defamation

This article is written by Kavyasri S. J. of SASTRA University. The article deals with defamation, its essentials, and punishments with substantiating judicial precedents. Defamation is imputing harm to a person’s reputation in layman’s language. It has its own set of exceptions, as well, and upholds the freedom of speech guaranteed under the Constitution. While the right to speech is a fundamental right, so is the right to dignity. The article discusses various aspects of defamation under Indian laws.

It has been published by Rachit Garg.

Table of Contents

Introduction

Defamation, in layman’s language, refers to damage to the good reputation of an individual. It is a derogatory remark made against someone with the intent to taint their reputation. Any publication of false information with regard to a person is a punishable offence. It is primarily of two types based on the mode of publication, namely libel and slander. Libel refers to a written defamatory statement, while slander refers to defamation caused by oral statements. The former is a representation made in the form of writing, pictures, printing, etc., and the latter may be made through words spoken or gestures.

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In recent news, former Congress MP Rahul Gandhi was disqualified for criminal defamation against Prime Minister Narendra Modi. Rahul Gandhi was convicted of defamation under Section 500 of the Indian Penal Code, 1860 and sentenced to two years imprisonment by the Surat Court. He was disqualified in accordance with Article 102(1)(e) of the Indian Constitution, read with Section 8 of the Representation of the People Act, 1951.

Rahul Gandhi made some derogatory remarks against the “Modi” surname. BJP MLA and former minister of Gujarat, Purnesh Modi, had registered a complaint against Rahul Gandhi under Sections 499 and 500 of the IPC for his alleged statement where he stated, “how come all the thieves have Modi as the common surname?” Following this, Rahul Gandhi was suspended and  disqualified as a member of the Lok Sabha. Rahul Gandhi has appealed before the Surat Sessions Court, challenging his conviction over the “Modi remark”. He claimed that the statement made by him against the Modi surname targeted only Narendra Modi, Nirav Modi, and Lalit Modi and not the whole of the Modi community.

What is defamation

Salmond defines defamation as “Defamation consists in the publication of a false and defamatory statement concerning another without lawful justification.”

The definition of defamation by Winfield is “Defamation is the publication of a statement which tends to lower a person in the estimation of right-thinking members of the society, generally or which tends to make them avoid that person.”

The definition of defamation was first given by Justice Cave in the case of Scott v. Sampson (1882), it was noted that every person has a right to estimate where he stands in the opinion of others and be unaffected by any false statements. If such false statements are made without any lawful excuse, the aggrieved party shall have the right of action. Only a remote bearing was placed on the question as to the magnitude or extent of damage caused to a person’s reputation due to the false allegations.

Defamation under the IPC

Defamation has been defined under Section 499 of the IPC, which 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.”

Defamation, as under the IPC, refers to any words spoken, written, or represented by signs or visual representations that are made or published with an intent to cause harm or knowing to cause harm to a person’s reputation, or having reason to believe that such an action will cause sufficient harm to the person’s reputation. Any false statement published or spoken knowingly, with the intent to harm someone’s reputation amounts to defamation.

Explanations provided under Section 499 of the IPC

Explanation 1 to Section 499 of the IPC states that, any imputation caused to the deceased, if affects him had he been alive or is intended to cause harm to his family, may amount to defamation.

Explanation 2 states that, imputation against a company or association or collection of persons amounts to defamation.

Explanation 3 states that any imputation which is expressed ironically shall amount to defamation.

Explanation 4 states that, when imputation is caused directly or indirectly to a person and if it lowers the moral or intellectual character, lowers credit or in respect of his caste or community, or causes to believe one’s body is in a disgraceful state, in the opinion of others then such imputation is said to have caused defamation. 

Illustration: If A writes a poster that states, ABC Co.Ltd . is a fraudster company that scams people as the company is his rival, it shall amount to defamation.

Types of defamation

There are two types of defamation, namely libel and slander. 

Libel includes publishing defamatory statements in any permanent form, while slander includes making false accusations orally. Libel may be in the form of written statements, graphical representations, pictures, movies,  or recorded statements. This attracts stringent punishment. 

Slander may take transitory forms, either visible or audible, like gestures, signs, hissing, etc. This attracts punishment only if there is proof of actual damage being caused.

Only libel is an offence, not slander. However, under the law of torts, slander is actionable  only upon proof of damage, unlike libel. Libel is actionable per se, and slander requires proof of damage except in a few cases.

In the case of S.T.S Raghavendra Chary v. Cheguri Venkat Laxma Reddy (2018), a clear distinction was made between libel and slander by the High Court of Andhra Pradesh. Slander, a false and harmful statement made orally that is of a temporary nature, is a tort that gives rise to a common law right of action. Libel has a broader scope when read in an international context. Though slander and libel, both require the publication of false remarks against a person to cause harm, the difference lies in the mode of publication. The burden of proof is on the prosecution to prove that the defamatory statements have been published and that the publication must have taken place within the territorial jurisdiction.

What is not considered to be defamation

In order to understand the punishment for defamation, it is important to know what is and is not defamation. Now that we have discussed what is defamation, let us read about what is not defamation. 

