"Time to Decriminalise Defamation": Supreme Court Reignites Debate in 'The Wire' Case

New Delhi – In a significant development that could reshape the landscape of free speech and media law in India, the Supreme Court on Monday not only agreed to hear a plea by the news portal 'The Wire' challenging criminal defamation proceedings but also made a pointed observation questioning the very existence of defamation as a criminal offence. While issuing notice in the case, Justice MM Sundresh orally remarked, "I think time has come to decriminalise all this," signalling a potential judicial re-evaluation of a law that has long been criticized as a tool for stifling dissent and journalistic inquiry.

The observation came from a bench, also comprising Justice Satish Chandra Sharma, which was hearing petitions filed by the Foundation for Independent Journalism (the trust running 'The Wire') and its Deputy Editor, Ajoy Ashirwad Mahaprastha. They are challenging summons issued by a Delhi court in a 2016 criminal defamation complaint filed by former Jawaharlal Nehru University (JNU) professor, Amita Singh.

Appearing for the petitioners, Senior Advocate Kapil Sibal found a receptive ear in the bench, concurring with Justice Sundresh's comment. The court's remarks, though not part of a formal order, have sent ripples through the legal community, reigniting a debate that was largely considered settled by the apex court's 2016 judgment in Subramanian Swamy v. Union of India , which had upheld the constitutional validity of criminal defamation under Section 499 of the Indian Penal Code (IPC).

The Protracted Legal Battle: A Case Study in Defamation Litigation

The case at hand stems from an article published by The Wire in April 2016, titled “Dossier Call JNU "Den of Organised Sex Racket"; Students, Professors Allege Hate Campaign”. The report detailed a 200-page dossier, allegedly compiled by a group of JNU teachers led by Professor Amita Singh, which reportedly portrayed the university in a deeply negative light.

Following the publication, Professor Singh filed a criminal defamation complaint, alleging that the article falsely imputed that she had prepared the controversial dossier. She claimed the portal and its editor did not verify the dossier's authenticity and published the story for commercial gain, thereby damaging her reputation. A metropolitan magistrate in Delhi took cognizance and issued summons to the portal's editors in February 2017.

The litigation has since navigated a labyrinthine path through the Indian judicial system:

• High Court Quashes Summons (2023): The Delhi High Court initially provided relief to the journalists, quashing the summons.
• Supreme Court Reverses and Remands (2024): However, the Supreme Court overturned the High Court's decision last year. It did not rule on the merits but remanded the matter back to the magistrate for a fresh consideration of the article before deciding on issuing summons.
• Fresh Summons and a New Legal Challenge (2025): The magistrate issued fresh summons in January this year. The Wire challenged this second round of summoning, raising a new argument based on the recently enacted Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. Their counsel argued that Section 223 of the BNSS mandates a pre-cognizance hearing for the accused, a procedure that was not followed.
• High Court Rejects BNSS Plea (May 2025): The Delhi High Court dismissed this challenge, holding that since the original complaint was filed in 2016, the procedural provisions of the new BNSS would not apply retroactively.

This final rejection from the High Court prompted the current appeal before the Supreme Court. The bench, noting the prolonged timeline, expressed its exasperation, asking, "How long will you go on dragging this?"

Broader Implications: Decriminalisation and the Shadow of Settled Law

Justice Sundresh's remark is the most crucial takeaway from the hearing. It directly confronts the prevailing legal position on criminal defamation. India remains one of the few democratic nations where defamation is both a civil wrong and a criminal offence, punishable with up to two years in prison under what is now Section 356 of the Bharatiya Nyaya Sanhita (BNS), which replaces Section 499 of the IPC.

Critics have long argued that the threat of criminal prosecution creates a chilling effect on freedom of speech, particularly for journalists, activists, and political opponents. They contend that civil remedies for damages are sufficient to protect an individual's reputation, and that the state's coercive power should not be invoked in such matters.

The Supreme Court’s 2016 Subramanian Swamy judgment had firmly rejected these arguments, holding that the right to reputation is an intrinsic part of the right to life under Article 21 and that criminal defamation is a reasonable restriction on the freedom of speech under Article 19(2).

However, the composition of the court changes, and with it, judicial philosophy can evolve. Justice Sundresh's comment, coupled with the bench's decision to issue notice, suggests a willingness to reconsider the issue. Mr. Sibal also informed the court that a "similar matter is being considered," explicitly mentioning "Rahul Gandhi’s case," indicating that the constitutional question may already be under examination in other pending matters.

A New Era of Criminal Procedure?

The petitioners' reliance on the BNSS, while unsuccessful at the High Court, highlights a critical area of legal transition. The argument that Section 223 BNSS requires a preliminary hearing before summons are issued in defamation cases presents a new procedural safeguard for potential accused. The High Court's ruling on the non-retroactivity of this provision is a significant interpretation that will likely be debated further as courts grapple with the application of the new criminal codes to old cases. Had the argument succeeded, it would have fundamentally altered the procedure for initiating defamation proceedings across the country.

As the Supreme Court takes up this matter, the legal fraternity will be watching closely. The case of Foundation for Independent Journalism v. Amita Singh is no longer just about a single news article from 2016. It has become a potential vehicle for a landmark re-evaluation of India’s archaic criminal defamation law. The court's final decision could either reaffirm the status quo established in 2016 or usher in a new era for freedom of expression, journalism, and public discourse in India.