The Law Commission of India has recommended that the offence of criminal defamation should be retained in the new criminal laws, reported Live Law on Friday.

The 285th report, dated January 31, was published in response to a letter from the Ministry of Law and Justice in August 2017, according to The Indian Express.

In its report to the ministry, the panel submitted that the right to reputation is derived from Article 21 of the Constitution and is part of the right to life and personal liberty.

It highlighted that reputation “cannot be allowed to be jeopardised just because an individual has to enjoy his freedom of speech” at the expense of hurting the sentiment of another.

“Reputation is something which cannot be seen and can only be earned,” the panel noted. “It’s an asset which is built in a lifetime and destroyed in seconds. The whole jurisprudence around the law on criminal defamation has the essence of protecting one’s reputation and its facets.”

The panel also stated that while prosecution for defamatory statements may be opposed to the right of freedom of speech, “the protection of reputation is not the only impetus behind criminalising defamation”.

It said that avoiding public disturbances and protecting individuals from unwarranted harm is an equally important motivation for the legislation.

“Criminal defamation acts as a deterrent against false and malicious statements, preventing damage to one’s reputation that civil remedies might not adequately address,” the panel noted.

It, however, recommended that speech should only be considered illegal if it is meant to do substantial harm and when such harm materialises.

Regarding the punishment for the offence, the panel said that the Bharatiya Nyaya Sanhita, which seeks to replace the Indian Penal Code, has added a provision of community service as an additional punishment.

“This law itself gives a balancing approach, wherein it has safeguarded the interest of the victim and has also neutralised the scope of misuse by giving an alternate punishment of community service,” said the panel.

In December, the Parliament passed the Bharatiya Nyaya (Second) Sanhita, 2023, to replace the Indian Penal Code, the Bharatiya Sakshya (Second) Bill, 2023, to replace the Code of Criminal Procedure and the Bharatiya Nagarik Suraksha (Second) Sanhita, 2023, to replace the Indian Evidence Act.