One cannot be unmindful that right to freedom of speech and expression is a
highly valued and cherished right but the Constitution conceives of reasonable
restriction. In that context criminal defamation which is in existence in
the form of Sections 499 and 500 IPC is not a restriction on free speech
that can be characterized as disproportionate. Right to free speech cannot mean
that a citizen can defame the other. Protection of reputation is a fundamental
right. It is also a human right. Cumulatively it serves the social interest.
Criminal defamation is in news recently for multiple reasons. Questions have
been raised on whether defamation should be treated as a civil wrong or criminal
offence or both. It is argued that criminalizing defamation has a harsh effect
on the right to freedom of speech and expression provided under article
There are many demands to make defamation only as a civil wrong.
The large scale abuse of defamation laws particularly by the workers and leaders
of political parties is a matter of serious concern now-a-days. A large number
of cases are being filed on the basis of statements made in the press by
political leaders. Such complainant claims to be a 'person aggrieved' offended
by the statement given by a political or social leader against their so-called
leader or mentor.
An aggrieved person has both the remedies—civil and criminal. He is not
compelled to make a choice between the two. If he has filed a criminal
prosecution, he can still file a civil suit for dam ages for defamation, even
though the prosecution is still pending. In fact, if he waits too long, the
civil action may become time-barred. Withdrawal o f a criminal com plaint on
tender o f apology is no bar to civil action for libel unless there is a
specific agreement barring a civil action.
Defamation as an offence is dealt with in section 499 o f the Indian Penal Code.
The main paragraph of the section defines what is defamation
essence, it is an action causing harm to the reputation o f a person, by making
an imputation. Two explanations to the section (the first and second) deal with
defamation o f a deceased person and defamation o f a group o f persons,
respectively. The third explanation to the section deals with an imputation in
the form o f an alternative, or expressed ironically. The meaning of harm to
reputation is dealt with in the fourth explanation.
The word Defamation
means Abuse, Aspiration, Denigration, Depreciation, Publication
etc. Ordinarily, the offence of defamation is
stated to be made against a person or persons harming his/their reputation.
The ingredients of defamation are-
- making or Publishing any imputation concerning any person,
- such imputation must have been made with the intention to harm with
knowledge or having reason to believe that it will harm the reputation of
the person concerned.
Therefore, the intention to cause harm is the most essential sine qua
of an offence of defamation under section
499 of Indian Penal Code.
The word makes
connotes to make public
known to person in general
. So, the section 499 of IPC brings under the
criminal law, the person who makes the defamatory imputation. So, there can be
no offence of defamation unless the defamatory statement is made or published by
the accused. The word makes or publishes implementing or supplementing to
each other. Where the complaint did not mention the words used for supposed to
be used by the accused, the Court, would not be in position to decide whether
the words used amounted to insult.
Now, a debate has been started at every public forum that whether defamation
should be decriminalized or not. The issue has been assumed significance by the
recent incidents when Aam Admi Party leader Mr. Arvind Kejriwal was sent to jail
after he refused to furnish bail bond in a defamation case launched by BJP
leader Mr. Nitin Gadkari. Coincidently, the Law Commission of India has also
taken cognizance on the matter and floated a consultation paper seeking opinions
from the stake holders whether defamation should be decriminalized? Although,
the press enjoys freedom of speech and expression under Article 19 (1) (a) of
Indian Constitution, defamation is a ground of reasonable restriction under
article 19(2). Currently, civil defamation is dealt with law of torts whereas
criminal defamation is an offence under section 500/504, of Indian Penal Code.
Section-499 talks about Defamation
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 require three essentials:
- Making or publishing any imputation concerning any person.
- Such imputation must have been made by:
- Words, either spoken or intended to be read; or
- Signs; or
- Visible representations.
- Such imputation was made with the intention of harming or with knowledge or
reason to believe that it will harm the reputation of the person concerning to
whom it is made.
Makes or publishes any imputation concerning any person: Every such person who
is engaged in composing, dictating, writing or in any way contributing to the
making of the libel is the maker of the libel. Where the matter is dictated by
one person and written down by another person, both shall be guilty of this
offence. Similarly if one person speaks, another writes and third approves of
it, all the three shall be guilty. The reason is that all who concur and assent
to the doing of an unlawful act will be guilty of this offence.
Publication of defamatory matter: For the offence of defamation publication of
defamatory matter is essential. In other words the defamatory matter must be
communicated to some person other than the person to whom it concerns e.g.
dictating a letter to a clerk is publication. Where the defamatory matter is
communicated to the person defamed, such a communication will not amount to
Thus in Taki Hussain's case, a person-dispatched a public officer a
notice by post which was closed in a cover. The notice contained imputation on
the character of the recipient. Allahabad HC was of the view that since there
was no publication of the matter, therefore, this was not constituted.
Defamatory matter, if written on a postcard, or printed on a paper will
constitute publication when it is distributed or broadcasted. A defamatory
petition presented to a superior public officer, if sent to a subordinate public
officer in due course for inquiry would constitute publication within the
meaning of this section.
