Much has been said about reforming — dismantling — India’s colonial legacy in the realm of law. In its second avatar, the Jan Vishwas (Amendment of Provisions) Bill, 2025, for instance, seeks to amend several Central legislations with an eye on decriminalising and rationalising certain kinds of offence. There is, however, evidence to argue that the roots — talons — of colonial legislation are deeply embedded not only in existing legal frameworks but also in the spirit of Indian jurisprudence. Only that can explain the persistence of some archaic legal provisions of which criminal defamation is one instance: even the Bharatiya Nyaya Sanhita, which apparently has a reformatory heart, did not discard this problematic provision, retaining it in the form of Section 356. The matter of the long life of criminal defamation — laws in ancient Rome and colonial Britain endorsed punitive retribution towards libel, real or imagined — was brought to light by a recent observation by a bench of the Supreme Court. While hearing a criminal defamation case filed by a professor of Jawaharlal Nehru University against a published piece in The Wire, the court observed, quite rightly, that the time has come to decriminalise defamation. Such a legal reality, if it comes to pass, would be welcome. The worry, though, is that defamation’s endurance can be attributed to two principal factors. The first concerns the eagerness of those in power to stifle criticism through the garb of defamation. The second has to do with an uneven enlightened position adopted by the judiciary on the matter over the years.
International jurisprudence has been shunning the element of criminal defamation for some time now. India must tread this path. This is because the impact of this legal weapon on the nation’s democratic edifice is injurious, with free speech being a victim. A polity where law is used to prevent thinking or speaking freely is an anomaly in the global democratic order. The misuse of criminal defamation also endangers a wide constituency comprising dissenters, activists, journalists, civil society, Opposition politicians, among others. The conviction of Rahul Gandhi on a charge of defamation — it was stayed by the Supreme Court — is a case in point. Criminal defamation’s longevity underlines the need to extend the arc of judicial reforms. It is also a reminder that India’s tryst with free speech — perhaps even democracy — remains incomplete.