Exceptions under Section 499

Section 499 provides for ten exceptions where false allegations do not amount to the offence of defamation. If false remarks made by any person fall under any one of the ten exceptions, then they do not amount to defamation. 

  1. The imputation of truth that was for the public good does not amount to defamation. If the accusation causing defamation was true, it cannot constitute an offence, and the question as to whether a statement is for the public good or not is subject to the facts and circumstances of each case.
  2. Anything expressed in good faith against a public servant discharging his duties does not amount to defamation. 
  3. Anything expressed in good faith with respect to the conduct of any person in touching a public question does not amount to defamation.
  4. Publication of any true report of the court proceedings does not amount to defamation.
  5. Anything expressed in good faith against a witness or his conduct in court, both in civil and criminal cases, does not amount to defamation. For example, if X says that Y’s evidence on trial is contradictory and not true, X is saved by the exception if he has said it in good faith.
  6. Anything expressed in good faith with regards to an author or a performing artist does not amount to defamation.

For example, if A says, “B’s book is of low-grade and unsuccessful, for B himself is a man of indecent mind,” then A is covered under the exception.

  1. Anything censured in good faith by a person having lawful authority over another with regards to one’s conduct is not defamation.

For example, if a teacher censures a child in front of the class in the presence of other children, it does not amount to defamation.

  1. Any person accusing another authorised person or any lawful authority in good faith is not defamation. If A accuses B of committing theft to a police officer in good faith, A falls within the exception.
  2. Any imputation made by a person with respect to a person’s character, in his own or another’s interests, in good faith, is not defamation. If A has a notice asking the public not to lend money to B as B never pays back, it falls within the exception as it is made in the interest of the public.
  3. Conveying a caution to a person in good faith, intending for the good of that person or the public good, is not defamation.

Illustrations: A holds a sign with derogatory terms written about B, outside his house. Here, A has committed the act of defamation against B by imputing harm to him and his family.

If B states that, A is an honest man and he would have never stolen C’s gold ring, then it is inferred that B intends or causes to intend the presumption that A might have stolen. This amounts to defamation as well. 

The mere writing of defamatory words does not essentially amount to defamation if they were only read by the person it was intended for or made against and not by any third person. It is necessary to prove that such defamatory statements were read by a person other than the addressee or are likely to be read by any other third party.

In the case of Mahendar Ram v. Harnandan Prasad (1958), a letter was addressed to the plaintiff itself but was in Urdu. Since the plaintiff did not know Urdu, he required a third party translator to read it. It was held by the court that the defendant cannot be accused of defamation for publishing a false statement in the letter that was read by the translator, as he had no intention of exposing it to a third party. 

In Tiruvengada Mudali v. Tripurasundari Ammal (1926), the Madras High Court held that the exceptions to Section 499 of the Indian Penal Code are exhaustive.

The defendant shall have “privileges”. In absolute privilege, no action shall lie against the defendant even if it is made maliciously, which could include statements made in parliamentary proceedings. One can claim qualified privilege if a defamatory statement is made without malice in good faith for the protection of oneself or the interests of society.

Section 153A of the IPC deals with promoting wanton enmity between different groups, and Section 153 A(1)(a) provides  that, if anyone by words spoken or written, or by signs or by visible representation, or by any other means, promotes or attempts to promote on grounds of race, religion, caste, community, language, place of birth or any other ground, results in disharmony, feelings of enmity, hatred,or ill-will between different various groups or castes or communities shall also amount to promotion of wanton enmity. 

Essentials of defamation

To constitute defamation, certain prerequisites must be fulfilled:

Making a defamatory statement, either orally or written

A defamatory statement must be made against someone, either oral (slander) or written (libel). To constitute an offence, any such derogatory remark must either be made orally or in written form. Both oral and written statements are taken as to constitute the offence of defamation under the IPC. For example, A published a false information stating B has forged his documents to procure his job is defamation.

The statement must be a false accusation

The defamatory statement made must not be true. It must be a false accusation by the concerned person. Had the statement been true, it would have been a substantial claim for defence. There must be falsity in the statement; otherwise, the statement would not amount to defamation as it is true. 

In Ram Jethmalani v. Subramanian Swamy (2006), the court held that the allegations made against Ram Jethmalani about receiving funds from a prohibited organisation (LLTE) to protect then Chief Minister, Ms. Jayalalitha in the Rajiv Gandhi assassination case were defamatory. The accusation made was held prima facie false and defamatory.

Intention to impute harm or tarnish someone’s reputation

The person making such a defamatory statement must cause or intend to cause harm to a person or his family members. The person making a defamatory statement must have done it with the mala fide intention of harming one’s reputation.

When someone makes a defamatory statement to a general class of people, it cannot be termed defamation unless it is being referred to a certain set of individuals. If X says all the politicians are corrupt criminals with no particular intention to harm any specific individual, X cannot be sued. Had X mentioned that all politicians of the PZF political party are criminals, he could be sued by the said political party for defamation.

