defame
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This article is written by Ayesha Zaidi, a third-year student currently pursuing B.A.LL.B (Hons) from Dr Ram Manohar Lohiya National Law University, Lucknow. This is an exhaustive article which deals with the Law of Defamation as existent under Indian Law and a thorough analysis of its provisions and scope and extent of the law in general. 

Table of Contents

Introduction

Defamation refers to a wide term encompassing a legal claim which involves an injury to one’s reputation which is a result of a false statement of fact. This not only includes libel, which is defamation in written form, but also slander, defamation by spoken word.

Defamation is considered to be a civil wrong or tort. If this false statement leads to damage to the reputation of one about whom it is made, there shall be legal consequences against the person making such false statements. 

The main purpose of the law is to eliminate false statements. If the statement is true and it harms the reputation of someone, the same will not create liability. 

General Discussion

The Black’s Law Dictionary defines defamation as “the offence of injuring a person’s character, fame, or reputation by false and malicious statements”. When an attack is made to the reputation of a person by means of false publication tending to bring the person against whom such publication is made into disrepute and the same is communicated to a third party, the offence of defamation takes place.

Generally, this false publication is made without the consent of the allegedly defamed person. If the statement made is true, no such case shall be made against the person making the statement. There are other defences available with respect to this offence. Further, mere injury to the feelings of a person doesn’t constitute the offence of defamation. There must be a loss of reputation. 

Hence, defamation is any publication of such a statement which, in the minds of right-thinking members, lowers the reputation of a person in society, leading to people avoiding or shunning him.

The main dilemma that the offence of defamation deals with, is between the rights protected under freedom of speech and expression and the right of a person against defamation. If we look at the two carefully, we can see that on one hand, a reasonably prudent person has the fundamental right to speak his mind and narrate his experiences in a truthful manner without the fear of being held liable by the other party. 

However, it is also important to note, that such right to freedom of speech and expression doesn’t come without its restrictions. There is a reasonable restriction on the right to freely express their opinions. Hence, while it may be okay to say hurtful or mean things about someone as long as they may be true, on the other hand, it is not justified when the same is done in a way that leads to damage to the reputation of the person about whom the statement is made. 

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Analysis of the offence of Defamation

Elements of defamation under Indian Law

It is important to understand why defamation is an offence under the Indian Penal Code. This is because, next to his life, what a reasonable and prudent man cares most about, is his reputation. 

Under the IPC, Section 499 and 500 lay down the offence of defamation. 

Section 499: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.” The definition in this section is subject to four explanations and ten exceptions which shall be discussed further. 

Section 500 lays down the punishment to the person who commits the offence of defamation. It reads, “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.

Hence, as per Section 499, there are certain elements of the offence of defamation. All of these must be fulfilled for an accused to be charged and convicted of this offence. 

The statement made must be defamatory in nature

It is necessary that the statement that is made by the accused must be of a defamatory nature. This essentially means that it must lead to a lower reputation of the person about whom the statement refers to. Whether a statement lowers the reputation of a person or not will be dependant on how right-thinking members of society perceive the person post them coming in contact with such defamatory material. 

Further, it is not a valid defence that there was no intention on the part of the person making the statement. For example, in the famous case of American actress Katie Holmes, a magazine published that she was a drug addict. Subsequently, she filed a defamation suit as it was contrary to her reputation and was also a false claim. 

Recently, a suit for criminal defamation was filed against Javed Akhtar for allegedly making defamatory statements against BJP candidate from Bhopal Lok Sabha seat Pragya Singh Thakur at a press conference. The petition spelt out the complaint that Akhtar had intentionally made references against Thakur to provoke voters against her. 

It is to be noted here that mere insult or statements that hurt the feelings of the person to whom they are addressed would not constitute defamation. Thus, if a teacher calls a student lazy or an employer admonishes an employee for coming late, the same would not fall under the offence as envisaged under Section 499.

The statement must concern the person filing the suit for defamation, i.e. the plaintiff

If on publication of the statement, a reasonably prudent man can infer that such statement is about the plaintiff, then the accused shall be liable for the offence. 

In the landmark case of Jones v. Hulton, where a defamatory article was published about one Artemis Jones while describing a motor festival. A barrister named Artemis Jones alleged that this was defamatory to him as right-thinking individuals, as well as his friends, believed that the article referred to him even though it was contended by the defendant that the same was an imaginary name used for the purpose of this article. House of Lords upheld the decision that the same is defamation, even if there was no knowledge or intention on the part of the accused.

