The World Press Freedom Index of 2022 issued by ‘Reporters Without Borders ranked India at 150th place among 180 countries, this is a matter of great concern. Whereas the government has rejected the report and questioned the methodology of the Index.
India claims itself as the biggest democracy, but what does this democracy mean when it cannot even guarantee freedom of speech and expression? It is not only a violation of Article 19 of the Constitution of India but also violates the Freedom guaranteed by the Universal Declaration of Human Rights. Indeed, one’s reputation cannot be held at stake to ensure others’ freedom of speech, but the law needs to be tested on its use. The use of criminal defamation law in India has posed a serious threat to the Freedom of the Press, a balance needs to be maintained between the two rights. The political influence to curb the voices of journalism needs to be stopped. The court needs to intervene in the matter and issue some guidelines on the FIR of criminal defamation. A screening of the offence alleged before filing a complaint is necessary.
Author(s) Name: Shagun Shrivastava (Hidayatullah National Law University, Raipur)
 2015 SCC OnLine SC 792
 2021 SCC OnLine SC 414
 The Wire, SC Quashes Sedition Case Against Vinod Dua, Says Every Journalist Entitled to Protection, https://thewire.in/law/supreme-court-quash-vinod-dua-sedition-case, 30-12-2022, 01:29 pm
 1962 Supp (2) SCR 769
 Live Law, Citizen Has Right To Criticize Government As Long As He Does Not Incite People To Violence: Supreme Court In Vinod Dua Case, https://www.livelaw.in.elibraryhnlu.remotexs.in/top-stories/supreme-court-vinod-dua-citizen-right-criticize-government-sedition-incite-violence-violence-175154, 30-12-2022, 01:48 pm
 Committee to Protect Journalist, Adani Group files criminal defamation suit against freelance Indian journalist Ravi Nair, https://cpj.org/2022/07/adani-group-files-criminal-defamation-suit-against-freelance-indian-journalist-ravi-nair/, 30-12-2022, 2:44 pm
 The Hindu, Harassment against journalists in India has escalated: N. Ram, https://www.thehindu.com/news/national/tamil-nadu/harassment-against-journalists-in-india-has-escalated-n-ram/article65992257.ece, 30-12-2022, 3:11 pm
 The Quint, ‘Methodology Questionable’: India on Findings of World Press Freedom Index 2022, https://www.thequint.com/news/india/government-rejects-world-press-freedom-index-2022-india-rank-methodology, 30-12-2022, 3:25 pm