By Amruta Kadam
A man’s reputation is a property more valuable than other property. Every man has the right to protect his reputation as he shall protect his other properties. Defamation, in plain words, means injury to one’s reputation. Defamation, in other words, may be termed as letting other people know besides the person who is being defamed about the matter which would tend to lower the plaintiff in the estimation of right-thinking person. This ultimately may lead other people to discourage the plaintiff’s company or association with him.
In Vishwanat V. Sau. Sarla Vishwanath Agrawal[1], this Court observed that reputation which is not only the salt of life but also the purest treasure and the most precious perfume of life. While discussing defamation in the Indian context it is significant to mention that, Rajiv Gandhi government proposed a defamation bill. However, Defamation Bill, 1988 received widespread criticism from the media and opposition parties due to its draconian provisions and therefore it was struck down. In the present times, Defamation in India can be broadly classified into civil and a criminal offence. In Civil Law, defamation falls under the Law of Torts, which imposes punishment in the form of damages awarded to the claimant. Under Criminal Law, Defamation is a bailable, non-cognizable and compoundable offence
THE TORT OF DEFAMATION-
The tort of defamation protects the interest, in his reputation which everybody enjoys. Therefore one cannot say it is tort unless there has been a communication of the defamatory matter to a third party. For it is the opinion held by the person defamed by others that matters. Insult directed to the plaintiff himself do not in themselves constitute defamation, the tort is not primarily concerned with the wounded feelings of the plaintiff. In England, there lie two types of defamation. One is ‘libel’, in which the defamatory statements are made in some permanently visible form such as writing, effigies, pictures or printing. Another part is ‘slander’ in which the statement is made by some spoken words or transitory form whether visible or audible such as hissing, gestures or such other things. The real test of differentiation lies in the choice of medium used for defamation. In India according to section 499 of the Indian Penal Code however, libel and slander are both crimes but under Indian Penal Code slander is considered more serious offence than that of libel. Slander has huge potentials of breaching the peace, which is on the other hand very less compared to libel.
In civil one might come across words like Insult and defamation and may use insult and defamation interchangeably but there lies a minute difference between the two terms. Insult is wrong done to regard or self-esteem in which one is held by the others while defamation is an injury only to one’s dignity or self-respect. Defamation requires publication to the third person whereas insult may consist in abusing a person only in his presence. To put in simple words in an action of defamation one has to fulfil certain essentials such as-
i. The statement must be defamatory.[2]
ii. The said statement must refer to the plaintiff.[3]
iii. The statement must be published i.e., communicated to at least one person other than the claimant.[4]
CRIMINAL SUIT-
An intention to defame is an important element under a criminal suit. In the absence of intention, the knowledge that the publication was likely to defame or is defamatory becomes essential. All this is further subject to the normal standard of proof in criminal cases: beyond a reasonable doubt. Defamation under a criminal suit can be discussed under various heads such as-
- Chapter XXI sections 499-502 protects an individual’s / person’s reputation.
- Section 124A includes defamation against the state [Sedition]
- Section 153 of the Code provides for defamation of a class
- Section 295A deals with hate speech with regards to outraging religious sentiments.
According to section 499 of IPC, ‘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.’This section is subjected to ten exceptions. Further, section 500 states that “whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with fine or with both. Such an offence is non-cognizable and bailable. These sections were on a greater level challenged in Dr Subramanian Swamy judgement[5], where the question was-
- -whether criminalising defamation is an excessive restriction on freedom of speech, and other,
- -whether the criminal defamation law under Sections 499 and 500 is vaguely phrased and hence arbitrary.
The court held that the Sections 499 and section 500 were not ambiguously worded rather the word had its own independent identity. The court held defamation as a public wrong thereby declaring section 499 as not an excessive restriction under Article 19(2). It held that criminal defamation is not a disproportionate restriction on free speech, because the protection of reputation is a fundamental right as well as a human right. The identity of right to reputation as a part of the right to life under Article 21 was once again reiterated. One of the important aspects of this case was when the court upheld that the criminal defamation under section 199 CrPC is not a violation of Art. 19(1) as the Article involved public interest and not that of an individual.
SECTION 199 OF CrPC-
Section 199 of CrPC opens the door for public servants to file a complaint in a sessions court through a public prosecutor for alleged defamatory comments on their official conduct. This section extends its protection only for their official conducts and not for any other reason. There cannot be defamatory attacks on them because of the discharge of their due functions but it is important that they should be able to face reasonable criticism. They should not invoke it without any foolproof material and when it is inevitable for the state for launching prosecution under this section through a public prosecutor.
DEFAMATION IN THE LIGHT OF INFORMATION TECHNOLOGY ACT-
Judgements have always tried maintaining their balance between Article 19(1)(a) and right of reputation. With respect to the judgment in R. V. Oaks[6] court held such tests of checking proportionality of a restriction. Such tests where the punishment/restriction should impair ‘as little as possible’ the freedom in question. Because if restrictions are not proportional it will ultimately nullify the whole purpose of having the fundamental rights. But time and again Article 19(1)(a) and right of reputation under Article 21 find itself in conflict with each other. Therefore, a balance needs to be struck depending upon the circumstances. In Shreya Singhal v. Union of India[7] which led to the retention of criminal defamation the Court held that Section 66A was capable of limiting all forms of internet communications as it made no distinction between “mere discussion or advocacy of a particular point of view, which may be annoying or inconvenient or grossly offensive to some and incitement by which such words lead to an imminent causal connection with public disorder, the security of State etc.”. In this landmark, judgement court struck down Section 66A which was widely criticised for its over vagueness and its chilling effect on speech.
