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Law Relating To Defamation In India

Mar. 15, 2020   •   Architi Batra

INTRODUCTION

Defamation in the simple terms refers to a false statement referring to another person without lawful justification is wrong of ‘defamation’. In simple term defamation can be termed as causing injury to the reputation or status of another person. If any person caused an injury to the reputation of another person then the aggrieved party can take action against the wrong-doer both under civil and criminal law. Both criminal and civil offenses are different from each other in terms of punishments. The Standard of Proof is also different in both cases. The publication is an important part of Defamation. When the communication containing the imputation is sent by an Accused to the Complainant by post in a registered cover address to the complainant himself there is no publication and the offense of Defamation is not committed. Unless there is a matter of publication to the third party there can be no offence of Defamation. The word ‘publish’ in section 499 of the Indian Penal Code (IPC) does not contemplate those communications that one is bound to make to others in the normal course of his/her legal duties.

HISTORY OF DEFAMATION IN INDIA

Defamation laws in India were conceived by First lord Macaulay in 1837 within the first draft of the Indian Penal code and subsequently codified in 1860. The offence of defamation was along the identical lines of the prevailing English law. The intention behind criminalizing the act of defamation in British India was certainly linked with protecting the interests of country Raj, the safety of the state, and public order. Consequently, Section 499 of the Indian legal code, 1860 (“IPC“), was enacted and has remained unaltered for the last 158 years. (4) In July 1988, Rajiv Gandhi’s administration, injured by allegations of the Bofors affair, introduced a Defamation Bill, which sought to make new offences of “criminal imputation” and “scurrilous writings”. The bill also widened the definition of the term ‘Defamation’ and shifted the burden of proof from the aggrieved person to the accused person. The Lok Sabha had passed the bill and therefore the bill was to be introduced within the Rajya Sabha thereafter. A highly successful nationwide strike by the newspaper industry and increasingly strident popular protests forced the govt. to withdraw the bill. The announcement withdrawing the bill stated: “A press is an integral part of the inner strength and dynamism of our democracy. Without a press, there is often no democracy. (5) The imperishable values of our freedom struggle have gone into the making of the press in India. We uphold this legacy”.

KINDS OF DEFAMATION

According to English Law defamation is divided into two species

  1. Libel - If defamation takes place in written format, it is termed as Libel.
  2. Slander- If defamation happens through spoken words or gestures, it is termed as Slander.

In England laws on Libel and Slander are differing from each other. Under Criminal Law only libel is recognized as an offense whereas slander is not an offense. Under the branch of Tort, slander is actionable. Only on the proof of special damage, libel is actionable per se, damages need not be proved.

Exceptions- There are certain slanders which are actionable per se under the four exceptions. They are-

  1. Imputation of Criminal Offence.
  2. Imputation of unchastety.
  3. Imputation of disease.
  4. Imputation of incompetence and dishonesty.

Indian Law of Libel and Slander- In England while libel is both crime and tort, slander is only a civil wrong. However, in the case of India, both the slander and libel are considered criminal offenses. Under section 499 of the Indian Penal Code, 1860 libel is actionable per se whereas slander is actionable on proof of special damage.

ESSENTIALS OF DEFAMATION

  1. There must be a defamatory statement.
  2. There must be a publication of the defamatory statement.
  3. The defamatory statement must refer to the plaintiff.
  4. In the case of slander, there must be proof of special damage.

DEFAMATION PER SE

In some circumstances, an announcement or any statement will always be considered defamatory and can be assumed to harm a person’s reputation without the requirement to supply proof of harm. These forms of statements are named as being defamation “per se.” Any statements that qualify as being defamation intrinsically typically involve false statements regarding: a criminal offence, a loathsome disease, someone's business or professional occupation or trade, or sexual infidelity/misconduct.

CRIMINAL LAW

Section 499 of Indian Penal Code, 1860 deals with DEFAMATION –

(6)Whoever by words either spoken or intended to be read or by signs or by any visible representations, makes or publishes any imputation concerning any person intending to harm or knowing or having reason to believe that such imputation will harm, the reputation of such persons, is said, except in the cases hereinafter expected, to defame that person.