Publication or communication of the false statement

For a false accusation to amount to defamation, there must be an element of publication. Publication does not necessarily mean a statement published in a book or newspaper. The defamatory statement must be in such a state that it must be noticed or likely to be noticed by a third party.

Publication must have been noticed by at least one third party

When a defamatory statement gets published, it should get noticed by at least one third party other than the addressee. The statement is not to be read or intended to be read by any other person other than the person against whom the allegation was made. It is necessary that the writer intended the publication to be read by or ought to have been read by any third person or persons.

Defamation under Indian laws

Defamation is defined under the Indian Penal Code, 1860. Sections 499 to 502 deal with defamation. Section 499 provides a definition for defamation, whereas, Section 500 provides punishment for defamation.  

Section 499 defines defamation. If anything is imputed against a deceased person, it will amount to defamation if the imputation would have affected him had that person been alive and the accusation was intended to hurt his or his family’s feelings. Defamation can also be made against a company or an association of people. 

An imputation shall, however, not affect a person’s reputation unless it either directly or indirectly lowers the moral or intellectual character of a person, lowers his character with regards to caste or credit.

Defamation under the Code of Criminal Procedure, 1973

The Indian Penal Code is the substantive law (which defines the rights and responsibilities, duties and obligations of a person), while the Code of Criminal Procedure, 1973 is the procedural law. If the offence of defamation is proved under the IPC and CrPC applies. Once the offence of defamation is proven and the accused is prosecuted for the same, the Code of Criminal Procedure, 1973, enters into play. The prosecution for defamation in a court of law shall follow the procedure mentioned under this code.

According to the classification under Schedule I of the CrPC, a complaint for defamation made by the public prosecutor against the president, vice-president, governor of a state, administrator of an Union Territory, or a minister who is discharging his public duty, shall be punishable with simple imprisonment up to 2 years or a fine or both, and any other defamation is also liable for the same punishment. The former is triable by courts of session, and the latter by a magistrate of first class.

Section 199 CrPC (Prosecution for defamation)

Section 199 of the CrPC provides for prosecution for defamation. It states that the court shall not take cognizance of the offence unless a complaint is registered by an aggrieved person. 

When can another person file a complaint on behalf of an aggrieved party?

  • When under the age of 18 years
  • When he/she is an idiot or a lunatic
  • When he/she is suffering from any infirmity
  • When a woman is not allowed to go out in public owing to customs

Provided, the complaint filed on behalf of the aggrieved party is to be done with prior leave of court.

As provided under sub-section (2), the court of sessions may take cognizance of offences under Chapter XXI of the IPC, that are alleged to have been committed against the below-mentioned persons while discharging their public duties: 

  • President of India,
  • Vice -president, 
  • Governor, 
  • Administrator of union territory, 
  • minister of union or state or union territory, or,
  • Any other public servant  

Cognisance can be taken by the Sessions Court upon a written complaint given by the public prosecutor. Such a complaint must be made within 6 months from the date of commission of offence. Else the Sessions Court will not take cognisance under Section 199(5).

The public prosecutor can file a complaint under Section 199(2) only with prior permission from:

  • the State Government, if it is against a person who is or has been the Governor of that State or a Minister of that Government;
  • the State Government, if it is against any other public servant employed in connection with the affairs of the State;
  • the Central Government, for complaints filed in any other case.

Section 199(3) deals with the constituents of complaints filed under this section. Components in the complaint filed by public prosecutor for defamation:

  • Offences alleged;
  • Nature of the offence;
  • Other particulars of the offence committed.

This Section shall not deprive the rights of the person against whom the offence is alleged, to make a complaint to a Magistrate having jurisdiction or before Magistrate who have power to take cognisance of complaint filed in respect of that offence.

The High Court of Karnataka, in a judgement passed in June 2022, in the case of Divya v. State of Karnataka (2022) stated that the bar under Section 199 CrPC for a magistrate against exercising powers under Section 156(3) of the CrPC, for the complaint made under Section 500 IPC shall be applicable even when there are other offences alleged along with the offence under Section 500 IPC.

Other provisions for defamation in CrPC

Section 202 CrPC (Postponement of issue of process)

Section 202 states that a magistrate, upon receipt of a complaint of an offence that he is authorised to take cognisance of, may postpone the issue of process (order the accused person to appear before the court), as he thinks fit. He may either inquire or direct an investigation to be made, to decide if there is sufficient grounds to proceed with the case.

Section 203 CrPC (Dismissal of complaint)

Section 203 provides that the magistrate, upon hearing the statements of the complainant and the witnesses, and the reports of inquiry or investigation as under Section 202, may dismiss the complaint with reasons for the same, if he thinks that there are no sufficient grounds for the proceeding.

Section 204 (Issue of process)

As per Section 204 of the CrPC, the magistrate may take cognizance of an offence if he finds there is sufficient ground for proceeding and the case is either of the nature of a summons or warrant case. A copy of a written complaint shall always be accompanied by a summons or warrant. A process of issuance shall be issued only when the fees are paid, and failure to pay within due time shall make the complaint stand dismissed by the magistrate.

