the case of criminal defamation charges as well. For example, the Adani group issued a legal notice for criminal and civil defamation against media house The Wire for republishing an article that originally appeared in Economic and Political Weekly (EPW), titled “Modi Government’s ₹500 Crore Bonanza to Adani Group Company”, in June 2017. EPW also received a similar legal notice a few days later, in July. Bollywood actor Aamir Khan filed a defamation suit against a person for making comments against the actor’s show Satyameva Jayate on social media.19 And in another exemplary case of intimidation, a law student received a legal notice for charges of criminal and civil defamation for publishing a blog post on ongoing trademark litigation between the Financial Times Ltd. and Times of India.20 Ironically, a media house was on the other side of the fence, issuing the legal notice. A batch of petitions, including most prominently those by politicians Arvind Kejriwal, Subramanian Swamy and Rahul Gandhi, challenged the constitutionality of criminal defamation in the Supreme Court. The petitions contended that sections 499 and 500 IPC, and section 199(1) to 199(4) of the Code of Criminal Procedure, which lay down the procedure for prosecution for defamation, go beyond the reasonable restrictions to the right to freedom of speech and expression under Article 19(2). The petitions also held that the civil remedy of defamation is sufficient for safeguarding the right to reputation under Article 21 of the Constitution. In a case known by the name of one of the petitions, Subramaniam Swamy v. Union of India,21 the Supreme Court took up these petitions together to decide on the constitutionality of the criminal defamation provisions. That the criminal remedy goes beyond the “reasonable” restrictions under Article 19(2) was argued on many grounds, which often sought to differentiate the criminal remedy from the civil remedy.22 For example, in contrast to the civil remedy, the criminal remedy involves the complainant bearing little costs, as state resources are spent on prosecuting the accused, to protect individual rights. This leads to greater chances of frivolous complaints being 19 India Today. (2014, 19 April). Retired merchant navy officer Ajit Vadakayil arrested for defaming actor Aamir Khan. India Today. http://indiatoday.intoday.in/story/aamir-khan-man-held-fromkarnataka-for-defaming-actor-aamir-khan/1/356626.html 20 Reddy, P. (2013, 21 May). The Times Publishing House threatens to sue our blogger for alleged defamation – we ain’t going down without a fight! Spicy IP. https://spicyip.com/2013/05/the-timespublishing-house-threatens-to.html 21 WP (Crl) 184 of 2014. 22 Thomas, A. L. (2016, 27 May). Subramanian Swamy v. UoI: Unanswered Arguments. Legally India. https://www.legallyindia. com/blogs/subramanian-swamy-v-uoi-unanswered-arguments filed. In addition, the burden placed on the accused and the criminal nature of the complaint allows for harassment at the hands of the persons filing charges. Ruling on the petitions, the Supreme Court of India paid lip service to the fundamental right to freedom of speech and expression and international covenants – before deciding that the sections were indeed not unconstitutional. Going against a global push away from criminal remedies for defamation, the Court ruled that there was a need to balance the right to reputation, which is part of the fundamental right to life, and therefore, the remedy of criminal defamation was a reasonable restriction under Article 19(2). This judgment of the Supreme Court received flak from many commentators for its regressiveness in free speech jurisprudence, for being needlessly wordy, and for not engaging satisfactorily with the arguments of petitioners.23 Criminal defamation and publication on the internet If the petitioners sought to distinguish the criminal from the civil remedy in Subramaniam Swamy v. Union of India, so, reportedly, did the Ministry of Home Affairs, albeit for a different reason: according to a news report, the Ministry submitted to the Supreme Court that because of the emergence of new technology, the criminal remedy is, in fact, required:24 Civil remedy for defamation is not efficacious remedy per se. The civil remedies on an average take longer than criminal remedies. Furthermore, with the advent of new forms of technology, acts like online defamation cannot be adequately countered by means of civil remedies. It is unclear on what grounds the government sought to create a distinction between “online defamation” and its print or broadcast counterpart. The ease of publication, the speed of transmission of statements, along with its duplicability seems to be the implicit basis for the distinction. However, this argument begs the question: are restrictions to free speech then to be higher for print media outlets that have a digital edition? 23 Acharya, B. (2016, 14 May). Criminal Defamation and the Supreme Court’s Loss of Reputation. The Wire. https://www.thewire.in/36169/ criminal-defamation-and-the-supreme-courts-loss-of-reputation 24 Mishra, P. (2015, 12 July). Online defamation cannot be countered by civil remedies, Centre tells Supreme Court. DNA News. http:// www.dnaindia.com/india/report-online-defamation-cannot-becountered-by-civil-remedies-centre-tells-supreme-court-2103811 54 / Unshackling Expression