Someone has accused you of defaming them, and the police or a magistrate's court has told you that the case is now governed by the Bharatiya Nyaya Sanhita, not the old Indian Penal Code. Or you are the one who feels wronged by something written or said about you, and you are trying to work out what a complaint actually achieves now that the law has changed. Either way, the most important shift you need to understand is this: defamation is still a crime in India, but for the first time, a person convicted of it can be sentenced to community service instead of jail or a fine because reputation not hurt feelings, is what the law protects.
This article walks through what counts as criminal defamation under the new code, how the punishment structure has changed, who is allowed to file a complaint, and what courts have said about defamation prosecutions even before this law existed. Community service is brand new as a sentence, so there is no body of judgments interpreting it yet. That gap is real, and it is exactly where a practicing lawyer's sense of how magistrates are actually using this option becomes more valuable than anything written here. But one thing is to be noted that community service is not applicable in every or all form of defamation under section 356.
What Counts as Defamation Under Section 356
Section 356 of the Bharatiya Nyaya Sanhita, 2023 carries forward the definition of defamation that existed under Section 499 of the old Penal Code almost without change. Making or publishing an imputation about a person, intending to harm their reputation or knowing that the imputation is likely to harm it, amounts to defamation[1]. The section keeps the same long list of exceptions that has always done the real work in defamation law: statements made in good faith, fair comment on the public conduct of public servants, truthful reporting of court proceedings, opinions on the merits of a published work, and accusations made in good faith to a person who has lawful authority over the accused, among others. If a statement falls within one of these exceptions, no offence is made out, no matter how damaging the words were to the other person's reputation.
The New Punishment Menu: Community Service Enters Indian Criminal Law
Section 4 of the Bharatiya Nyaya Sanhita sets out the punishments a court can impose for any offence under the code: death, imprisonment for life, imprisonment that is either rigorous or simple, forfeiture of property, fine, and, for the first time in Indian substantive criminal law, community service.[2] Community service had been recommended before. The Law Commission's 156th report in 1997 proposed amending Section 53 of the IPC to add it, and the recommendation went nowhere for over two decades. The BNS finally put it into the statute book, and it now sits alongside fine and imprisonment as a sentencing option for a short list of offences. Defamation made that list.
Section 356(2) spells out the punishment for defamation directly[1]:
Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both, or with community service.
Compare that to the old law. Section 500 of the IPC punished defamation with simple imprisonment up to two years, or fine, or both. There was no fourth option. A magistrate convicting someone of defamation under the old code had exactly two tools: a custodial sentence or a financial penalty. Community service did not exist as a choice. The BNS adds it as a genuine alternative, not a condition attached to bail or a quashing order worked out between the parties, but a sentence a magistrate can hand down at the conclusion of a trial.
Who Decides, and What Community Service Actually Means
Section 23 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the BNS's procedural counterpart, tells you which magistrate can impose which sentence. A magistrate of the first class can pass a sentence of imprisonment up to three years, a fine up to fifty thousand rupees, or both, or community service. A magistrate of the second class can pass imprisonment up to one year, a fine up to ten thousand rupees, or both, or community service[3]. Since defamation under Section 356(2) carries a maximum of two years, it falls comfortably within the sentencing powers of either class of magistrate, which is exactly where most defamation complaints are heard and decided in practice. When there is a complaint against the President, Vice President, Governors, Ministers or a Public servants while being in official duty capacity then a Special Public Prosecutor files this complaint directly before the Court of Sessions with prior approval of the government.
This section can't be invoked before guilt of the accused is determined and asking for this kind of punishment is not a statutory right, it can be invoked only after getting a formal complaint made by a person has been aggrieved by the offence under this section.
The same section defines community service in its Explanation as the work which the Court may order a convict to perform as a form of punishment that benefits the community, for which he shall not be entitled to any remuneration[3]. That is the entire statutory definition. It does not say what kind of work qualifies, who supervises it, what happens if the convict refuses to complete it, or how a court should decide between a fine and community service for a given defendant. Therefore, a community-service submission should principally be framed under Section 356(2), unless another legal source validly permits it. Legal commentators have flagged this gap directly: the BNS introduced the sentencing option without the implementing detail that would let it work consistently across courts, leaving magistrates to use their own discretion on what counts as community service and how it should be enforced.
