Tanu Sharma is currently in her third year of study for a BA LLB (Hons) at GGU, Central University of Chhattisgarh Read More
What’s Changing in Indian Law?
India is undergoing a significant transformation in its criminal justice system by replacing colonial-era laws with updated legislation designed to reflect modern values and needs. The Indian Penal Code (IPC), which has governed criminal law since 1860, is being phased out and replaced by the Bharatiya Nyaya Sanhita (BNS). Similarly, the Code of Criminal Procedure (CrPC) is being replaced by the Bharatiya Nagarik Suraksha Sanhita (BNSS). These new codes aim to streamline legal processes, enhance citizen safety, and make justice more accessible and effective.
A critical area influenced by these reforms is defamation — the act of harming someone’s reputation through false or malicious statements. Under the old IPC, defamation was a criminal offense punishable by fine or imprisonment. While defamation laws were intended to protect individuals from slander or libel, critics argued that they were often misused to suppress freedom of speech and dissent.
With the introduction of the BNS, defamation continues to be recognized as a criminal offense. However, the new legal framework aims to strike a more balanced approach, considering the right to free speech while also ensuring that reputations are protected. The reforms may include clearer definitions, streamlined procedures, and safeguards against the misuse of defamation laws.
These changes reflect a broader effort to modernize India’s legal system and align it with contemporary democratic values. By updating outdated provisions and addressing current challenges, India hopes to create a legal environment that is fair, transparent, and responsive to the needs of its citizens. The treatment of defamation in this new system will be a key test of how effectively the new laws balance individual rights with social accountability.
What is Defamation Under the New Law (BNS)?
Under the newly introduced Section 356 of the Bharatiya Nyaya Sanhita (BNS), the offense of defamation retains much of the structure seen under Section 499 of the Indian Penal Code (IPC). The essence of the law remains the same: defamation occurs when a person makes, publishes, or circulates a statement — whether spoken, written, or visual — that harms another person’s reputation. These statements can be made directly or indirectly, and the intention or knowledge that the statement could damage someone’s reputation plays a key role in determining guilt.
Defamation under BNS can arise from various forms of communication, including verbal remarks, written publications, visual representations (such as cartoons or digital memes), and even gestures or implied meanings. The law recognizes the evolving nature of communication, especially with the widespread use of social media, which can amplify defamatory content quickly and extensively.
Just like under the IPC, the BNS imposes criminal penalties for defamation. This means individuals found guilty can face imprisonment, a fine, or both. The intent behind retaining criminal defamation is to provide a legal remedy for individuals whose reputation is unjustly harmed, especially in cases where civil remedies may not offer sufficient deterrence or justice.
However, Section 356 of the BNS also outlines several important exceptions, echoing the provisions of the earlier law. For instance, if a statement is true and made for the public good, it is not considered defamatory. Additionally, genuine opinions expressed in good faith about the conduct of public officials, judicial proceedings, or other matters of public interest are also protected. These exceptions aim to strike a balance between protecting individual reputation and preserving freedom of expression, especially in a democratic society where constructive criticism and accountability are vital.
Punishment
Under Section 356 of the Bharatiya Nyaya Sanhita (BNS), criminal defamation is punishable by up to two years of simple imprisonment, or a fine, or both. This means that if someone is found guilty of making or publishing false statements that harm another person’s reputation, the court can sentence them to a maximum of two years in jail, impose a monetary penalty, or apply both punishments, depending on the severity of the offense. The term “simple imprisonment” indicates that the punishment does not involve hard labor. The law gives judges the discretion to consider the context, intent, and impact of the defamatory act when deciding the penalty. While these provisions aim to protect individuals from character harm, they have also sparked debate. Critics argue that the threat of imprisonment for defamation can limit free speech, especially for journalists, critics, and public commentators engaging in public interest discussions.
How is Defamation Handled Legally Now (BNSS)?
Under the new BNSS
Under Section 356 of the Bharatiya Nyaya Sanhita (BNS), only the person who believes they have been defamed has the right to file a complaint. This ensures that the case is based on genuine personal grievance. If the complaint is directed against high-ranking officials such as the President, Governors, or Ministers, special sanction and legal procedures are required before proceedings can begin, protecting such officials from frivolous litigation. Defamation cases are generally classified as non-cognizable, meaning the police cannot arrest the accused or start an investigation without prior approval from the court. These offenses are also bailable, allowing the accused to seek bail as a matter of right. Once a complaint is filed, a magistrate must carefully examine both the complainant and any supporting witnesses before deciding whether there is sufficient ground to proceed with the case. This process ensures that defamation cases undergo proper judicial scrutiny before trial.
Balancing Free Speech and Reputation
India’s Constitution guarantees the right to freedom of speech and expression under Article 19(1)(a). However, this right is not absolute and is subject to reasonable restrictions under Article 19(2), including in cases of defamation. In the landmark case of Subramanian Swamy v. Union of India (2016), the Supreme Court upheld the validity of criminal defamation, stating that a person’s reputation is an essential part of the right to life under Article 21. The Court emphasized that balancing free speech with the right to protect one’s reputation is necessary in a democratic society.
Recent Examples-How These Laws Are Being Used
Several notable defamation cases in 2024–25 highlight how India’s evolving legal framework, particularly under the new Bharatiya Nyaya Sanhita (BNS), is being tested in courts.
