The law of defamation
is a concept which was in existence since centuries. In
the Roman law, defamation was a capital offence and in German & English laws, if
one had insulted the other, then his tongue would be chopped off (it was
considered such serious offence at that time).
The very existence of this law is
based on a delicate balance between the 'Right to reputation' and 'Freedom of
speech & expression' guaranteed under Article 21 and Article 19(1)(a),
Constitution of India, 1950 respectively. The defamation has been carved out as
exception to the Fundamental Right provided under Article 19(1)(a).
Defamation, in simple words can be defined as a communication of false
information about any person (a 'person' includes an individual, a Hindu
Undivided Family, an association of persons or a body of individuals, whether
incorporated or not, a local authority, artificial juridical person, Government,
company, firm and so on and so forth as the definition is an inclusive one)
which tends to harm his reputation. It can be in a temporary form such as oral
words or even in permanent one such as written words.
It can be treated as both a civil wrong as well as a criminal offence. Based on
this pretext, it can be divided into two categories which are as follows: -
In a civil defamation case, a person who is defamed can move either High Court
or subordinate courts and seek damages in the form of monetary compensation from
the accused. The degree of burden of proof under this category is also low as
civil suits do not follow the principle of 'proof beyond reasonable doubt'.
Defamation is punishable under section 500, Indian Penal Code, 1860 (hereinafter
'IPC' for brevity) with up to two years of imprisonment or with fine or with
both. The degree of burden of proof is on the higher side.
Analysis Of Section 499, IPC
In order to hold a person guilty of this offence, following essentials needs to
- The accused must have 'made' or 'published' any imputation concerning
any person (actus reus)
- It must be proved that he did it with:
- The intention to harm, or,
- The knowledge, or,
- The reason to believe that such imputation will harm, the reputation of
such person (mens rea)
However, a mere defamatory statement does not amount to defamation. The
publication of such statement is a pre-requisite to establish defamation.
It is pertaining to note here that the offence of defamation is a bailable,
non-cognizable and a compoundable offence.
Section 499, IPC also cites 10 exceptions such as 'imputation of truth' which is
required for the 'public good' and thus has to be published, on the public
conduct of government officials, the conduct of any person touching any public
question and merits of the public performance.
Apart from this provision, even section 469, IPC covers a situation wherein
whoever commits forgery with the intention that the document or electronic
record forged shall harm the reputation of any party, or knowledge that it is
likely to be used for that purpose, then he shall be punished with imprisonment
of either description for a term which may extend to three years, and shall also
be liable to fine.
Section 499, IPC provides for various modes by which this offence could be
committed such as:
- by words, either spoken or intended to be read, or,
- by signs, or,
- by visible representations.
One must understand that such modes aren't exhaustive as with the evolution of
the society and the technological innovations, a victim can't be denied justice
on the pretext that the mode by which the defamation was done isn't covered
within the ambit of section 499, IPC. One instance could be of 'cyber
defamation'. Cyber defamation occurs when a computer connected to the internet
is used as a tool, or a medium to defame a person or an entity. For example:
Publishing of a defamatory statement against a person on a social networking
site such as Facebook, Twitter, etc.
The law of defamation has been extended to
"electronic documents". Section 469, IPC has been amended by the Information
Technology Act, 2000 to include 'electronic record forged'. Section 66-A,
Information & Technology Act, 2000 (hereinafter 'IT Act' for brevity), was
quashed by the Supreme Court in Shreya Singhal v. Union of India due to
ambiguity in the definition of the word 'offensive' in the section.
stated that sending any offensive message to a computer or any other
communication device would be an offence. Such unfettered power, under section
66-A, was being misused by the Government in curtailing and suppressing people's
freedom of speech and expression and hence, it was repealed. Also, section 79,
IT Act provides a safe harbour to intermediaries against any act of defamation.
Accordingly, an intermediary's liability can be reduced by complying with
certain obligations, such as adopting statutory due diligence, or enforcing
'notice and take down' procedures.
Why Defaming One Is An Offence?
The Supreme Court in the case of Subramanian Swamy v. Union of India
of Law & ors. recognized that 'Right to reputation' is a property of a
person. The Court was called upon to decide the constitutional validity of
section 499, IPC. The Court held that Section 499 is not an excessive
restriction under Article 19(2). It held that society is a collection of
individuals, and what affects individuals also affects the society as a whole.
