Shruti Lamba
Article 21 of the Indian Constitution confers the most valuable right, that is, Right to Life and Personal Liberty and as per statement of Iyer, J., this article is the procedural magna carta protective of life and liberty. But does life confer as the right in this article only accounts to only the physical act of breathing?
In the case of Maneka Gandhi v. Union of India[1], Supreme Court gave a new dimension to Article 21 by observing that:
“right to live is not merely a physical right but includes within its ambit the right to live with human dignity.”
Thus, to live with dignity has been conferred as one of the basic fundamental right by the state. But what if someone harms this dignity by expressing in a way that others think of you as low. Such imputation on a man’s character can be generally termed as ‘defamation’. This will invade your fundamental right to live with dignity.
Bhagwat Gita quotes that:
“For a man of honor, defamation is worse than death.”
Thus, to protect from such offence provisions have been provided in The Indian Penal Code, 1860 (hereinafter as IPC) to punish the offenders and explain as to what harm may constitute to be an offence under criminal law.
The ‘character’ of a person is ‘what a person actually is’, whereas ‘reputation’ is what neighbors and others say, ‘what he is.’ Defamation is an offence against the latter part.
Defamation law was constituted by the English Law but its genesis can be traced from centuries ago as there were doctrines in Roman Law to award capital punishment to abusive chants and also there were laws to cut out of the tongue of the person who insults someone, under early English and German Laws.
Especially, in countries like India where people are more concerned about their respect and dignity than life itself it becomes more crucial for the State to protect and ensure the dignity to its components. Thus, provisions regarding defamation have been incorporated in Chapter XXI of the IPC.
In literal sense, defamation can be defined as the act of communicating false statement about a person in order to injure his reputation. Defamation can be understood as an offence of imputation of harm to a person’s reputation.
In other words, defamation can be said as injury to reputation of a person by making false statement about that person, so that a wrong opinion of the person is created in eyes of the public.
In Black’s Law Dictionary defamation is defined as:
“defamation means offence of injuring a person’s character, fame, or reputation by false and malicious statements.”
As per Merriam–Webster Dictionary:
“defamation means the act of communicating false statements about a person that injure the reputation of that person.”
Salmond defined defamation as:
“Defamation is the publication of a false and defamatory statement concerning another person without lawful justification”
According to Winfield defamation can be termed as:
“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 shun or avoid that person.”
There are numerous case laws which provide better understanding and insight to what actually is defamation like the leading case of Scott v Sampson (1882) 8 QBD 491, it was held that:
“The law recognizes in every man a right to have the estimation in which he stands in the opinion of others unaffected by false statements to his discredit.”
To a layman, defamation is understood as causing harm to good reputation of a person in form of abusing him, publishing false statements against him, malicious gossiping and may more. It is referring to another person without any lawful justification.
Section 499 – Defamation
As against the offence of defamation remedies under civil as well as criminal laws are available. Under criminal law, Chapter XXI of IPC deals with defamation viz Section 499 and Section 500 IPC.
Section 499 IPC defines and explains the important constituents of the offence of defamation all the while stating that:
“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.”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.”
Our religious scriptures envisage the principle that one should not speak ill of the dead as this would temper his peace and also inflict much more pain to his near ones. The same principle has been incorporated by the law makers, by widening the scope of the defamation and including even the false statements made with regard to a deceased person as an offence of defamation. But the precondition is that such a statement must be intended to hurt feelings of or inflict mental agony to the family or near ones of the deceased.
“Explanation 2—It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.”
The scope of defamation has been widened more by the explanation as it includes making a false statement to defame a company, an association or collection of persons an offence of defamation under Section 499 IPC.
Herein, collection of persons means a small determinate body whose identity can be fixed like advocates as a class, doctors as a class cannot be defamed. In the leading case of Priya Parameshwaran Pillai v. Union of India and Ors.[2], wherein the petitioner contended that private companies should not be given the right to file defamation suit against an individual, Delhi High Court set aside this contention and observed that a private company has right to do so.
“Explanation 3—An imputation in the form of an alternative or expressed ironically, may amount to defamation.”
The above explanation means that defamation can be in form of an alternative or can be something expressed ironically, like Mr. A says that “Mr. B is an honest man and he never took bribe from Mr. C”; this is defamation as this is an ironic statement intending to create an opinion that Mr. B took bribe from Mr. C. Even false statement by way of an indicative expression or pictorial representation amounts to the offence of defamation.
“Explanation 4—No imputation is said to harm a person’s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful”.
