Civil And Criminal Defamation - A Crime Against Honor

KEY TAKEAWAYS

• Defamation is the act of conveying false proclamations about an individual that harm the reputation of that individual when seen through the eyes of a layman.
• Defamation is an offence under both civil and criminal law. In civil and criminal law, defamation is punishable under the Law of Torts and IPC respectively.
• The constant conflicts between the right to reputation and the right to free speech with one another and the need to maintain a balance between them.

INTRODUCTION

Defamation alludes to the act of harming somebody's standing by making misleading or vindictive expressions about them. This can be as composed or verbal correspondence and can have serious legitimate outcomes if it is proven in a court of law.

Defamation in layman's language is the publication of any such content that brings down the reputation of an individual in front of general society. In this way, when we say something or post anything regarding any individual that lets down his standing in society and the public trusts it to be valid then it is called defamation. It can happen through expressed words or motions, or some other such form known as slander and if it's in the verbal or printed structure, it will be known as libel.

Defamation regulations in numerous countries are at risk of being abused, be that as it may, India's condition is more awful in such a manner than most of the other nations. Notwithstanding the way that they are erratic, they exacerbate it by the extra step of making defamation a criminal offence and paving the way for individuals with influence and cash to abuse the same.

The right to reputation has been considered as a right by the Supreme Court yet it ought not be at the expense of the right to speak freely of discourse and expression. Currently, free discourse is a fundamental piece of democracy, it is our entitlement to scrutinize the public authority and right to get the responses of the same, it gives the media the option to uncover the actions of the govt and hold a person responsible for specific acts. The right to offend with reasonable limitations ought to be safeguarded by the right to speak freely of discourse. 

HISTORY

Defamation regulations in India were first brought about by lord Macaulay in 1837 inside the main draft of the Indian penal code and eventually codified in 1860. The offence of defamation was along the indistinguishable lines of the then-prevailing English law. In British India, the goal of making defamation a criminal offence was unquestionably to safeguard the interests of the country Raj, the security of the state, and public order.

Article 21 in the Indian Constitution is a part of the fundamental rights and guarantees an individual's right to live with respect, protecting their reputation, esteem, and so forth. Moreover, Article 19 of the Indian Constitution awards Indian citizens the right to speak freely of discourse. However, Article 19(2) stipulates that the state must enact ‘reasonable restrictions,’ such as India's defamation laws, to put certain restrictions on this right.

In India, defamation is categorized as either criminal or civil suits, and both types are covered by the Indian Penal Code (IPC) and the Code of Civil Procedure (CPC).

THE CIVIL LAW OF DEFAMATION

DEFAMATION UNDER TORTS

Civil defamation includes filing a lawsuit to seek compensation for harms brought about by defamatory statements. The Civil Procedure Code specifies defamation as any statement that hurts an individual's social standing or brings down them in front of the public. The obligation to prove in civil cases is on the offended party to demonstrate that the assertions were made with vindictiveness and truly hurt their social standing or livelihood.

1.The presence of a defamatory statement is required. Defamatory content is one determined to harm the social standing of an individual or a class of people by exposing them to contempt, hatred, or mocking. The test of whether it harms the public image or livelihood of a person must be determined from the eyes of a layman and his perception of the matter.

• In the case of Ram Jethmalani v. Subramanian Swamy (2006), the Delhi High Court decided that Swamy's claims with regard to the way that Ram Jethmalani had gotten financing from a precluded association to help Tamil Nadu's chief minister in the Rajiv Gandhi assassination case were slanderous.

2.The statements must purport to a person or a class of persons. General statements that vaguely ridicule a large section of people are too broad and no specific person can gain compensation for the same.

• The Delhi HC in Harsh Mendiratta v. Maharaj Singh said that an action for defamation was maintainable only by the person who was defamed and not by his friends or relatives.
• In Maulik Kotak versus state of Maharashtra, 2014, the Bombay High Court held that a defamation complaint is to be filed by the individual oppressed and the individual slandered and not by some other individual.

3.It should be published either in oral or written structure. Except if the statement is made accessible to a third individual, there can be no defamation. When a letter is sent in a language obscure to the beneficiary, he wants a third individual's help to read it to him. If any defamatory statement is made in it, it will comprise defamation regardless of whether it was sent as a confidential letter, since the guide of a third individual was needed to understand it.

1. In the case of Mahender Ram v. Harnandan Prasad, it was said when a defamatory letter is written in Urdu to the plaintiff and he doesn’t know Urdu, he asks a third person to read it, it is not defamation unless it was proved that at the time of writing the letter the defendant knew that Urdu was not known to the plaintiff.

WHAT IS THE DEFENCE OF THE OFFENCE?

It is hard to accept that every one of the suits found for Slander is successful, as, in a few cases, the Court has likewise engaged specific safeguards against such allegations. Therefore, the accused party can make defences based on certain concepts, which are:

1.Justification or Truth: Truth is a direct and outright defence. It does not establish defamation if the given statement is true. The burden of proof is on the respondent who is ensuring the assurance that the said or made statement is true.