The defamatory statement must be published

It is essential that the statement which defames a person is published, i.e. that it comes within the knowledge of a third person who is not the subject of the defamatory statement. Under this offence, a prerequisite is to indicate that the person alleged intended that his words be published or be seen/ heard by someone other than the one who they refer to. If such proof is absent, the publication of the defamatory statement would not hold the alleged person liable. 

In the case of Mahendra Ram v. Harnandan Prasad, the defendant was held liable for sending a defamatory letter to plaintiff written in Urdu knowing that the plaintiff did not know Urdu and the letter will very likely be read over by another person.

The statement made must be false

It is necessary that the statements made are in fact false and not true. A truthful statement made by a person will not fall under the definition of defamation. Further,  inherently because of their nature, statements which reflect the opinion of the person cannot be true or false as they are subjective and hence cannot be said to constitute defamation. 

Elements of defamation under the tort law

There are different elements for it to constitute the tort of defamation which have to be proved by the plaintiff or the aggrieved party:

  1. the published words must be defamatory; 
  2. the alleged defamatory words must refer to the plaintiff and
  3. there was a malicious intention while publishing these words.

It is not essential for defamation to be published in such a way that most of the people understand who was referred to. What is essential is that a substantial number of people understand who the article refers to.

Under Indian Penal Code, Section 499 and 500 lay down the substance of the offence of defamation is punishable under Indian Law. The following elements are essential to constitute the offence:

Reputation 

Under Section 499, it is necessary that the statement resulted in considerable harm to the person’s reputation or that it lowered the reputation of the complainant. The harm to reputation can cause mental as well as financial problems to the plaintiff. 

For example, If a false statement is made that XYZ bank commits fraud to its customers, then it will cause harm to the reputation of the bank and also cause subsequent financial loss to the bank as people will not be willing to use the bank for its services. 

In the case of  D.P. Choudhary v. Kumari Manjulata, a local daily Dainik Navjyoti published an article that the plaintiff, a girl of about 17 years of age, had run away with a boy named Kamlesh. This was a false news item as she had gone to attend night classes for her B.A. degree. This news item was negligently published by the newspaper and caused a lot of ridicule at the girl. Hence, she filed a suit for defamation and was entitled to damages. 

Publication 

Publication entails making the matter that is defamatory known to third persons, i.e. someone other than the one about whom the statement is intended to be. Unless this requirement is fulfilled, the said statement cannot be said to constitute defamation. Publication here does not literally mean printed in a book or newspaper.

Publication, as per Section 499, can be through words, signs or even representation. Hence, it can be by a speech, on the radio, in newspapers and even on social media. If a reasonably prudent person can understand the context and meaning of the statement, it shall be presumed to be published.

The distinction between English Law and Indian Law 

There is a distinction in the form of publication between English and Indian Law. English Law treats libel, which is defamation through publication in written form as a crime but not slander, which entails defamation through publication in spoken words. 

Under criminal law in the UK, only libel is a crime and under the law of torts, slander will be actionable only if:

  1. There is an imputation of a criminal offence to the plaintiff filing the suit. 
  2. There is a statement that the complainant had an infectious disease which further leads to society avoiding him.
  3. There is a defamatory statement regarding the incompetence of a person to the office, profession, trade or business carried on by him, or
  4. If a statement refers to a girl/ woman’s adultery or character.

Under the law followed in India, however, unlike English Law does not differentiate between libel and slander, and hence, both are included in Section 499 and constitute the offence of defamation.

Forms of Publication 

Under Section 499, the imputation could be by:

  1. words (either spoken or written), or, 
  2. making signs, or visible representations. 

There can be various forms of publication of the defamatory material. The defamatory imputation could be either made or published. There is a difference between ‘making’ and ‘publishing’ an imputation. This can be understood by way of an illustration. For example, if A tells B that A is a thief, then A makes an imputation. But if A tells B that C is a thief, then A publishes the imputation.

Hence, a publication under Section 499 essentially entails that communication of the defamatory statement or imputation to third persons, i.e persons other than the one against whom such imputation is made. 

Direct Communication to the Defamed 

There can be direct communication to the defamed which would fall within the offence of defamation. If A tells B that he is a dishonest man and he is having an extra-marital affair with someone, then it would constitute direct communication to the defamed. Here, it is essential to prove that the person making the statement had knowledge or reason to believe that such a statement would harm the reputation of the complainant.