As per the above explanation only such imputation will be accounted as defamation which directly or indirectly lowers a person’s reputation in front of others by creating an impression in mind of others that the person has low moral or intellectual character or has low character with regard to his caste or that the body of the person is in detestable state or is in state of disgrace.
Under English law, the gist of the offence of defamation is its tendency to provoke breach of the peace but in contrast the Indian Law does not considers this, the law of defamation in India is based on its tendency to cause mental pain and suffering to the person defamed and also injury to his/her dignity.
As per the English Law, defamation can be classified into two forms viz:
- Defamation in form of Slander: it is defamation by way of spoken words or gestures. It can be broadly said to be ‘oral’ defamation.
- Defamation in form of Libel: it is defamation done in a written format. In other words, it is done by publishing a written statement. It can be broadly said to be ‘written’ defamation.
Under English Law, libel is treated as a criminal offence whereas slander is merely a civil wrong. It can be said that under English Criminal Law, only libel is treated as an offence whereas slander is no offence at all.
Unlike English law, Indian Criminal Law does not differentiate between libel and slander i.e., both are equal offence under Section 499 IPC. In the leading case of, Hirabai Jehangir v Dinshawdulji Edulji Karkaria[3], it was held by the Court that:
“no distinction needs to be made between treating libel and slander as criminal offenses.”
Essential Ingredients of Defamation
To charge someone with the offence of defamation it is essential to abide his act within these corners namely:
- The statement must be a defamatory.
- There must be publication of such defamatory statement
- The defamatory statement must refer to the plaintiff.
It is essential that the statement should be defamatory, and it is in hands of Court to decide if the statement is capable of defaming the other person or causing harm to his reputation. And if Court finds the answer to be in affirmation only then will it proceed and decide if it actually caused harm to the reputation of the complainant.
If a person writes a defamatory statement about someone on a piece of paper and keeps it in his drawer but somehow the person with regard to whom statement was made finds the statement, then he cannot sue the writer for the offence of defamation. Because it is vital for the statement to get published to constitute an offence of defamation. By publication it means that it is to be communicated to some other person other than the one to whom it relates.
Illustration: dictation made to someone accounts as publication; telling someone other than person defamed amounts to publication but telling the person defamed only does not accounts to publication.
But if in above illustration, a third person wrongfully reads the letter put in the drawer then defendant is likely to be liable. But if the writer himself asks a third person to open the drawer and hand over the letter to someone knowing that he will read the letter, this will amount to valid publication.
In leading case of Mahendra Ram v. Harnandan prasad[4], the same principle as above was observed:
“the defendant was held liable for sending a defamatory letter to plaintiff written in Urdu knowing that the plaintiff did not knew Urdu and the letter will very likely be read over by another person.”
In offence of defamation, it is important that the complainant proves that the statement was referred so as to defame him. It will be immaterial if the wrongdoer intended to defame him or not. If a person could reasonably be inferred as referred by the defamatory statement, then it would be said that the statement was made against him.
Illustration
If Mr. ‘A’, a businessman orders his employees not to make transaction with people of region BCD as they are defaulters in making credit payments. Mr. ‘Y’, a resident of BCD suffered huge loss due to this. So, Y can hold A liable for defaming him although the statement was not directly made with regard to him.
The same principle was held in leading case of T.V., Ramasubha Iyer v. A.M.A Mohindeen[5], where, a statement was published mentioning that a particular person carrying business of Agarbatis to Ceylon was arrested for smuggling. Plaintiff being in similar kind of business, suffered huge loss due to the statement and the Court held that the defendants, even if did not directly referred the plaintiff still be held liable.
It is to be noted that a publisher of a newspaper publishing a defamatory statement is liable for the offence of defamation even if he was unaware of the contents of the statement published.
Every person contributing in making a defamatory statement viz creating or composing the content, dictating it or typing it, shall be accounted for the offence of defamation.
It is to be kept in mind that words spoken in anger or abuses made in haste or anger causing harm to reputation but to which there is no hearer shall not be accounted as defamation.
Defenses to defamation
As against an action of defamation following can be defenses available to the maker of defamatory statement:
- Justification of truth and public good
- Fair comment
- Privileged Communication
Justification of Truth and Public Good
“Law will not permit a man to recover damages for something being true about him”
The above principle is the source that provides prime defense against the action of defamation. Under a civil action for defamation, the truth of the statement made is complete defense. But under a criminal action for defamation the element of public good is added to the equation. In other words, under a criminal action for defamation the defense available is to prove that the statement made is true as well as it was made keeping in mind best interest of the public at large.