Section 207 CrPC (Supply to the accused of copy of police report and other documents)

When proceedings are instituted with a police report as a basis, the magistrate is to furnish copies of the police report, FIR, recorded statements, confessions, and other relevant documents to the accused free of charge and without any delay under this Section.

Section 357 and 357A CrPC (Order to pay compensation and victim compensation scheme)

As per Section 357 of the CrPC, the court imposing a sentence of fines or a sentence where fine is a part of it, may in judgement order whole or part of the fine recovered to be applied in defraying expenses, compensation to person aggrieved by loss or injury, damages under Fatal Accidents Act, 1855 for death caused to another or for abetment of death or to compensate bona fide purchaser for loss caused and restoration of possession in cases including theft, criminal misappropriation, criminal breach of trust, cheating or dishonest retainment of property. An order may also be passed during revision by appellate court, high court or any sessions court.

Section 357A provides for a victim compensation scheme. Every state government shall form a scheme in coordination with the central government to provide funds for compensating victims who have suffered loss or injury and require rehabilitation. The quantum of damages to be given shall be decided by the district legal service authority or the state legal service authority. 

The trial court may make recommendations for  compensation if the compensation awarded under Section 357 CrPC is not sufficient for rehabilitation or when the cases end in acquittal or discharge. If the victim is identified and the offender remains untraced, and no trial happens, then the district or state legal services authority may, after an inquiry, award compensation within 2 months.

Section 358 CrPC (Compensation to person groundlessly traced)

According to this Section, when a person causes a police officer to arrest another person, and if it appears to the magistrate that there were insufficient grounds for arrest by a police officer, then the aggrieved person shall be compensated with Rs. 100 for loss of time and expenses caused by the person who caused the police officer to arrest the other person. The same may apply in cases where more than one person is arrested, as the magistrate deems fit. All compensations recovered under this section shall be treated as a fine. The magistrate may order simple imprisonment for a term not exceeding 30 days upon failure to pay.

If the arrest was for persons more than one, then the Magistrate may award compensation to each person but not exceeding Rs.100, as it deems fit.

Section 359 CrPC (Order to pay costs in non-cognisable cases)

When a complaint is made to the court for a non-cognisable offence and the accused is convicted for the same, an order may be passed against him to pay the whole or part of the prosecution costs in addition to the penalty imposed on him as per this Section. In default of such payment, the accused may be liable to simple imprisonment for a term up to 30 days. The revision power shall also lie with the appellate court, high court, or sessions court.

Whether defamation is a criminal or civil offence

Defamation is both a civil and criminal offence. Under civil law, defamation shall be punishable under torts, for the damages caused, and under criminal law, it is a bailable, compoundable, and non-cognizable offence. The Indian Penal Code makes the offence of defamation punishable under Indian criminal law.

Defamation suits, in which relief for damages is claimed in the form of monetary compensation, constitute a civil offence, whereas, defamation as a criminal offence shall be punishable under the IPC. Defamation is a civil as well as a criminal offence, as it falls under the purview of both torts and the IPC, respectively.

Civil and criminal defamation

Defamation can either be of a civil or criminal nature, based on the intent of the accused parties and the remedy claimed by the aggrieved party. Defamation under tort law deals with libel and not slander. Defamation under criminal law is covered under Sections 499 to 502 of Chapter XXI of the IPC. Additionally, Section 124A of IPC deals with sedition, defamation against state; Section 153 deals with riot, defamation against a class or community and Section 295A deals with hate speech that outrages religious sentiments.

Civil defamation is where the remedy for relief is claimed under the law of torts. Any person who is aggrieved by defamation can seek damages in the form of monetary compensation before the subordinate courts or high courts. In cases of criminal defamation, the party charged with defamation may be punished with imprisonment up to two years, a fine, or both. In Indian law, both libel and slander amount to defamation and are deemed criminal offences under Section 499 and Section 500 of the Indian Penal Code. 

Defamation is a bailable, non-cognizable and compoundable offence. Section 2(a) of the Code of Criminal Procedure defines “bailable offence” as an offence that is bailable under Schedule I or bailable under any law for the time-being in force. Section 2(l) of the CrPC defines non-cognisable offence as an offence where a police officer might not be able to arrest without a warrant. Compoundable offences are those offences mentioned under Section 320 of the CrPC.

The High Court of Calcutta, in Asoke Kumar Sarkar and Anr. v. Radha Kanto Pandey and Ors (1966), held that any person aggrieved by defamation has a right to proceed in both civil and criminal court. The aggrieved person can choose either of the remedy or both of them and law does not bar enforcing both civil and criminal rights simultaneously. It was also further observed that, the Solicitor’s demands is not a condition precedent for claiming damages in a defamation suit but it is merely to notify the accused of the charges pressed against him if he fails to apologise or do certain duties. 

Punishment for defamation

Section 500 of the Indian Penal Code provides for punishment for defamation. Any person guilty of defamation shall be charged with simple imprisonment for up to two years, or a fine, or both.