In N.L. Shah v. Patel Maganbhai Revabhai, an interesting situation arose for
decision. There was agitation of lawyers in Gujarat in connection with
appointment and transfer of Chief Justice of H.C. On account of the agitation
the lawyers ceased to participate in court proceeding and resorted to satyagraha. An editorial in a newspaper criticized as to whether it behoves to
the lawyers as a class to resort to strike. The lawyers were inter alia
described as kajia dalal i.e. dispute broker, in the editorial.
In a suit for
defamation against the editor, the Gujarat High Court held that the editorial
did not refer to the complainant personally or to any other individual but
referred to the lawyers as a class and at the most the lawyers of Gujarat. The
alleged defamation could not be referred to a determinate or identifiable
section or class of lawyers as distinguished from the rest of the members of
The words kajia Dalal was held to be used in relation to
the lawyers as a class and is not referable to a determinate section of lawyers,
namely, the lawyers who were participating in the agitation. The thrust of the
editorial was that lawyers should not have gone on strike. If the imputation is
defamatory per se, necessary mens rea will be presumed. The maker of the
statement must know that it will harm the reputation of one concerning whom it
The court distinguished between 'character' and 'reputation'. The term
'reputation' means what is generally said or believed about the persons or
things. 'character' means fortitude or moral constitution or strength of a
person. It has no relevance with the belief or opinion of others in respect of a
Publication of defamatory matter in newspaper:A Newspaper stands, in matters of
defamation, in the same position, as members of the public in general. The
publisher of the newspaper shall be responsible for published defamatory matter
whether he was aware of that or not. But an editor's position is somewhat
different. He can escape his liability by proving that defamatory matter was
published in his absence and without his knowledge and he had in good faith
entrusted the temporary management of the newspaper during his absence to a
In Ashok kumar jain v. State of Maharashtra, it was held that where a defamatory
statement against a person is published in a newspaper, the editor, printer, and
publisher who has made declaration and is shown in paper as such is liable.
Where it is alleged that the Chairman of Board of Directors of Company and its
General Manager took part in selling out newspaper, it is could have prevented
but they did not, they would be guilty of the offence and cannot escape
liability under section 502 unless they can make out a case of exception under
In S. Khushboo v. Karniammal, it was complained that the statement of accused
given in news magazine amounts to his defamation. It was held that the statement
of accused was given to news magazine calling for societal acceptance of
pre-marital sex. He did no attack on reputation of anyone in particular. It does
not amount to defamation under Section 499 I.P. Code. Moreover complainant was
not an aggrieved person. Hence complaint was held liable to be quashed.
In M.P. Narayana Pillai v. M.P. Chako, it was held that
where an article is published in many parts and some containing defamatory
materials, others not, in such a case article as a whole must be read. The
impact and effect of the omputations has to be considered in the background of
the entire facts and circumstances started therein. If the disreputable part
can be removed by other parts and the conclusions, then no prosecution for
defamation can be launched by picking and choosing the disreputable part alone.
Explanation 1- This explanation will come into operation when:
- The imputation would have hurt the deceased's reputation, and
- It would also have hurt the feeling of his family and relatives.
A suit was brought by the heir and nearest relation of deceased person for
defamatory words spoken of such deceased person but alleged to have caused
damage to the plaintiff as a member of the same family, it was held that the
suit was not maintainable.
Explanation 2- An action for libel will lie at the suit of an incorporated
trading company in respect of a defamation calculated to injure its reputation
in the way of its business.
Explanation 3- A statement innocent in form or in the form of an alternative
will amount to defamation if it is ironical.
Explanation 4- This explanation makes it clear that the term referred bto in
the Explanation has reference to imputation on a man's character made to lower
him in the estimation of others and not of himself. Thus describing a woman that
she has paramours wherever she goes, is per se defamatory.
Exception 1.- The requirement of this exception are:
- That the impugned statement must be shown to be true; and
- That its publication must be shown to be for public good.
This exception and exception 4 requires that the imputation should be true. The
remaining exceptions do not require it to be so; they require that it should be
made in good faith. It is also necessary that truth when set up as a defence
must extend to the entire defamation and not only to a part of it.
In Jawaharlal Darda v. Manoharrao Ganpatrao, the respondent Manoharrao
Ganpatrao Kapiskar fiked a complaint in the Court of C.J.M alleging that by
publishing news item in its newspaper Dainik Lokmath on 4-2-1984. Mr. J.L
Darda the Chief Editor of the daily along with others have committed offences
punishable under sections 499, 500, 501 and 502, read with section 34, Indian
It was held that as the news items ws published for public good and not to
malign the reputation of the complainant, therefore, no offence against the
accused was made out.
