सं Samvidhan

Bharatiya Nagarik Suraksha Sanhita, 2023

Section 222

Prosecution for defamation

Why this exists

Criminal defamation is treated as a personal wrong, so historically the law has insisted that only the wronged individual (or someone speaking for them) can set the criminal process in motion — this stops third parties from misusing defamation law to harass people on someone else's behalf. At the same time, lawmakers recognised that constitutional functionaries and public servants are often attacked through their official conduct, and expecting them to personally chase a private complaint could be impractical or could subject high offices to frivolous litigation. So a controlled, government-sanctioned fast-track through the Sessions Court was created, with safeguards like written sanction and a six-month limitation period to prevent misuse of this special power. This structure continues, largely unchanged in substance, from the corresponding provision in the earlier Code of Criminal Procedure, 1973.

How courts read it

The Supreme Court's Subramanian Swamy v. Union of India (2016) judgment upheld the constitutional validity of criminal defamation as an offence and the associated procedural scheme (including the special complaint route for public servants), reasoning that these safeguards — such as requiring prior government sanction and a limitation period — reasonably balance free speech with protection of reputation. Courts have generally treated the 'aggrieved person' requirement strictly, insisting that only the actual person defamed (or someone with proper leave) can complain, and have treated the sanction and six-month limitation requirements for the Public Prosecutor's route as mandatory conditions that must be strictly satisfied before a Sessions Court can take cognizance.

Common misconceptions
  • Myth: Anyone who reads or hears a defamatory statement can file a criminal complaint about it.
    Fact: Only the specific person who was defamed (or someone permitted by the court to act for them) can normally file the complaint under sub-section (1).
  • Myth: A Minister or public servant can get the Public Prosecutor to file a defamation complaint anytime, without limits.
    Fact: This special route requires prior government sanction, applies only to defamation connected to the person's official conduct, and must be used within six months of the alleged offence.
  • Myth: Once the special Public Prosecutor route exists, the public servant loses the right to file an ordinary private complaint.
    Fact: Sub-section (6) preserves the person's ordinary right to file a private complaint before a Magistrate regardless of the special procedure.