Takshashila Discussion Document - Defamation Reforms: Going Beyond Decriminalisation

Executive Summary

The law for defamation in India impedes free speech more than it protects reputations. While it is vital to protect an individual’s right to reputation, this must not come at the cost of the right to criticise as the ability to freely criticise is indispensable for democratic accountability. The scope of criminal defamation is conceptually flawed and provides for punishments that are grossly disproportionate. Civil defamation is also fraught with issues as it falls under an area of law that is exceptionally underdeveloped - Torts. The fact that the relatively lengthy duration of a typical lawsuit is a drain on time, money and resources only compounds these issues as it is exploited by the wealthy and powerful.

The first and most obvious reform, decriminalisation, should be undertaken immediately. The law that repeals criminal defamation should replace existing laws on civil defamation as well. This would enable a new and more robust definition of defamation and also give the right to reputation the clarity of a statutory law. Provision could also be made to make potential litigants compulsorily send legal notices prior to filing a defamation suit so that the matter can be settled before it reaches courts. Restrictions should also be placed on damages claimed: they must have some rational relationship to the harm caused to the person’s reputation and not be exorbitant. Courts should be empowered to impose exemplary costs to deter frivolous and malicious litigation. Measures should also be made to prevent malicious lawsuits like limitations on jurisdiction or the number of suits (if there is more than one statement). Care must also be taken to ensure that the new law is cognisant of New Media and is not archaic at birth.

The onus of protecting free criticism (and therefore democratic accountability) should not fall solely on laws. Media houses and publishers should indemnify writers from defamation suits that result from their work. Journalists and writers may also feel it worthwhile to pay a  regular premium towards defamation insurance that can be claimed in the event of a defamation lawsuit.

These are but a few of the potential measures that could reform defamation so that the right to reputation can be protected without unduly compromising the right to free speech.

Authors