Penalty in proportion: On growing use of criminal defamation proceedings
Criminal defamation is incompatible with democratic debate
When the Supreme Court of India upheld the validity of criminal defamation in Subramanian Swamy (2016), reasoning that reputation is part of the right to life, it may not have anticipated the difficulties of this position. On September 22, 2025, during criminal defamation proceedings against the Foundation for Independent Journalism, Justice M.M. Sundresh of the Court voiced his unease at the growing use of criminal defamation proceedings by private individuals and political actors as an insurance against criticism and as a means of retribution. His observation echoes a broader judicial anxiety expressed in recent proceedings against Rahul Gandhi, Shashi Tharoor and other public figures: that the law is being misused. Criminal defamation proposes imprisonment for speech that injures reputation, a remedy disproportionate to the harm caused. Unlike physical harm, reputational injury can be addressed adequately by monetary damages or injunctions. While protecting dignity may justify strong safeguards, protecting reputation seldom warrants criminal punishment. Since 2016, criminal defamation has become a tool of intimidation. Editors of The Hindu faced such cases under the Jayalalithaa government, and Mr. Gandhi over remarks about political leaders, with trial courts issuing summons that required the Court’s intervention. The tendency of the lower judiciary to issue summons without weighing the threshold of defamatory speech has aggravated the problem.
The law has also become an instrument of propaganda: criminal complainants have weaponised statements taken out of context or distorted in circulation, which the law has compounded by attaching the threat of jail time to contested interpretations. In this way, criminal defamation has fostered opportunistic litigation. For example, Subramanian Swamy versus Sonia Gandhi and Mr. Gandhi (2012-14) entangled rivals in a punishing process rather than seeking timely resolution, while suits filed by Nitin Gadkari and Arun Jaitley against Arvind Kejriwal and AAP leaders kept the Delhi government from performing its duties. For journalists in towns, criminal defamation complaints from local politicians or business interests create the risk of arrest and onerous travel to distant courts, fostering self-censorship. Instead, those genuinely aggrieved can approach civil courts for damages, injunctions or retractions, which address the harm of reputational injury and strike a balance between free expression and protecting reputation. Importantly, civil proceedings also reduce the scope for misuse by the powerful to silence criticism. Many countries, including the U.K., have abolished criminal defamation because such laws are incompatible with democratic debate. It is time for India to follow suit.