India's Colonial Hangover: World's Largest Democracy Still Punishing Defamation With Jail

In September 2025, the Supreme Court agreed to hear the plea of Foundation for Independent Journalism Pvt. Ltd. & Anr. v. Amita Singh^[1], a case arising out of a criminal defamation complaint filed against The Wire. The issuing of summons once again reignited the debate: Should defamation remain a crime in India, or is it time to get rid of this colonial relic? However, this is not a new question. In Subramanian Swamy v. Union of India (2016)^[2], the Supreme Court upheld the constitutionality of Sections 499(defamation), 500(punishment for defamation) of the Indian Penal Code (IPC)1860 (hereinafter referred to as IPC), despite strong free speech concerns, suggestions of alternative measures, but the deterrence of criminal law was given priority over civil remedies. Nearly a decade later, the controversy is back and sharper than ever, as in this case, Smt. Amita Singh, a Professor and Chairperson of the Centre for the Study of Law and Governance (CSLG) at Jawaharlal Nehru University. On May 12, 2016, she filed a complaint for the offense specified by Sections 500/501/502 of the IPC 1860. She said that the petitioners had accused her of creating a dossier that claimed JNU was a "Den" for organized sex rackets, secessionism, terrorism, and other crimes. She contended that Sh. Ajoy Ashirwad Mahaprastha had written an article for the "Foundation for Independent Journalism's" online news outlet, "The Wire." She said that following the release, she was the object of a hate campaign. Consequently, her reputation as a renowned Professor and academician was tarnished, and she suffered losses in terms of opportunities, respect, and reputation in the professional domain^[3], as this complaint has snowballed into a constitutional test case before the Supreme Court. The accused argues that criminal defamation is a colonial relic, incompatible with modern democracy, and should be scrapped. The Supreme Court in the division bench of Justice M.M. Sundresh and Justice Satish Chandra Sharma must clear this test, and in addition, an obiter dictum by Justice Sundresh was passed: “I think the time has come to decriminalize all this.” The outcome will determine whether India will continue to criminalize dissent or finally join the global consensus that it is better to protect reputation through civil remedies only.

Defamation law rests on the idea that if physical assassinations invite legal penalties, so must character assassinations. This logic dates back to the IPC of 1860, where colonial rulers designed defamation provisions to deter dissent and punish revolutionaries who challenged imperial rule; its continuity is striking. Even after the repeal of the 165-year-old IPC and the enactment of the Bhartiya Nyaya Sanhita (BNS), 2023, criminal defamation survives almost word-for-word in Section 356 BNS. In contemporary India, whose primary aim in introducing new laws was to “decolonise” its old pre-independence criminal laws, it preserves the most colonial of all provisions: the one that criminalises criticism. Through several cases in the past (like the Subramanian Swamy case),^[4] it has been upheld that both the right to reputation and freedom of speech are worthy of protection. The question is about the method. Although in BNS, Community service^[5] is introduced for a smaller category of offences, in which defamation is included, and is also defined under section 23, Bhartiya Nagarik Suraksha Sanhita (BNSS) 2023^[6]. This is a newer form of punishment that marks a shift from retributionist to the reformist theory of punishments, although it is limited to minor offences only. However, there is no clear mention of what tasks should be performed for which offences; rather, it has a mere mention of tasks which 'benefit the community', making its application uncertain for the judiciary, especially in the context of defamation. In contrast, Civil law provides for direct remedies such as victim compensation, and when it comes to the media, there is self-regulation, Press Council guidelines, and damages in tort law, which are adequate deterrents. What criminal law does is shift the balance in favour of the powerful, as Criminal defamation is often less used by the ordinary public, but is commonly used as a weapon by politicians, businesses, and other influential persons who routinely exercise it to harass journalists, activists, and opposition leaders. However, not all criminalized defamation provisions call for decriminalization, as mentioned in other statutes that also criminalise reputational harm. For instance, the SC/ST (Prevention of Atrocities) Act, 1989, and the Representation of the People Act, 1951, contain provisions where speech harming the reputation or dignity of the individual/group can attract penal consequences. These statutes perfectly pass the test of reasonableness under Article 19, as laid down in the in the case of State of Madras v. V.G. Row^[7], which included that the restrictions on a fundamental right must be fair and just, proportionate to the objective which it targets to achieve, which implies that imprisoning journalists for 2 years, along with a fine for speech-related harm, is excessive and lacks proportionality in respect to the measure taken and harm it seeks to prevent.

Global Context

India remains among a shrinking set of democracies that retain criminal defamation. The UK abolished it by the Coroners and Justice Act of 2009, the US treats defamation purely as a civil wrong, and even countries like Sri Lanka and Ghana have repealed their colonial-era provisions. Article 10 of the ECHR expressly mentions that “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”^[8] Should the world's largest democracy lag? because in India, the punishment is not just jail; it is the process itself, consisting of endless trials, financial drain, social stigma, years of pendency and appeals, and the worst of all, a chilling silence.

The Wire case raises a crucial constitutional question: can democracy truly function if criticism itself risks criminal prosecution? Article 19(1)(a) of the Constitution guarantees freedom of speech and expression, while Article 19(2) permits only narrowly tailored restrictions. For any such restriction to withstand constitutional scrutiny, the basis of the limitation and the objective sought to be achieved must bear a proportionate relationship. Criminal prosecution in defamation matters, therefore, demands deeper interrogation, especially when civil remedies such as damages, apologies, or corrections offer more proportionate alternatives. The persistence of criminal defamation laws, which were originally introduced by the colonial government to suppress nationalist newspapers, seems difficult to justify in a democratic republic. In the Indian context, where freedom of speech and expression forms part of the basic structure doctrine and is thus beyond legislative abrogation, the debate is not merely about one article or one editor but about the continuing tension between free expression and reputational interests.

“The question is not whether there should be protection of reputation, but whether there should be prosecution of criticism.”

Views Are Personal.

1. 2025 pending before Supreme Court ↑

2. 2016) 7 SCC 221 ↑

3. foundation for independent journalism vs amita singh, 2025 LiveLaw (Del) 574 ↑

4. 2016) 7 SCC 221 ↑

5. Section 4(f), Punishments (Community Service), Bhartiya Nyaya Sanhita, 2023 ↑

6. Section 23, 'Sentences that magistrate may pass', Bhartiya Nagarik Suraksha Sanhita, 2023 ↑

7. [1952] SCR 597 ↑

8. Article 10 of the European Convention on Human Rights ↑