Author’s name: Shilpa Sarkar
5th Year B.A L.L.B
Sureswar Dutta Law College, Howrah, University of Calcutta.
Abstract:
In a democratic nation like India people are free to express their opinions in their transparent and/or in a mimic way. Every person has the right to express their thoughts through public commentaries. Sometimes these commentaries and opinions goes beyond the limit of tolerance where a person’s integrity and dignity gets hurt and defamed or faces some social loses, here they have many remedies under the Indian legal system. Every persons concern is that what other people will think, what people will say, it is commonly labeled as Reputation. The only thing a person care more above anything is reputation. People of every society are entitled to maintain and have a high esteem for themselves but reputation stands for what is held by other people. In this article, we will discuss how defamation is criminalized and its implications into our legal proceedings. Reportedly the number of defamation suits is being lodged by the public figure personality who are conveying their life through social work and social media.
Introduction:
Our Constitution give us the Fundamental Rights for utmost liberty and freedom to our dignity, we can seek for remedies against any kind of offence relating to defamation. In India defamation is criminal as well as civil offence, civil definitions are mentioned under the Law of Torts and the criminal criteria have been discussed in the Indian Penal Code of 1860. Consequently, it is clear that the freedom of speech is not a absolute right. It is a very familiar word nowadays news and articles relating to defamation are numerous in numbers, therefore it is a debatable issue in our legal context.
Meaning:
The word Defamation has been derived from Latin phrase Deffamatio which means dishonoring or giving injurious statement to other person.[1] When a person causes harm to others reputation by verbally or physically, by physical representation, or publishes any false statement which also affects the social value of the aggrieved person is named as defamation.
History of Defamation:
The traces of defamation are found from the Ancient Roman law where the churches were the place to spells abusive chants as to punish the wrongdoer. After that the jurisdiction of Defamation was no longer unknown to the Britishers where their reputation was protected by the Common Law. In Indian history it was introduced in colonial era by the Vernacular Press Act 1878,[2]to protect the British Royal Family from the abuse of words whereas, the Hindu monks and philosophers states the concept of defamation was found from the Manusmriti, it causes reputational harm to the other person due to badmouthing or ill speaking. The Criminal Defamation law was introduced by Thomas Babington Macauly in 1837, and later it was drafted into the Indian Penal Code 1860.[3]
Definition: Defamation is a injury to the reputation of a person. The definition of Defamation is understood as of two types, one is as a Civil Wrong such as Lible and Slander. Liable refers to the permanent representation by writing, painting, or physically and Slander refers to the publication defamatory statement by verbally or with gestures. Another is the criminal offence where defaming a person’s reputation is prosecuted as crime. The criminalized Defamation is sectioned under Indian Penal Code of 1860 let discuss.
- Section 499 of IPC: “Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imitation will harm, the reputation of such person, is said, except in the cases herein after expected, to that person.”[4]
- ILLUSTRATIONS:
- (I) ‘A’ asked ‘p’ who stole his wallet. ‘p’ pointed on ‘C’ intending to cause it to believed that ‘C’ steels ‘A’ ‘s wallet. This is defamation unless it falls within one exception.
- (II) ‘X’ is a fruit seller, and ‘Y’ another fruitseller being jealous on ‘X’ tells other buyer that, ‘X’ sells rotten fruits with intention to defame ‘X’ knowingly. Here, it will make impact on ‘X’ revenue and his fame.
Explanation 1: Defamation of a deceased person
When a person defame another person who is dead or has passed away, by any imputation which causes harm to reputation to the known of the deceased person or to the relatives or family of the dead if he were still alive then is amounting to defamation.
Explanation 2: Defamation to Company or Association
If a company, association or group of person faces defamation by way of Slander or libel it is seen as defaming of such aforesaid, and also they can sue for remedies.
Explanation 3: when any one makes any statements by way of expressly mimic or critic way alternatively they are intending to defame other person.
Explanation 4: harming persons reputation
This explanation states the formula where the statement is hurting someone reputation such as if the indication I’d directly or indirectly underestimating, or lowers the moral and intellectual value of other person’s character are to termed as defamation.
Essential Ingredients:
For an offence of defamation as defined under section 499 of the Indian Penal Code 1860, three essentials are required to be fulfilled:[5]
- (I) Defamatory statement: There must be the use of defamatory statement must be made by words, either spoken or signs or by visible representations, has been used by a person which tends to injure the reputation of the aggrieved party. It is one that by which a persons is esteem is getting lower and effecting his picture in front of the society.
