Defamation Under The Indian Penal Code ( NEW vs. OLD)

Introduction

Defamation is a legal concept that aims to safeguard an individual’s reputation from untrue statements that damage their character or position in society. In India, defamation is considered a criminal offense under the Indian Penal Code (IPC). This article offers a detailed analysis of defamation under the IPC, including its historical context, key elements, types of defamation, and relevant examples.

After the new bill (Bhartiya Nyaya Sanhita) 2023, the section in the law has changed. In the IPC (Indian Penal Code), sections 499, 500, 501, and 502 are now sections 356 in BNS (Bhartiya Nyaya Sanhita).

A Brief History of Defamation

Defamation is the act of making false statements about someone, which can harm their reputation. It can be either spoken (Faulander) or written (libel). The history of defamation laws dates back to ancient civilizations when societies recognized the importance of safeguarding individuals from false accusations that could harm their social standing and livelihood.

Ancient Rome and Greece:

• Both Roman and Greek societies had laws prohibiting false statements that harmed a person’s reputation.
• In ancient Rome, individuals who made damaging statements about others could be penalized for false accusations.

Common Law Tradition:

• The concept of defamation became more structured during the development of the common law system in medieval England.
• Early common law recognized defamation as a civil wrong, and individuals could sue for damages if false statements were made about them.

Evolution of Defamation Laws in England:

• During the 17th century, defamation laws in England underwent further development. Legal cases began to emerge which established precedents for protecting one’s reputation.
• In 1670, an English newspaper published a libelous statement, which was the first known case of defamation to involve a newspaper.

Modern Laws of Defamation:

• Defamation laws have been adapting to the changes caused by technological advancements, particularly the increasing use of the internet and social media.
• Various regions have different criteria for proving defamation, but it is often based on key factors such as a false statement, harm to one’s reputation, and the lack of any privileges or other defenses.

Ingredient of Defamation Law

1.  False Statement: If a statement is true, it is generally not considered defamatory. However, in some jurisdictions, the statement must be false and made with knowledge of its falsity or with a reckless disregard for the truth to be considered defamatory.
2. Publication: The false statement must be published or conveyed to a third party to be considered defamation.
3. Fault or Negligence: In some places, the individual who makes a false statement (defendant) must have acted with some degree of fault or negligence. The degree of fault needed may differ, and it can range from negligence to actual malice (intentionally making false statements or showing reckless disregard for the truth).
4. Harm of Reputation: The false statement must cause harm to the reputation of the person it’s about, damaging their character, integrity, profession, business, or other aspects of their reputation.
5. Unprivileged Statement: The statement must be unprivileged. Some statements are protected by privileges, such as statements made in court or legislative proceedings. However, if the privilege does not apply, the statement may be subject to defamation claims.

Type of Defamation

There are two main types of defamation: slander and libel. The type of defamation is determined by the medium through which the defamatory statements are communicated.

Slander

Definition: Slander is a term that refers to spoken or gestured statements that are defamatory in nature and can cause harm to a person’s reputation.

Medium: The damaging and false remarks are typically made through temporary communication methods such as spoken words, gestures, or non-permanent means.

Example: False accusations made during a conversation, on a radio broadcast, in a speech, or through an interview could constitute slander.

Libel

Definition: Libel refers to defamatory statements that are published in written or any other form, and that can cause damage to a person’s reputation.

Medium: Libel is a term used to describe statements that are false, harmful, and damaging to a person’s reputation. These statements are typically communicated in a more permanent form, such as written words, printed materials, photographs, illustrations, or other visual representations.

Example: Libel can occur in any written or visual communication that reaches a wide audience, such as newspapers, magazines, books, online articles, or social media posts.

Illustration of Defamation

1. Due to a false rumor, potential customers may hesitate to purchase from Person A’s business. Additionally, some existing customers may begin to question the quality and integrity of the products or services offered by A’s business. This can result in a decrease in sales and a damaged reputation for Person A.

• If Person B has made a false statement about Person A that has caused harm to their reputation or business, Person A may have the right to pursue a defamation lawsuit against Person B. In a defamation claim, the key components include the false statement, its publication, harm to reputation, lack of privilege, fault on the part of Person B, and potential damages.

• Person A suffered financial losses and damage to their business’s reputation due to false information disseminated by Person B. This harm is concrete and could support a claim for damages in a defamation case.

Exceptions to Defamation

Defamation laws have exceptions and defenses that can protect individuals and entities from liability. These exceptions vary by jurisdiction but some common ones include:

1. Truth or Substantial truth: If a statement is true or substantially true, it is usually considered a complete defense against defamation claims. However, in some jurisdictions, the defendant may be required to prove the truth of the statement.
2. Privilege: Certain statements made in specific contexts may be protected by privilege, which means they cannot be the basis for a defamation claim. For instance:
   • Absolute Privilege: Statements made in legal or legislative proceedings are generally privileged, and individuals involved in these proceedings are immune from defamation liability for their statements.
   • Qualified Privilege: There are certain situations where individuals have a legal, moral, or social obligation to communicate certain information, even if it later turns out to be false. In such cases, individuals are protected from legal action for making these statements. For example, employers may need to communicate certain information to their employees, or officials may need to communicate certain information as part of their duties.
3. Public Figure and Public Officials: When public figures, like celebrities or public officials, file a defamation case against someone, they are required to provide a stronger proof. They need to prove that the false statement made against them was made with “actual malice”, which means that the statement was made with knowledge of its falsity or with reckless disregard for the truth.
4. Statute of Limitations: Defamation claims must be filed within a certain time limit, known as the statute of limitations. If this time limit expires, the injured party may be prevented from bringing a defamation claim.

