Defamation refers “Any intentional false communication, either written or spoken, that harms a person's reputation; decreases the respect,regard, or confidence in which a person is held; or induces disparaging, hostile, or disagreeable opinions or feelings against a person” The ingredients of defamation are-(i) making or Publishing any imputation concerning any person, (ii) such imputation must have been made with the intention to harm with knowledge or having reason to believe that it will harm the reputation of the person concerned  Therefore, the intention to cause harm is the most essential “sine qua non” of an offence of defamation under section 499 of Indian Penal Code.  Also, such statement must be published i.e. accessible to public then only it will be considered defamation.  Punishment for defamation is imprisonment up to two years or fine as per Section 500 of the IPC. In past few years, defamation cases are mushrooming in India like anything. The political leaders are filing defamation cases against each other on frivolous grounds and then cross defamation cases are being filed. There are n number of cases filed against political leaders like Arvind kejriwal , Rahul Gandhi, Smriti Irani. This has led to fuss in media and need to relook into defamation laws of India.


To escape from the defamation cases, political leaders including Arvind Kejriwal, Rahul Gandhi and Subramaniam Swamy have filed case challenging constitutional validity of defamation law in India. It has been alleged that it takes away fundamental right of freedom of speech and expression guaranteed under Article 19(1) of Constitution of India.  The question that arose is whether defamation comes under reasonable restrictions imposed by state under Article 19(2) of Constitution? The reasonableness of this restriction needs to be analyzed by Court. In Raj Gopal case, civil defamation has been modified to be in consonance with Article 19.

Analysis of Article 19: Freedom of speech & expression

The fundamental right to freedom of speech and expression is regarded as one of the most basic elements of a healthy democracy for it allows its citizens to participate fully and effectively in the social and political process of the country. Freedom of speech provides opportunity to express one’s belief and show political attitudes. It ultimately results in the welfare of the society and state. Thus, freedom of speech provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change.  However, it is rightly noted in State of West Bengal Vs. Subodh Gopal Bose [1]case that the State has a duty to protect itself against certain unlawful actions and, therefore, may enact laws which would ensure such protection. The right that springs from Article 19(1)(a) is not absolute and unchecked. There cannot be any liberty absolute in nature and uncontrolled in operation so as to confer a right wholly free from any restraint. Had there been no restraint, the rights and freedoms may become synonymous with anarchy and disorder. In another case S. Rangarajan v. Jagjivan Ram[2] the Court provided the test of `proximate and direct nexus with the expression’, it was held that the Court  has to keep in mind that the restriction should be founded on the principle of least invasiveness i.e. the restriction should be imposed in a manner and to the extent which is unavoidable in a given situation. The Court would also take into consideration whether the anticipated event would or would not be intrinsically dangerous to public interest.


Supreme Court in Subramanyam Swami Vs Union Of India case has recently upheld the constitutional validity of Section 499.  Defamation is a tool that can be used by any person in a way that can harm the interest of society. So, decriminalizing such law can be detrimental to society only. Although free discussion is the basic notion of democracy but it has to be taken into consideration as per the present scenario of the Country where every other law is challenged on the basis of freedom of speech and expression.



[1] AIR 1954 SC 92

[2] (1989) 2 SCC 574