It is to be noted that if the defendant is not able to prove the truthfulness of the statement then the defense will not be available even if such stamen was made in good faith keeping in mind the public good. The same was held in leading case of Radheyshyam Tiwari v. Eknath[6], wherein defendant on account of being unable to prove the facts published by him to be true was held liable for the offence of defamation.
Fair Comment
The defamatory statement made must be an expression of opinion rather than assertion of truth to claiming defense of against action of defamation and that to fair comment must be made on matters of public interest to claim the defense.
Illustration: if ‘X’ says that ‘Y’ has taken bribe from someone and therefore, he is a dishonest man. The latter part is comment on the former. But if Y has not taken bribe then X telling him to be dishonest will amount to assertion of the fact.
With regard to fairness, it means that the comment must be based on true facts. With regard to matters of public interest it includes matters like courts, ministers, public meetings, textbooks, and many more.
Privileged Communication
The word refers to giving special status to some types of communications. These are special circumstances where law recognizes that right to speech outweighs plaintiffs right to defame and thus not actionable for action of defamation.
‘Privileged communication’ means a communication made in good faith and the party making such communication honestly believes that the communication is protected and is meant for public good.
Statements made to or by:
- Judges
- Counsel or Pleader
- Witness (But it should be kept in mind that statements made by witness which are not relevant totally to the matter of inquiry are not privileged.)
Thus, anything stated during or before any of the above shall not be amounted to action of defamation.
Section 500 – Punishment for Defamation
Section 500 IPC under chapter XXI of IPC provides for punishment for offence of defamation as:
“Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.”
The offence of defamation is:
- Non- cognizable
- Bailable
- Triable by Court of Session: Defamation against the President or the Vice-president or the Governor of a State or Administrator of a Union Territory or a Minister in respect of his conduct in the discharge of his public functions when instituted upon a complaint made by the Public Prosecutor.
- Triable by Magistrate of First Case: Defamation in any other case
- Awarded with punishment of simple Imprisonment for 2 Years or Fine or Both.
Comparison as to Defamation under Tort Law and under Criminal Law
In India, defamation is both a civil as well as criminal offence. Under civil law, defamation is covered under law of Torts. A person aggrieved by the action of defamation can move to court and seek damages in form of monetary compensation (civil remedy) and also, he can move a suit under Section 499 IPC and pray for punishment under Section 500 IPC i.e., punishment of imprisonment of two years (criminal remedy).
Conditions to be satisfied to file a civil suit of defamation
- Civil law defines defamatory statement as “one calculated to injure the reputation of another by exposing him to hatred, contempt or ridicule.” This is the first condition required to be fulfilled to file a civil remedy for defamation.
- The second pre – condition is that the statement should be referred specifically to a particular person, no inference from a broad classification shall amount to offence of defamation.
- Thirdly, the statement must be published either in oral or in written form.
Conditions to be satisfied to file a criminal case of defamation
- The complainant is to prove that the accused intended to or had knowledge that the statement made will defame the person and cause harm to the reputation.
- Prove of offence beyond reasonable doubt must be placed before the court
- Even inference from abroad classification can be accounted as defamation.
As to defenses available against action of defamation, truthfulness of statement is absolute defense in civil cases whereas under criminal case truthfulness along with public good needs to be proved to claim the defense.
Conclusion
From the discussion above it can be summarized that defamation is recognized and punished as an offence from centuries ago and now present law systems of the world also recognize this as an offence. On one hand where recognizing defamation as an offence is considered as protection of Fundamental Right to Live with Dignity, on other hand scholars also consider it to be a check on the Fundamental Right to Speech and Expression.
Even each one of us face defamation in one way or other in our regular lives we are unaware as to protection and remedies that we can claim against this offence. It is important especially in the age of technology where social media has a greater impact on our lives that we know about this offence and know remedies available against it.
- Maneka Gandhi v. Union of India, 1978 AIR 597 ↑
- Priya Parameshwaran Pillai v. Union of India and Ors. on 12 March, 2015 ↑
- Hirabai Jehangir v Dinshawdulji Edulji Karkaria on 10 September, 1926, AIR 1927 Bom 22 ↑
- Mahendra Ram v. Harnandan prasad, AIR 1958 Pat 445 ↑
- T.V., Ramasubha Iyer v. A.M.A Mohindeen, AIR 1972 Mad 398 ↑
- Radheyshyam Tiwari v. Eknath, AIR 1985 Bom 285 ↑
References