Hence, it held that it is valid to treat defamation as a public wrong. It held
that criminal defamation is not a disproportionate restriction on free speech,
because protection of reputation is a fundamental right as well as a human
The Court reaffirmed the right to reputation as a part of the right to life
under Article 21. Using the principle of 'balancing of fundamental rights', the
court held that the right to freedom and speech and expression cannot be 'allowed
so much room that even reputation of an individual which is a constituent of
Article 21 would have no entry into that area'.
In Mahendra Ram v. Harnandan Prasad
, a letter written in Urdu was sent to the
plaintiff. Therefore, he needed another person to read it to him. It was held
that since the defendant knew the plaintiff does not know Urdu and he needs
assistance, the act of defendant amounted to defamation.
Another interesting yet landmark case is D.P.Choudhary vs. Manjulatha
a publication was made in the local newspaper, Dainik Navjyothi that the
plaintiff, a 17 year-old college girl ran away with a boy after she went out of
the house by saying she was having lectures. This false news item had adverse
effects on her and ruined her marriage prospects. It was actionable per se and
she was awarded damages of Rs.10000/- by way of general damages.
In Ram Jethmalani v. Subramaniam Swamy
, the court held Dr. Swamy guilty for
defaming Ram Jethmalani by saying that he received money from a banned
organization to protect the then Chief Minister of Tamil Nadu from the case of
assassination of Rajiv Gandhi.
One very crucial foreign judgement came in the case of New York Times Co. v.
, the US Supreme Court passed a landmark judgment differentiating
defamation cases filed by public officials from ordinary defamation cases. It
held that to successfully sue for defamation, an official would have to prove
not only that the statements made against him were false (like in ordinary
cases), but also that the person who made them either knew they were false or
recklessly disregarded the truth.
'It is as much the citizen's duty to criticise as it is the official's duty to
administer.'- US Supreme Court in New York Times Co.(supra)
The Court took special care to identify the weighty constitutional values
involved by holding that '��Criticism of their official conduct does not lose
its constitutional protection merely because it is effective criticism, and
hence diminishes their official reputations.' The Court confronted the fact that
some of the statements in the advertisement were false, but it felt that
erroneous statements were 'inevitable in free debate' and that even such
falsehoods had to be protected if the freedom of speech was to have the 'breathing
space' it needed to survive.
Remedies Vis-A-Vis Limitation For Taking Cognizance For Defamation
Law provides various ways to deal with this issue of defamation. Not only the
defamed party can ask for damages by way of a civil defamation suit or malicious
prosecution or both, but the victim can also initiate criminal proceedings qua a
criminal defamation complaint as stated above. Moreover, the person can initiate
both as it is a trite law that civil and criminal proceedings can go
simultaneously qua the same cause of action.
As far as criminal defamation is concerned, the aggrieved person can initiate
criminal proceedings by filing a complaint under section 200, Code of Criminal
Procedure, 1973 (hereinafter 'Code' for brevity) before a Judicial Magistrate.
Thereafter, the Magistrate may take cognizance of the matter and proceed with it
in accordance with the procedure provided for the summons case since the
punishment is up to two years of imprisonment. Section 468, Code provides
a three-year time limit for filing such complaint. The Supreme Court in the case
of Surinder Mohan Vikal v. Ascharaj Lal Chopra
 held that the limitation
period shall begin from the date when the opposite party had filed the
complaint/case against the complainant and not when he gets acquitted.
The civil suit provides compensation to the aggrieved party which is not
available in criminal defamation complaint. In the civil suit for defamation
and malicious prosecution, the plaintiff is burdened with court fee based upon
the amount claimed, whereas in a criminal complaint the court fee is negligible.
The time limit of filing civil defamation is just one year. Moreover, the
plaintiff can file the suit seeking damages after his acquittal in the concerned
criminal case. This aspect is different from the criminal complaint.
Although the difference in timelines does make the justice seeking mechanism
complex. But in totality, it's quite fair and logical. Until the prosecution in
case of criminal defamation doesn't reach its final conclusion, the plea of
damages and compensation by way of the civil suit would be a farfetched idea.
Whereas, if the complaint prima facie discloses the defamatory remark, then the
victim doesn't have to wait for long litigation battles in order to seek
justice. The timelines are indeed different, but they serve different purposes
as discussed above.
Why In News?
Now the question arises as to why the repeal or subsistence of the law of
defamation is again making headlines? Recently, microblogging platform Twitter
expressed concerns over 'intimidation tactics' by Delhi Police and 'potential
threat to freedom of expression' in India dragging the government in witness
box, whereas the government hit back, calling the statement baseless, false and
an attempt to defame India to hide their (Twitter's) own follies.
