Defamation, which works contrary to the popular rhyme, “Sticks and stones will break my bones, but words will never hurt me”, was derived from the Latin term ‘Diffamare’ which means ‘spreading evil report about someone’. The offence of defamation involves causing damage to the reputation of the other. Reputation plays a vital role in every individual’s life and is often given the foremost preference. It is the zest to earn a name in the respective fields that encourages one to work towards it, do great things and face risks.
Justice Cave therefore very rightly defined defamation as a “false statement about a man to his discredit.”[1]
Salmond and Heuston on the Law of Torts, 20th edition defined a defamatory statement as under-
“A defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers; which tends, that is to say, to lower him in the estimation of right thinking members of the society generally and in particular to cause him to be regarded with feelings of hatred, contempt, ridicule, fear, dislike or disesteem. The statement is judged by the standard of an ordinary, right thinking member of the society.”[2]
The right to reputation[3], which is recognized as a dimension of the right to privacy, fundamental right under Article 21 of the Constitution of India[4], is what is protected by the law of defamation. Reputation is how a person is perceived by others, i.e. the opinion of the community against a person. The Supreme Court in a landmark judgment held that an individual has a right to protect his reputation from being unfairly harmed and such protection of reputation needs to exist not only against falsehood but also certain truths.[5] Intention to cause harm to reputation of a person is sine qua non of the offense of defamation.[6]
Reputation is a cherished constituent of like and is not restricted in time. The importance of reputation can be traced back to the Bhagawad Gita, Holy Quran and Holy Bible. While the interpretation differs and is stated in different contexts, yet the importance if reputation has been stressed upon.
Famous thinkers and philosophers have elaborated upon how reputation is an essential to all beings. Aristotle once said-
“Regard your name as the richest jewel you can possibly be possessed of – for credit is like fire; when once you have kindled it you may easily preserve it, but if you once extinguish it, you will find it an arduous task to rekindle it again. The way to gain a good reputation is to endeavor to be what you desire to appear.”
In India, Defamation is recognized both as a civil wrong and a criminal wrong. While the civil law is not codified, the criminal law on defamation is codified under Section 499, punishable under Sector 500 to 502 of the Indian Penal Code, 1860.
Section 499 of the Indian Penal Code, 1860 reads as follows-
“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.”[7]
Therefore, the essential elements which constitute defamation are-
1. Publication of words, spoken or written or signs or any visual representation;
2. With the intention or belief that such imputation would lower the estimation of such a person.
3. Such defamation is done before the right thinking members of the society.
Publication which is the primary sense of communication becomes one of the most important factors in suit for defamation. It is publication through which the third party gets to hear or come to know about the alleged defamatory imputations. Such a publication could be done in 2 ways-
a. Libel– This is words written
b. Slander– This is words spoken, thus temporary in nature.
This distinction was drawn by the High Court for the State of Telangana and Andhra Pradesh as follows-
“13. In common law the origins of defamation lie in the torts of “slander” (harmful statement in a transient form, especially speech), each of which gives a common law right of action. Defamation in the general terms used internationally, libel is in written form. Libel and slander both require publication. The fundamental distinction between libel and slander lies solely in the form in which the defamatory matter is published. If the offending material is published in some fleeting form, as by spoken words of sounds, sign language, gestures or the like, then it is slander.
14. Libel is defined as defamation by written or printed words, pictures, or in any form other than by spoken words or gestures. Thus, criminal defamation may contain either “libel” or “slander”.”[8]
Therefore, defamation is caused by publication of untrue statements about a person with the intention of harming such a person’s reputation. It is clearly the duty of the prosecution to prove affirmatively that the accused published the libel and the defamatory words must be published within the territorial jurisdiction.[9]
The law of defamation seeks to protect an individual’s interest in their reputation. But, it has been greatly modified to ensure that public persons cannot hide behind actions in defamation in order to evade exposure of their actions and public responsibilities for which they are publicly accountable.[10]
For example-A publishes an untrue statement about B, who is a professor in a University, being involved in some corruption activities with the University funds. This causes harm to his reputation, thereby leading to removal from the post of professor at the University.
