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14th MAY 2016 


(1 Question)


Answer questions in NOT MORE than 200 words each. Content of the answer is more important than its length.

Links are provided for reference. You can also use the Internet fruitfully to further enhance and strengthen your answers.



1.      Should defamation be a criminal offence or a civil offence alone? Should Public servants have a right to use the State machinery to fight defamation case with respect to their official acts? Discuss in context of recent apex court judgment, clearly justifying your stand.









In a judgment on a batch of petitions filed by BJP leader Subramanian Swamy, Congress vice-president Rahul Gandhi, Delhi Chief Minister Arvind Kejriwal, and media associations, among others, the Supreme Court upheld a colonial and pre-Constitutional law criminalising defamation. Sections 499 and 500 of Lord Macaulay’s Indian Penal Code of 1860, which prescribes two years’ imprisonment for a person found guilty of defamation won the court’s approbation.


Criminal Defamation upheld:

·         A Bench of Justices Dipak Misra and P.C. Pant said the reputation of an individual was an equally important right and stood on the same pedestal as free speech under Article 19 (1) (a) of the Constitution. The right to reputation is a constituent of Article 21 of the Constitution. It is an individual’s fundamental right.

·         Mutual respect is the fulcrum of fraternity that assures dignity. One is required to maintain the idea of fraternity that assures the dignity of the individual.

·         The Supreme Court held that deliberate injury to the reputation of an individual is not a mere private wrong, worth only a civil case for damages. Instead, it is a “crime” committed against society at large.

·         The court held that criminalisation of defamation to protect individual dignity of life and reputation is a “reasonable restriction” on the fundamental right of free speech and expression.

·         Journalists have no greater freedom than others to make any imputations or allegations sufficient to ruin the reputation of a citizen.


Defamation should be a civil offence alone:

·         Under Chief Minister Jayalalithaa, the law of criminal defamation is routinely set in motion within days of the publication of reports that are even remotely critical of her governance.

·         Many countries, including neighbouring Sri Lanka, have decriminalised defamation, which should be a civil offence alone.

·         When an individual has the recourse to sue respondents in civil courts for damages against loss of reputation, there is hardly any justification to keep the criminal option open.

·         It is true that ‘defamation’ is one of the reasonable restrictions to free speech envisaged in the Constitution, but this is not enough to justify retaining its criminal component.

·         In the Indian context, criminal defamation is not generally a dispute between two individuals. It is invariably a shield for public servants, political leaders, corporations and institutions against critical scrutiny as well as questions from the media and citizens.

·         Criminal defamation has a chilling effect on free speech and undermines public interest by coercing the media to observe self-censorship and self-restraint.

·         The threat of prosecution alone is enough to suppress the truth being published, and also the investigating journalism which is necessary in a democracy.

·         If criminal defamation is really needed to protect reputations, it is befuddling how the right to reputation under Article 21 can be extended to collectives such as the government, corporations and institutions, which presumably have the resources to set right damage to their reputations.

·         The outcome is often of little significance, as it is the process that is the punishment.

·         It is time India’s lawmakers scrapped criminal defamation from the statute book.


Public servant’s right to use the State machinery to fight defamation case with respect to their official acts:

·         Calling public servants a “different class”, the Supreme Court upheld the validity of Section 199(2) to (4) in the Cr.PC allowing them to file a complaint in a sessions court through a public prosecutor for alleged defamatory comments on their official acts.

·         Public functions stand on a different footing…The provision gives them protection for their official acts. There cannot be defamatory attacks on them because of discharge of their due functions. In that sense, they constitute a different class,” the apex court held.

·         Endorsing a public servant’s right to use the State machinery to fight a defamation case against another citizen, the apex court reasoned, “one is bound to tolerate criticism, dissent and discordance but not expected to tolerate defamatory attack.”

·         It is patently unfair to allow the State to use its legal machinery to suppress criticism without public servants concerned being required to testify in court on the actual injury or loss of reputation suffered by them.




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