The tension between freedom of speech and defamation represents one of the most complex and contentious issues in modern legal and ethical discourse. In India, the right to freedom of speech and expression is a fundamental right the constitution provides under Article 19. It is one of the main features of a democratic setup. It is crucial for the diversity that India portrays, which gives citizens the right to express and circulate ideas and opinions freely.

This right is subject to certain reasonable restrictions provided by the Constitution of India. One of the more significant ones is the restriction of defamation, addressed under both civil and criminal law in India. Since the concept of defamation exists to protect individuals from reputational harm, there exists a natural conflict with the concept of free speech and expression, and the need arises to design a balance of defamation with the fundamental right of free speech and expression.

Right To Freedom Of Speech And Expression

The Constitution of India grants fundamental rights to every citizen of the country. These rights protect the citizens' basic interests, including the right to freedom of speech and expression. This has been considered one of the most important fundamental rights as it is said to represent the free voice of the people, thus being a prerequisite to a free and democratic country. Being able to voice thoughts without fear of repression empowers citizens to engage in social and political processes, thus promoting active facilitation.

Additionally, it ensures that a check is put on governmental power as it allows citizens to criticize the workings of the government and advocate for change. It is a cornerstone of Indian democracy which plays a crucial role in fostering a society that is free, participatory, just and open.

The fundamental right of freedom of speech and expression originated in the late 5th or early 6th centuries. It was included in the Constitution of India ever since it was originally drafted, the law has also been upheld in various court judgments. In Maneka Gandhi v Union of India, the court underlined the importance of free speech and underscored that any democratic society stands upon this fundamental right. In Mahesh Bhatt v Union of India, the court again upheld the right of freedom to speech and expression and made it clear that it was a foundational aspect of a democratic framework.

However, this right is not absolute and is subject to certain reasonable restrictions that the Constitution provided in Article 19(2). This has been done to ensure that the right to freedom of speech and expression does not infringe on national security, public order, decency, or morality.

Defamation Laws In India

Defamation as defined by Merriam Webster is the act of communicating false statements about a person that injure the reputation of that person. There are several elements of defamation which include-

• The defamatory statement itself: The major element of defamation is that a statement needs to be expressed in some manner, like a spoken statement (slander) or a written statement (libel).
• Must be made in reference to the plaintiff: It must be identified that the statement is with regard to the plaintiff.
• Publication of the statement: The next prerequisite for a defamation case is that the defamation statement needs to be heard or read by someone other than the person the statement is about. It does not talk about the literal publication (print) of the statement but rather seen, heard, or read by any third person.
• Causation of injury to the reputation of the person: An injury to the subject of the statement must be shown that has been caused by the statement.

Defamation in India constitutes both civil and criminal offenses. A tortious liability arises in the cases of defamation as a civil offense. Since this is not a part of a statute, the suit is determined based on the principles of English Law. On the other hand, criminal liability of defamation is defined under Sections 499 and 500 of the Indian Penal Code. A major characteristic of defamation laws in both suits, civil and criminal, is that they can be jointly pursued, and if in the case that one of these suits turns out to be unsuccessful, the other suit can still be pursued.

Civil defamation is a part of the law of torts in India which has been largely developed as a judge-made law, that is, developed through the decisions made by the judge which imposes punishment in the form of compensation to the plaintiff. On the other hand, criminal defamation is a part of a codified statute.

Section 499 of the Indian Penal Code defines criminal defamation as:
Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.

Section 500 of the IPC outlines the punishment for defamation in India as:
"Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both."

Another difference between civil and criminal defamations lies in their defenses. In civil proceedings, proof of truth of the statement in question is a complete and unequivocal defense. Still, in criminal proceedings, proof of truth is a complete defense only when it's shown that the statement was made for public benefit as defined in section 6 of the Defamation Act 1961 as observed by the Supreme Court of India.

As a replacement for the Indian Penal Code, 1860, The Bharatiya Nyaya Sanhita 2023 has been introduced. The last chapter of BNS, Chapter XIX contains offences related to defamation, insult, annoyance and criminal intimidation.

