Criminal Defamation Laws In India
The term “Criminal Defamation” means a false and unprivileged statement of fact that is harmful and detrimental to someone’s reputation or image, and the same being spoken or published deliberately, knowingly, intentionally, with an ulterior motive and malice. Hence, any intentional false communication, either spoken or written that harms or damages a person’s reputation, image and decreases the respect, confidence, or regard in which a person is held is known as defamation.
Further, Defamation could be either written or verbal. Written defamation is known as Libel and includes written material, printed material, images, whereas a spoken defamation is known as Slander.
Furthermore, in India, a case relating to defamation can be filed either under the civil law or criminal law. Under the criminal law, the offense of defamation is compoundable. Also, as per section 499 and 500 of the IPC, a person guilty of criminal defamation can directly be sent to jail for a period of two years. Whereas in case the accused and the victim settle their disputes outside the Court, the Court drops the case by just recording their statement to that effect.
Moreover, the remedy for the civil defamation is encompassed under the provisions of the Law of Torts. Further, in a case of civil defamation, a person who is defamed can easily move either to the High Court or subordinate courts and can seek damages in the form of monetary compensation from the said accused.
In this blog, we will be dealing in detail about the concept of criminal defamation along with the laws and the landmark judgments relating to it.
Concept of Criminal Defamation
According to section 499 of the Indian Penal Code, whoever, by words either spoken or intended to be read, or by signs, gestures or by visible representations, makes or publishes any imputation regarding any person planning to harm, or knowing or having a reason to believe that such imputation will cause harm to the reputation or image of such person, is said, except in the cases hereinafter expected, to defame that person.
Moreover, this section prescribes ten exceptions to defamation as well, in which the first exception states that the “absolute truth is an exception to defamation,” if the same is for the public good, therefore has to be published, on the public conduct of the government officials, the conduct of any person raising any public question and the merits of the public performance.
This section further goes on to provide exceptions in order to determine what will constitute the offense of defamation. Moreover, defamation under the Indian Penal Code may also include an imputation of a deceased person that would harm his or her reputation if living and is intended to be hurtful or upsetting to the feelings of his family or other near and dear relatives. Also, any imputation regarding a company or an association or the collection of persons as such may also amount to defamation.
Furthermore, it is significant to note that this section however also clearly states that no imputation is said to harm any person’s reputation or image, until and unless that imputation directly or indirectly, in the approximation of others, lowers the intellectual character or moral of that person, or let down the character of that person regarding his caste or his calling, or lowers the credit of that said person, or causes it to be alleged that the body of that person is in a detestable state, or in a state normally considered as disgraceful.
Further, section 500 of the Indian Penal Code, which talks about the punishment for defamation, reads – Whoever defames another shall be punished with simple imprisonment for a term which may extend up to two years, or with fine, or with both.
Elements of Defamation
The following listed are the elements of defamation that are required to be there in the statement made, in order to prove it a defamatory case –
- A statement should be made
- The Statement must refer to the plaintiff
- Statement made should be defamatory in nature
- Statement made should be false
- Intention of the wrongdoer
- The Statement must not be privileged
- The statement should directly or indirectly identify the victim
- The statement made has been either communicated or published to a minimum of one person other than the victim or plaintiff.
- The third party believes the concerned defamatory matter to be true
- The Statement must cause injury
Exceptions to the Definition of Defamation
The following listed are the statements that do not fall within the ambit of the definition of defamation –
- Any honest or reliable statement made or spoken or published either in the public interest or in the national interest
- Public opinion on the conduct or behavior or work or character of a public servant with regard to his discharge of duties or functions.
- Conduct on any question publicly asked.
- Any kind of publication regarding any court proceedings or the trial or judgment passed by the court
Who bears the Onus of proving a Wrong Intention in any Defamatory Statement?
The Onus of proving that the statement holds any sort of defamatory remark or innuendo, lies on the plaintiff, if the plaintiff himself has filed the case of defamation. Further, he or she is also required to prove before the court that the said statement is referred to him or her.
Landmark Judgment on Criminal Defamation
Section 499of the Indian Penal Code, 1860, declares that any person whose reputation or image has been damaged by the material in question has the right to sue for the offense of defamation. However, these sections (499 and 500 of IPC) were challenged on the ground of the fact that they both are violative of Article 19 (right to freedom of speech and expression) of the Indian Constitution.
This question was raised in the case of Subramanian Swamy v. Union of India. The Hon’ble Supreme Court in this case held that-
A defamatory statement is that statement which tends to low down a person in the assessment of right-thinking members of the society normally or to cause him to be avoided or shunned or to expose him to contempt, hatred, or ridicule, or to convey an imputation on him injurious or disparaging to him in his office, business or profession.