There are ten exceptions and four explanations of defamation. They are-

EXCEPTIONS

  1. First exception: The statement made or published for the general public good.
  2. Second exception: Opinion expressed in an honest manner respecting the conduct of an employee within the discharge of his public functions or respecting his character close to far as his character appears in this conduct.
  3. Third exception: Opinion expressed in an honest manner respecting the conduct of someone touching any public question, and respecting his character, to date as his character appears in this conduct, and no further.
  4. Fourth exception: Publication of a substantially true report of the proceedings of a court of justice or of the results of any such proceedings. [Such publication may, however, constitute another offense under a statutory provision regulating the reporting of judicial proceedings].
  5. Fifth exception: Opinion expressed in an honest manner respecting the merits of any case decided by a court of justice or respecting the conduct of someone as a celebration, witness or agent in any such case or respecting the character of such person, to date as his character appears in this conduct, and no further.
  6. Sixth exception: Opinion expressed in an honest manner respecting the merits of any performance which the author has submitted to the judgment of the general public or respecting the character of the author, to date as his character appears in such performance.
  7. Seventh exception: Censure passed in an honest manner on the conduct of someone by someone having authority over him (conferred by law or arising out of a lawful contract) where the conduct is in matters to which such lawful authority relates.
  8. Eighth exception: Accusation preferred in an honest manner against someone to at least one who has lawful authority over that person with regard to the topic matter of the accusation.
  9. Ninth exception: Imputation on the character of another made in an honest manner for the protection of the interests of the person making it, or of the other person, or for the general public good.
  10. Tenth exception: Caution conveyed in an honest manner to at least one person against another and intended for the great of the person to whom it's conveyed.

EXPLANATIONS

  1. Explanation 1.— (7)It may amount to defamation to impute anything to a departed, if the imputation would harm the reputation of that person if living, and is supposed to be hurtful of the emotions towards his/her family or near relatives.
  2. Explanation 2.— (8)It may amount to defamation to form an imputation concerning a company or an association or collection of persons in and of itself.
  3. Explanation 3.—An imputation within the kind of another or expressed ironically, may amount to defamation.
  4. Explanation 4.— (9)No imputation is speculated to harm a person’s reputation unless that imputation directly or indirectly lowers the moral or intellectual character of that person or which lowers the character of that person in respect of his caste or the credit of that person which causes it to be believed that the body of that person is during a loathsome state, or during a state generally considered as disgraceful.

Section 500 deals with the punishment of defamation –

Whoever defames any other person shall be punished with simple imprisonment for a term which can be two years or with fine or with both. In India, Defamation is often both Civil and Criminal offenses. (10) The remedy of the Civil Defamation is under the Law of Torts. In such cases, the one who is defamed can seek a remedy in Hon’ble High Court or Subordinate Courts and seek damages in the style of monetary compensation from the Accused. (11) But within the case of Criminal Defamation, it's defined under Section 499 and Section 500 of Indian Penal code where an individual of any guilty offense are often imprisoned up to two years.

Section 501 - Printing or engraving matter known to be defamatory -

(12)Whoever prints or engraves any matter knowing or having a good reason to believe that such matter is defamatory of any individual shall be punished with simple imprisonment for a term which can extend to 2 years or with fine or both.

Section 502 - Sale of a printed or engraved substance containing defamatory manner

(13)Whoever sells or offers purchasable any printed or engraved substance containing defamatory matter, knowing that it contains such matter, shall be punished with simple imprisonment for a term which can extend to 2 years with fine or both.

CIVIL LAW

In Civil law, an action for defamation is claimed within the scope of damages for causing injury to the reputation of the plaintiff or just it is often said as defamation if a publication of a press release which tends to lower an individual reputation. The number of damages are different from case to case and is to be determined by the Judge.