The Right To Reputation

The right to reputation, even if not directly mentioned in the Constitution, has been part of society and its code of conduct since a long time. It is considered to be a part of the right to decent and dignified life, and stems from an individual's inherent value and sovereignty of an individual. This right has been recognized in various court judgments.

In the case of Kiran Bedi and Ors v. Committee of Inquiry and Anr, the court underscored the importance of reputation as a personal right of an individual and detraction from a man's reputation is an injury to his person.

Balancing Freedom Of Speech And Expression

The interplay between the right to freedom of speech and expression and defamation in India is difficult. The first reason is that the core of India's policies works on the fact that India is a democracy, where fundamental rights take extreme importance. Meanwhile, a law that has both civil and criminal implications having the possibility of infringing on a fundamental right needs to be balanced with that right in a careful manner.

Some of the ways it has become possible is by highlighting the differences between free speech and defamation and by determining whether the statement actually is defamatory or not. One of the primary questions is whether the statement is an opinion or a fact. Pure opinions are considered as free speech, while if a person has stated a false statement of fact, it can be counted under a defamatory statement

For example, if a person opinionates that the taste of food at a restaurant is bad, it will be considered free speech. At the same time, if a person" opinionates" that the restaurant served him expired food and charged extra money, it is a factual statement that can be considered defamatory if it's false.

The next type of speech that can be granted special status is a statement made for public good, or on public issues. The idea is that even if these statements are false, they're needed to make sure that that criticism to public issues does not fall in the category of defamation. Criticism is an important part of functioning of a democracy, and cannot be considered defamatory just because it's proven to be false. Thus, speech on public issues requires a much higher burden of proof to show that the statement is defamatory.

Similarly, statements made about public figures or officials are more likely to fall within the realm of free speech. Courts have held that public figures should expect to be placed under intense scrutiny by the citizens.

Judicial Approach To Balancing Free Speech And Defamation

Balancing the right to freedom of speech and expression with defamation laws is difficult since these rights notably clash. Being that the right is fundamental to every individual, putting restrictions on them, albeit reasonable would provide for various cases in which these rights are challenged, thus putting a burden on the court.

In Subramanian Swamy v Union of India, numerous petitions were filed that challenged the constitutionality of the provisions of section 499 and section 500 of the Indian Penal Code on the grounds that criminal defamation as an offense inhibited the right to freedom of speech and expression. The judge, in a ruling against them, analyzed the meaning of the terms defamation and reputation and the interaction of these terms with the right of freedom of speech and expression.

The court has said that 'reputation' is included in the 'protection of dignity' which is a part of the 'right to life' under Article 21 of the Constitution of India. The court held that the sections that defined and penalized defamation in India were well-defined and were not ambiguous or vague. Additionally, the court said that it was a part of reasonable restrictions as defined under Article 19(2), and emphasizes the importance of constitutional fraternity and fundamental duties, where everyone is expected to respect the dignity of others. Hence, the court stated that criminal defamation laws are proportionate and decided against the filed petitions.

In Ram v Union of India, the public prosecutor under section 499 of the IPC filed a case against journalists and a media organization, who had written negative articles about the then Chief Minister of Madras. In a judgment of the High Court of Madras, the whole batch of criminal defamation cases was quashed and stated that there was no defamation against the state per se. This judgment protected the fundamental right of freedom of speech and expression, while also upholding the freedom of the press. The court, hence did not allow the public officials to abuse defamation against the state to stifle free speech and critique of public officials and matters of public interest.

In S. Rangarajan v. P. Jagjivan Ram (1989), the Supreme Court of India addressed the conflict between freedom of expression and public interest. The case involved a ban on a film alleged to be defamatory towards a politician. The Court ruled that while freedom of speech is a fundamental right under Article 19(1)(a) of the Constitution, any restriction on this right must be justified by a clear and imminent threat to public order or significant harm to reputation, rather than mere potential risks.

The decision emphasized that restrictions must be reasonable, narrowly tailored, and supported by evidence, reinforcing the need for a careful balance between protecting public interest and upholding free expression. Thus, while overturning the High Court decision of the same, The Supreme Court emphasized the right to freedom of speech and expression and said that they did not hold the opinion that there was anything wrong, or contrary to the Constitution in the film.