Publication by Repetition 

Under Section 499, the word “makes” does not refer only to the creator who made the imputation but is also applicable to all those who subsequently repeats, writes or copies the imputation, even though he is not the author. Generally, the person who first makes a defamatory statement is not liable if the statement is republished by another person even though he expressly states that he is reproducing what he has heard from some source. However, no person has the right to repeat a slanderous statement without any justification. If a person who is aware that a defamatory statement is false and still repeats or communicates it further, then he can also be held liable for defamation.

There are two different offences, firstly, under Section 501 where printing or engraving materials that are defamatory is punishable, and secondly, under Section 502 if a person offers for sale any defamatory material which is printed and engraved, the same is also punishable.

Hence, for example, if Times of India publishes a news item which it knows to be defamatory or having a good reason to believe that it is defamatory, then it would be punishable under Section 500, 501 as well as 502.

Means of Publication 

The publication can be through different means like newspapers, social media, magazines, radio and all other modes of communication. Essentially, the gist of the offence under Section 499 is a publication, which refers to making the defamatory material known to someone other than to whom it is addressed and therefore, the mere making of imputation is not enough to constitute an offence under Section 500.

Hence, if a defamatory letter is sent directly to the person defamed or if the statements are made over a telephonic conversation which wasn’t heard by others, there will be no offence under Section 499 as there is no publication of it.

Similarly, if a person writes a letter which contains defamatory material and keeps the same within his possession, no offence is made out. 

Publication of a defamatory statement leads to not only the publisher but also the maker being held liable under this section. 

The High Court of Bombay has held that a notice that is defamatory in nature which an individual gets issued through his advocate will not constitute the offence of defamation as all communication between a client and an attorney is private, confidential and privileged and as such is only addressed to the person defamed. Similarly, the Bombay High Court in the case of Sukhdeo Vithal Pansare vs Prabhakar Sukhdeo, also held that the typist of the lawyer who typed such defamatory notice shall also not be liable.

With respect to a petition filed before a court of law containing defamatory matter, the same would amount to publication under Section 499, as was held in the case of Thangavelu Chettiar vs Ponnammal.

Intention to Injure

For a person to be held liable under Section 500, merely making an imputation about a particular person will not be enough. It is necessary to show the mens rea of the accused and point to the fact that he had the intention to make the imputation that such shall be read by a person other than to whom it is addressed. Thus, there is a necessary requirement that the person making the imputation intended the same to be published.

If the defamatory statement is disseminated, propagated or distributed, this leads to its publication. Hence, this is the main crux of the offence of defamation lies in the dissemination, propagation, distribution and circulation of the harmful imputation. It is important to understand that there needs to be an intention to communicate the imputation to a third person, so as to ensure that it arouses the hostility of others and society at large. 

If a postman, in the ordinary course of business, delivers a letter, the same being done with good faith and without knowledge of the defamation, shall not be held liable. He can take the defence that the same was done without any intention, which is a necessary requirement under Section 499. 

Analysis of Provisions of Sections 499 and 500

The provisions of Section 499 contain various explanations and exceptions which need to be read along with the substantive part of the section so as to ensure a coherent understanding with respect to the offence of defamation and to also see if the accused can take certain defences and take the benefit of the exceptions to see if the case falls within them. 

Whether the exceptions can be availed by the accused is a matter of trial and does not have to be looked into at the stage of enquiry under Section 202 of the Code of Criminal Procedure, 1973 as was held in the case of Balraj Khanna v Moti Lal.

Explanations to Section 499

Explanation 1: Defamation of the Dead 

As per Section 499 (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.

Under Indian law, liability is not imposed for defaming the dead. Justice R Basant in the landmark case of Raju v. Chacko held that even if an offence cannot be made out against the dead but if the statement leads to hurting the feelings of the family and relatives of the deceased, the same is actionable in a court of law. For this same purpose, the definition of defamation has been expanded to include Explanation 1 which deals with the same.

Therefore, the statement that is alleged to be defamatory must not only be hurtful to the deceased but also to the feelings of the family and relatives. However, it is to be noted that this does not extend to every lineal descendant. This was further elucidated upon in Vasant Kumar Birla & Ors v. Prakash Jha & Ors where it was held that “There was no action in defamation lies against any libel or slander against dead persons. So the cause of action is of the present members of the family, who are the plaintiffs.”

Explanation 2: Defamation of a Company or a Collection of Persons 

Under Section 499, vide Explanation 2 states that even if the statement refers to a company or an association of person, it can be considered defamation.

