The 22nd Law Commission of India led by Justice Ritu Raj Awasthi has recommended that the offence of criminal defamation should be retained in the new criminal laws. The 285th Law Commission Report, published on Friday on criminal defamation and its impact on the freedom of speech and expression, was published in response to a letter from the ministry of law and justice in August 2017, the report states. In the opening letter to the Ministry of Law and Justice, the Law Commission states that it chose to undertake this extensive study on the law of defamation following the Supreme Court’s decision in the Subramaniam Swamy vs. Union of India (2016) case. In this case, the court upheld the constitutionality of defamation as a criminal offence and held that it was a reasonable restriction to the freedom of speech and expression. The report traces the history of the law of defamation, how it is defined and the essential characteristics for it to be proven as an offence. The report also explains how “the right to reputation” is a part of the right to life and dignity under Article 21 of the Constitution. It states that the right to freedom of speech must be balanced with protecting the right to reputation through the application of criminal defamation laws. The report also provides extensive coverage of judicial precedents that deal with the need to balance fundamental rights. The report stresses upon both the constitutional importance of defamation laws and their potential misuse which could have the effect of reducing accountability and transparency while stifling dissent and free speech. In conclusion, before the recommendations, the report states that the newly enacted criminal statute, the Bharatiya Nyaya Sanhita, 2023, by introducing community service as an alternative punishment, “has shown the most balanced approach in protecting one's reputation and speech too”.