In the Yatnal Case (Karnataka, 2024), a BJP MLA was summoned in a defamation case without the required legal procedures being followed. The Karnataka High Court intervened, sending the case back and emphasizing that all steps under the law must be strictly observed. This case underlines the importance of procedural compliance in criminal defamation matters.
In another high-profile matter, a defamation case was filed against Finance Minister Nirmala Sitharaman for remarks made during a public speech. The court is currently assessing whether her statements amount to genuine criticism, which is protected under the law, or unlawful defamation. This case reflects the fine line between free speech and damage to reputation, especially in political discourse.
In Hyderabad, several individuals were charged with defamation for online posts targeting political figures during the 2024–25 period. These cases show how defamation laws are now being applied to social media activity, expanding their reach beyond traditional spoken or written communication. The legal system is beginning to address how digital behavior can impact personal and public reputations.
The Rahul Gandhi case in Jharkhand (2024) further raises questions about the treatment of older defamation cases under the new legal framework. A court issued a warrant for his failure to appear in a defamation case originally filed under the Indian Penal Code (IPC). This brings attention to the transitional challenges courts face in handling cases that originated under repealed laws, and how they are to be managed under the BNS.
Together, these cases illustrate how defamation law in India is evolving, particularly in balancing
free expression, reputation rights, and due legal process in both offline and online contexts.
How Does India Compare Globally?
In many democracies, defamation is no longer treated as a criminal offense. The United Kingdom removed its criminal defamation laws in 2009, recognizing that such laws could restrict free expression and were outdated in a modern democracy. In the United States, defamation is strictly a civil matter, with strong protections for freedom of speech under the First Amendment. Courts there focus on whether the statement was false and caused actual harm, especially when it involves public figures. In contrast, India continues to treat defamation as a criminal offense, punishable by imprisonment or fine under the Bharatiya Nyaya Sanhita (BNS). This approach is increasingly rare among democracies and has raised concerns about potential misuse to silence criticism or dissent. Critics argue that civil remedies are sufficient, and criminal defamation poses a threat to journalistic freedom and public debate in a democratic society.
Challenges and Concerns
The debate around criminal defamation in India highlights an ongoing tension between freedom of expression and the right to reputation. While protecting a person’s reputation is important, criminal defamation laws may have a chilling effect on free speech. Journalists, activists, and critics often fear legal action for expressing dissent or reporting on powerful individuals. This fear can lead to self-censorship, weakening the role of the media in a democratic society.
Under the new Bharatiya Nyaya Sanhita (BNS), criminal defamation remains an offense, but procedural clarity and fairness are essential. However, many courts and legal institutions are still adjusting to the new rules, and procedural gaps are becoming apparent. If proper legal steps are not followed — such as obtaining necessary sanctions or conducting fair hearings — there is a risk of unjust trials or misuse of the law.
The rise of social media has added new dimensions to defamation. Online abuse and misinformation can go viral instantly, causing serious harm to individuals’ reputations. Yet, India’s legal framework on digital defamation is still evolving. While defamation laws technically cover online behavior, challenges remain in identifying anonymous users, proving intent, and balancing regulation with digital freedoms.
Another growing concern is the political misuse of defamation laws. There have been several instances where defamation cases are filed against opposition leaders, journalists, or critics of the government, seemingly to intimidate or silence them. While the BNSS introduces some safeguards, such as clearer procedures and exceptions for genuine public interest, the effectiveness of these protections depends on how well they are implemented and enforced by the judiciary and law enforcement.
While criminal defamation laws in India aim to protect personal dignity, they must not be used as tools to suppress free speech. Ensuring fair procedures, updating laws for the digital age, and preventing political misuse are crucial for maintaining a healthy balance between freedom of expression and reputation rights in a democracy.
Conclusion
The issue of criminal defamation in India reflects the complex balance between freedom of expression and the right to reputation. While it is important to protect individuals from false and damaging statements, criminalizing defamation can discourage people—especially journalists, whistleblowers, and activists—from speaking out. The fear of imprisonment or prolonged legal battles may lead to self-censorship, weakening public debate and the media’s role in holding power to account.
India’s new criminal law, the Bharatiya Nyaya Sanhita (BNS), continues to treat defamation as a criminal offense. Although some procedural safeguards have been introduced, the legal system is still adapting to the new framework. Courts and law enforcement agencies often face confusion or make procedural errors, which can result in unfair trials or unnecessary harassment. Ensuring proper training and consistency in following legal steps is critical to upholding justice.
The rise of social media has made defamation more widespread and immediate. Harmful content can be shared rapidly, reaching thousands within minutes. However, India’s legal system is still catching up with these digital challenges. Issues like anonymous users, cross-border content, and online harassment complicate enforcement, and laws must evolve to address these gaps without infringing on digital rights.
Another major concern is the political misuse of defamation laws. Public figures and politicians sometimes use these laws to file cases against opponents, critics, or journalists as a way to silence dissent. While the BNS includes exceptions for fair criticism and public interest speech, the effectiveness of these protections depends heavily on how courts interpret and apply them.
While protecting reputations is necessary, criminal defamation must be applied carefully and fairly, with attention to free speech, digital realities, and the risk of political misuse in a democratic society.