Defamation Section 356 in BNS

This article has been written by Shivangi and I am currently in my 5th year of B.A.LL.B(HONS.) at Law College Dehradun, Uttaranchal University.

Introduction

The Ministry of Home Affairs set up a committee to recommend the reform of the three criminal laws enactment of which was proposed to be amended in parliament by the three new draft laws. The committee submitted a report dated February 27, 2022. After submitting the report, considering the recommendations of the report, the MHA formed a working group under for examining and preparing new legislation. After submission in August 2023, the bills were referred to a special parliamentary committee for examination and revisions. The report was presented to Parliament in November 2023. It was published in the Official Gazette on 25 December 2023. The proposals for legislative were passed by the two houses of the Parliament simultaneously. The three new laws are proposed to be brought into force on July 1, 2024 by repealing and replacing the Indian Penal Code,1860, the Code of Criminal Procedure,1973 and the Indian Evidence Act, 1872.

Bhartiya Nyay Sanhita to replace the Indian Penal Code, 1860. BNS[1] consist of 356 sections as against 511 at present. 175 sections have been changed, 20 new offences have been added and 19 sections deleted. Certain new provisions that weren’t there in IPC were added to BNS. The Penal Code has been amended to ensure gender justice, children’s rights, and national security and unity and integrity. The quantum of fine has also been rationalised.

Definition of Defamation

A new Bill 2023 has been introduced in Parliament renaming IPC as Bhartiya Nyay Sanhita Act, 2023, and it has amended the provisions of criminal laws including defamation. One important part that was included in this bill is community service; this gives the convict a chance to reform. The defamation has been committed if any person published some false contents without the consent of a person who allegedly was defamed by means of words or an image as a component of the publication. Community Service is an alternative to the punishment in the traditional form for combating prison overcrowding and exploring rehabilitation option of offenders. The intent of the amendment is to bring the system closer to international best practice and reinstate the principle of rehabilitation over that of retribution. Community service provides a way through which criminals may make up for the evil charisma they have created in society by leaving an endowment that might be helpful. It provides a new vision of justice more human and progressive by recognizing the potential in every individual for good.

The provision of Defamation under BNS is given under section 356 of the Sanhita. It says that:

• Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes in any manner, any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.
• 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.
• Whoever prints or engraves any matter, knowing or having good reason to believe that such matter is defamatory of any person, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.
• Whoever sells or offers for sale any printed or engraved substance containing defamatory matter, knowing that it contains such matter, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.

In Subramanian Swamy v UOI[2], a challenge to the constitutional validity of sections 499[3] and 500 of the IPC,1860 and Section 199[4] of Cr.PC was made. The main challenge to the provision was that “some person aggrieved” was on a broader spectrum and it allows all kinds of persons to take recourse to defamation. The other challenge was that when complaint is made to a Court of Sessions, it curtails the right to appeal. It was held that both the said challenges have already been adhered too and section 199 of the Cr. PC, 1973 was held to be constitutionally valid. The right of the person defamed to make a complaint to the Magistrate is not taken away.

Where such person is under 18 years of age, or being insane or an idiot, or unable to sue because of illness or disability, or the wife of a pardanashin, another person may, with the permission of the court, make a complaint. Generally, any person can file a complaint, whether aggrieved or not. This is a provision which is an exception to this general rule. That for the offences under sections 499-502, of the Code, a complaint can only be made by the victim itself and none other.

Ingredients of Defamation

To establish the case of defamation under BNS some essentials need to be fulfilled:

1. Making or publishing any imputation concerning any person.
2. Such imputation must have been made by
3. Words, either spoken or intended to be read; or
4. Signs; or
5. Visible representations.
6. Such imputation must have been with the intention of harming or with the knowledge or reason to believe that it will harm the reputation of the person concerning whom it is made.

Nature

Defamation is both civil and criminal in nature. In civil law, defamation is punishable by imposing a penalty on the victim in the form of damages in the form of damages according to the Law of torts. According to Salmond, “the wrong of defamation is the publication of a false and defamatory statement about another person without legal basis. The remedies available to a plaintiff in defamation cases vary from jurisdiction to jurisdiction and range from damages to injunctions forcing the defendant to withdraw the defamatory statement or publish a correction or apology. According to the Criminal Code, includes defamation of Section 222 of the Bhartiya Nagrik Suraksha Sanhita, entitled “Defamation Prosecution”. According to the BNSS Schedule I classification, a defamation complaint by the Public Prosecutor against the President, Vice President, State Governor, Federal Government or Minister holding public office is heard. shall be punished with simple imprisonment[5] up to 2 years or with fine or both, and other defamation shall also be punished with the same punishment. The former can be judged by the Sessions Courts and the later by the Magistrate.