The Constitutional Backdrop: Why Defamation Is Still a Crime at All
Before getting into how the offence is prosecuted, it is worth understanding why criminal defamation survived a direct constitutional challenge. In Subramanian Swamy vs Union of India, Ministry of Law & Ors., the Supreme Court was asked to strike down Sections 499 and 500 of the IPC as an unreasonable restriction on the freedom of speech and expression guaranteed under Article 19(1)(a). The Court refused[4]. It held that reputation is itself protected under Article 21, and that the right to free speech has to be balanced against another person's right to live with dignity, not treated as an absolute trump card. The Court was direct about the tension at the heart of the case, framing the dispute as one where two constitutionally protected interests, free expression and personal reputation, had to be weighed against each other rather than one simply overriding the other.
The Court also rejected the argument that the exceptions to defamation, particularly the good faith and public good requirements, are too vague to give fair notice of what is and is not criminal. It pointed to the long judicial history of interpreting those exceptions and held that vagueness alone did not make the provision unconstitutional. That reasoning is the foundation on which Section 356 of the BNS now rests. The legislature kept the same definitional structure and the same exceptions almost word for word, which means the constitutional analysis in Subramanian Swamy continues to apply directly to prosecutions under the new code.
Who Can File a Complaint
Defamation is not an offence the police investigate on their own. It can only be prosecuted on a complaint, and Section 222 of the BNSS, the replacement for Section 199 of the old Criminal Procedure Code, controls who is allowed to bring that complaint. A magistrate can take cognizance of defamation only on a complaint made by the person aggrieved by the offence[5]. The section makes limited exceptions for someone who is a minor, of unsound mind, sick, or, in certain circumstances, a woman who would not be expected to make a complaint herself, allowing another person to step in with the leave of the court. A separate, more elaborate procedure applies when the allegedly defamed person is the President, Vice-President, a Governor, an Administrator, or a Minister, where the Public Prosecutor can move the Court of Session directly, subject to sanction and a six-month limitation period.
This standing requirement is not a technicality. In Subramanian Swamy, the Supreme Court treated the old Section 199(1) requirement as a real safeguard against frivolous and vexatious defamation complaints, the kind filed not because someone was actually defamed but to harass or pressure a critic[4]. Section 222 of the BNCSS carries that safeguard forward unchanged in substance. A person who was not actually the target of the imputation, no matter how strongly they feel about it, generally cannot bring the prosecution themselves.
The Madras High Court applied exactly this principle in Sri Priya vs M. Rozario, where film actors sought to quash a complaint filed by a freelance journalist over statements made at an industry meeting. The complainant had not personally been the subject of the impugned remarks, and the question before the court was whether he qualified as a person aggrieved with the standing to bring a defamation complaint at all[6]. The case is a reminder that the threshold question in any defamation matter, before anyone gets to arguing about truth or good faith, is whether the complainant was even entitled to file the complaint in the first place.
The Supreme Court in S. Khushboo v. Kanniammal, held that criminal defamation clause should nit be invoked merely to punish the expression of unpopular opinions and finally in that case the complaints made by persons who were not directly aggrieved were quashed[10]. For criminal defamation, the complaint must disclose the imputation, its connection with the complainant, publication, requisite intention or knowledge and resulting harm to reputation.
How Courts Scrutinize a Defamation Complaint Before Trial
Even after a complaint clears the standing hurdle, courts have repeatedly required complainants to plead defamation with precision rather than in general terms. In Charanjitsingh S/o Harnamsingh Chadha vs Surendra Narayan, the Madhya Pradesh High Court dealt with a complaint accusing a university Vice Chancellor of using obscene words about the complainant's deceased wife at an official meeting. The court's analysis turned on a long-settled rule: a defamation complaint must set out the specific defamatory words used, not a paraphrase or a general description of what was supposedly said[7]. A complaint that simply alleges someone was insulted, without reproducing the actual words, does not disclose the offence with the precision the law requires.
The Supreme Court took a related but distinct approach in M.N. Damani vs S.K. Sinha and others, a case where a private complaint under the old Section 500 had been quashed by the High Court despite the trial magistrate having already found a prima facie case. The Supreme Court was asked whether the High Court was right to interfere at that stage[8]. The decision illustrates the other side of the same coin: once a magistrate has properly taken cognizance and found enough on the record to proceed, a High Court should be cautious about short-circuiting the trial through its inherent powers to quash. Together, these two judgments mark out the boundary defamation litigation has always operated within. A vague or imprecise complaint will not survive scrutiny, but a properly pleaded one that has cleared the magistrate's initial review is not easily knocked out before trial either.
In 2025 the Supreme Court recognized and made it clear once again that legitimate protest and restrained disagreement should not automatically be converted into criminal defamation because the words or language or the way it was told caused discomfort to the complainant[9].