It is important to note that even though a corporation has no ‘mind’ or ‘body’, thus it cannot suffer damages in that, however, it still has a ‘business reputation’, which if harmed by defamatory statements can lead to the tortious liability for the offence of defamation. 

Under criminal law, Section 11 of the Indian Penal Code defines ‘person’ as “ any Company or Association or body of persons, whether incorporated or not.” Thus, under criminal law, it is an inclusive definition. 

Scope of Explanation 2—The Class or Community Must Be Clearly Identifiable

The imputation, for it to be defamatory must attack the method of conducting the affairs of the company, of fraud, mismanagement or its financial position. The Supreme Court in the case of G. Narsimhan v TV Chokappa has held that the collection of persons must be an identifiable body so that one can ascertain and differentiate a group of particular persons from the rest of society.

Defaming a Community in General—Nature of Liability

If a defamatory statement is made with respect to a community in general, then unless the person alleging the defamation can prove that the statement could reasonably be considered to refer to him, he cannot bring forth a claim for damages. For example, if a person makes a statement that all doctors are thieves, a doctor cannot bring forth a claim unless he can prove that it is intended to defame him individually. But if a person wrote that all AIIMS doctors are thieves, then a doctor from that hospital can maintain a claim for damages. 

Defamation Cases—Only Aggrieved Party Can File Complaint

It is essential to note that as per Section 199(1) of the Code of Criminal Procedure, 1973 unless a person is under the age of 18, any person who is not of sound mind or is suffering from any disease, making it impossible for him to render a complaint, can take the help of another person to file a complaint if he is aggrieved. In cases other than this, the same complaint would be held void and illegal.

Explanation 3: Defamation by Innuendo

It is often the case that prima facie a statement may not appear to be defamatory but because of some hidden/latent or secondary meaning, the statement may be considered to be defamatory. It is on the plaintiff alleging the latent meaning that such statement constitutes the offence of defamation. This can be easily understood through an example:

If a newspaper publishes a false news item on an actress that she is pregnant, and currently she is unmarried, such can be interpreted to be defamatory. 

Explanation 4: What is Harming Reputation?

Under Section 499, it is not essential that proof of actual harm is shown for it to constitute the offence of defamation. What is essential is merely an intention to cause harm on the part of the accused. The meaning of ‘harm’ is clarified under Explanation 4 of Section 499 which reads as follows: “lowering the moral, intellectual character or credit of a person with respect to his or her caste or calling, or stating that a person’s body is loathsome or disgraceful.”

Exceptions Provided in Section 499

First Exception: Truth for Public Good

If a statement is true concerning any person and it is for the public good that such imputation must be published, then such a statement would not fall within the definition of the offence of defamation under Section 499. A public good is a question of fact that has to be determined. Further, it is important to note that the ‘truth’ must extend to the entire statement. 

For example, if a newspaper publishes that a man is an alcoholic or that he is in an extramarital affair, can rarely prove to be for the public good. Hence, such statements shall be defamation. 

Second Exception: Fair Criticism of Public Servants

This exception does not protect mere assertions by a person, but his opinions. Every citizen of the country has a legal right to make true and fair statements on the public servants in the interest of the public. However, it must be ensured that the same is not made merely to malign the public servant and wrongly exercising freedom of speech and expression under Article 19. This is essential as men holding public positions are not immune to fair criticism.  

The element of Good Faith—Importance

It is important to note that this exception cannot be taken by the accused if the imputation which is alleged to be defamatory is made in good faith. The words ‘good faith’ is defined in Section 52 of Indian Penal Code which states that “ nothing is done or believed to be in good faith is it is done or believed without due care and attention”

The Opinion must be Fair and Honest

The person taking the benefit of this defence must ensure that the statement he made is fair and honest and he has the onus to prove that the said imputation was true or that there existed circumstances which made him believe that the information was true.

Third Exception: Fair Comment on Public Conduct of Public Men Other Than Public Servants

The third exception to Section 499 states that a fair, honest and true criticism of servants of the public will not create the offence of defamation and in fact succeed the test of fair comment.

Fourth Exception: Report of Proceedings of Courts of Justice

In India, the judicial proceedings are a matter of public interest. It is thus essential that accurate reports of these proceedings are made and excluded from the domain of the offence of defamation. The maker of the report must ensure that the information it contains is free from malafide, dishonest and incorrect information. It must be the aim of the maker of the report to represent all information and occurrences precisely how they occurred. The entirety of the proceedings need not be reproduced verbatim. However, in essence, it must be true and fair.

