What is defamation?
From protecting a human being’s dignity to being used by authoritative figures as leverage to restrain criticism, defamation has come a long way today. Defamation is explained in Article 19(2) of The Indian Constitution.
Defamation is “the publication of a statement which reflects on a person’s reputation and tends to lower him/her in the estimation of right-thinking members of society generally or tends to make them shun or avoid him/her.”
Defaming is vilifying someone in a public forum in such a manner that even reasonable people start thinking less of them due to those accusations. Defamation is often false or misleading. It could be spoken or written. When one defames another, they intend to harm someone’s otherwise good reputation.
Right to Reputation
Reputation and dignity are indispensable in a person’s social life; they influence all other aspects of their lives. Article 21 of the Constitution inherently guarantees the Right to Reputation. It is a natural right i.e. it is universally applicable to all individuals across the world, notwithstanding which country or community he or she belongs.
Although Article 19(1)(a) does guarantee freedom of speech and expression, it is not an absolute right. Reasonable restrictions are imposed on the abovementioned right to protect the welfare and security of the state. Defamation laws only intend to defend an individual’s private interest and reputation.
History of Defamation Laws in India
Laws related to defamation were formulated by Lord Macaulay in the first draft of the Indian Penal Code in 1837 and later codified in 1860. It was inspired by the then prevailing British Law. The motive behind criminalizing defamation was protecting the British Raj’s interest and also to maintain public order. Over the years, many countries like the UK, the US, and Sri Lanka have decriminalized defamation but the law in India accept of the public order part has remained unaltered for the last 160 years.
Although in 1998 when Rajiv Gandhi was Prime Minister of India, his party fell under the scanner for the Bofors scam, the parliament attempted to introduce a defamation bill to include new offenses such as criminal imputation and scurrilous writings. They wanted to shift the burden of proof to the accused instead of the aggrieved. The bill ultimately collapsed in the Rajya Sabha due to a nationwide protest by newspaper journalists. The press statement released soon after claimed to uphold the freedom of the press since they played an important role in the democratic system of our country.
It said, without a free press, there can be no democracy. The imperishable values of our freedom struggle have gone into the making of the press in India. We uphold this legacy”.
Legal procedures and Remedies available
Defamation can occur in mainly two forms: slander and libel. Slander happens when one defames another through spoken words or gestures etc. Libel, on the other hand, is in written or printed form.
In India, defamation is a civil as well as a criminal offense. Civil defamation comes under torts. Here, the punishment is damages awarded to the claimant; which is normally in monetary form.
Criminal, Defamation, on the other hand, is stated in Section 499 of the Indian Penal Code, 1860. Criminal Defamation is a bailable, non-cognizable offense (police authorities cannot investigate without a warrant). It is a compoundable offense since it is comparatively less serious i.e. charges can be dropped if the victim and accused enter into a compromise.
Essentials for defamation: For a statement to be considered as defamation it needs to fulfill the following criteria:
- It should be false
- The content in question should be directly or indirectly injurious to the victim’s (o people related to the victim) reputation in a reasonable man’s eye
- It cannot be a general statement like all politicians are corrupt; it has to address a particular group/ person.
- The content should be published i.e. it has to be seen by someone other than the petitioner/ victim. Here in the case of libel, the defendant also must be able to foresee that it could be seen by someone else.
The abovementioned elements are enough to file a civil suit. The defendant has two options either plead for a privilege or take up a defense. Libel is actionable without any proof since it is in writing. For Slander, on the other hand, the victim needs to prove the special damages have occurred as it could also be staged or prevocational.
In the case of a criminal suit, the intention to defame plays a very important role to convict someone. The accused must know that publishing it would be defamatory and it should be beyond a reasonable doubt.
The burden of proof in defamation falls on the plaintiff. The jurisdiction can be anywhere the impugned publication was circulated. This clause has been increasingly controversial; one might infer that in this digital age where the extent of circulation is beyond imagination, this clause is exploited heavily by politicians.
Punishments and Exceptions: Punishments for Criminal Defamation are iterated in Section 500 of the Indian Penal Code. Punishments can be simple imprisonment for up to two years or a fine of both.
However, certain exceptions like statements made in the public interest, the publication of court proceedings, opinions directed at a public servant’s work, etc. are not criminative.
Common Defenses for Defamation include the truth of a statement, special privilege (government officials and judges during discharge of duty), and any fair comments or remarks made by a reasonable person or publication among others.
The debate over Decriminalizing Defamation
Supreme Court lawyer Gautam Bhatia in his book “Offend, Shock or Disturb: Free Speech under the Indian Constitution” has earnestly contended that the concept of criminal defamation is a product of medieval England and should not in use anymore.
