This article is written by Vedant Tapadia, student of Hidayatullah National Law University.
In today’s world, a man cares most about his reputation. From this observation stems the inclusion of the right to live with dignity which is guaranteed as a Fundamental Right under Part III of the Indian Constitution. However, it is essential to determine the balance of such rights with respect to the rights which others wield.
For example, the delicate balance between a person’s fundamental right of speech and expression and his right to maintain a good name and to live with dignity needs to be maintained as to prevent the infringement of one over the other. It is at this junction that the law against defamation in India gains its prominence.
By definition, defamation means “Any type of deliberate false communication, either written or spoken, that can harm a person’s reputation or decreases the respect, regard or confidence of a person; or induces disparaging, or a hostile or disagreeable opinion or feeling against a person is known as defamation.”
The law treats a man’s dignity and reputation as his property and perceives his defamation as loss prescribing damages as compensation. Broadly speaking, defamation in India can be classified into two types, depending on the medium of media. Any propagation of false news through written or printed media is classified as libel. On the other hand, the propagation of false harmful information through oral media is known as slander.
HISTORY OF DEFAMATION
The history of maligning and defamation has an ancient history with roots emerging from the Roman and German law. The English laws, which is the inspiration, or even the direct basis, behind many Indian legislations also observed defamation as an offence. Furthermore, many countries have even penalised defamation making it a crime, prescribing strict punishment for the same, an example being Italy.
DEFAMATION IN INDIA
Our Indian Constitution, the body and soul of the polity, is the apex legislation and grants various fundamental rights to the people of the country. Article 19 under Part III of the Constitution grants its citizens various freedoms, ensuring that every citizen has the power to express themselves. This freedom of one’s speech and expression as protected under Article 19 is balanced by the provision of Article 19 (2) which imposes reasonable exemption to freedom of speech and expression which restricts the abuse of the right granted under Article 19(1)(a). Contempt of court, defamation and incitement to an offence are some exceptions.
Defamation in India is an offence under both civil as well as criminal law. Under civil law, defamation is tried under the law of torts and is punished via compensation, i.e. by imposing punishment in the form of damages to be awarded to the claimant. Under Criminal law, defamation is a bailable and a non-cognizable offence. It is also a compoundable offence which means that a policeman may arrest only with an arrest warrant which is in turn duly issued by a Magistrate. The Indian Penal Code, 1860 penalises this offence of defamation and prescribes the punishment of the offence with simple imprisonment up to two years, or with fine, or both.
DEFAMATION AS A CIVIL OFFENCE
Certain elements must be fulfilled for proving the action of defamation under civil law. For the offence of defamation in India to have taken place, the statement or remark made needs to be untrue and it should have been made without the consent of the person being defamed. If the offence of defamation is held to have taken place, then the court through its decree will award monetary compensation which can be claimed by the petitioner. There are certain requirements for a successful defamation suit. They are:
There must be a defamatory statement made by the defendant. The nature of the statement is calculated on the basis of the injury which can be caused by exposing them to hatred, contempt or ridicule. The test whether it damages the reputation and if the nature of the statement was injurious, has to be calculated from the eyes of a common man acting objectively and his comprehension of the matter as a reasonable and prudent man. Secondly, the statements must be specific and purport to a person or a class of persons. General statements such as ‘all politicians are corrupt’ is too broad and no specific politician can gain compensation for the same.
Lastly, it must be published either in written or oral media. Unless the content is accessible to a third person, there can be no defamation. For example, where a letter is sent in a language unknown to the recipient, and he makes a third person read it to him. If any defaming statement is made in the letter, it will constitute defamation even if it was sent as a private letter, since the letter had been made accessible to a third person who also read the same. Once all these prerequisites are fulfilled, a successful defamation suit can be carried on. However, just as any power needs to be kept in check, so as to maintain the balance. Certain defences are available against the allegation of defamation against a person:
- Truth – If the published statement was true, there is no defamation.
- Public Interest – Fair comments made with the public interest in mindis a valid defence.
- Privilege – Certain persons are vested with the privilege to make statements even if they are defamatory in nature, this is statutory protection. For example, judicial proceedings and members of parliament.
DEFAMATION AS A CRIMINAL OFFENCE
Just like other offences which are criminal in nature, under a suit for criminal defamation, the intention is necessary. The statement made should have been made with malice and with the ill-intention to defame the other person. The knowledge, that the publication is likely to have an ill effect on the other persons’ reputation is enough intent and satisfies the essential. It has to be proved beyond a reasonable doubt that the act was being done with the intention to lower the reputation of another.
Section 499 of the Indian Penal Code, 1860 defines what is defamation and lays down its exceptions. “Words or signs imputed intending to harm or with the knowledge that such imputation will cause harm.” It may amount to defamation if anything is published against a deceased person if such allegation would harm the reputation had the person been living. There has been no defamation unless the alleged defamatory statement made, either directly or indirectly lowers the moral or intellectual character or the respect of his caste or his calling in the estimation of others.
EXCEPTIONS TO DEFAMATION
Persons who make defamatory statements are exempted from punishments if they fall in one of the ten exceptions provided under Section 499 of the Indian Penal Code, 1860. They are as follows:
- Any truthful statement made for the public good is a valid defence against criminal defamation. Truth is a rare defence and is not accepted unless made for the public good.
- Any statement made without malice and with good faith about a public servant in the discharge of his public functions.
- Any statement made without malice and with good faith respecting the conduct of any person which relates to a public question.
- Publication of actual reports of the proceedings of the Courts or its decree is not defamation.
- Any statement made without malice and with good faith regarding the merits of any civil or criminal case decided by the Court of Justice, or the conduct of any person as a party, witness or agent to that case and no further.
- Any statement made without malice and with good faith regarding the opinions made about the merits of any performance which its author has submitted to the judgement of the public.
- Allegation of the offence of defamation against those having lawful authority over the petitioner and done in good faith is a valid exception to defamation. Complaints of defamation from servants against their masters and from children against their parents are examples of the exception.
- Cautions conveyed to one person against another does not come under defamation if it is intended for the good of the conveyed person, or any other, or for the public good and the malice is absent.
Section 500 of the Indian Penal Code, 1860 penalises and prescribes punishment for defamation if it does not fall within the above said exceptions with simple imprisonment which may extend to two years, or fine, or both.
- Defamation law in India,LEXLIFE INDIA (May 03, 2020), https://lexlife.in/2020/05/03/defamation-law-intext=Defaation%20is%20an%20offence%20under,cognizable%20offence20and%20compoundable%20offence.
- Libel, Slander, and Defamation Law: The Basics, FINDLAW (Oct. 02, 2019), https://injury.findlaw.com/torts-and-personal-injuries/defamation-law-the-basics.html.