How should the line be drawn between legitimate criticism of a government and defamation of individuals during election campaigns?

Article 19(2) allows speech to be restricted on the ground of defamation, yet election campaigns are when scrutiny of a government's record matters most. The Karnataka High Court has quashed the BJP's case over the Congress's 2023 "40% sarkar" ads [1]. That case shows the line should rest on the target, nature and intent of speech, not on how sharp it is.

Tests for drawing the line

• Target: Attacks on a government's performance are political criticism. Imputations about an identifiable person's private character may be defamatory. The ECI's Model Code of Conduct limits criticism to policies, programmes and past record, and bars attacks on private life [4].
• Opinion vs fact: A slogan like "40% sarkar" is opinion. "Looted over ₹1,50,000 crore" is a factual claim that can be tested, so it must carry responsibility [1].
• Statutory exceptions: Section 356, BNS 2023 protects truth for the public good and good-faith opinion on public servants' conduct and on public questions [2].
• Good faith: Reckless, unverified allegations fall outside this protection. The MCC also discourages them [4].

Mechanisms to enforce the line

• Early judicial screening: Subramanian Swamy v. Union of India (2016) upheld criminal defamation and treated reputation as part of Article 21. It also held that possible misuse does not make a law invalid [3]. So trial courts must test the exceptions before issuing summons. The Karnataka case took over three years (May 2023 to November 2026) to end, and the process itself became the punishment [1].
• Prosecutorial filter: Defamation of a Minister already goes to a Court of Session on a Public Prosecutor's complaint [5]. A similar filter could screen complaints filed by one party against another.
• Proportionate penalty: Community service, introduced by the BNS [2], should replace jail for campaign speech.
• Real-time ECI correction: A fast complaint-and-correction process under the MCC [4] can fix false claims before polling day, which courts cannot do.

The line therefore separates scrutiny of public conduct, which democracy needs, from false and malicious attacks on individuals, which the law rightly penalises. Clear tests, early screening and correction led by the ECI can protect both reputation (Article 21) and free speech (Article 19(1)(a)). Together they would secure free and fair elections, a basic feature of the Constitution.