Section 501 deals with punishment for printing or engraving defamatory things. Whoever prints or engraves anything, knowing or believing it to be defamatory of any person, shall be punished with simple imprisonment for up to two years, or a fine, or both.

Section 502 deals with punishment for the sale of printed or engraved substances containing defamatory things. Whoever sells or offers to sell, any printed or engraved matter containing defamatory things shall be punished with simple imprisonment for up to two years, a fine, or both.

The Supreme Court of India, in the case of Mohammed Abdulla Khan v. Prakash K (2017) laid out the ambit for application of Sections 500 to 502 of the IPC. An order passed by the Karnataka High Court  in the defamation case of Kannada Daily Newspaper’s owner was quashed. The Apex Court bench in this case held that the owner of printed defamatory content shall not be vicariously liable for any remarks conveyed in his newspaper, book or any other platform, provided such printed or engraved defamatory statements are not sold or offered for sale.

Once it is proved that the defamatory remarks are printed and offered for sale, it is also to be established that such an offence of publication was done wilfully or with the knowledge of the accused for him to be guilty of such an act.

The Defamation Bill, 1988 was introduced in the Rajiv Gandhi government, but was withdrawn following the widespread criticism from the opposition and the media, owing to its draconian provisions.

Cyber defamation

With the growing age of technology, “cyber-defamation” has become a major concern. Defamation exists not only in physical form, but has also assumed its existence on digital platforms. Due to the proliferation of digital networking, people are more often prone to cyber-defamation. Any person making such a defamatory statement, its publishers, and its distributors can be sued, but the social networks, website holders, internet service providers, and other intermediaries can be sued only to an extent. The IT Amendment Act, 2008 exempted the intermediaries from liability provided they acted in a bona fide manner.

Cyber defamation is the publication of false information about an individual on the internet platforms. When any false and derogatory remark is posted online, it reaches hundreds of people within a short span of time, imputing harm to the individual. Since anything posted on the internet is retained in any of the databases and remains permanent, it is irreparably in the public view. The offenders tend to hide themselves behind a fake identity, and their anonymity makes it difficult to trace the culprit. Cyber defamation can often be seen in political satire, wherein drawings or jokes are made against political personnel or any public figures. Even emails sent with offensive material amount to defamation. There is a grey-area as to pinning responsibility on the internet service providers. Any defamation in cyberspace shall be dealt with by the crime investigation department.

Section 65A and Section 65B of the Indian Evidence Act, 1872, deal with the admissibility of electronic records. The latter section states that any information that is in an electronic record and is printed on paper, stored, or copied in magnetic media produced by computers shall be deemed a document and is admissible as evidence. Online chains and electronic e-mails are also admissible as evidence in a court of law.

Section 469 of the IPC was amended to include forged electronic records in the definition under the Information Technology Act, 2000. Any statement published as either libel or slander with an intent to harm one’s reputation amounts to defamation, provided that the statement must have been read by at least one third party other than the addressee. The same offence has been made an offence under the IPC. 

Information Technology Act, 2000

Section 43 

Section 43 of the IT Act, 2000 deals with penalty and compensation for damage to computers, computer systems, etc.

Any person who, without the permission of the owner or without the permission of the person in charge of a computer, computer system, or computer network:

  • accesses or secures access;
  • downloads, copies or extracts data;
  • inputs any virus into the system;
  • damages or causes to damages any computer system;
  • disrupts or causes to disrupt the computer system;
  • denies or causes to deny access to authorised person;
  • provides assistance to facilitate intervention into someone else’s computer;
  • tampers or manipulates data;
  • destroys, deletes or alters any resource in the computer;
  • steals, conceals,destroys or deletes any data

shall pay compensation for damages to the aggrieved party under Section 43.

Section 66

Section 66  deals with computer related offences and states that any person who dishonestly or fraudulently does any act referred to in Section 43 shall be punishable with imprisonment for a term up to 3 years or a fine up to 5 lakh rupees or both.

Section 66A of the IT Act was struck down by the Supreme Court in 2015 in the case of Shreya Singhal v. UOI (2015), stating it violated the fundamental right to freedom of speech.

Section 67 

Section 67 deals with punishment for publishing or transmitting obscene material. As per this Section, in electronic form, any person who publishes or transmits any information that is lascivious, lustful, or obscene in electronic form that can be heard or read shall be punishable with imprisonment up to 3 years or a fine up to 5 lakh rupees in the case of a first conviction, and with imprisonment up to 5 years and a fine up to 10 lakh rupees for subsequent conviction.

Section 74 

Any person who voluntarily creates, publishes, or makes available an electronic signature certificate for any unlawful purpose shall be punished with imprisonment up to 2 years, a fine up to 1 lakh rupees, or both under Section 74 of the Act.

Section 79

Section 79  deals with exemption from liability of intermediaries in certain cases. It states that an intermediary shall not be liable for any third party information, data, or communication that is sourced from him or hosted by him. The function of an intermediary is limited to providing access to a system where information available to third parties is transmitted, hosted, or stored temporarily. The intermediary shall be liable if he has conspired or abetted any illegal acts or when he fails to report the unlawful acts that are controlled by him despite his knowledge of the same.

