The Indian Defamation Law is established by Section 499 of the Indian Penal Code, 1860. According to the law, defamation takes place "by words either spoken or intended to be read, or by signs or by visible representations, to make or publish any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation, of such person"[1]. The constitutionality and legality of this law has been subject to debate for a long time now, and associated with the law are elitist connotations, with it being a weapon for the high and mighty. While advocates in favour of the law cite it as a reasonable check on slander and misinformation, it can be strongly argued that the law has been misused by the political and business classes against their critics for a long time, with one of the earliest cases, Hastings vs Hicky, dating back to the 18th century [2]. The case also serves as a precedent of how journalistic entities have borne the brunt of this law. In the following essay, I shall point out the detrimental nature of defamation laws with special emphasis on journalistic entities.

Journalistic freedom in India has been a matter of concern for several years now, with a rank of 140 on the World Press Freedom Index as of 2019[3]. Although the Constitution of India does not define ‘freedom of press’ per se, it is said to be implied under the Article 19(1)(a) as Freedom of Speech and Expression[4]. Hence, the same restrictions apply to both the rights. The 4th and 6th heads under the Clause (2) of the Constitution grant legislative authority to restrict free speech under the following sub-clauses,

·         Decency and Morality,

·         Defamation.

These sub-clauses not only appear to be highly ambiguous in language, but they also legitimize authoritarian curbs upon the rights in question and hence can be deemed as contradictory and unconstitutional, as there contain no definitions in the Constitution to what constitutes indecency and immorality. Defamation, on the other hand, does have a legal definition, but there too; the language is subject to conjecture, as “harming the reputation” can easily be equated with journalistic exposés, as was noted in the case of The Wire, an independent news organization, charged under both civil and criminal defamation, for publishing an article relating to the business dealings of Jay Shah, son of then BJP President, now Union Minister for Home Affairs, Amit Shah[5].

Another incident of such legal arbitrariness was seen in the show-cause notices sent to 3 news channels for coverage of Yakub Memon’s execution in 2015. The channels were threatened with license cancellations for violation of the Programme Code under the Cable Television Network (Regulation) Act 1995. As Indira Jaising notes, the act deals with cable operators, not the content providers. Even more so, the Programme Code itself contains the following rule,

Rule 6(1)(d): No programme should be carried in the cable service [if it] contains anything obscene, defamatory, deliberate, false and suggestive innuendos and half-truths[6]

Again, stressing upon the term ‘defamatory’, the definition is highly subjective and is prone to misinterpretation and legal misuse.

            Apart from the aforementioned cases, there have been many such incidents where the party in authority has used defamation as a weapon of subjugation. Former Minister of State for External Affairs M.J. Akbar filed a defamation suit against a journalist who accused him of sexual misconduct in the aftermath of the #MeToo movement[7]. The State Government of Tamil Nadu once infamously filed a total of 125 defamation cases against ‘The Hindu’ newspaper[8].

All these instances of legally legitimized harassment serve to prove that this law should have been struck down right at the get-go. At the very least, the burden of proof should rest upon the accuser, rather than the defendant. Also, taking into consideration the fact that the original English Defamation Law underwent reform by the Defamation Act of 2013[9], it supports the argument that the Indian Defamation Law is indeed, outdated. The demerits of the Indian Defamation Law far outweigh its merits; it should have no place in a just and free democracy, and hence, it should be abolished.

[1]  Defamation – Indian Penal Code, 1860
[2]  Andrew, Otis (2018). Hicky's Bengal Gazette: The Untold Story of India's First Newspaper
[3]  2019 World Press Freedom Index
[4] Constitution of India-Part III Article 19 Fundamental Rights.
[5] Jay Shah files criminal defamation case against 'The Wire'

[6]  Jaising, Indira. "How the Government Is Using Powers It Doesn't Have to Curb Freedom of Speech - The Wire"
[7] Kumar, Nirnimesh. “#MeToo: M.J. Akbar slaps defamation case against journalist Priya Ramani – The Hindu”
[8] Wangchuk, Rinchen Norbu. “Criminal Defamation: Relic of the Raj, this act harasses more than it helps – The Better India”
[9]  "Press release: Defamation laws take effect". Ministry of Justice, United Kingdom. 31 December 2013.