Defamation under Bhartiya Nagrik Suraksha Sanhita,2023

It is the provision for criminal defamation is found in Sahnita under section 222. It relates to the prosecution for defamation of general person under sub section 1 and of some named officials in sub-section 2 in particular. In case of an ordinary persons the complaints must be made by the person aggrieved, not by the person being defamed and in the second category, that is to say in the case of high dignitaries, where the question of defamation is related to the performance of public duties, the session court may take cognizance of the written complaint of the public prosecutor. The complaint shall be in writing and made within six months of the alleged crime. The state prosecutor cannot make a complaint without prior instrument of influence from the state or central government. A complaint shall consist: of the crime, the nature of the crime and the necessary information so that the accused gets sufficient information regarding complaint.

Exceptions of Defamation

1. Imputation of truth which public good requires to be made or published.
2. Public conduct of public servants.
3. Conduct of any person touching any public question.
4. Publication of reports of proceedings of Courts.
5. Merits of a case decided in Court or conduct of witnesses and others concerned.
6. Merits of public performance.
7. Censure passed in good faith by person having lawful authority over someone.
8. Accusation preferred in good faith to authorised person.
9. Imputation made in good faith by person for protection of his or others interests.
10. Caution intended for good of person to whom conveyed or for public good.

Types of Defamation

There are two types of defamation. They are

1. Libel

Libel refers to that kind of defamation that goes on to deal with the publication of untruthful statements about a person or entity in written, printed, or any visual mode through which it is recorded and has permanent effectiveness due to their persistence. It is usually through books, newspapers, magazines, and photographs.

2. Slander

Slander is a form of defamation where a person or entity disseminates false claims about another. They are transient in nature and hence less permanent. They spread quickly through word of mouth, conversations, and speeches.

Case Laws

• Chaman Lal v. State of Punjab[6]

The Supreme Court, while deciding the case, upheld the exceptions to bona fide belief and bona fide belief under Section 499 of the Indian Penal Code. Briefly, the facts are that the chairman of the city corporation wrote a letter containing defamatory remarks directed at a nurse of a local hospital. A complaint was registered against the accused under Section 499 of the Indian Penal Code. However, he continued to insist that the allegations were true and that he was acting bona fides. The accused reported the suspect to the authorities. The court took cognizance that it is not offense of defamation if it is committed in good faith for the protection of the guilty party or another person or in the public interest. Apart from the good faith, no case has been made out to controvert this in the public interest. The suspected accused was convicted with a simple imprisonment for two months and the Supreme Court laid down the following basis of proving good faith and bona fides:

• The circumstances under which the letter was written or words were uttered.
• Whether there was any malice.
• Whether the accused made any enquiry before he made the allegation.
• Whether there are reasons to accept the version that he acted with care and caution.
• Whether there is a preponderance of probability that the accused acted in good faith.

• Kanwal Lal v. State of Punjab[7]

That case brought out the distinction and amplitude of the eighth and ninth exceptions to Section 499 of the Indian Penal Code. The facts of the case, briefly, are that a police officer accused his neighbour Ram Rakhi of defamation by sending a letter to the District Panchayat office in Ludhiana in a case of defamation. The letter outlined the contents which say that Ram Rakhi was promiscuous and had an illicit relationship and indulged in immoral activities. In the revision, the High Court and the Sessions Court held the police liable. Aggrieved by this decision, the appellant took up an appeal before the Supreme Court under the eighth and ninth exceptions. The court observed that, “To bring a case within this exception, the accused must show that the person complained of had lawful authority over the person complained of in regard to the subject of the charge. If the District Officer of the Panchayat enjoyed such lawful authority, then the communication in breach of the last paragraph would have permitted such a plea to be raised, but in such The Supreme Court did not agree with the applicant and upheld the decision.

The Supreme Court, however, drew a distinction between the eighth and ninth exceptions and stated that while the eighth exception requires the defamer to have legal authority, in case of the ninth exception, the statements would be made by a person having an interest in the thing and the requirement to be a member of a legal authority is not necessary.

It observed, furthermore, that “even if in good faith the guilt is considered justified, the interests of the guilty party must be protected. except for the one to whom the accusation is forwarded.” There needs to be a common interest with the agent serving the communication.

Conclusion

As reputation is dear to every being, the offence of defamation is also determinative and is again challenged for infringing upon the right of speech and expression guaranteed under Article 19(1)(a) of the Constitution of India. Section 356 of the BNS enumerates elaborately upon the cases and circumstances in which a person can be accused of defamation and in which his action can be justified by an exception. Controversies about this crime are common and judges have played a significant role in settling many of the problems that arise. Furthermore, the Law Commission also remains in a key position to make proposals for the elimination of conflicts connected with the crime.

[1] Bhartiya Nyay Sanhita 2023.

[2] Subramanian Swamy v UOI, (2016)7 SCC 221

[3] Section 356 Bhartiya Nyay Sanhita (BNS),2023

[4] Section 222 Bhartiya Nagrik Suraksha Sanhita (BNSS),2023

[5] Section 500 IPC.

[6] Chaman Lal v. The State of Punjab AIR 1970 SC 1372

[7] Kanwal lal v. State of Punjab AIR 1963 SC 1317