Why Community Service Was Added in the First Place
The reasoning behind the change is not really about defamation specifically. It is about the state of Indian prisons. India's prison occupancy has been running well above capacity for years, and a sentencing option that does not require custody helps relieve that pressure for offences that do not need it. Community service has existed in some form in the United Kingdom since 1973 and in parts of the United States since the 1960s, New York Times Co. v. Sullivan[11], used mainly for the kind of offence where a short custodial term does more harm than good and does little to protect anyone. Now, defamation in UK is a Civil wrong. Australia also does not have a uniform criminal defamation type of regime.
India has not adopted the American actual-malice test as a constitutional element of criminal defamation. The BNS picked six offences for this treatment, and defamation, alongside public drunkenness, non-appearance after a proclamation, attempted suicide to restrain a public servant, a public servant unlawfully engaging in trade, and first-time petty theft where the property is restored, made the cut.
For the first time in Indian criminal law, a person convicted of ordinary criminal defamation may be sentenced to community service instead of imprisonment or fine. Indian High Courts had already been experimenting with community service before the BNS gave it statutory footing, mostly as a condition attached to quashing a case after the parties settled, or as a bail condition. Commentators tracking the new provision have pointed out that the statute still leaves real gaps: no definition of what work qualifies as benefiting the community, no monitoring mechanism to confirm a sentence was actually completed, and no guidance for a magistrate deciding when community service is the right call instead of a fine. One detailed review of the provision concluded that while the idea is a welcome step, the statute is, in the author's words, vague and bereft of details, silent on what constitutes community service, and without any framework for its enforcement. A separate academic analysis of the provision makes the same point about judicial discretion: magistrates decide whether to grant community service largely on their own judgment, which risks producing different outcomes for similar conduct depending on which court hears the case.
Even where criminal defamation remains valid, imprisonment should be exceptional. Community service is constitutionally preferable to short imprisonment only when it is dignified, proportionate and procedurally regulated.
What This Means in Practice
If you have been accused of defamation, the first question is whether the complainant is a person the statute recognizes as entitled to file the complaint at all, under Section 222 of the BNSS. A complaint from someone who was not personally targeted is vulnerable on that ground alone.
Check whether the complaint actually reproduces the specific words or imputation said to be defamatory. A complaint that only describes the gist of what was said, without quoting it, is open to challenge on the pleading standard courts have applied for decades.
Look closely at the exceptions to Section 356. Good faith, truth for the public good, fair comment on a public servant's conduct, and reports of court proceedings are full defences, not mitigating factors, and they can end a case at the trial stage rather than only at sentencing.
If you are convicted, community service is now a sentencing option a magistrate can choose instead of imprisonment or a fine, but nothing in the statute entitles a convict to it. Arguing for it credibly will likely require pointing to the absence of prior convictions, the nature of the statement, and any genuine willingness to undertake supervised work, since the law gives no checklist for the magistrate to follow.
If you are the one who has been defamed, remember that a civil suit for damages remains available alongside the criminal complaint and is not affected by any of this. The two remedies serve different purposes and are not mutually exclusive.
Be cautious as defamation under section 356(2) is different from sections 356(3)/(4) for which community service is not prescribed expressly.
It is an alternative sentence, not a simple mere bail condition or any type of settlement condition. Defamation ordinarily is non-cognizable, bailable and triable by JMFC.
In 2024, proceedings involving Arvind Kejriwal, the Supreme Court emphasised that the complainant must prima facie demonstrate injury to reputation and satisfy the “person aggrieved” requirement. The Court observed that the threshold should be especially carefully applied in public and political discourse.
What Remains Unsettled
Because the BNS only took effect on 1 July 2024, there is no reported judgment yet interpreting how a magistrate should choose community service over a fine in a defamation case, what kind of work has actually been ordered, or what happens when a convict simply does not show up to complete it. Every principle discussed above involving good faith, standing, and pleading requirements comes from case law decided under the old IPC and CrPC, carried forward because the BNS preserved the same legal structure. The community service provision itself is operating without that backing. This is precisely the kind of question where a lawyer who has actually stood before a magistrate's bench since July 2024, or who has watched how a particular court is treating first-time defamation convictions, can say something no statute or precedent can yet say; that position is no longer entirely accurate. Section 356(2) expressly recognises community service as an independent sentence. The Court may therefore impose a defined number of hours of dignified, non-remunerative service at an identified public institution, under a designated supervisory officer, with a completion report to the Court. Maharashtra government notified the Maharashtra (Community Service as Punishment for Certain Offences) Rules, 2025 on 28 November 2025, prescribing the manner in which courts may supervise community service. The scheduled services include work connected with government hospitals and other public institutions.
Criminal defamation is still very much alive—but its future may increasingly depend not on whether speech is punished, but on how proportionately it is punished. The real innovation lies in sentencing!
