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Key Takeaways

  • Defined under Section 499 of the Indian Penal Code,1860.
  • Acts as a restriction on the freedom of speech and expression guaranteed under Article 19.
  • Defamation can be written (libel) or spoken (slander).
  • Punishable with simple imprisonment up to 2 years or fine or both.

Introduction

The Constitution of India, under Article 19 protects the right of freedom of speech and expression of the citizens. But no right is absolute. Certain restrictions have been placed on this right as per Article 19(2), and one of them is Defamation. If the Right to freedom of speech and expression is used to defame a person, then such right can be curtailed.

Defamation is both a civil tort(punishable by awarding damages) as well as a criminal offense (punishable with imprisonment). As a civil tort, defamation is punishable under the law of torts and as a criminal offense under the IPC.

Section 499 of the Indian Penal Code 1860 defines defamation. Any person, either through his words spoken, written, or by signs or representations or publication of imputation that harms the reputation of any other person is said to have defamed that person.

Libel is defamation that is in written form while slander is defamation made orally. But under the Indian Penal Code, no such distinction is made.

Section 500 contains the punishment for defamation, which is simple imprisonment for a term that may extend to 2 years or fine, or both.

Defamation of the Dead

Section 499 also provides for cases where a person defames another who is dead, either by means of writing, speaking, gestures, or others. Such defamation of deceased persons will also be an act of defamation, as such an accusation or statement would have lowered his reputation if he was alive, and would harm the reputation of his relatives and close family.

Recently, In the case ofBabuji Shah vs. Hussain Zaidi and others [SLP(c) 15711/2021], the Apex court dismissed a petition seeking the stay of the Alia Bhatt movie ‘GangubhaiKathiwadi’ which was filed by the alleged adopted son of Gangubai. The authors of the book ‘Mafia Queens of Mumbai’ on which the movie is based, were made respondents as well. The ‘son’ alleged that the movie portrayed his ‘mother’ as a brothel runner, and prostitute, thereby lowering her reputation in the eyes of the general public.

The learned judges held that for maintenance of an action in the tort of defamation, certain conditions are to be satisfied for securing relief, them being:

(I) The applicant for interim relief has to be near a relative or a member of the family of the deceased who was defamed

(II) The allegations or statements made about the deceased or their family and relatives must be untrue.

(III) The statement or allegation must lower the reputation and character of the deceased in the eyes of the general public.If the character of the deceased is not lowered, and merely hurts the sensibilities, then it would not amount to defamation.

In this case, the petitioner was unable to prove that he was related to Gangubai, and the Court held that the movie would prima facie fall within artistic expressions

Essentials of Defamation

(i) How the Imputation is made

The imputation that has been made should be communicated to some person other than the person about whom the remark is made. This forms the essence of publication as given in Section 499. The imputation may be communicated by means of words either spoken or written, via signs, or through visible representations.

(ii) Against whom the imputation is made

The imputation made must be against such persons or particular persons whose identity is capable of being established. Defamation can also be against a company, association, or class of people, in which case such class must be well defined, determinable, and definite.

(iii) Intention to cause harm –

The Imputation should be made with intention of harming or with the knowledge that such an imputation would lower the reputation of the person in all possibilities. It is enough to prove that the person who made the Imputation had reasons to believe that the remark made by him would harm the person’s reputation. Thus,Mens Rea is an essential ingredient in the offense of criminal defamation. It is inconsequential as to whether the other person actually suffered any harm from this lowering of reputation.

Exceptions provided under Section 499

Section 499 prescribes certain situations where the alleged false statement made against the said person does not amount to defamation.There are 10 such exceptions provided under this section. Let us examine them one by one.

  • Imputation of truth required to be made for the public good

If the statement or allegation made against the person is trulymade for the public good at large, then such an act does not amount to criminal defamation. It is pertinent to note that 3 essentials are to be fulfilled to claim this exception. Firstly, the statement made must be absolutely true, secondly, the statement must be made in the public interest, and lastly, the allegation/statement must be published. If these conditions are satisfied, then it does not amount to defamation.