Explanation 1 to Section 499 which talks about defamation to the deceased reads as follows-
“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.”
Thus, imputing anything to a deceased person may also amount to defamation. The Explanation lays down two postulates-
- the imputation to a deceased person is of such a nature that would have harmed the reputation of that person if he was living and
- the said imputation must be intended to be hurtful to the feelings of the family or other near relatives.[11]
In such cases, it is essential for both the conditions to be fulfilled; else the suit for defamation wouldn’t stand. In addition to this, there should be actual harm caused and not harm which was intended to be caused. This is because, in the case of a deceased person, the latter test is inapplicable.[12]
Explanation 2 of Section 499 which deals with defamation of a Company or Collection of Persons reads as follows-
“Explanation 2.- It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.”
Therefore, a Company has its own reputation.[13] If allegations are raised with respect to conducting the affairs of the company or association, or accusing them of fraud or mismanagement or attacking its financial position, it would amount to defamation.
It is also essential that the collection of persons is an identifiable body so that it is possible to say with precision that a group of particular persons, as distinguished from the rest of the community stood defamed.[14]
For Example- A company which has been running for the past 20 years is now accused of its products not being healthy for human consumption. However, the declaration is based on baseless accusations. Even though the Company was released of the accusations, a newspaper published the story to the alter, thereby making an impression that the product was still dangerous for human consumption. Since, the Company’s product was marked safe for consumption, any such articles were defamatory in nature, as they were untrue and harming the reputation of the Company.
Explanation 3 of Section 499 deals with Defamation by Innuendo and reads as follows-
“Explanation 3.- An imputation in the form of an alternative or expressed ironically, may amount to defamation.”
In this case, the passage or content is prima facie not defamatory and the aggrieved party is required to prove that the words which appear to be innocent are in fact defamatory in the given circumstances and nature of the publication.
Explanation 4 of Section 499 answers what harms the reputation. The Explanations states that-
“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 the person, or lowers the character of that person in respect of his caste or 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 disgraceful.”
The scope and ambit of this explanation too wide and also includes commentspassed on caste and community or passing disgraceful comments. Therefore, indiscriminate circulation of leaflet, accusing the complainant as a ‘sinner’ would amount to defamation. In the case of Shatrughan Prasad Sinha v Rajbhau Surajmal Rathi[15]defamatory and damaging statements were carried out against the Marwari Community in an interview. Apart from defaming the community, also led to outraging the religious feelings of the group. However, since no such specific averments were made in the complaint regarding the imputations which lowered the reputation in estimation of others, the complaint was quashed.
The ratio therefore is that there should be a specific averment to the effect of the imputation in the complaint, affecting the reputation of the complainant; else there would be no ground for proceeding further with the case.
Exceptions Provided in Section 499[16]–
1. Imputation of truth for public good.
2. Public conduct of public servants.
3. Public conduct of public men other than public servants.
4. Comment on cases and conduct of witnesses and others concerned.
5. Merits of decisions and judicial proceedings.
6. Merits of public performances, literary criticisms etc.
7. Censure in good faith by one in authority.
8. Complaint to authority.
9. Imputation for protection of interest.
10. Caution in good faith.
Therefore, stating of facts does not amount to defamation. When the information published is true, even if published with a malafide intention, it wouldn’t amount to defamation. Similarly, if the information published is in public interest, it wouldn’t amount to defamation.
The exceptions to defamation also protect opinions, opinions being different from assertions or averments. However, this opinion must be fair and must contain some substratum of truth. This is done, keeping in mind the right of every individual to pass a fair comment on the acts of public men or matters of public interest.
The element of ‘good faith’ has also been covered under the exceptions. If a person is alleging in good faith, he must prove that before making the allegations, he was satisfied with the truth of those allegations and he acted with due care and attention and that there was no malice on his part.[17]
Accurately reporting what happens in the Court room is also permissible as judicial proceedings are public. Publication of such matters, even though defamatory to some individuals, would not amount to defamation. Moreover, it is the Public’s right to know what takes inside the court and such publication would enlarge the area of the Court.