Case laws on cyber defamation 

Avnish Bajaj v. State (2008)

In the case of  Avnish Bajaj v. State (2008), infamously known as the DPS MMS scandal case, Ravi, a student from IIT Kharagpur, posted a listing on a website offering offensive MMS video clips for sale under the name “alice-elec”. Though the baazee.com website filters such content, the video clip was still available on the website. It was removed two days after it was posted. The police crime branch of Delhi filed an FIR, and a charge sheet was filed against Ravi, Anish Bajaj (the website’s owner), and Sharat Digumati (the person in charge of processing content). An appeal was filed by Avnish after Ravi fled, to end the criminal proceedings against him. The court held that an offence under Section 292(2)(a) and (d) of the IPC was committed, and due to strict liability, the website can also be held liable as it did not have proper filters to detect such pornographic or abusive content. However, the Court acquitted Avnish because Section 292 and Section 294 of the IPC do not recognise a default criminal obligation to a director when a corporation is accused. 

Article 12 of the European Convention on Cyber Crime, provides for imposing criminal liability on legal entities that represent, control, and make decisions and holding a legal person accountable for criminal offences. Had India been a signatory to the Convention, then Avnish would have been liable.  There still remains ambiguity as to the culpability of internet service providers and their directors.

SMC Ltd. v. Jogesh Kwatra (2014)

In SMC Ltd. v. Jogesh Kwatra (2014), an employee sent derogatory remarks to the employer and other subsidiaries of the company. The High Court of Delhi restrained such communication. This judgement was significant as it was the first time that an Indian court has assumed jurisdiction in a cyber-defamation case and granted an ex parte injunction against the defendant to prevent him from sending any derogatory, abusive, or obscene emails about the plaintiff. It was further stated that the employer is not vicariously liable as the employee did such an act on his own and not as part of his employment.

Shreya Singhal v. UOI (2015)

The Supreme Court of India, in the case of Shreya Singhal v. UOI (2015), struck down Section 66A of the Information Technology Act, 2000, which deals with punishment for sending offensive messages through communication services or computers, and held that restrictions on online speech were unconstitutional, and violated the right to freedom of speech. The section did not fall under the purview of reasonable restrictions, and online intermediaries will have to take down its contents upon receiving a court order or order from a government authority.

Important case laws on defamation

The following cases deal with constitutional validity. Sections 499 and 500, scope of the sections, essentials to prove defamation; and exceptions to defamation.

Thiyagaraya v. Krishnamani (1892)

In the case of Thiyagaraya v. Krishnamani (1892), it was held that any defamatory statement sent by letter or printed on paper shall constitute an offence of defamation under Section 499 IPC if the same is distributed or broadcasted to the public. Circulation of defamatory material to caste members was privileged, and there was admission of absence of malice. However, there was evidence of circulation of 600 copies to people in the bazaar and such mode of publication tends to destroy the privilege. The conviction was upheld by the High Court on grounds of mode and extent of publication as it was more injurious than necessary.

M.C. Verghese v. T. J. Poonan (1967)

In M.C. Verghese v. T. J. Poonan (1967), a letter containing defamatory statements about a wife’s father, was sent by a husband to his wife shall not amount to defamation as communication between spouses is protected under Section 122 of the Indian Evidence Act, 1872 as “privileged communication”. The husband shall not be liable if the letter gets wider publicity when in the hands of the complainant, who secretly read the letter, which was not addressed to him, but sent by his son-in-law to his daughter.

T.V. Ramasubba Iyer v. A.M.A Mohideen (1971)

In T.V. Ramasubba Iyer v. A.M.A Mohideen (1971), the defendants published news headlines in their newspaper stating that a person was exporting scented agarbattis to Sri Lanka. It was also said that the person resided in Tirunelveli and was arrested. Due to this publication, the plaintiff, who had an agarbatti business in the same place and was exporting it to Sri Lanka, suffered great losses in the business. He filed a defamation suit, and the defendants argued that they had no intention to defame him. The defendants published an article the very next day, stating the prior article did not refer to the aggrieved plaintiff. The Court referred to the case of Hulton and Co. v. Jones (1909) and held that they were not liable as Indian laws do not confer liability for statements published innocently.

D.P. Choudhary v. Manjulata (1997)

The High Court of Rajasthan, in the case of D.P. Choudhary v. Manjulata (1997), held that a person making defamatory statements and publishing them in a daily newspaper shall be prosecuted for defamation. In this case, a false accusation was made in a local newspaper against a minor college girl, alleging she eloped with a boy after leaving the house under the guise of attending lectures. This false information had caused adverse effects not only upon her but also upon her family’s reputation, ruining all her prospective marriage proposals. It was further observed that an individual shall be liable irrespective of the malicious intention of causing defamation to a person. The defamatory words were actionable per se, and the court awarded damages to the aggrieved plaintiff.