Increase of the internet world in our everyday life was witnessed again when Section 499 as discussed above extended to ‘electronic documents’. Section 469 of the IPC was amended by the Information Technology Act, 2000 and added ‘electronic record forged’. Another notable legislation under the Information Technology Act is Section 79 which provides a safe harbour to intermediaries against any act of defamation[8]. Under this section, the liabilities of the intermediaries is reduced with respect to third party information which is hosted on their platform.
THE GAG ORDER-
While one goes through the history of defamation in India, one cannot avoid discussing one of the popular judgement in Justice Karnan’s case. This judgement not only challenged the collegium system for selection but made a mockery of the entire judicial system. Also, more importantly, why this judgement was in talks amongst critics was because of the gag order passed by the Apex court. Justice Karnan who was transferred to the High Court of Calcutta had raised issues such as caste discrimination, favouritism etc. After writing letters about the judges, he was summoned by the Supreme Court which initiated contempt proceedings against him A seven-judge bench imprisoned Justice Karnan for contempt case but also directed media houses to not report any of C.S. Karnan’s statements. The gag orders which supposedly owe their existence to Article 129 to punish offenders for contempt of itself the court held that the power to punish included the power to prevent as well[9]. But in the present case to punish a person for what he spoke could be a valid ground to take action against him but to punish someone for something he might say in future was a violation of his fundamental rights. However, the court had its own justification i.e. ‘to discourage any kind of future contempt’ for passing such order. Further to avoid anything wrong he may say in future and prevent them from publicity, a gag order was passed by the court. These passed orders ignited a spirit of anger amongst the people as it did not even satisfy pre-conditions for imposing prior restraint. The media houses, citizens were deprived of understanding Justice Karnan’s side. The media however not being part of the proceeding they were still not allowed to fulfil their duty of reporting the case.
DEFENCES-
Some of the defences which can be taken against an action of defamation include-
- Justification of truth[10] is a complete defence in an defamatory action but under the criminal law, the truth of the statement cannot stand as a defence. If Defendant proves that the statement is true then no action will lie against him even if it was published maliciously.
- Fair and bona fide comment- Every person is entitled to express his opinion on matters of public interest. A statement is acceptable if it is a fair comment on a matter of public interest. Essentials of fair comments are
-That it is a comment and not a statement of fact
-That the comment concern matter of public interest
-That the comments have qualities of fairness and honesty
· Privileged Statement- In certain cases which are so important that those making statements upon them are not liable in defamation, even though their statements are not true and even malicious. There are two kinds of privileges-
-Absolute privilege
The following are the absolute privileges
a) Parliamentary proceedings
b) Judicial proceedings
c) Military and Naval proceedings
d) State proceeds
-Qualified privilege
In certain cases, it is thought desirable that reflection on the reputation of others although not true, should not give rise to tortious liability, provided that they were not published with malice.
Following statements must exist to make it a case of qualified privilege-
a) There must be a fit occasion to make the statement
b) The statement must not be uncalled for but must have references to the occasion
c) It must be made with a proper motive and not maliciously.
· Apology
The offeror the making of an apology is not at common law defence, although it may be given in evidence in mitigation of damages.
CONCLUSION-
The law of defamation seeks to protect individual reputation. Its central problem is how to reconcile this purpose with the competing demands of free speech. Since both these interests hold a noble place in our constitution it becomes difficult to avoid or hold on to one interest at the cost of others. Even though there are a fixed set of defamation laws in India we can experience various interpretations of the same law right from the case against Justice Gogoi to AIB co-founder Tanay Bhatt. These decisions mark the end of the case but leave behind various questions such as the extent of judicial censorship, unregulated OTT’s or is resorting to penal provisions justified especially when reformative justice is replacing retributive justice. Defamation again differs from society to society for things which may be tolerated by a certain set of people may not be for others. To sum up, in the words of Gian Kaur v. State of Punjab[11], the Court observed that the right to reputation is a natural right. Therefore to protect the same a huge onus lies on the shoulders of our judiciary in order to regulate defamatory action against the fundamental rights.
[1] Vishwanat V. Sau. Sarla Vishwanath Agrawal (2012) 7 SCC 288
[2] Sukhraji Vikaji V. Kundamall Pankraj, AIR 1949 Mad 303
[3] D. Doraiswami V. Kanviappa Chetti AIR 1931 Mad 487
[4] Raghunath Singh Parmar V. Makundi Lal AIR 1936 All 780
[5] Subramanian Swamy v. Union of India AIR 2016 SC 2728.
[6] R. V. Oaks [1986] SCC 46; Supreme Court of Canada [1986] 1SCR 103.
[7] Shreya Singhal v.Union of India, AIR 2015 SC 1523.
[8] Super Cassettes Industries Ltd. V. My Space Inc. 2016 SCC OnLine Del 6382: (2017) 236 DLT 478 (DB)
[9] Sahara vs SEBI 2013 1 SCC 1
[10] Radheshyam Tewari V. Eknath AIR 1985 Bom 285
[11] Gian Kaur v. State of Punjab (1996) 2 SCC 648