The exception also protects fair and bonafide comments on matters already adjudicated. However, if the matter is still pending, it shall not be commented upon. However, these comments are restricted only to the merits of the case and must be made in good faith.
Lord Ellenborough once said “Liberty of criticism must be allowed, or we should have neither purity of state or of morals. Fair discussion is essentially necessary to the truth of history and the advancement of science.”[18] Therefore, free and fair criticism of public performances is what is necessary and for the benefit of all. What is required is- the author inviting public criticism which he may do by way of publication; criticism which relates to the merits of the performance; and it being made in good faith.
Another exception to Section 499 is of a complaint made to the Authority. If an accusation is made to a person who is in authority over the accused, and this accusation is made in good faith, it would not amount to defamation.
Balancing the Right to Freedom of Speech And Right to Reputation
Both, Right to Freedom of Speech and Expression[19] and the Right to Reputation[20] are fundamental rights under the Constitution of India; however their co-existence in harmony has always been crucial.
The constitutional validity of Section 499 and Section 500 of the Indian Penal Code and Section 199(1) and Section 199(4) of the Code of Criminal Procedure were questioned in the case of Subramanian Swamy v. Union of India and Others[21]. Several writ petitions were filed under Article 32 of the Constitution of India challenging the constitutional validity of Section 499 and 500 of the Indian Penal Code, 1860 and Section 199(1) and Section 199(4) of the Code of Criminal Procedure, 1973.
The previous two occasions where this issue was left unanswered was in A. Rajagopala v. State of Tamil Nadu[22] and N. Ravi and others v. Union of India and others[23].
It wascontended that the ambit of defamation was limited only to civil actions but not criminal actions and that the provisions under Section 499 and 500 travel beyond the restriction under Article 19(2) of the Indian Constitution and that Clause (2) of Article 19, which imposes reasonable restrictions on Article 19(1) (a) of the Constitution cannot be regarded as a source of authority for Section 499 of the Indian Penal Code which makes defamation of any person an offence.
Another reason why Section 499 should be declared unconstitutional is because it defeats the cherished value as enshrined under Article 51A(b) which is with respect to the national struggle for freedom.
Sections 499 and 500 have within them a presumption of fact as a matter of law and that alone makes the provisions arbitrary. The provisions should therefore be declared ultra vires Articles 14, 19 and 21 of the Indian Constitution.
Court’s Observation and Finding
Balancing the two fundamental rights of Right to Reputation and the Right to Freedom of Speech and Expression the Court therefore upheld the constitutional validity of Sections 499 and 500 of the Indian Penal Code and Section 199 of the Code of Criminal Procedure.
Punishment for Defamation Under Section 500, 501 And 502, Indian Penal Code, 1860
The punishment for defamation has been defined under Section 500 of the Indian Penal Code. It reads as follows-
“500. Punishment for defamation— Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.”
Therefore, a suit for defamation where the person is held guilty of defamation shall be punished with a simple imprisonment of 2 years or fine or both. The offense of defamation is a non-cognizable, bailable offence.
Section 501 and 502 of the Indian Penal Code, 1860 specifies punishment for printing or engraving matter which is known to be defamatory or selling such substance containing the defamatory material. The offense is both the situations is a non-cognizable bailable offence which is punishable with simple imprisonment which may extend to 2 years or fine or both.
Another celebrated case where the concept of Criminal Defamation has been explained in detail is the case of Swami Ramdev v. Juggernaut Books Pvt. Ltd. & Ors.[24]
The suit was instituted by Baba Ramdev against the author of the book “Godman to Tycoon- The Untold story of Baba Ramdev”, Ms. Priyanka Pathak Narain and M/s. Juggernaut Books Private Limited (the Publisher), M/s. Amazon India, M/s. Flipkart Internet Private Limited, and M/s. Manipal Technologies Limited. The Petitioner contended that the information provided in the book was provided with the intention of representing the facts in a twisted manner against the Plaintiff. Further, the objectionable content written by Defendant No.1 (the writer) was provided in a derogatory manner affecting the Petitioner’s character and tarnishing his reputation.