SMC Pneumatics Pvt. Ltd. of India v. Jogesh Kwatra (2014)

In the case of SMC Pneumatics Pvt. Ltd. of India v. Jogesh Kwatra (2014), an employee of the company had sent defamatory and derogatory emails. The same was forwarded by him to the other members of the company and to the company’s holdings worldwide with a malafide intention to defame the company and the reputation of the CEO. The Delhi High Court passed an ex parte ad interim injunction against the employee to prevent any further defamation of the company in the cyber network.

Subramanian Swamy v. Union of India (2016)

The Supreme Court, in the case of Subramanian Swamy v. Union of India (2016), upheld the constitutional validity of the offence of defamation as under Sections 499 and 500 of the IPC and stated that it does not violate the right to freedom of speech under Article 19 of the Constitution. The right to reputation is protected under Article 21 of the Indian Constitution.

Article 19 (1) (a) reads, “All citizens shall have the right to freedom of speech and expression.” guaranteeing the right to freedom of speech to all citizens. However, there are restrictions for the same where freedom of speech is curbed, including preservation of the interests of sovereignty, security, and integrity of India, public order, defamation, contempt of court, or incitement to an offence.

The Supreme Court in the case of Manoj Kumar Tiwari v. Manish Sissodia (2022), held that the tweets against the minister were prima facie defamatory under Section 499 IPC and further noted that a minister or a public servant covered under Section 199(2) of CrPC can file a private complaint for defamation without following special procedure as given under Section 199 (2) and 199 (4) of CrPC.

Kaushal Kishor v. the State of Uttar Pradesh (2023) 

The Apex Court in a recent ruling dated 03.01.2023 in the case of Kaushal Kishor v. the State of Uttar Pradesh (2023) discussed the right to freedom of speech for MLA’s and MP’s. The five judge Constitution Bench, comprising Justices S. A. Nazeer,  B. R. Gavai, A. S. Bopanna, V. Ramasubramanian, and B. V. Nagarathna, answered the question as to the imposition of restrictions on public functionaries’ right to freedom of speech and expression. The majority ruling stated that, “A statement made by a minister even if traceable to any affairs of the state or for protection of the government cannot be attributed vicariously to the government by invoking the principle of collective responsibility.” 

Defences to defamation

All statements that impute harm to one’s reputation shall not amount to defamation. It has its own exceptions, as mentioned under Section 499 of the IPC. Any person who is accused wrongfully of defamation can claim certain defences.

Statement made is true

If the defamatory statement is true, then it does not amount to defamation because the information is honest. In such cases, the burden of proof is on the accused to prove the validity of the statement. 

Fair and bonafide statement

Furthermore, any statement made in a fair and bona fide manner for the welfare of the general public shall not amount to defamation. Duncan and Neill had laid down guidelines to fair comment. It includes a statement of assessment not as a declaration of reality, reasonable comment without any malafide intention and the comment must be for public interest. 

Honest statement made in the interest of the public

The statement should be based on facts, and a comment or criticism must have been made honestly in the public interest.

Statement of opinion

A mere statement of opinion is not defamation. The mere expression of one’s opinion regarding any article, artwork, music, book, etc. does not amount to defamation by default.

Additionally, there are privileged comments, which are of two types – absolute and qualified privilege.

  • Absolute privilege is applicable to any remarks passed against judiciary or parliament proceedings, political speeches, or between spouses even if defamatory shall not be punishable.
  • Qualified privilege is available when a person has legal, social or moral duty to make a statement that does not amount to defamation.

Remedies for defamation

Injunction

The aggrieved party can file an injunction against the defendant to prohibit further publication of defamatory contents.

Damages

Plaintiffs can claim damages against the person who published the defamatory statements. This is the available civil remedy for defamation.

A private complaint is filed before the judicial magistrate in case of criminal defamation, and a civil suit can be filed under Section 19 of the Code of Civil Procedure, 1908, where the defendant resides or the place where the defamatory statement was made, in any competent court of pecuniary jurisdiction to seek relief for damages.

In the case of N.N.S. Rana v. Union of India (2011), that the language of the Limitation Act, 1963 is clear and unambiguous. The period of limitation for filing a compensation suit,  shall be one year from the date of publication of the libel.

How to file a suit for defamation in India

Any person whose reputation is damaged shall either file a civil suit or initiate criminal proceedings.

Filing of a civil suit

  • A suit can be filed under Section 19 of the Code of Civil Procedure, 1908 which deals with suits for compensation for wrongs to persons or movables. Though there is no explicit mention of defamation, it is a tort or civil wrong against a person’s rights that falls under the ambit of this section. A suit needs to be instituted as per Order 7 of the CPC, and a complaint under Section 200 of the CrPC needs to be registered.