Congress MP Shashi Tharoor has withdrawn a criminal defamation case against
Union Minister Ravi Shankar Prasad after the latter expressed apology for his
Also, this April, the sessions court recently dismissed a defamation complaint
filed by deputy commissioner of police Abhishek Trimukhe against Republic TV
editor-in-chief Arnab Goswami, his wife and ARG Outlier Media Pvt. Ltd. The
court held that the complaint filed was not in confirmation with the law
The Indian Medical Association (IMA) in May, 2021 has served a defamation notice
on Ramdev for alleged disparaging remarks against allopathy and allopathic
doctors, demanding an apology from him within 15 days, failing which it said it
will demand a compensation of Rs 1,000 crore from the yoga guru.
As what seems to be a recent development in the WhiteHat Jr. defamation case,
edtech player WhiteHat Jr has withdrawn the $2.6 million defamation case against
its critic Pradeep Poonia. The lawsuit was filed in November 2020 at the Delhi
In addition, the Supreme Court last year refused to quash FIRs lodged in
different states against TV news anchor Amish Devgan for his alleged defamatory
remark against Sufi saint Khwaja Moinuddin Chisti during a show on June 15,
Why The Criminal Defamation Needs To Be Scrapped?
The criminal provisions have often been used purely as a means of harassment
as majority of these cases ended being withdrawn.
- The entire criminal proceedings itself turns into punishment, regardless
of the merits of the case since the criminal trials tends to take time due
to pending cases in the courts side by side the accused continues to face
humiliation and social ridicule in the time of social media.
- It has been argued by the critics that defamation law impinges upon the
Fundamental Right to 'freedom of speech and expression' and that civil
defamation is an adequate remedy against such wrongs. Freedom of speech and
expression needs to be protected due to following reasons:
- For the discovery of truth by open discussion
- It is an aspect of self-fulfilment and development.
- To express beliefs and political attitudes.
- To actively participate in a democracy.
- Criminal defamation has a pernicious effect on society. For instance,
last year, the Madras H.C. while quashing defamation cases houses initiated
during Jayalalithaa's tenure against media held that public servants and
constitutional functionaries cannot be allowed to misuse the law of criminal
defamation by using the State as a tool to initiate defamation proceedings
against adversaries [Thiru N. Ram v. Union of India].
Why Section 499, Ipc Can't Be Declared Unconstitutional?
- In case if the accused is convicted for defamation but he does not have that
much liquidity to pay even 'reasonable' damages, then subjecting him to
imprisonment would be appropriate punishment.
- Merely on the basis of apprehensions that a law could be abused or
misused, it can't be repealed rather all its infirmities must be corrected
such as in case of Section 377, IPC wherein this provision was partially nullified
in Navtej Singh Johar v. UOI.
- It was held in Subramanian Swamy's case(supra) that the 'right to
freedom of speech and expression' is not an absolute right and has to
be balanced with the 'right to reputation' which is protected under Article 21.
Additionally, criminalisation of defamation to protect individual dignity of
life and reputation is a 'reasonable restriction' on the fundamental right of
free speech and expression.
- Unlike other inflexible provisions of the IPC, section 499, IPC have
four explanations and 10 exceptions which do assist the courts to exclude or
filter out frivolous complaints.
- If the criminal defamation is repealed, then the only option left with
the victim would be of civil defamation wherein in order to claim
compensation, he would be required to submit court fees which could be at
times quite high making it difficult for him to claim relief (if he doesn't
have sufficient means to pay).
It is high time that the administrative authorities particularly police must be
professionally trained and be made aware about such laws like criminal
defamation which have a high tendency of being misused against an innocent.
Also, the lower judiciary needs to be properly trained in this regard so that
frivolous complaints having no prima-facie case must be dismissed at the very
first stage of the criminal proceedings.
The judiciary must ensure that if it is proved beyond reasonable doubt that the
victim himself filed false complaint to tarnish the accused's reputation, then
his complaint must be dismissed at the very threshold along with slapping him
with a hefty penalty which could be punitive in nature as well if the
circumstances justify so.
Reputation is an asset to each and every person. Any damage to such an asset can
be legally dealt with. Defamation laws have been enacted to prevent person
maliciously using their right to freedom of speech and expression.
- (2013) 12 SCC 73
- (2016) 7 SCC 221
- AIR 1958 Pat 445
- AIR 1997 Raj 170
- AIR 2006 Delhi 300
- 376 U.S. 254
- AIR 1978 SC 986
- 2020 SCC OnLine Mad 1023
- AIR 2018 SC 4321
Award Winning Article Is Written By: Mr.Anurag Agarwal
Authentication No: SP35819735462-10-0921