The Petitioner prayed for an order against the defendants for restraining them from publishing and selling the book, as the same was violating the fundamental right to reputation as enshrined under Article 21 of the Constitution of India.
He further prayed for a decree of permanent injunction order to delete the objectionable paragraphs in the book, and till then, not to distribute or sell the book by any means in the market. The Injunction was also for stopping the defendants from writing any defamatory statements about the Petitioner in future.
Decision
The Courts asserted that Baba Ramdev admittedly being a public figure couldn’t have given the respondent’s a license for his defamation.
After making an individual enquiry into the specific chapters of the book, the Court held that the Petitioner has a right to live with dignity and has a right of social reputation as an ordinary citizen even if he be a public figure, and as reputation is a cherished value and an element of personal security, portions of the book make the readers think that he is an ambitious villain, until so proved in the Court of Law are necessarily to be restrained from being published and distributed for sale till disposal of the suit.
The Court also referred to the judgment of Justice KS Puttaswamy (Retd.) v. Union of India[25] where it was held that the right to reputation is a facet of the right to privacy and thus a constitutional right under Article 21 of the Constitution of India.
In the case of Subramaniam Swamy v. Union of India[26] it was held that the right to honor, dignity and reputation are the basic constituents of the right to life under Article 21. It further categorically observed that “the reputation of one cannot be allowed to be crucified at the altar of the other’s right to free speech and that the balance of the two rights needs to be struck.” Right to reputation was considered to be an inherent component of Article 21 of the Constitution of India.
The Court therefore concluded that the right to free speech cannot mean a citizen can defame the other and protection of reputation is a fundamental right and also a human right and cumulatively serves social interest. It was also observed that-
“it has also been observed to the effect that the submissions that imposition of silence will rule over eloquence of free speech is a stretched concept in as much as the said proposition is basically founded on the theory of absoluteness of the fundamental right of freedom of speech and expression which the Constitution does not countenance.”
With respect to the contention of “fair comment”, it was observed that-
“the plea of fair comment implies making of a genuine effort to reach truth and a mere belief of there being truth without there being reasonable grounds for such plea is not synonymous with fair comment.
…it is essential to observe that in order to be justifiable as fair comment, it must appear as a comment and must not be so mixed up with the facts that the reader cannot distinguish between what is reported and what is comment and a comment must not convey imputations of disreputable motive unless adequately supported with evidence.”
Therefore the contention with respect to “fair comment” was thus rejected by the Court. It was stated that the case prima facie fell within the domain of thought provocation and debate and criticism and therefore, the prayers couldn’t be accepted.
The trial court’s order was thus returned.
Illustrations
1. A in order to take revenge from B, makes a false accusation against B and e-mails it to all the employees of the Company where B is working. This harms B’s reputation and lowers his estimation in the eyes of other. In order to cut off any kind of association with B, the Company decides to remove him from his work place. B here can file a suit against A on the grounds of defamation as the allegations made were false and harming is reputation.
2. X is a company, manufacturing soaps which are free from all chemical substances. Competitor Company P, in order to divert the competition in its favour, alleges that the soaps so manufactured by X actually have chemicals in it and the claim of being a chemical free soap is false. The consumers believe in P’s false allegations and this leads to a shift in the market share. Here, since the claims are false and are harming X’s reputation, the suit for defamation shall be maintainable.
3. A who is a political leader has been alleged to be involved in unethical and corrupt practices. This is defamation by way of slander.
4. P who is being treated by Dr. Q in told by A that Dr. Q holds a fake medical degree. The statement being false and harming Dr. Q’s reputation is defamatory in nature.
Frequently Asked Questions
1. What is Civil and Criminal Defamation in India?
India recognizes Defamation both as a civil and criminal offense. Remedy for civil defamation is covered under the law of torts and the person defamed can ask for damages. A person guilty of criminal defamation shall be charged for the offence under the Indian Penal Code, 1860. Criminal defamation is punishable under Section 499 and 500, IPC. Criminal defamation is a bailable, non-cognizable and compoundable offence. In case of criminal defamation, the person shall be punished with simple imprisonment which may extend for 2 years or fine or both.