While in Subramanian Swamy v Union of India, the court upheld criminal defamation while acknowledging the importance of reasonable restrictions on the fundamental right, the court in Ram v Union of India and in S. Rangarajan v. P. Jagjivan Ram (1989) upheld that right, and did not allow the state to abuse the laws of defamation in India. This signifies the delicate balance the court holds in the right to freedom of speech and expression and the defamation laws. This depends on the discretion of the court, but at the same time, it's difficult for the court to maintain this balance. This results in criticism of these judgments by various articles and publications.

This examination of judgments that pertain to defamation underlines the balance of freedom of speech and expression and defamation, acknowledging the need for reasonable restrictions on even the fundamental rights of an individual. As seen above, the court finds in its discretion of whether the speech is entailed in the realm of free speech or the realm of defamation by examining the exact facts of the case. While the line between the two is thin, it is an important one.

Misuse Of Criminal Defamation

While the difference between free speech and defamation is greatly emphasized, these issues overlap in various legal and ethical landscapes. Theoretically, the difference has been drawn out in several ways. However, it is heavily argued that criminal defamation can be used as a tool to stifle free speech, especially by powerful entities like corporations and highly ranked public officials.

The fear of legal consequences can restrict individuals from speaking their minds, thus hampering the crucial criticism of the government in the country. It becomes a concern as it has the potential to hamper the exposure of wrongful activities. SLAPPs (Strategic Lawsuits Against Public Participation) have also become a tool to prevent or discourage journalists from writing about certain content that criticizes these powerful entities.

In Indiabulls Real Estate Ltd. v. Veritas Investment Research, a research report titled 'Bilking India' was published by Veritas Investment group, in which an analysis of various companies of Indiabulls group was made, after which the share prices of Indiabulls group fell sharply in the stock market. Criminal defamation complaints were filed by Indiabulls against Veritas Group. The Delhi high court condemned the conduct of Indiabulls group, stating that they can take action against the Veritas group if they have published false information but cannot form an action under the criminal defamation laws of India.

Necessity Of Criminal Defamation

In Indiabulls Real Estate Ltd. v. Veritas Investment Research, a research report titled 'Bilking India' was published by Veritas Investment group, in which an analysis of various companies of Indiabulls group was made, after which the share prices of Indiabulls group fell sharply in the stock market. Criminal defamation complaints were filed by Indiabulls against Veritas Group. The Delhi high court condemned the conduct of Indiabulls group, stating that they can take action against the Veritas group if they have published false information but cannot form an action under the criminal defamation laws of India.

Conclusion
The right to freedom of speech and expression is a fundamental right, which holds value in every sphere of a democratic setup like India. It is one of the basic rights of any given individual, and needs to be upheld through the judiciary. That being said, this right cannot be absolute. Thus, reasonable restrictions on this right have been placed through the court, and a significant one is defamation- harming the reputation of another person through the publication of false statements. Defamation is both a civil and criminal offense and clashes with freedom of speech and expression numerous times. Both of these are important to safeguard the rights of individuals, but a line needs to be drawn between the two.

This line has been carefully drawn by the court in various court judgments as outlined in the paper above. A report by the Organization for Security and Co-operation in Europe (OSCE) found out that forty-two of the fifty-seven OSCE member countries have criminal defamation provisions in one form or other, thus highlighting the importance of defamation laws.

Both of these rights (speech and reputation) are fundamental to an individual and cannot be violated, which highlights the importance of a careful and curated balance between the right to freedom of speech and expression and defamation.

Suggestions:

• While it is recommended that both of these laws need to be upheld by the government, it is also important to determine exactly when and how it is to be applied. This needs a careful assessment by the court in question.
• Ensuring that the defamation standards are high and the burden of proof is on the prosecution. This ensures that defamation laws do not curtail freedom of speech and expression, and only amount to a criminal offense in extreme scenarios.
• Considering whether the statement is made for the intent of the public interest, and allowing more room for freedom of speech in that aspect as to encourage debate and accountability.
• Keeping in mind the social media and online considerations for defamation laws in India, and clearly defining procedures for handling online defamatory content.
• Finally, another recommendation is making sure that the decisions in defamation and free speech cases are transparent and accountable at the same time, and have public explanations of the cases in question.