The twenty second Law Commission has really useful the retention of prison defamation as an offence inside the schemes of prison legal guidelines within the nation, emphasising that not all utterances and publications are worthy of safety of the free speech rights.

In its 285th report submitted to the Union regulation ministry on January 31, the Commission underlined that the correct to status is a side of Article 21 (proper to life and dwell with dignity) of the Constitution that must be “adequately protected against defamatory speech and imputations”.

“Reputation is something which can’t be seen and can only be earned. It’s an asset which is built in a lifetime and destroyed in seconds. The whole jurisprudence around the law on criminal defamation has the essence of protecting one’s reputation and its facets,” the panel, headed by chairperson Ritu Raj Awasthi, mentioned in its report titled “The Law of Criminal Defamation”.

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According to the report, status can’t be allowed to be jeopardised simply because an individual should get pleasure from his freedom of speech on the expense of wounding the emotions of others. “It is to be understood that the restriction is not completely on one’s thoughts and ideas. It is a protection that one can avail of in a situation where his reputation is hurt. There is no absoluteness in any of the rights and both have to be harmoniously construed in the spirit to make the society peaceful and livable,” it added.

The regulation acknowledges that hurt to status is just not solely an assault on a person but additionally an imputation on the entire society, for which the perpetrator could also be punished to serve the group as an act of regret, mentioned the panel. “Through introduction of this punishment, Indian law has shown the most balanced approach in protecting one’s reputation and speech too,” the report added.

The panel additionally cited a report of the Organization for Security and Co-operation in Europe (OSCE) to spotlight that the majority European international locations present for imprisonment as a doable punishment for as much as two years and that prison defamation provisions didn’t hinder the financial and political developments within the nation. OSCE is a regional security-oriented intergovernmental organisation comprising member states in Europe, North America, and Asia.

The report has come shut on the heels of the Parliament approving the Bharatiya Nyaya (Second) Sanhita, 2023, which goals to interchange the present Indian Penal Code, 1860 (IPC) and was handed within the just lately concluded winter session. The new regulation, which is but to be notified, has opted to retain defamation as a penal offence albeit offering for group punishment instead sentence. Under Section 356 of the BNS, Sections 499 and 500 of the IPC, which handled defamation, have been consolidated and the punishment of group service has been added.

Under the brand new regulation, whoever defames one other, shall be punished with easy imprisonment for a time period which can prolong to 2 years, or with wonderful, or with each or with group service.

Applauding BNS, the Commission burdened that the brand new regulation has accorded a balanced strategy to the penal offence by placing a stability between safeguarding the correct to status and neutralising the scope of misuse by the introduction of group service as punishment.

The Commission’s letter to the Union regulation minister Arjun Ram Megwal mentioned it carried out an “extensive study” on the regulation of defamation following the Supreme Court’s determination within the Subramaniam Swamy Vs Union of India (2016) case.

“The 22nd law commission undertook an extensive study, analysing the history of the law of defamation, its relationship vis-a-vis the right to freedom of speech and expression, and the various judgments rendered by the Courts across the country. The Commission, inter alia (among other things), also studied the relationship between right to reputation and the right to freedom of speech and expression, and how the two need to be balanced. Further, the Commission looked into the treatment of criminal defamation across various jurisdictions,” the letter by panel chief Awasthi learn.

The Supreme Court again in 2016 had dismissed challenges to the constitutionality of the prison offence of defamation, holding that it was affordable restriction on the correct to freedom of expression. The apex court docket had additionally discovered that there existed a constitutional responsibility to respect the dignity of different.

The petitions filed beneath Article 32 of the Constitution, amongst whom Congress chief Rahul Gandhi, Aam Aadmi Party chief Arvind Kejriwal and Bharatiya Janata Party senior chief Subramaniam Swamy had been the petitioners — contested the constitutionality of the offence of prison defamation and argued that it inhibited their freedom of speech.

Reacting to the problem, senior prison lawyer Sherbir Panag mentioned:“Criminalisation of defamation has no place in a modern civilised society as freedom of speech is and must be absolute”.

“Defamation must have consequences and examplary monetary damages are the way to go. The problem is the delays in justice delivery on the civil side, which prevent adequate deterrence to be established; for which the solution cannot be to criminalise. It must be appreciated that the Indian legal system deals with over criminalisation which in turn belies the ability of the state to effectively prosecute,” Panag mentioned.