- (II) Defamatory statement refers to the aggrieved: In action for defamation, the injured party has to prove the defaming statement is refering to him or concerning to harm him. Then it is not a matter that the statement was intending to defame that person or not.
- The statement should be False: it is important that the statement should be false statement which is intended to injure the others reputation. If the statement is true then it will fall under exception.
- Intention to publicly effect that person’s reputation:
- (V) Commission of defamation: Here the defamatory statement must known to other people except who regard it was made. And the said imputation must have been made with intention to harm the reputation of the person.
Exceptions to the section 499, IPC 1860:
The Indian Penal Code provides for ten number of exceptions where a statement is not falling under the category of defamation.
- Imputation of truth for Public Good: If any imputation is made which is true concerning the public good and welfare then those imputation should be made or published. When such imputation is solely true then it is not a defamatory statement or element and it should be published for public at large.
- Public conduct of public servant : It is not defamation to express any opinion in a good faith where a public servant is criticized or discharges any of his public functions. For example, ‘A’ told ‘B’ that ‘p’ is not a good driver, where it is not defamatory statement, it’s a honest opinion as good faith.
- Conduct of any person touching any public question: Any opinion made in good faith by a public servant does not amount to offence under defamation when public servant was acting in discharge of a public functions.[6]
- Publication of reports of proceedings courts: If any publication of reports or proceedings result of a case given by any court is not a subject matter of defamation. Because it is assumed as a truth.
- Merits of cases decided in court: It is not defamation to publish any information regarding any case or conduct of witness where such information is in good faith respecting matter civil or criminal that has been decided by the court of law.
- Merits of public performance: Expressing any opinion with regards to any performance with respecting the merits of the performance in a good faith is not defamatory in nature.
- Censure passed by lawful authority: It is not a defamation when a person passes Censure on a conduct of any other person in good faith in matters of which the lawful authority relates.
- Accusation to authorised person: Any complaint or accusation made in good faith to the lawful authority which has control over other person is not defamatory statement. For example, a warden in good faith accuses a office clerk to the chairperson.
- Imputation for protection of own or others interest: Here this exception took place where any person gives a personal and private statement through a limited communication makes in good faith for protection of his own interest or other person for public good.[7]
- Caution intended in a Good Faith: In simple words, any statement which convey a caution made with intention for the public good is not a defamatory statement.
Applicability:
Section 499 of the Indian Penal Code 1860 is not a Penal provision. It is an offence where intention to harm the reputation involving malicious intent, or has the knowledge that imputation will harm the reputation of other.
- Prosecution for Defamation: Section 199 of Code of Criminal Procedure 1973, gives an exception to the general rule that, anyone whether he is an aggrieved or not can filed the complaint, ad modifying that rule by permitting only the aggrieved person can filed complaint in cases of criminal defamation under section 499 and 500 of IPC. Cognizance taken by the Magistrate on the offence of defamation filed by other than the aggrieved party would be void.[8]
- Punishment: Under section 500 of IPC states, if anyone defame a mother and it is proved, the offender might face imprisonment for a term of Two years, or fine or both. In India only lible comes under the criminal defamation, contained in Indian Penal Code, 1860 and that defamatory statement are punishable under section 499 unless they fall under one or more of the exception as mentioned.
Difference between Civil and Criminal Defamation:
- Category: In civil defamation it is understood as a Civil Wrong and are divided into two categories one is libel and other slander. Whereas, in criminal law only libel has only been recognized as defamation.
- Defense: In civil defamation public good is hardly consider as a defense but in criminal defamation public good as well as truth must be proved by the accused.
- Exceptional grounds: In civil defamation public conduct of public servant is not a defense. But in a criminal defamation the public conduct of a public servant is a defense within limits so long as it is in good faith and representing only public conduct and no further.
- Punishment: Damages is the only relief in civil defamation whereas, in case of criminal defamation the accused is convicted and sentenced of imprisonment for two years and fine.
Criminal Defamation and Article 19 of Constitution:
Every citizen has Fundamental right to Freedom of Speech and expression under article 19 of the Constitution, the freedom of speech and expression are not absolute right of an individual these are barred by some reasonable restriction under Art-19(2), hence the implications which replicate any false, defamatory statement or any visual representation are followed as a criminal offence when the truth is not expressed for public good. In the meantime many advocates and jurists believe criminal defamation is violation of article 19. Following are the six core fundamental rights which are guaranteed to individuals citizen or not within the territory of India are,
- Right to Freedom of speech and Expression
- Freedom of Assembly
- Freedom to form Association or Union
- Freedom of movement
- Freedom to reside within the territory of India
- Freedom of Profession, Occupation, trade or business.