Fifth Exception: Comment on Cases

Protection is provided to case comments of the decisions that have been adjudicated upon confidently. Justice Fitzgerald said that citizens can show the error that was committed on the part of the judges as long as the discussion is fair and made without malice. 

Sixth Exception: Literary Criticism

The society at large must have the opportunity to freely criticising the performances or literary work that is submitted to its judgement. A fair and honest discussion is essential for these performances to ascertain what is liked or disliked by the public at large ad how it responds to a work of art. Certain ingredients need to be fulfilled for this exception to be applied:

  1. There needs to be an invitation by the author for such criticism by the public. It is not necessary however to distribute the same for review. 
  2. The criticisms must be pertinent to the standard of the performance and not as such whether the person has the ability to do the same or not. 
  3. The statement or imputation must be made in good faith.  

Seventh Exception: Censure by One in Authority

It is important to note that a person in authority has the power to censure those subordinate to him. This privilege, however, cannot be justified if the said imputation which is alleged to be defamatory is done in excess of the purpose for which it is issued. For example, if an employer censures an employee in his office, the same is not defamation. But if he publishes the same in a newspaper, the statement shall not be able to take the benefit of this exception. 

The following ingredients need to be fulfilled however for this exception to apply:

  1. The person making the statement must be in a position of authority over whom the statement is made.
  2. The statement needs to be made in good faith.

Eighth Exception: Complaint to Authority

If a complaint is made to a person in authority, the same cannot fall under the definition of defamation as provided for in section 499. Indian Penal Code lays down that “a person is allowed to prefer an accusation against others, in good faith, to any person who has lawful authority to punish the accused”. Under this exception, similar to the seventh exception, the following conditions must be complied with:

  1. The statement must be made to a person in authority
  2. The statement must be made in good faith.

Ninth Exception: Imputation for Protection of Interests 

This exception, like the first exception, deals with the public good. It states that protection needs to be provided to communications between parties that are acting in good faith, in due course of business. The Supreme Court in the case of Harbhajan Singh v State of Punjab has held that a rigid test cannot be applied to determine whether good faith exists or not. This has to be done keeping in mind the facts and circumstances of the case which includes, the alleged malice, due care and attention where defamation is alleged. 

Determining whether an accused can take the plea of good faith is a question of fact and it has to be kept in mind that there must be honesty of purpose on the part of the accused. Under Section 52 of the IPC, due care and attention are the prerequisites to invoking good faith. Under the ninth exception, the presence of the same is required and it is not enough on the part of the accused that he believed the statement to be true. It is necessary to show the rational basis for such belief. If it appears that no prior reasonable or proper enquiry is conducted by the accused, he cannot avail the benefit of this defence. 

Under this exception, even if good faith has to be established, the imputation must be made for the protection of interest of the person making it.  

  1. Privileges of Judges and Lawyers 

Professionals like accountants, doctors, counsels, judges and lawyers enjoy the privileges provided for in exception 9, but it is not an absolute one and is attached with certain restrictions. 

  1. Exceptions 8 and 9 of Section 499, Indian Penal Code, 1860 

In the landmark case of Chaman Lal v State of Punjab, the Supreme Court held that to prove good faith under exception 8 & 9, certain questions can  be looked at: 

  • What constitutes the offence of defamation with respect to the alleged defamatory statement?
  • What were the facts and circumstances of the case?
  • Who made the imputation and what is his position in society?
  • Did the accused intend to make the imputation?
  • Did he conduct any due diligence before making the alleged imputation?
  • If yes, what are the reasons to believe that he did undertake due care and circumspection?
  • Did the accused satisfy the court that he believed the statement to be true?

Tenth Exception: Caution in Good Faith

Under this exception, a person is required to establish that the imputations were a result of ‘good faith’  and was meant for ‘public good’. It is not essential to prove the same beyond reasonable doubt and the mere probability that he did not commit the offence is sufficient. 

Distinction Between Libel of Court and Contempt of Court

The Supreme Court held in the landmark case of Brahma Prakash Sharma and Ors. v. The State of Uttar Pradesh, that if a statement attacks the judge, it may be libel if he chooses to proceed against the person making the statement. However, if the publication of such a statement leads to obstruction in the administration of justice or interferes with due course of justice, then the same shall be summarily punished as contempt of court. The former is an attack on the judge in his personal capacity, while the other leads to a public wrong. 

Hence, often at times, these two concepts coincide and thus, proceedings can be initiated for both the offences of criminal defamation and criminal contempt of court when they overlap. 

