The Hindu Editorial Analysis
24 September 2025
Penalty in proportion: Criminal defamation is incompatible with democratic debate
(Source – The Hindu, International Edition – Page No. – 8)
Topic : GS 2: Governance; Role of judiciary; Salient features of the Representation of the People Act; Important aspects of rights issues.
Context
- A Supreme Court judge has flagged the growing misuse of criminal defamation by private individuals and political actors as a shield against criticism and as a tool of retribution.
- Since the 2016 verdict upholding criminal defamation, lower courts’ frequent summons have aggravated intimidation and chilled free speech
- The moment signals the need to recalibrate proportional remedies for reputation protection toward civil law rather than criminal sanction
Introduction
- In Subramanian Swamy (2016), the Supreme Court upheld criminal defamation on the ground that reputation is part of the right to life, but recent experience shows the difficulties of that position in practice.
- Justice M.M. Sundresh has now warned of the rising use of criminal defamation as an insurance against criticism by both private and political complainants, indicating systemic overreach.
- Editors and opposition leaders have faced serial processes and summons, reflecting how criminal defamation can morph from dignity protection into intimidation.
- The core democratic question is proportionality: whether injury to reputation, which is remediable by civil law, justifies imprisonment and the attendant chilling effect on debate.
Back to Political and Economic Isolationism
Key Issues and Impact
- Misuse and intimidation
Details: Criminal defamation increasingly operates as a process-as-punishment tool, with complainants weaponising selective readings and out-of-context statements to press charges.
Impact: Journalists and political critics face legal harassment, fostering self-censorship and burdening courts with threshold-deficient cases. - Lower judiciary’s threshold problem
Details: Routine issuance of summons without a rigorous prima facie assessment on defamatory content lowers the entry barrier to criminal prosecution.
Impact: The frequency of process itself punishes, regardless of eventual acquittal, undermining robust public discourse. - Process entanglement over resolution
Details: High-profile cases (e.g., Subramanian Swamy’s complaints against political figures) show how proceedings multiply instead of resolving disputes swiftly.
Impact: Legal attrition replaces effective reputation repair, diverting attention from civil remedies like injunctions or damages. - Hostile climate for reporters
Details: Editors and reporters have faced complaints over political commentary, with trails of summons and court appearances disrupting journalistic functions.
Impact: The risk calculus encourages caution over scrutiny, weakening accountability journalism and civic oversight. - Disproportionality in sanction
Details: Unlike physical harm, reputational injury can be addressed adequately through civil remedies without imprisonment.
Impact: Criminal punishment for speech chills debate and is misaligned with democratic necessity and proportionality principles. - Venue shopping and strategic complaints
Details: Complaints filed in distant courts by political or business interests inflate costs and logistical burdens for the accused.
Impact: The system enables strategic silencing and forum pressure rather than fair adjudication on merits.
Trade Troubles
Key Issues and Impact
- Economic and civic costs of criminalisation
Details: Criminal proceedings consume public resources, court time, and private legal expenses over issues resolvable by civil law.
Impact: Opportunity costs impair justice delivery for serious crimes and strain media finances, reducing plurality. - Historical and comparative lesson
Details: Many democracies, including the U.K., have moved away from criminal defamation, emphasising civil pathways and robust public interest defenses.
Impact: Comparative practice underscores that reputation can be safeguarded without criminal penalties, preserving speech. - Rules-based balancing via civil law
Details: Civil defamation offers calibrated tools—damages, injunctions, corrections, and retractions—focusing on remedy over retribution.
Impact: This aligns with proportionality, deters malicious falsehoods, and avoids the chilling effects of criminal law.
Constitutional/Legal angles
- Article 19(1)(a) read with reasonable restrictions under Article 19(2) requires narrow tailoring and proportionality; criminal defamation risks overbreadth and chilling impact.
- Subramanian Swamy (2016) upheld criminal defamation, but subsequent misuse evidence invites a revisitation on necessity and least-restrictive means.
- Host-country style concerns of immunity are inapposite here; the relevant pivot is ensuring courts police thresholds before issuing process in speech cases.
India’s stakes
- A vibrant press and free political speech are essential for accountability, especially amid high-stakes elections and policy scrutiny.
- Over-criminalisation deters whistleblowing, investigative journalism, and citizen critique, weakening governance and service delivery.
International comparison
- Several jurisdictions have abolished or curtailed criminal defamation, favouring civil remedies and strong public interest defenses for media reporting.
- These models illustrate scalable alternatives for India that protect dignity without imprisoning speech.
Data, facts, precedents
- 2016: Supreme Court upholds criminal defamation; post-2016: rising complaints and frequent summons against journalists and politicians noted by the Court.
- Judicial observation by Justice M.M. Sundresh flags systemic misuse and the growing tendency to file complaints for criticism and dissent.
Way forward
- Tighten thresholds: Mandate pre-summons scrutiny and reasoned orders on prima facie defamation and public interest exceptions.
- Prefer civil remedies: Emphasise damages, injunctions, corrections, and retractions; adopt quick, low-cost civil procedures to reduce forum abuse.
- Penal costs for frivolous complaints: Introduce costs and sanctions for vexatious or forum-shopping complaints to deter misuse.
- Protect public interest speech: Codify stronger defenses for fair comment, reportage, and matters of public importance.
- Consider decriminalisation: Move towards repeal or severe narrowing of criminal defamation, reserving criminal law for incitement, hate speech, and violence-related offences.