However, Section 499 and 500 of IPC not contradicting the seriousness of the constitutionality and dignity of others. Criminal Defamation took place when a false statement injures a man’s reputation. It discloses the hatred or contempt of the accused. This section recognizes as a reasonable restriction i.e., libel and slander on the freedom of speech and expression. Any developed society needs such control and restrictions to protect one’s reputation.
Present scenario criminal defamation is bone in throat of the politicians and public figures, it is very easy to make someone convicted on the allegation of defamation. Manytime the burden of proving the allegation doesn’t even took charge and disrupt occurs in the society in the name of protection against violence. There are some flaws which have been seen many cases followed,
- Many cases the state matter interferes because it includes exception regarding the public good made by the public servants such a manner the common people faces many reputational harms and they don’t have remedies against them. Suppose if a traffic police expresses any kind of verbal or physical interaction where a reasonable amount of people are witnessing the act then it should not fall under public good.
- If a person is alleged someone under section 499 of IPC, then subsequently he have to face legal issues and conviction too, such discrimination on the part of respondents are noticeable.
- Need of proving such allegation which has defamed others reputation is necessary, because the burden of proof lies on the petitioner.
- Misuse of this provision is every corner, even if a person doesn’t even spoked or published any such false or true statement, the magistrate can took charges over him. Also any questionable statement made to a deceased person have also attracted section 499 of IPC, somewhere it is putting bar on liberty of others statements. Cyber bullying ,hate speech and defamatory podcasts or videos.
- In Subramanian Swamy v. Union of India, Air 2016 SC 2728,[9]many politicians with Subramanian Swami was charged under criminal defamation suit under section 499 and 500. The petitioner filed writ under art 32 of the Constitution where they all argued the criminalization of defamation is against the fundamental rights of the individual.
The Supreme Court held that, the term used as reasonable restriction under article 19(2) cannot be given restricted application. The principle of Noscitur a Sociis should extend its meaning and cannot be applied restricted meaning to the term of Criminal Defamation. It is difficult to curb the activities to submission that the defamation will result as an offence. The section 499 of IPC protects the reputation of each individual in the perception of public welfare. Reputation is an inseparable aspect of right to life and basic element of Art 21 of the Constitution, and Penal provision of IPC has kept it alive which does not have a chilling effect on the freedom of speech and expression. The court held the punitive defamation as constitutional and creates a balance between both aforesaid provisions.
- R. Rajagopal and Ors. Vs. Respondent: State of Tamil Nadu and Ors.[10] Aamir magazine was published by the petitioner “Nakkheeram”, and was convicted of defamation through this the editor and associate editor moved to supreme Court and asked for writ restraining the government from interfering with their right to
published the autobiography of Auto Shankar who was convicted for several murder cases. Auto Shankar wrote his autobiography when he was in jail and mentioned that some criminals in the jail has connection with IAS, IPS and following that he mentioned the participations of the officers in the crime committing with them, this was harming the reputation of the State and administrative body and consequently attracts Section 499 and 500of IPC because of which the officers used third degree torture on the plaintiff and prevent the autobiography publishing. In this case, the petitioner right to privacy (Art-21) and freedom of speech and expression (Art19) violated by the state occurrence.
The court added that an authorized piece of writing will harm someone’s integrity only when it will published. The Supreme Court held that the State or it’s Officials has no authority in law to impose prior restraint on publication of defamatory matter. The action will be legal and took place if the published document contains any false statement. The court also mentioned that it is a right of a person to keep his interest private and as citizen has the right to safeguard his own privacy when other side also secures the dignity and privacy must kept by the officers or the public servants. Despite that the right to privacy is not mentioned broadly but as a wing of right to life and liberty under Art 21, but it doesn’t prevent anything to be published or expressed. Hence the honorable court give permission to publish the autobiography by the editors because the petitioner was sentenced death penalty on the preceding matters of committing homicide.
- Rahul Gandhi v Purnesh Ishwerbhai Modi 2023 SC 929,[11] popularly known as Modi Surname defamation case Purnesh Modi filed criminal defamation case against Rahul Gandhi for addressing the Prime Minister as thief in a indirect statement in during election rally, petitioner filed case before the Surat Court and found guilty under section 499 and 500 of IPC 1860, where he was sentenced for two years simple imprisonment and a fine of Rs. 15,000/- by Harish Sharma the Chief Judicial Magistrate of Surat. About Rahul Gandhi remark on the statement “why all thieves shares the surname Modi” and makes false allegation on the topic of raffle controversy.
