2. That it came as the government faces criticism on social media over student-led protests against the integrity of the examination system and the quality of schools has raised those eyebrows further.
3. Set up in May, the Maharashtra government committee was supposed to examine legal options for dealing with defamatory content online. As per sources, it has settled on a state-level change to the BNS.
4. Such an amendment is possible because criminal law is a subject in the Concurrent List. The state legislature can pass an amendment to the central law, which then requires the President’s assent before it can take effect in the state.
5. Amending the Maharashtra Police Act or seeking a change to the IT Act was considered and dropped. The source said the BNS route was preferred because ‘it will be vetted at multiple levels and have a stronger footing if challenged in court, as compared to just amending the state law’.
6. The drafting of Maharashtra’s amendment will take into account concerns raised by the top court, as per a government official.
7. The “safeguards” to be included will also consider similar attempts by other states to legislate on social media content and learn from each instance, sources said.
8. In 2020, for example, Kerala amended its Police Act through an ordinance to criminalise communication deemed threatening, abusive, humiliating or defamatory, and made it punishable with a three-year jail term. But it was withdrawn after opposition and petitions in court.
What was Section 66A?
9. Section 66A criminalised sending messages through a computer or electronic communication device that were considered ‘grossly offensive’ or ‘menacing’, among other categories.
10. It was invoked in cases involving comments, shared information, and opinions posted online, and became the centre of a long argument over how far the state could police internet speech.
What was the Shreya Singhal case?
11. On March 24, 2015, in Shreya Singhal vs Union of India, the Supreme Court struck it down as unconstitutional for violating the right to free speech.
12. The court held the provision vague and overbroad, and said it did not require the communication to have a tendency to cause an immediate threat to public safety or tranquility.
13. It also did not distinguish between information sent to a large audience and a message sent to one person. Terms such as ‘grossly offensive’, ‘annoying’ and ‘inconvenient’ could cover speech that neither affected a person’s reputation nor amounted to an offence under penal law.
What is defamation?
1. The Bharatiya Nyaya Samhita already defines defamation (sec. 356) as ‘making or publishing any imputation about a person, by words spoken or intended to be read, by signs or by visible representations, intending or knowing it will harm that person’s reputation’. It has no specific mention of online content.
2. Defamation rests on three elements. There must be a statement that harms reputation, the statement must refer to the person who complains, and it must be published to at least one other person.
3. Publication is the key requirement, because reputational harm arises only when the imputation reaches a third party.
4. Under Indian law, defamation can be a civil wrong or a criminal offence. Civil defamation can be libel (through writing) or slander (spoken word), and is based on tort law. It is punishable with financial compensation, and damages are computed based on probabilities.
5. In criminal cases, defamation must be proven beyond reasonable doubt. It can attract a jail term up to two years, with or without fine.
(Infographic source: AI generated)
Is defamation constitutionally recognised as a legitimate restriction on free speech?
6. The Constitution requires a balance between freedom of speech and the right to dignity. Article 19(1)(a) of the Constitution protects the right to speech and expression.
7. Article 19(2) allows the state to impose “reasonable restrictions” on this right in the interest of “sovereignty and integrity of India, the security of the State, friendly relations with Foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence”.
8. Article 21 protects dignity (reputation being integral to it) as part of life and liberty. In Subramanian Swamy v. Union of India (2016), the Supreme Court upheld criminal defamation precisely on this ground. It held that, “the right to reputation is no less important than the right to freedom of speech”.
9. This legal reasoning had the effect of changing the relationship between defamation and the right to freedom of speech — from an exception to the right to freedom of speech, defamation became a competing right.
10. At the same time, the Court has struck down vague or excessive restrictions. In Shreya Singhal v. Union of India (2015), it invalidated Section 66A of the IT Act because it chilled legitimate expression.
11. In Puttaswamy v. Union of India (2017), the Court insisted on proportionality as the standard for limiting fundamental rights.
BEYOND THE NUGGET: Comparative lessons from other jurisdictions
1. Switzerland’s Federal Supreme Court held in 2020 that liking or sharing defamatory content on social media can, in certain circumstances, attract liability because such actions can communicate the content to third parties.
2. The United Kingdom’s Defamation Act of 2013 requires proof of “serious harm,” which filters out trivial or symbolic cases. It set a threshold for defamation claims. In Monroe v Hopkins (2017), the English High Court held that two tweets had caused serious harm to Jack Monroe’s reputation, illustrating how the threshold operates in online speech cases.
3. German courts apply proportionality under Article 5 of the Basic Law, and the European Court of Human Rights requires restrictions to be necessary in a democratic society.
4. Together, these safeguards highlight clear doctrinal thresholds that distinguish between genuine reputational harm and casual gestures.
Post Read Questions
Consider the following statements:
1. Article 19(2) of the Constitution of India expressly recognises defamation as a ground on which reasonable restrictions may be imposed on freedom of speech and expression.
2. The Constitution of India expressly guarantees a fundamental right to reputation under Article 21.
3. Civil defamation is generally treated as a tort and may result in an award of damages or compensation.
4. Civil defamation and criminal defamation are both codified exclusively under the Bharatiya Nyaya Sanhita, 2023.
Which of the statement/s given above is/are correct?
(a) 1 and 3 only
(b) 1, 2 and 4 only
(c) 3 only
(d) 1, 2, 3 and 4
Answer: (a)
(Sources: 11 years on, Maharashtra panel suggests return of law to police social media, Editors beware, Kerala High Court warns against republishing ‘derogatory’ posts: ‘No shield even if matter already public’, One ‘like’, many consequences: Rethinking defamation in the digital age)
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When does online expression cross the line into defamation? (Image source: AI generated) 
(Infographic source: AI generated)
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