Introduction

The 22nd Law Commission has recommended retaining criminal defamation as an offence in the new legal framework of Bharatiya Nyaya Sanhita.
The Law Commission’s report highlights the importance of protecting an individual’s reputation, grounded in Article 21 of the Constitution, which safeguards the right to life and personal liberty.

Key Recommendations: Upholding Reputation

Invisible Asset: Reputation, a valuable asset, cannot be seen but is diligently built over a lifetime and can be tarnished in an instant.
Essence of Protection: The jurisprudence around criminal defamation laws is rooted in the essence of safeguarding one’s reputation.
Balancing Act: While acknowledging that criminal defamation might seem contradictory to freedom of speech and expression, the Law Commission suggests treading carefully.
Harmful Speech: The Commission advises that speech should only be deemed illegal when it intends substantial harm, and when such harm becomes a reality.

Defamation: Defamation entails the act of publishing damaging content that diminishes an individual’s or entity’s reputation, from the viewpoint of an ordinary person. In India, defamation is both a civil and criminal offense.
Sections 499 and 500: These sections in the Indian Penal Code address criminal defamation. Section 499 defines the offense, while Section 500 outlines the associated punishment.

Protection of Reputation: An individual’s reputation, an integral part of Article 21, is as vital as free speech.
Balancing Act: The right to free speech (Article 19(1)(a)) must be balanced against the right to reputation (Article 21).
Inadequate Compensation: Monetary compensation in civil defamation may not proportionately compensate for reputation harm.
Editorial Responsibility: Editors bear the responsibility for published content, with significant consequences for individuals and the nation.
Counteracting Online Defamation: In the absence of an effective internet censorship mechanism, criminalizing defamation is a necessary safeguard.
State’s Interest: Criminalizing defamation is part of the state’s compelling interest to protect citizens’ dignity and reputation.

Chilling Effect: Criminal defamation may have a chilling effect on free speech, with a lower threshold for prosecution than civil damages.
Media Freedom: Freedom of speech and media expression is crucial for vibrant democracies, and the threat of prosecution can stifle truth.
Misinterpretation of Dissent: Dissent may be misconstrued as unpalatable criticism, leading to imprisonment under Sections 499 and 500 of IPC.
Collective Reputation: The right to reputation cannot extend to collectives like the government, which can rectify reputational damage.
Redundancy: Since civil defamation remedies exist, retaining criminal defamation may serve little purpose except coercion and harassment.
Global Trend: Many nations, including neighbouring Sri Lanka and the UK, have decriminalized defamation.
International Perspective: The International Covenant on Civil and Political Rights urges states to abolish criminal defamation as it intimidates citizens and deters exposing wrongdoing.

Criminal defamation cases have been used to suppress investigative journalism, hindering democratic accountability.
Criminal defamation should not be misused by the state, especially as the Code of Criminal Procedure gives public servants an advantage.
Interim measures can ensure fair proceedings and prevent excessive penalties.

	Details
Establishment	An executive body established by the Government of India, with the first commission established in 1955.
Tenure	Each Law Commission serves a term of three years.
Function	Acts as an advisory body to the Ministry of Law and Justice for legal reforms in India.
Recommendations	The recommendations made by the Law Commission are not binding.
Historical Background	The first Law Commission was established during the British Raj in 1834 by the Charter Act of 1833.
First Chairman	The first Chairman of the Law Commission was Macaulay, who recommended the codification of laws.
Composition	Typically consists of a full-time Chairperson, full-time Members, ex-officio Members, and part-time Members.
Terms of Reference	Undertakes research and reviews of existing laws, recommends reforms, and studies justice delivery systems.
Major Reforms	The Law Commission played a pivotal role in suggesting key enactments like the Indian Penal Code and Criminal Procedure Code.
Role in Legal Reforms	Serves as both an advisory and critical body, with its recommendations often influencing legal reforms in India.
Supreme Court References	The Supreme Court has referred to the work of the Law Commission and followed its recommendations in various cases.
Promotion of Accountability	Aims to promote an accountable and citizen-friendly government, transparency, and the right to information.