Procedure for a civil suit

  • A written complaint or plaint is to be filed in the court mentioning all particulars including name of court, name and address of parties and a declaration by plaintiff.
  • Court fee of Rs. 10 and procedure fee of Rs. 25 is to be paid.
  • Hearing takes place in court. If substantial matter is found in the case, then a written notice is sent to the defendants. The plaintiff is to submit relevant documents within 7 days from date of notice along with process fee and two copies of the plaint.
  • The defendants must submit a written statement within 30 days from receipt of notice with all counter-arguments and verification. The maximum period it can be extended is 90 days which is at the discretion of the court.
  • Plaintiff is to file his reply to the written statement of defendants and the pleading is complete.
  • Issues are to be framed and a list of witnesses must be filed within 15 days.
  • Parties may call the other party personally or the court may issue summons to witness.
  • The witness is cross-examined and the Court gives the final date of hearing.
  • Upon final hearing, the Court issues a final order and a certified copy of the order.
  • The parties not satisfied with the judgement, may go for appeal, review or reference.

Filing of criminal suit

A criminal complaint can be made under Section 499 of the IPC. Defamation is a non-cognizable and bailable offence. Upon receipt of the complaint and permission from the Magistrate, an investigation shall commence as under Section 156 of CrPC. The magistrate shall start the trial after the accused is produced before him. Based on evidence and arguments from both parties, punishment shall be awarded under Section 500 IPC.

Procedure for criminal proceedings

  • Complaint is made to a police officer who records all details in a book or diary authorised by the state government.
  • The complaint is forwarded to the magistrate and investigation is carried on with his permission. The complainant has a right to follow-up on the progress of the investigation.
  • A complaint may be directly made to the magistrate if the police officers do not act properly.
  • The magistrate may issue notice to the accused to appear before court.
  • If the magistrate is satisfied that the case is not substantial, he may direct the police officers to conduct proper inquiry. He may summon the accused and continue trial if satisfied.
  • Evidence shall be given, and police shall also give a final report of investigation to the magistrate. The police may give a closer report in absence of evidence of the charge and the magistrate may order to close the case or carry on further investigation; or the police may submit charge sheet which has brief facts, copy of FIR, list of witnesses, etc. for the magistrate to believe that there is sufficient substance in the case.
  • Upon filing a chargesheet, prosecution takes cognisance and issues arrest warrant to accused under Section 190 of the CrPC but if the case is not made out in first hearing, it shall discharge the accused under Section 227.
  • If the accused pleads guilty, he is convicted under Section 229 of the CrPC; otherwise, the trial continues.
  • The prosecution may produce witnesses and conduct cross-examination. The defence witnesses are also produced.
  • On the basis of the arguments and the evidence produced by both parties, the judge may either convict or acquit the accused.

Punishment for defamation and freedom of speech under the Constitution of India

Defamation and freedom of speech seem like a double-ended sword. The offence of defamation is said to have curtailed freedom of speech, which is a fundamental right guaranteed under Article 19(1)(a) of the Indian Constitution. However, this right is no exception and falls under the purview of Article 19(2) for reasonable restriction. Laws on defamation are imposed to strike a balance between freedom of speech and abuse of the right. If the right to speech were absolute, then anyone and everyone could be criticised; and their reputation could be harmed under this right. It is imperative in the good faith of the citizens, that there lies a law to curb the abuse of the right and punish those who use the freedom of speech as a facade to hurt one’s feelings or impute one’s reputation.

However, not all that tarnishes reputation amounts to defamation. They may sometimes be of public good or have bitter truth in them; in such circumstances, the persons are protected under the exceptions to defamation under the IPC. The onus of proof lies on the person alleging the statement to prove it was either for public good or is the hard-hitting truth or falls with the exceptions under Section 499 IPC. The aggrieved party on the other side, must prove that there was evidence for prima facie defamation, publication of defamation and the malafide intention to do so.

The right to freedom of speech does not mean that a citizen has unlimited rights to criticise others. Defamation laws are imposed to counterbalance the rights guaranteed under the constitution. It is a reasonable restriction that falls with Article 19(2), so as to ensure that there is no unnecessary imputation of one’s reputation or spreading of any false information that might trigger society. 

Conclusion 

When the right to freedom of speech is enshrined under Article 19, it carries with it a set of restrictions as well. A limit is set on the same to prevent any adverse exercise of the right to speech. The objective of curbing defamation under the restrictions is to safeguard one’s reputation and honour. However, defamation has exceptions too. If a true statement is made or if it is made for the public good, though it imputes harm to a person’s reputation, it is not punishable. 

The reputation of an individual is indirectly enshrined under Article 21, and any false accusation made to tarnish one’s reputation shall constitute the offence of defamation, leading to a punishment of imprisonment, a fine, or the payment of compensatory damages. If defamation falls within the exceptions given under the IPC, it shall not be punishable. Several judicial precedents have been laid down to define the ambit of defamation. With changing times, cyber defamation has assumed a new form. A rigid legal framework is required to be drafted to prevent defamation in the digital world.

Frequently Asked Questions (FAQs) 

What is defamation?

Defamation is the act of imputing harm to one’s reputation by alleging false information against that person. It is done deliberately with a mala fide intention to harm an individual’s reputation, moral character, or intellectual character.

What are the essentials of defamation?

A defamatory statement needs to be made either orally or in writing. Such a statement should contain allegations of false information against a person. The intention of making such a statement must be to harm one’s reputation. The statement must be published, and it should be read or acknowledged by any third party other than the addressee.

References

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