Whether Accurate and True Report of Assembly Proceedings Published in Newspapers Would Amount to Defamation 

In the United Kingdom in Wason v. Walter in 1868, it was established that: “a faithful and accurate newspaper report of debates in the Legislature, however injurious to the character of individuals, is not treated as a breach of privilege or contempt by the Legislature. Such a report, as between the publisher and the person defamed, is treated as a qualified privilege”.

The principle established in Wason v. Walter was not applicable in India which was inconsistent and conflicting until the year 1956. If a publisher published a faithful and accurate report containing defamatory statements, it amounted to breach of privilege or contempt of legislature in India.

In 1956, the Parliamentary Proceedings (Protection of Publication) Act, 1956 (Act 24 of 1956) adopted the principle established in Wason v. Walter applying it “only to the publication in a newspaper of a report of the proceedings of either House of Parliament. It grants immunity from civil and criminal action to such a publication if it is without malice and for the public good and if the report is substantially true.” In Matters Personally Defaming the Governor, His Personal Authorisation is a must.

The Supreme Court in the case of Gour Chandra Rout & Another vs The Public Prosecutor, Cuttack, held that authorization is required on the part of the secretary by the governor to file a complaint alleging defamation. 

It is necessary that the sanctioning authority applies its mind and does not merely complete a formality. There is a requirement for a specific complaint, and not one of a general nature. 

Who Should, in a Newspaper, be Prosecuted for Making Defamatory Imputations 

The following persons shall be held liable when a defamatory statement is published in a newspaper, book, magazine, pamphlet etc.:

  1. The author of the defamatory material
  2. The publisher of the book, magazine etc
  3. The printer of the book, newspaper etc. 

It is important to note that the proprietor of the newspaper can also be held liable by the principle of vicarious liability. Normally, the editor of the newspaper is responsible for publishing defamatory material but if he, for a bonafide purpose, is absent from duty, he will not be liable. 

There is no requirement of malice or ill will on the part of the writer or publisher that has to be proved. Further, there isn’t a necessity to prove damages as well. What is sufficient is that there existed circumstances which can lead to the conclusion that the accused was aware that this particular statement would lead to the offence of defamation as it harms the reputation of the complainant.

Is Communication Between Wife and Husband Privileged?

Under Indian law, husband and wife constitute one person and therefore any communication between them does not amount to publication and will not fall within the definition of defamation as provided for in Section 499. Under Section 122 of the Indian Evidence Act 1872, privileged communications between husband and wife and these communications fall outside the purview of section 499, unless this communication is between matrimonial suits or suits which deal with offences against either married party. 

Constitutional Validity 

The constitutional validity of Section 499 was challenged in Subramanian Swamy v Union of India. A number of petitions were filed by various politicians like Rahul Gandhi, Arvind Kejriwal etc. who were charged under this offence. The petitioners argued for their right to freedom of expressions and proceedings against them were stayed pending the result of the constitutional challenge proceedings.

The court pointed out the importance of freedom of expression in a democracy but also recognized that it comes with certain restrictions, and this right must be exercised within those restrictions of public order, health, security etc. It further held that a balance must be achieved between the right to freedom of expression and the public interest sought to be protected. 

Hence, as of today, criminal defamation is constitutionally valid under Section 499 and 500 of IPC.

Proposal to reform

Although there are various reforms which need to be introduced, there has been much debate revolving on the need to decriminalize defamation but since the Supreme Court has adjudged on the constitutionality of criminal defamation, we shall be focusing on other reforms. 

  1. The new legislation is needed for decriminalizing defamation, but one which also reforms civil defamation to make it fairer and clearer. 
  2. For there to constitute an offence of civil defamation, the requirements under the law must include not just a substantial proof but also substantial loss to the reputation. It is required to show that the latter was a direct result of the statement made. Further, other defences like truth, opinion and reasonable inference must also be included as valid. Lastly, if any person institutes suit for frivolous purposes, the court shall be empowered to punish the same through exemplary costs.
  3. Legal notices must be sent by the complainant which must include the factual background of the alleged offence, how such a statement is not true in nature, the harm to the reputation as well as the damages that are being sought. This will ensure that only the cases of serious nature are brought to court and the burden on the judiciary is reduced by eliminating groundless accusations.
  4. The law must differentiate between authors, publishers, editors and other intermediaries. Intermediaries like social media platforms or search engines should not be held responsible for the defamatory content published on their website as they don’t enjoy any creative control over this content. 

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