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Blemishes, words and stick: A critique of criminal defamation law in India

Abstract

Maulin Ahmed

Provision of Criminal Defamation criminalizes speech that is intended to harm the reputation of any person. The provision was crafted broadly, so chances of its misuse to frame critical reporting or independent comment were high since it was incorporated into IPC in 1860. Finally now its constitutional status was questioned. Recently, the Supreme Court of India came with its judgment upholding Colonial era Defamation laws in Subramanian Swamy v. Union of India in which the Court relied upon Constituent Assembly’s assent to let Criminal defamation laws survive without considering further progress in constitutional jurisprudence and wider interpretation to personal liberty. However, mere existence of pre - constitutional defamation law does not make it pass muster of ‘Reasonable’. Secondly, exceptionally wide protection was given to the ‘Right to be offended’ without considering the fact that additional protection was given in Art. 19(1)(a) of the Constitution of India, not taking into account precedents given by larger benches. . Also, the difference between private wrong and public wrong was blurred by the Court in this case, thereby raised a question as to ‘how can defamation of individual become public wrong’.

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