Exception 2 – Any person occupying a public position renders himself open to
criticism for his actions while discharging his functions from the position he
occupies. It does not merely imply absence of ill will. In order that the
comment may be fair:
- It must be based on facts truly stated;
- It must not impute corrupt or dishonourale motives to the person whose conduct or
work is criticized except in as far as such impultations are warranted by the
- It must be an honest expression of the writers real opinion made in good faith:
- It must be for the public good.
It was held In re Arundhati Roy, that the broad and general proposition that a
reply submitted to a contempt of court in the light of second exception to
section 499 of the IPC and its contrary to the law of Contempt as adjudicated by
the courts in the country from time to time and the limits prescribed by the Act
and the judicial pronouncements which are well within the knowledge of all
Exception 3- The conduct of publicists who take part in politics or other
matters concerning the public can be commented on in good faith.
Exception 4- The report of the proceedings of a court of justice should be
without malice. It should be a fair and accurate report of what took place
before the tribunal.It is not confined to judgments and orders but also covers
pleadings whether relevant or not.
Exception 5- A journalist is supposed to discharge his duties fairly and if his
comments are fair no one will be permitted to complain.
Exception 6- literally criticism of public performance submitted to its
judgment.It covers book published on literature, art, painting, speeches etc.
The criticism must be fair and made in good faith.
Exception 7- Statements made by a person in police investigation merely
expressing suspicion as to complicity of certain person in crime will not amount
- That the person to whom the complaint was made had lawful authority over
the officer complained against;
- that the accusation was made in good faith.
Punishment for Defamation:
Whoever defames another shall be punished with simple
imprisonment for a term which may extend to 2 yrs, or with fine, or with both.
The pertinent question which arose before the court was whether sections 499 and
500 of the IPC go beyond the scope of the reasonable restrictions imposed under
article 19(2) of the Constitution of India?
While answering in negative, the Supreme Court gave a detailed reasoning of the
explanations and exceptions appended to section 499. It was submitted by the
petitioners that on two earlier occasions, R. Rajagopal alias R.R. Gopal v.
State of Tamil Nadu
it had been observed as follows:
In all this discussion, we may clarify, we have not gone into the impact of
Article 19(1) (a) read with clause (2) thereof on Sections 499 and 500 of the
Indian Penal Code. That may have to await a proper case.
In N. Ravi v. Union of India
wherein it had been observed as
Strictly speaking on withdrawal of the complaints, the prayer about the
validity of Section 499 has also become academic, but having regard to the
importance of the question, we are of the view, in agreement with the learned
counsel for the petitioners, that the validity aspect deserves to be examined.
As defamatory speech is one such restriction prescribed under article 19(2) (1)
of the Constitution.
Therefore, in order to curb speech that is defamatory, court observed that the
restriction imposed should be 'reasonable'. In Chintaman Rao v. The State of
the Supreme Court laid down the meaning of the term
The phrase reasonable restriction
connotes that the limitation imposed
on a person in enjoyment of the right should not be arbitrary or of an excessive
nature, beyond what is required in the interests of the public.
The word reasonable
implies intelligent care and deliberation, that is,
the choice of a course which reason dictates. Legislation which arbitrarily or
excessively invades the right cannot be said to contain the quality of
reasonableness and unless it strikes a proper balance between the freedom
guaranteed in Article 19(1) (g) and the social control permitted by clause (6)
of Article 19, it must be held to be wanting in that quality.
Also, whether the law that imposes the restriction is reasonable should be
judged in accordance with current social, economic and political circumstances
of the nation. One of the rules of statutory interpretation is to interpret the
words of a statute in light of the current facts and situations and not based on
the facts/situations of the past.
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 are highly valued in our society, the former
as perhaps the most dearly prized attribute of civilized human beings while the
latter the very foundation of a democratic society. The apex court gave an
interim time period of eight weeks to the petitioner within which they can
Meanwhile, other cases have also arisen especially in the political fora such as
defamation case filed against Gogoi or the alleged arrest of Kiku Sharda. The
decision brings finality to the case but raises certain questions in its wake.
For instance, in a progressive economy like India, is resorting to penal
provisions justified especially in an era, where reformative justice is
replacing retributive justice. Besides the growing intolerance in the nation is
another issue which might get a reason due to this judgement.
In such situations, there becomes a need to shed one's inhibition and discuss
viable solutions. One such proposition in this area would be the right to reply.
Of course, this has been debated earlier.
However, owing to the chilling effect which might be incumbent on the
individual/organization; right to reply has just added on the scepticism.
However, right to reply appears as a civilised manner to address matter rather
than jumping on conclusions, convicting and seeking damages. Some US states and
other countries have imbibed this concept. Certainly, we too can utilize this
concept. The discussion brings us to the point that in cases of constitutional
interpretation, the stakes become higher.
It is easy to criticize rather than actually get into the depths of matter. Of
course, a healthy criticism fosters creativity and growth. Nowadays, it is easy
to have a critical approach rather than actually get into the skin of the
matter. Also, it cannot be ignored that the judiciary tries its best to give a
harmonious construction in such matters. As citizens, we too, have a
responsibility– it is time to revisit ourselves.