Landmark Cases of Defamation in India

Subramanian Swamy v. Union of India, Min. of Law (2016)

In this case, the constitutionality of Sections 499 and 500 of the Indian Penal Code,1860, which pertain to the offence of defamation, was challenged on the grounds of the right to freedom of speech and expression. However, the Supreme Court upheld the validity of these provisions.

Facts

A writ petition was filed under Article 32 of the Indian Constitution, challenging the constitutional validity of the offence of defamation under the Indian Penal Code. The petitioners argued that the offence of defamation violates the right to free speech and expression guaranteed under Article 19(1)(a) of the Indian Constitution.

Court’s Observation

The two-judge bench of the Supreme Court upheld the constitutionality of the offence of defamation under the Indian Penal Code. They made important observations.

• It has been observed that when the legislature associates wider words with words of narrower sense, there is no ambiguity in their intent. Thus, the rule of noscitur a sociis, which is a rule of construction, cannot be applied.
• It is not permissible to defame others in the name of freedom of speech and expression, according to the Court, “it is difficult to come to a conclusion that the existence of criminal defamation is absolutely obnoxious to freedom of speech and expression.”
• Furthermore, the Court stated, “protection of reputation is a fundamental right. It is also a human right. Cumulatively, it serves the social interest. Thus, we are unable to accept that provisions relating to criminal defamation are not saved by the doctrine of proportionality because it determines a limit which is not impermissible within the criterion of reasonable restriction.

MC Verghese v. TJ Ponnan (1970)

This case addressed whether communication between spouses is privileged and falls under the eighth exception to Section 499 of the Indian Penal Code.

Facts

A complaint was filed by Mr. Verghese, who was the father-in-law of TJ Ponnan. TJ had written a letter to his wife Ruchi while she was staying at her father’s place in Trivandrum. The letter contained defamatory statements against Mr. Verghese. The complaint was filed before the district magistrate. The District Magistrate held that the communication between husband and wife does not amount to publication as they are considered one under English law. The Magistrate observed that this communication is privileged and does not amount to the offense of defamation. However, this decision was reversed by the Sessions Court, stating that the rule under the Common Law that husband and wife are one in the eyes of the law cannot be applied in India. But the High Court reversed the order and upheld the decision of the District Magistrate. Thus, an appeal was filed before the Supreme Court.

Court’s Observation

The Supreme Court has ruled that this particular case is not covered by the privileged communication or the eighth exception to Section 499. In its judgment, the Supreme Court referred to the Tiruvengada Mudali v. Tripurasundari Ammal ruling of 1980 and held that nothing should be allowed beyond the exceptions provided in Section 499, as it is exhaustive. It was started that, “a person making libellous statements in his complaint filed in court is not absolutely protected in a criminal proceeding for defamation, for under the eighth exception and the illustration to Section 499, the statements are privileged only when they are made in good faith. There is authority therefore for the proposition that in determining the criminality of any act under the IPC, the courts will not extend the scope of special exceptions by resorting to the rule peculiar in English common law that the husband and wife are regarded as one”.

Jawaharlal Darda v. Manoharro Ganpatrao Kapiskar (1998)

This case concerns the accuracy of reports of assembly proceedings in newspapers.

Facts

A complaint has been filed under Sections 499, 500, 501 and 502 of the Indian Penal Code. The Chief Editor of the newspaper Lokmat has been accused of defamation for publishing news related to the Maharashtra legislative proceedings. According to the news, when a minister was asked about misappropriation of government funds, he admitted that the enquiry concluded that there was indeed a misappropriation. The minister further revealed the names of 5 individuals, including that of the complainant, and stated that they were involved in the misappropriation.

Court’s Observation

The Supreme Court very succinctly highlighted that the reporting by the newspaper was true and accurate and was in good faith. It was also stated that, “If the accused bona fide believing the version of the Minister to be true published the report in good faith it cannot be said that they intended to harm the reputation of the complainant. It was a report in respect of public conduct of public servants who were entrusted with public funds intended to be used for public good. Thus the facts and circumstances of the case disclose that the news items were published for public good. All these aspects have been overlooked by the High Court”.

Conclusion

Defamation is a criminal offense that is crucial in protecting an individual’s reputation from false and damaging statements. In order to establish a strong case, it is essential to understand the key elements of defamation, including false statements, harm to reputation, publication, and intent or knowledge. Additionally, it is important to distinguish between libel and slander when evaluating defamatory acts in different contexts. By upholding the principles of defamation law, we can create a society that values truth, fairness, and respect for one another’s reputations.

By : Aman Bijoriya ( 3rd Year B.A.LL.B).