  • Fair criticism of the public conduct of a public servant.

If the statement made is in criticism of the discharge of duties by a public servant during his course of work, then such an act of criticism of such conduct and character when such discharge appears to be wrong, does not amount to defamation.

For instance, if A makes a statement that B, who is a government officer, has failed to discharge his duties effectively and is poor at his job, genuinely believing it to be so, then such a statement is exempted

2 conditions are to be satisfied in order to avail of this exception:

1.Criticism must be honest and fair.

The statement or allegation made against the public officer, criticizing his manner of work, character, and conduct, must be honest.If the opinion made proves to be unfair and wrong, then it will be deemed as criminal defamation.

2.Must be a Bona fide Statement

The statement, view, or allegation made by the person, must be Bona Fide, i.e., made in good faith.If the comment made is Mala Fide, i.e., made with bad faith/with the intention to deceive, then such statement or view would amount to defamation under the Act.

  • Statement made on the conduct of public persons (except public servants)

Views expressed, statement made by a person on the conduct of any public person (not a public servant), who discharges any public function, does not amount to defamation, if such statement is Bona Fide and Fair.

Case Law

The Apex court in the case Google India Pvt. Ltd. v. Visakha Industries, [2019 SCC OnLine SC 1587], where an article was published by a group under Google, with the caption Poisoning the system, which made allegations against VisakhaIndustries. The article also mentioned the names of many politicians, and linked them to Visakha Industry, while in reality they were not related. The Supreme Court held that some parts of the article could be construed as defaming, and thus Google has to face trial.

  • Reporting Proceedings of Court

Publishing the judgment or proceedings of any court of law does not amount to defamation as long it is true and accurate.

  • Comment on Cases

Publishing information with regard to the merits of a case, and regarding the conduct of persons who were witnesses in the case made Bona Fide, will not amount to defamation

  • Literary criticism

Expression of view or opinion regarding any book or literary work of any author, which the author has submitted to the public for their judgment, will not amount to defamation.

To avail of this exception, it is essential that the author has expressly submitted his work to the general public. If the author has neither by his acts nor expressly submitted it, then the act will be deemed as defamation.

  • Censure by One in Authority

If a person, by law or by rights arising out of a contract has lawful authority over a person and condemns or criticizes the conduct of such person in good faith, then such conduct does not amount to defamation. For instance, teacherscensure students in class in good faith.

  • Complaint to Authority

Any person who possesses authority over another, accuses such person, then such an act will not amount to defamation as long as it is Bona Fide

Case Law

The Supreme Court in Kanwal Lal vs State of Punjab [1963 AIR 1317], held thatin order to avail this exception, the publication has to be made before the authority of law, and as per the provisions of the Punjab Gram Panchayat Act 1952, Panchayats only have jurisdiction and does not possess lawful authority.

  • Imputation Made in Good Faith for the Protection of Interests

Accusations or imputations made with the intention ofprotecting the interests of oneself, then it does not amount to defamation. For instance, if an employee who is entrusted with the responsibility of preparing reports on his subordinates, makes any accusation or imputation on any employee, then such imputations will not be defamation.

  • Caution in Good Faith

If any caution is made in good faith or in the interest of the public, then it would not fall under defamation

Conclusion

The Constitution of India has secured its citizens, certain rights, which they can exercise, but within certain prescribed limits.The right to freedom of speech and expression is no exception to it.With landmark judgments such as Ram Jethmalani v. Subramanian Swamy[AIR 2006 Delhi 300], the courts have held that defamation acts as a check on Article 19, with the intent to protect people’s reputations. But at the same time, the public opinion is that the main effect behind this offense is to act as a hindrance to free speech and favors the powerful. Whether the law requires a change or not, is a matter of constant debate.


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