Article 19 guarantees the freedom of expression to all its citizens but a vague description of the term reasonable restrictions has caused a lot of ambiguity and defamation laws often have a harsh effect on this provision. Defamation laws are often called a relic of the colonial period. Its age-old laws are almost obsolete in its function and are now being used by influential people as a means of extortion.
Various exceptions have been provided under article 499 but they are very ambiguous and sometimes depend too much on the discretion of the Court. Even if a statement is true, whether it was made for the public’s good has to be assessed by the court itself which is arbitrary and can be misused. A person can be summoned by the magistrate for a criminal proceeding based on a mere allegation that the said defendant was also involved with the person who made the derogatory remarks. One can be prosecuted for statements made about the dead and for ironical remarks.
Another major dilemma is the trial period, a majority of these cases especially civil petitions are stretched for several years due to the long procedures. This is misused by influential people who have the resources to sustain for a long period to intimidate people who might speak out against them.
There is also a lack of proportionality tests to check if the compensation charged is in proportion to the seriousness of the crime.
The Court also has to address increasing concerns regarding the use of Strategic lawsuits against public participation (SLAPP) suits by multinational companies. SLAPP is a device used by MNCs and NCs to limit free speech and strategically influence governmental decisions.
It is also infamous for its cunning methods to misuse criminal defamation suits to silence, cause inconvenience, and control human rights activists and journalists. They misuse the long procedural issue in Indian courts. They are not meant to actually succeed but to merely outspend or intimidate them into submission. The main areas where SLAPP suits are prominent are environmental RTIs and consumer litigation.
Decriminalization of defamation was up for an extended debate in 2016. BJP leader Subramanian Swamy filed a petition against the petitions criminalizing defamation. The sections in the provision were often in violation of many fundamental rights including Article 14, 19, and 21.
The bill received the support of many prominent leaders like Rahul Gandhi and Arvind Kejriwal. Biju Janata dal MP Tathagata Satpathy also introduced a private bill called The Right to Protection of Speech and Reputation Bill to bring reforms in defamation laws.
In May 2016 the Supreme Court upheld the validity of criminal defamation in Subramanian Swamy vs. The Union of India [Writ petition (Criminal) No. 184 of 2014] stating that it did not violate the freedom of speech. The apex court added the restrictions in Section 499 and 500 of the IPC were reasonable restrictions on the freedom of speech to all its citizens including journalists. The court said that although one should tolerate criticism they should be guarded against defamatory attacks.
Why should a meager private offense such as defamation have criminal implications? The matter is strictly between the victim and the offender. It is not a grave offense like murder or homicide where society at large is in danger.
Defamation laws are essential to protect the dignity of an individual and the state should take necessary measures. Renowned journalist Prannoy Roy has advocated for regulation of journalism by the judiciary to maintain the standards of Indian journalism. He iterated that such laws must keep a check on false news because if not regulated news agencies will lose credibility over time.
Many people have benefitted from the laws too. ISRO scientist Nambi Narayan who was wrongly implicated and arrested in 1994 was given a compensation of 1.3 crores by the Kerala government.
Lawmakers should also ensure that the law does not commoditize reputation. Reducing the time duration to address cases related to defamation, pre-summoning of evidence, and removing the option to compromise for criminal cases can help tackle SLAPP suits. This will also ensure people do not misuse the law and hold them more responsible. The essentials and defenses provided should also be more clearly elaborated.
The scope of defamation laws has reached new heights in the era of technology and #Metoo. Provisions against harassment bullying are increasingly necessary in the world of technology but not at the cost of freedom of speech. Although Section 66(A) of the IT Act, which used to criminally implicate online defamation has been revoked cops are still using the provision to arrest people. Section 66 (A) was being misused by the government to regulate online criticism.
Many accused of sexual harassment in the famous #Metoo imbroglio have taken the defense of defamation. The #Metoo movement had irreparable damages on many people’s reputations some of them who claim to be innocent. Recently politician MJ Akbar also filed a suit against a journalist who had accused him of sexual harassment. Defamation laws have a huge scope of being misused.
One can never really know the truth so laws have to be formulated in such a way that there is a balance is maintained and both freedom and speech and dignity of individuals are preserved.
Frequently asked Questions
The offense of Defamation lies in which area of law?
In India, Defamation is a civil as well as a criminal offense, it’s upon the discretion of the petitioner in which area he wants to implicate.
What are the remedies available?
For a civil suit, fines can be levied and for a criminal suit, one can either levy a fine or imprisonment up to 2 years or both.
Can a criminal defamation charges be dropped?
Yes, since it is comparatively less serious offense charges can be dropped if both parties enter into a compromise.
Is Section 66 A of the IT act still valid?
No, Section 66 A of the IT act was revoked in 2015.
Edited by Shikhar Shrivastava
Approved & Published – Sakshi Raje