Discuss the changes the Bharatiya Nyaya Sanhita, 2023 made to the law of defamation. Should defamation be decriminalised in India?

Criminal defamation is now Section 356 of the Bharatiya Nyaya Sanhita (BNS), 2023, which replaced IPC Sections 499–500 [1]. The BNS kept the colonial offence and changed how it is punished, so the question of whether to decriminalise it is still open.

Changes made by the BNS

• Consolidation: the definition, exceptions and punishment now sit in one section instead of separate IPC provisions [1].
• Continuity of substance: the offence still covers words, signs or visible representations. A company or association can still be defamed, and so can a deceased person in some cases. The exceptions remain, such as truth for the public good and good-faith opinion on public questions [2].
• New penalty: community service has been added beside simple imprisonment of up to 2 years and a fine [3].
• Procedural filter retained: defamation of a President, Governor or Minister goes to a Court of Session on a Public Prosecutor's complaint [3].

Case for decriminalisation

• Process as punishment: the BJP's case over Congress's May 2023 "40% sarkar" ads was quashed by the Karnataka HC only in November 2026, more than three years later [4].
• Lawfare and a chilling effect: whether something is for the "public good" is a question of fact [2]. So the defence usually needs a full trial, which lets complainants use the case to harass critics.
• A civil remedy already exists: a suit for damages protects reputation without the threat of jail [2].

Case for retention

• Subramanian Swamy v. Union of India (2016) held that reputation is part of Article 21. It also held that "defamation" in Article 19(2) includes criminal defamation, and that possible misuse does not make a law invalid [5].
• Civil suits are slow and costly, which puts them out of reach for poorer victims.

Way forward: reform, not repeal

• Trial courts should test the good-faith exceptions before issuing summons.
• A prosecutor's check should apply to party-against-party complaints.
• Community service should be the default penalty for political speech. Rising state-level penalties, such as Telangana's proposed 1–7 years under its 2026 Bill [6], show why this calibration is needed.

The BNS modernised how defamation is punished but left the risk of misuse untouched. The better course is calibrated decriminalisation: keep criminal liability for malicious falsehoods against individuals, and protect criticism of governments. This balances Article 19(1)(a) with Article 21 dignity, in line with the constitutional value of fraternity that Swamy invoked.