The Supreme Court’s decision sometimes causes surprise and shows lack of knowledge about the past. There was a furore over defamation during the Prime Ministership of Rajiv Gandhi. Prime Minister Rajiv Gandhi wanted to push through an Anti-defamation Act to prevent people from allowing freedom of speech to degenerate into personal attack and go beyond what should be legal propriety. Under pressure, particularly from the private media, he dropped the idea. The Supreme Court’s decision recently not to decriminalise defamation and make it a penal offence appears to have followed up Rajiv Gandhi’s idea. The Court has said that the right to free speech cannot mean that a citizen can defame another person. After all defamation is a pejorative word. Underscoring criticism is not defamation. The Supreme Court has ruled that the trial court must be very careful in scrutinising a complaint before issuing summons in a criminal defamation case. It will, however be untrue to say that Defamation or the Anti-defamation Act was in existence in the past.
By criminalising defamation, the law inflicts the extreme punishment of loss of liberty. The question of reputation to a dispute between the defamer and the impugned party has been reinterpreted. Society agrees that a person has a reputation but it can be reappraised. However, the Law of criminal defamation is not clear as the crime is very broadly defined causing much vagueness. Some of the complaints may be on flimsy grounds. The Law Commission has spoken of the chilling effect of the threat of criminal defamation on the media. The NDA government is supposed to have supported the Anti-defamation Act. One wonders why Rajiv Gandhi’s move for it caused such media flak and finally had to be abandoned.