2. What is the validity of Defamation of a dead person?
A deceased person can be defamed. Explanation I of Section 499, IPC talks about defamation of a deceased person, as per which, if the imputation would have harmed the person if he were alive, and, if it said with the intention of causing harm to the family or the relatives the deceased, it would amount to defamation of the deceased.
3. What is the difference between libel and slander?
In order to cause defamation, it is essential that the statement so made is published. This publication could either be written or spoken. When the false statement make with the intention of harming the person’s reputation is spoken, it amounts to defamation by way of slander or spoken defamation. However, when the false statement is written, it amounts to defamation by way of libel or written defamation.
4. Can a Company be defamed?
A Company is a separate legal entity in the eyes of law and has its own recognition and reputation. It is a distinct entity from its members and therefore, if a person tries to imply false imputations on the company, then it shall be defamed, and the person making these imputations shall be guilty of the offence. Explanation II of Section 499, IPC implies the same.
Edited by Parul Soni
Approved & Published – Sakshi Raje
Reference
[1] Scott v. Sampson (1882) QDB 491.
[2]Bata India Ltd. v. A.M. Turaz& Ors. 2013 (53) PTC 586.
[3]The Human Rights Act, 1998, Article 12; The European Convention on Human Rights, Article 8; International Covenant on Civil and Political Rights, Article 19.
[4] Article 12, Universal declaration of Human Rights; Article 17 of the International Covenant on Civil and Political Rights Act, 1966; Justice K.S. Puttaswamy and Ors. v. Union of India (UOI) and Ors.: (2017)10SCC1.
[5]Justice K.S. Puttaswamy and Ors. v. Union of India (UOI) and Ors. (2017)10SCC1.
[6]Zee Telefilms Limited v. M/S. Sahara India Commercial (2001) 1 CALLT 262 HC.
[7] Section 499, Indian Penal Code, 1860.
[8] S.T.S. Raghavendra Chary v. CheguriVenkatLaxma Reddy 2018 (4) ALT 719.
[9]Sunilakhya Chowdhury v. H.M. Jadwet and Ors. AIR 1968 Cal 266.
[10] Rajeev Dhavan And Aparna Ray, “Hate Speech Revisited: The “Toon” Controversy”, (2006)2 Socio-Legal Review 9-45.
[11]Subramanian Swamy v. Union of India (UOI) and Ors. (2016) 7 SCC 221.
[12]KI Vibhute, PSA Pillai’s CRIMINAL LAW, 910 (12th edition, 2014), LexisNexis.
[13]Aneeta Hada v. Godfather Travels and Tours (P) Ltd. 2012 (5) SCC 661.
[14] S. Khushboo v. Kannimmal and Anr. (2010) 5 SCC 600.
[15] (1996) 6 SCC 263.
[16]KI Vibhute, PSA Pillai’s CRIMINAL LAW, 215 (12th edition, 2014), LexisNexis.
[17]Bennett Coleman and Co. Ltd. and Ors.v. K. Sarat Chandra and Ors. 2016(5)ALT174.
[18] The Law of Landlord and Tenant; with all requisite forms, including the pleadings in several actions by and against the Landlord and Tenant, And the Evidence necessary to support them by JOHN FREDERICK ARCHBOLD, ESQ. Barrister-at-Law, 1846, COOKE’S LAW OF DEFAMATION PAGE 46.
[19]Article 19(1)(a), Constitution of India.
[20] Facet of the Right to Privacy, Article 21, Constitution of India.
[21](2016) 7 SCC 221.
[22] (1994) 6 SCC 632.
[23] (2007) 15 SCC 631.
[24] CM (M) 556/2018, CM Appl. 19354/2018, CM (M) 557/2018 and CM Appl. 19356/2018.
[25] (2017) 10 SCC 1.
[26] (2016) 7 SCC 227.