Further, the reputation of a man is not in his own charge, but lies at the kindness of the extravagance of others. Furthermore, the throwing out of malicious accusations against any character leaves a mark, which no after-refutation can wipe out.
The concept of crime is fundamentally concerned with the social order. The difficult task of protecting and safeguarding the law-abiding citizens and also punishing the lawbreakers remain with the state, which performs it by way of the instrumentality of law. Further, the conducts which are prohibited or restricted by the law in force at a provided time and place are considered as the wrongful acts or crimes. In contrast, the acts which are permissible and allowed under the law are considered as lawful. Also, the wrongdoer committing a crime is also punished for his guilt under the provisions of the law of crime.
In the case Union of India v. Naveen Jindal and another (2004) 2 SCC 510, the Apex Court has laid down that the freedom of expression is a keystone of the functioning of democracy, and there is a constitutional promise to free speech. Further, the Hon’ble Supreme Court in the case Government of Andhra Pradesh and others v. P. Laxmi Devi (2008) 4 SCC 720, has been observed that the freedom and liberty are significant for the progress, both social and economic, and without the freedom to write, freedom to speak, freedom to experiment, freedom to think, freedom to criticize (including the criticism of the Government), and freedom to dissent there can be no evolution.
Be that as it may, the aforementioned authorities specifically laid down that right to freedom of speech and expression is an extremely treasured value under the Indian Constitution, and the voice of disagreement or dissent has to be respected and observed and not to be scuttled as indigestible criticism.
Further, stress has been laid on the fact that discordant and dissonant expressions are to be considered as viewpoints with impartiality, and such expression of ideas and views being essential for the growth of democracy are to be enthusiastically protected. Notwithstanding, the extensive and sweeping and realm of freedom of speech, as all rights, right to freedom of speech and expression is not absolute in nature as it is subject to the imposition of reasonable restrictions.
In the case R. Chaudhuri v. State of Punjab and others (2001) 7 SCC 126, a three-Judge Bench of the Apex Court has observed that Constitutional provisions are needed to be interpreted and understood with an object-oriented approach. A Constitution shall not be construed and interpreted in a narrow and pedantic sense. Further, the words used may be general in terms but, their full import, true meaning and sense, has to be treasured considering the true situation in which they are used along with the purpose which they seek out to achieve.
In order to constitute the offense of defamation, there has to be an imputation, and it should have been made in the style as specified in the provision along with the intention of causing harm or having a reason to believe that such imputation or assertion will harm the reputation and image of the person about whom it is made.
Causing harm to the reputation and image of a person is the base on which the offense is created, and mensrea is the condition precedent in order to constitute the said offense. The complainant has to prove that the accused had known or intended or had a reason to believe that the imputation or assertion made by him would cause harm to the reputation and image of the complainant.
The criminal offense stresses on the intention or harm. Further, section 44 of the Indian Penal Code defines “injury.” It signifies any harm whatsoever illegally caused to any person, in body, mind, reputation or property. Therefore, the word “injury” summarizes harm caused to the reputation, or image of any person. Further, this section also takes into consideration the harm caused to a person’s mind or body. Section 499 provides punishment for the harm caused to the reputation, body, mind, property of a person, that is, the complainant.
In the view of the aforesaid scrutiny, we uphold the constitutional validity of sections 499 and 500 of the IPC along with section 199 of the Code of Criminal Procedure. Moreover, throughout the pendency of the Writ Petitions, this Court had directed stay of further proceedings carried on before the trial court.
As we declare the said provisions to be constitutional, we observe that this will be open to the petitioners to challenge the issue of summons either under section 482 CrPC or under article 226 of the Constitution of India before the High Court, as advised and seek suitable relief and for the said purpose, we grant eight weeks’ time to the said petitioners.
Also, the interim protection granted by this Court will remain effective for a period of eight weeks. However, it is also made clear that, if in case any of the said petitioners have already approached the High Court and also become unsuccessful before this Court, he will face trial and put forth his defense in accordance with the law.
The Hon’ble Supreme Court, in the case of Subramanian Swamy v. Union of India held that both the proportionality and reasonableness of a restriction is examined and scrutinized from the perspective of the general public interest and not from the viewpoint of the person upon whom the said restrictions are imposed. After applying this standard, the Apex Court observed that the laws relating to criminal defamation are proportionate, and it rejected the contention or argument that defamation is primarily a notion of the majority meant to cripple the right to freedom of speech and expression.
Laws concerning to Defamation are slowly but steadily evolving strong in India. At present, the courts have acted conservatively in many of the high-profile cases of defamation. Yet, it is only these laws and remedies that have provided protection to individuals regarding their personal interest along with the reputation against people who maliciously use their right to freedom of speech and expression.