DEFENSES AVAILABLE FOR AN ACT OF CIVIL DEFAMATION ARE-

  1. JUSTIFICATION-The defendant can justify his/her statement by proving that his/her statement is substantially true.
  2. FAIR COMMENT-The defendant can defend himself by showing that the statement could be a comment and not a fact, the comment is on a matter of public interest and fair in nature. (14) The person defamed can move either to the judicature or High Court or tribunal and seek damages within the sort of monetary compensation from the accused. The remedy sought is roofed under the Law of Torts, a rare and slow course of relief witnessed in India.
  3. The law defines defamatory content mutually “calculated to injure the reputation of another by exposing him to hatred, contempt or ridicule.” this can be the very first condition required to be fulfilled under the civil remedy.
  4. Second, (15) the claimant must be identified within the defamatory statement. It must address a specific person and no in and of itself broad-based classification is suitable.
  5. And lastly, there must be the publication of the defamatory statement in oral or written form. A civil defamation law would be applied once these conditions are attained. The defendant will then must plead his defense.

WHAT IS CONSIDERED AS THE VALID LEGAL ARGUMENTS TO WARD OFF DEFAMATION CHARGES?

Truth’ is usually considered to be a defense against defamation as a civil offense but under Penal Code, the truth could be a defense only in an exceedingly limited number of circumstances. (16) Besides the statement or writing being demonstrably true, it also requires being proved that the imputation was made for the public good. Accusations, censure or imputation made in honesty by persons having lawful authority also are some exceptions to a charge of criminal defamation.

WHY ARE THE SECTIONS OF 499 AND 500 OF IPC ARE CHALLENGED?

(17)Section 499 of the Indian Penal Code 1860 defines that any person whose reputation or status has been damaged or intended to damage by the material in the question has the Right To Sue for the Defamation. However, these are challenged on the ground of the fact that they violate the Right To Freedom Of Speech And Expression as provided under Article 19 of the Indian Constitution.

SUBRAMANIAN SWAMY v UNION OF INDIA MINISTRY OF LAW & ORS

In this case, it was held that Sec. 499 of the Indian Penal Code,1860 is valid and constitutional. Hence no more amendments will be done in this section. The issue that arose before Hon’ble Supreme Court is doing it violates the Right To Freedom Of Speech And Expression. Later on, Hon’ble Supreme court held that it does not violate Article 19(1)(a) of the Indian Constitution because Freedom Of Speech And Expression is not an absolute right and has reasonable restrictions in it. Therefore is important to maintain a balance between Freedom of speech and expression and the Right of Reputation.

[The author, Upasana Borah is a 4th Year law student at NEF LAW COLLEGE, ASSAM affiliated to Gauhati University]

  1. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3292032
  2. http://www.lawjournals.org/archives/2017/vol3/issue2/3-2-26
  3. https://www.obhanandassociates.com/blog/tag/law-of-defamation-in-india/
  4. https://www.obhanandassociates.com/blog/criminal-defamation-a-reasonable-restriction-on-freedom-of-speech/
  5. https://www.indiatoday.in/magazine/special-report/story/19881015-rajiv-gandhi-government-withdraws-infamous-defamation-bill-797786-1988-10-15
  6. https://www.advocatekhoj.com/library/bareacts/indianpenalcode/499.php?Title=Indian%20Penal%20Code,%201860
  7. https://indiankanoon.org/doc/1041742/
  8. https://books.google.de/books?id=IPASAAAAYAAJ
  9. https://www.burgielaw.com/resources/act?act_title=Penal+Code
  10. https://www.vidhikarya.com/legal-blog/difference-between-civil-defamation-and-criminal-defamation
  11. http://ili.ac.in/pdf/paper10.pdf
  12. http://bdlaws.minlaw.gov.bd/act-11/section-3552.html
  13. http://bdlaws.minlaw.gov.bd/act-11/section-3553.html
  14. https://www.hindustantimes.com/india/jaitly-kejriwal-war-difference-between-civil-and-criminal-defamation/story-WY1UMhDgP63goarxQyM4LI.html
  15. https://medium.com/@sinhaamit095/difference-between-civil-defamation-and-criminal-defamation-3c6451627ba6
  16. https://www.legistify.com/blogs/view_detail/13-understanding-civil-and-criminal-defamation/
  17. http://mja.gov.in/Site/Upload/GR/Title%20NO.43(As%20Per%20Workshop%20List%20title%20no43%20pdf).pdf

Other References-

https://www.nytimes.com/2018/09/12/learning/why-is-freedom-of-speech-an-important-right-when-if-ever-can-it-be-limited.html

https://en.wikipedia.org/wiki/Freedom_of_speech

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