Later, respondent argued before the Court by challenging the criminal defamation as it is discrimination and violates Article 19 and 21 as a response court said this provisions are constructed for the reasonable restriction Art 19(2) on the citizens and because of the conviction the petitioner was disqualified from the parliament under section 8(3) of People’s Representation Act the petitioner pointed out some serious loopholes on the order of the Trial Court before the Gujrat High Court under revisionary jurisdiction and argued, the order passed by CJM was not based on rational reason and has no valid proof whether it was defamatory or not. The High court held that essential of defamation was already fulfilled which were intention, knowledge and reason to believe also dismissed the appeal supreme Court states in that matter with accompanying with the Subramanian-swamy-vs-union-of-india-case-analysis that it is the duty to have filter in speaking statements because they represents their electorate and the order of stay of conviction is an exception in such circumstances not a rule of law.
Cyber defamation.
Cyber defamation also known as online defamation, it includes any act or expression and false, misleading statement or publication made through electronic platform that causes harms someone’s reputation. Now it is important to protect everyone’s liberty because online platforms carry more values in personal life and professional life. The kind of defamation can be go through such as libel any post made through social media that harms others reputation.
The jurisdiction of such crime depends and it varies on the seriousness of the crime whether it is punitive or remedial in nature.
Amendments:
Not merely changes but the 22nd law commission has recommended that the criminal defamation should be retained within scheme of criminal laws in India by the Ministry of Law and Affairs. They added that the right to reputation has derived from Art 21 that guarantees right to life and personal liberty of individual. The law panel recommended to adjust and amend the directive principle of state policy to act upon the defamation implementation. It was the dispute of right to speech and expression hence, they identify libel only as the criminal defamation.
Conclusion:
It is clear that defamation law will always debatable because of its punitive and flexible nature. In India defamation provides both the civil and criminal remedies majorly the criminal effect is serious in nature. The law protects every living and nonliving person and authority or entity gives them a wide protection of law whose reputation has been harmed by the defamatory statements. Reputation is a person’s precious asset, protect it from any form of harm or defame is the main key of such law. Even in virtual world the jurisdiction of Defamation has taken place it is important to preserve others reputation in a electronic social platforms. Criminal Defamation is the way confirming that whoever causes intentionally harm or defamed others reputation he must go under the trial and such process is not against freedom of speech and expression, hence it has been proved by many cases where the learned court has made judgment in favor of the sufferer.
[1] Etimology dictionary https://www.etymonline.com/word/defamation
[2] The Indian Press https://indianexpress.com/article/research/a-pre-independence-history-of-press-freedom-in-india/
[3] The Caravan Press Journal, https://caravanmagazine.in/vantage/defamation-supreme-court-got-wrong
[4] IndiaCode, Section 499, defamation, https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_00037_186045_1523266765688&orderno=563
[5] Standard Chartered Bank v. Vinay Kumar Sood 2010 CrLJ 1277 https://indiankanoon.org/doc/140170613/
[6] Radhelal Mangalal Jaiswal v. Sheshrao Anand Rao lad Cri LJ 2233 https://www.casemine.com/judgement/in/5608fc6fe4b014971114c0f8
[7] Dr. Vishnu Dutt Agrawal v. State of UP 2012 CrLJ 3595 https://indiankanoon.org/doc/35178239/
[8] G. Narshima v. T.V. Chokkappa 1973 SCC 777: Air 1972 SC 2609
[9] Subramanian Swami v. Union of India Air 2016 SC 2728 https://www.ourlegalworld.com/subramanian-swamy-vs-union-of-india-case-analysis/
[10] Manupatra R. Rajagopal and Ors. Vs. Respondent: State of Tamil Nadu and Ors. https://roundup.manupatra.in/trans/viewdoc.aspx?i=ptiDy4oUEz7W4RhahAaT6h93RFUeTV40hI1vo81W7g5uCfRP5tL0pktJVchar(43)F5g3qk&id=zwKDa4S8QbBCBSkXPhUPwY5CqQmaAQ/9fT/TmfIpDNchar(43)mpchar(43)4Ph78G/char(43)dkEP6RAcLmSSchar(43)UilI2zj9YQOlKqHoVVA
[11] Modi Surname defamation case,2023 https://www.scconline.com/blog/post/2023/08/04/sc-stays-rahul-gandhis-conviction-in-modi-surname-defamation-case-legal-news/
