Defamation and Laws in India

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Sudha Bharadwaj, lawyer and National Secretary of the People’s Union for Civil Liberties (PUCL) had sent a legal notice to Arnab Goswami and Republic TV for some malicious and defamatory statements made against her in one of their programmes.

Bharadwaj said in a public statement, Republic TV has “claimed that I have written a letter (identifying myself as “Comrade Advocate Sudha Bharadwaj”) to a Maoist – one “Comrade Prakash” – stating that a “Kashmir like situation” has to be created. I am also accused of having received money from Maoists. I am also said to have confirmed that various advocates, some of whom I know as excellent human rights lawyers and others whom I do not know at all, had some sort of Maoist link.”

Sudha Bharadwaj has denied all of such allegations stating that the Republic TV has not even revealed any source for the letter allegedly written by her, thus it might as well be fake news.

She further quoted that,

“In my opinion the present malicious, motivated and fabricated attack on me is because I recently addressed a press conference in Delhi to condemn the arrest on 6 June of Advocate Surendra Gadling. The Indian Association of People’s Lawyers (IAPL), an organisation of lawyers has also strongly taken up the issue of other lawyers such as Advocate Chandrashekhar of Bhim Army and Advocate Vachinathan…Also very recently the IAPL had organised a fact finding into the difficulties faced by lawyers in Kashmir.”

In light of these allegations, Bharadwaj has further sent a legal notice to Arnab Goswami and Republic TV.

What is defamation?

• As mentioned in 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 imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.

The Indian Penal Code further defines “Defamation” through various explanations: 

Explanation 1.- It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives. 

Explanation 2.- It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. 

Explanation 3.- An imputation in the form of an alternative or expressed ironically, may amount to defamation. 

Explanation 4.- No imputation is said to harm a person’s reputa­tion, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgrace­ful.

• Section 500, of the Indian Penal Code defines punishment for defamation. It states that, “Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.”

• In India, defamation is of two kinds- Civil defamation and  Criminal Defamation:

The remedy for a Civil Defamation is defined under the ‘Law of Torts’. In a civil defamation case, a person who is defamed can either move to High Court or subordinate courts and seek damages in the form of monetary compensation from the accused. 

Whereas, in a Criminal Defamation case, IPC Sections 499 and 500 state that a person guilty of criminal defamation can be sent to jail for  two years.

Necessary Elements of Defamation and its exception:

Defamation statement must be in a spoken or written or published or visible manner and must be false and must have injured directly or indirectly to the reputation of an individual or his family members or caste and lowers the moral of the victim and statement is unprivileged statements. 

Further, the following statements have been mentioned as exceptions to the crime of Defamation as mentioned under Section 499 of the Indian Penal Code:

• Any truth statement made in public interest;

• Any opinion given by the public in respect of conduct of a public servant in discharge of his functions, his character appears;

• Conduct of any person touching any public question;

• Publication of any proceedings of courts of justice including any trial of court and judgment.

Why are Section 499 and 500 of IPC challenged?

Section 499 of the Indian Penal Code states that anyone whose reputation has been defamed or damaged by someone else or some material in question has a right to sue for Defamation.

However, it is often argued that this section and Section 500 of IPC, stating the punishment for defamation are violative of the Right to freedom of speech and expression as provided under Article 19 of the Indian Constitution as a  fundamental right.

What is the view of the Supreme Court on defamation?

The Supreme Court had ruled in 2016 that the criminal provisions of defamation are constitutionally valid and are not in conflict with the right to free speech.

The court had further stated that notwithstanding the expansive and sweeping ambit of freedom of speech, as all rights, the right to freedom of speech and expression is “absolutely sacrosanct” but “is not absolute.” It is subject to the imposition of reasonable restrictions. It also said that the reputation of a person is an integral part of the right to life granted under Article 21 of the Indian Constitution and it cannot be allowed to be crucified at the altar of the other’s right of free speech.

“Freedom of Right to speech and expression does not confer any right to a person to trample the reputation of others…Defaming a person amounts to offence against society and the government is entitled to lodge a case against a person under criminal defamation law,” said the SC in its 2016 landmark verdict of Subramanian Swamy v. Union of India.

 

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