• The court ruled that the statements made by Arvind Kejriwal and his five pioneers were defamatory in the case of Arun Jaitley v. Arvind Kejriwal. Here, when Arun Jaitley was the head of the Delhi District Cricket Association, AAP leader Arvind Kejriwal and 5 of his colleagues made allegations against Jaitley pointing out the discrepancies in the financial matters of the association. The matter was finally uncovered, and the defendants could not prove it to be true. All the disputants apologized for their actions.

2.Fair comment: Nothing is defamatory which is a fair remark in the issue of public interest. The respondent can profit from this shield when he has just offered a sensible comment on an issue of public interest. Any sensible and genuine evaluation of an issue of public interest is likewise secured in spite of the fact that it's evident or not.

• In Tushar Kanti Ghosh v Bina Bhowmick (1953). A newspaper in the name of Amrit Bazar Patrika published statements like ‘daylight robbery’ in their newspaper which were factually incorrect. The defence of fair comment was defeated as they were untrue statements.

3.Privilege: The law treats certain situations as privileged when it also recognizes the plaintiff's right to freedom of speech and the plaintiff's right to reputation. There are two types of privileged situations: 

• Absolute privilege is that no activity lies for a defamatory statement even though the assertion is misleading or made vindictively. Parliament privilege, judicial proceedings, and state communication provide for this. 
• Qualified privilege is essential, and it should be accommodated without malice. The respondent needs to prove that the assertion was made on a privileged occasion reasonably.

4.In the case of Horrocks vs Lawe, it was held that however irrational it was to make assumptions and make defamatory statements against the plaintiff, but if he believed in the authenticity of what he said on privileged occasions, then he was entitled to the defence of privilege.

CRIMINAL LAW OF DEFAMATION

Under criminal defamation, people can be accused of an offence punishable by imprisonment or a fine. According to the Indian Penal Code (IPC), defamation is any statement or representation that lowers a person's reputation in the eyes of the public or causes them to be ridiculed, hated, or despised. A complaint can be filed with the police, and if the complaint is found to be true, the accused can be punished with imprisonment for as long as two years or a fine.

Section 499 of the Indian Penal Code, 1860 explains what defamation and its exemptions are. Words or signs attributed to hurt someone or such words or actions that are believed to cause harm amount to defamation. If something is said about a deceased person that would have hurt their reputation had they been alive, it could be considered defamation. The class of people mentioned in the section will include companies or associations. It is no defamation except if the supposed abusive assertion either directly or by implication brings down the moral or intellectual character with regard to his caste or his social image in the perception of others.

A person who claimed to be Gangubai's adopted son in a defamation lawsuit involving a deceased person who is Gangubai herself made a request to the Supreme Court for a stay on the release of the film ‘Gangubai Kathiawadi,’ but the request was recently denied by the court. The man claimed that the depiction of his deceased mother as a prostitute, brothel proprietor, and gangster in the film harmed the public image of his mother.

SECTION 499 0F IPC

When someone makes or publishes a false statement, accusation, or imputation about another person, whether through words, oral communication, visual cues, or any other means, it is considered defamation under Section 499 of the Indian Penal Code. This section finds a sort of balance between defending one's social standing and protecting the fundamental right of freedom of speech elucidated under Article 19(1)(a) of the Constitution.

5.In the case of Subramanian Swamy v. Union of India, a solicitation concerning the decriminalization of defamation was filed. The request tested the established authenticity of sections 499 and 500 of the Indian Penal Code, 1860 is a strange limitation on the freedom of speech and expression.

WHAT AMOUNTS TO DEFAMATION?

1.  Making misleading statements and conveying them to a third party.
2. This bogus statement ought to hurt the plaintiff's reputation. 
3. This false statement should for sure be untrue, i.e., if a statement is a simple articulation of opinion or depends on truth, it probably won't be defamatory. 
4. Presence of malicious intent.
5. It should be made either verbally, in writing, through rough signs, or by visual portrayals.

Section 499 deals with the definition of defamation and certain situations where making a false remark about another person does not constitute defamation. Defamation is exempted from the following situations:

1. Truth for the Public good: False statements made or published about a person are not considered defamatory if their disclosure serves the public interest.
2.  Conduct of public servants: Making opinions in good faith about the way of behaving of a public servant in their authority or their personality as appeared in such way of behaving isn't defamation. In any case, this protection extends out to their conduct and character as revealed in their public roles.
3. In Radhelal Mangalal Jaiswal v. Sheshrao Anandrao Chap (2011), the Bombay High Court expressed that any remark voiced sincerely by a govt servant while taking part in the execution of his obligations wouldn't be viewed as defamation.
4. Conduct of any person touching any public question: Making opinions with honest intentions about the conduct of an individual connected with a public issue, as well as opinions about their personality connected to that conduct, doesn't add up to defamation.
5. Publication of reports of proceedings of courts: Publishing of factual reports on the judicial pronouncements or proceedings of courts does not amount to defamation.
6. In Annanda Prasad v Manotoran Roy, it was held that it isn't required under this exemption that the procedures of the court ought to be published consistently. The publication need not be valid word by word, but rather ought to give a considerably evident record of the procedures.
7. Case remarks: It is not defamation to express opinions honestly regarding the merits of a legally resolved case or the actions of parties, witnesses, or agents.
8. Literary analysis: Offering opinions sincerely about the nature of a creative work that its maker has introduced to the public or discussing the maker's personality, as clear in the work, doesn't add up to defamation.
9. Censure by one in power: It is not considered defamation for an individual who holds authority over another, either by regulation or through a legitimate agreement, to communicate genuine analysis with respect to the conduct of the other individual in issues pertinent to that power.
10. Complaint to power: Making an allegation against a person sincerely and with legal grounds to an approved authority over the accused concerning the topic for the allegation isn't defamation.
11. Kanwal Lal v. the State of Punjab: For this case, it was noticed that the protection to fall under exception 8, the publication should be made under the steady gaze of the power of regulation. Regarding the Punjab Gram Panchayat Act, 1952, which gave the Panchayats sole authority, neither the District Panchayat Officer nor the Panchayat had such legal authority.
12. Imputation for Protection of Interests: It isn't defamatory to make an imputation about someone else's personality, provided the imputation is made sincerely to safeguard the interests of the individual making it, someone else, or the public good.
13. Caution in sincere trust: Passing a caution sincerely on to one individual regarding someone else, to help the beneficiary of the caution, somebody associated with them, or the overall public good, doesn't constitute defamation.

SECTION 500 OF IPC

If an individual is sentenced for defamation under section 499 of the IPC, the punishment is determined in section 500, which incorporates imprisonment for as long as two years a fine, or both.

SECTION 501 OF IPC

Section 501 of the Indian Penal Code prohibits the printing of defamatory material. It expresses that anyone who prints or imprints a matter of defamatory nature, knowing or having reasons to believe that such a matter is defamatory, would harm the individual's social standing and carry humiliation and shame to their character. This section provides a sentence of two years in jail, a fine, or both.

•    D.P. Choudhary v/s. Manjulatha: A publication was made in the local paper, Dainik Navjyothi that the plaintiff, a 17-year-old college girl eloped with a boy after she left the house by saying she was having extra classes. This bogus news affected her marriage possibilities adversely. It was actionable as such and she was granted damages of Rs.10000/ - via general damages.

SECTION 502 OF IPC

Any individual who sells or plans to sell any printed data that he knows or has reasons to believe that incorporates abusive material is culpable under section 502 of the Indian penal Code. The punishment will be either a fine or imprisonment that can be extended to two years. Both can be applied in some cases.

RIGHT TO FREE SPEECH VS RIGHT TO REPUTATION - FREQUENT OPPONENTS

One of the most important aspects of liberty that is an essential component of genuine democracy is the right to free speech and expression. Because democracy is a form of government that is elected by the people, for the people, and to the people, it is very important to give people the right to express their opinions about social, economic, and political issues. The freedom of the press also conflicts with the law of defamation as various news about various people are written daily even without proper verification of the authenticity of the source.

The right to reputation and the right to free speech frequently conflict with one another because the right to free speech of an individual might abuse the right to the reputation of another person. At the point when an individual purposefully makes or publishes such remarks about a person which can hurt his/her social standing, then, at that point, it adds up to the encroachment of the right to reputation of the person. The Supreme Court has on numerous occasions tended to the contention between both the rights and has stressed the need to adjust the right to free speech under Article 19(1)(a) with the right to reputation under Article 21 of the Constitution.

10.In the Supreme Court landmark judgment case of Shreya Singhal vs UOI, Section 66A of the Information Technology Act, 2000 this is toppled by the Supreme Court in the year 2015. The penalties for sending ‘offensive’ content or messages from any computer, smartphone, or other electronic device are covered by this law... Because it was unclear where it stood on the issue, the government began using the term "offensive" as a sword to suffocate freedom of expression. The whole section was toppled by the Supreme Court in 2015.

11.Chintaman Rao vs. the state of Madhya Pradesh: The High Court explained the significance of "reasonable restrictions" forced in Article 19 (2). It suggests shrewd consideration and thought and that is expected considering a legitimate concern for the public.

CONCLUSION

Reputation is a priced possession for everyone. This asset can be legally mended in the event of any damage. To stop people from maliciously exercising their right to freedom of speech, defamation laws have been enacted. The Indian regulation has appropriately not made any distinction between libel and slander. Any other way there might have been opportunities for committing defamation and getting away from the regulations that there is no written publication of issue.

In this present world where the opportunity to present opinions is praised, the idea of defamation defines an ideal boundary to keep up with the harmony between the two. From high-profile controversies to ordinary interactions, the significance of defamation has increased currently. It coordinates people not to abuse their freedom of speech and articulation. It adds to keeping up with social congruity and dissuades malignant aims by safeguarding the reputation of people.