Bharatiya Nagarik Suraksha Sanhita, 2023
Section 222
Prosecution for defamation
(1) No Court shall take cognizance of an offence punishable under section 356 of the Bharatiya Nyaya Sanhita, 2023 except upon a complaint made by some person aggrieved by the offence: Provided that where such person is a child, or is of unsound mind or is having intellectual disability or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf.
(2) Notwithstanding anything contained in this Sanhita, when any offence falling under section 356 of the Bharatiya Nyaya Sanhita, 2023 is alleged to have been committed against a person who, at the time of such commission, is the President of India, the Vice-President of India, the Governor of a State, the Administrator of a Union territory or a Minister of the Union or of a State or of a Union territory, or any other public servant employed in connection with the affairs of the Union or of a State in respect of his conduct in the discharge of his public functions, a Court of Session may take cognizance of such offence, without the case being committed to it, upon a complaint in writing made by the Public Prosecutor.
(3) Every complaint referred to in sub-section (2) shall set forth the facts which constitute the offence alleged, the nature of such offence and such other particulars as are reasonably sufficient to give notice to the accused of the offence alleged to have been committed by him.
(4) No complaint under sub-section (2) shall be made by the Public Prosecutor except with the previous sanction—
(a) of the State Government,—
(i) in the case of a person who is or has been the Governor of that State or a Minister of that Government;
(ii) in the case of any other public servant employed in connection with the affairs of the State;
(b) of the Central Government, in any other case.
(5) No Court of Session shall take cognizance of an offence under sub-section (2) unless the complaint is made within six months from the date on which the offence is alleged to have been committed.
(6) Nothing in this section shall affect the right of the person against whom the offence is alleged to have been committed, to make a complaint in respect of that offence before a Magistrate having jurisdiction or the power of such Magistrate to take cognizance of the offence upon such complaint.
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.