This research paper examines the legal jurisprudence built on issues related to
defamation's constitutionality. As a result, it provides a thorough examination
of the law's origins as well as the current category of defamation law in India.
In addition, the study paper evaluates the Supreme Court's Subramanian Swamy and
R. Rajagopal decisions on the constitutionality of criminal and civil
It is argued that the standard of rationality is not
properly applied in the Subramanian Swamy case. Finally, the paper concludes
that courts should exercise caution if limits are placed on the right to freedom
of expression, as well as the issues that the media face as a result of bad
The main goal of balancing should be to allow people to exercise
their right to free speech and expression without jeopardizing their public
image. The Court has also held that in determining the reasonableness of
limitations, the Court has full authority to consider matters of common report,
historical context, common knowledge, and the circumstances that existed at the
time of legislation.
Defamation means injury or damage to the reputation of an individual. The term
defamation has been derived from the Latin word diffamare
circulating or spreading information about an individual which could harm the
reputation of the person. Therefore, Defamation is nothing but causing injury to
one's reputation. Defamation is both a civil and a criminal offence. The
criminal law of defamation is codified, but the civil law of defamation is not.
In civil law, defamation is covered by tort law, but in criminal law, it is
covered by Sections 499 to 502 of the Indian Penal Code, 1860.
Section 500 of the IPC, defamation is punishable by up to two years in jail
or a fine. Defamation cases have been on the rise in India over the last few
years. On frivolous grounds, government leaders file defamation lawsuits against
each other, followed by cross-defamation lawsuits. A host of cases have been
filed against politicians such as Arvind Kejriwal, Rahul Gandhi, and Smriti
Irani. This has sparked debate in the media, highlighting the need to revisit
India's defamation laws.
Several deliberate false statements, either written or spoken, that jeopardize a
person's standing; reduce respect, regard, or trust in a person; or elicit
disapproving, aggressive, or disagreeable opinions or feelings toward a person.
Defamation is made up of the following ingredients:
The objectives of this research paper are as follows:
- making or publishing some allegation about another person;
- The imputation must have been made with the intent to injure and with
understanding or reason to believe that it would harm the person's
- To understand the defamation laws in India with respect to defamation as
a crime and defamation as a tort.
- To understand the categories of defamation and essential characteristics
- To understand the constitutional validity of section 499 and defamation
as an overview as public versus individual remedy.
- To understand the defamation through analysis of Article 19, Freedom
of speech and expression.
- To understand defamation through various case laws.
- In the research paper The Risks of Defamation: An analysis into the
driving factors determining the outcome of commercial defamation cases the
author has mentioned about the commercial defamation and the damage
credibility, which has a negative impact on stock prices, consumer loyalty,
and debt market access. Three key factors were established based on the
literature. The causes are evaluated and analyzed using 20 historical
real-life defamation case studies. All three variables are found to be
present in the sample and to have a substantial impact on the outcome of a
commercial defamation suit, according to the report. The findings assist
policymakers and businesses in better understanding commercial defamation
and developing appropriate defamation-defense strategies.
- Commercial defamation can have devastating effects on a company's
financial performance and reputation (Cavico & Mujtaba, 2018; De Villiers, 2009;
Lidsky, 2000; Redlich 1995), although this does not always seem to be the case
(Shenzhen Fountain v. Caijing Magazine; McDonad v. Caijing Magazine; McDonad v.
Caijing Magazine; McDonad v. Caijing Magazine; Mc Companies facing significant
defamatory claims have sometimes seen little or no harm to their market
performance or business value, casting doubt on the widely held academic belief.
This necessitates more research into the impact of defamation on a company's
financial performance, as well as the factors that affect its defamation-defense
strategies. The authors point out a number of outcome-determinating variables
that could influence the probability of success in defamation cases.
- According to Chen (2005), driving factors are legislative factors that
are endogenous to a country. Scileppi (2002), Jackson (2001), Hearit (1996), and
Lidsky (2000) all stress how the defaming party's power and financial resources
affect company defence policy. Johnson and Gelb (2002), on the other hand,
concentrate on the internet and how it has changed the laws of commercial
defamation. The elements of defamation are first defined. The literature
review will now focus on the possible consequences of commercial defamation.
Finally, it describes contributing factors and suggests methods that can be
- Redlich (1995) expands on the financial effect of defamation on a public
corporation, claiming that defamation will result in lower credit ratings or
more difficult debt market access, lowering the company's financial capability.
It has an effect on business relationships and can jeopardize future
transactions; for example, a business partner may withdraw from a proposed
merger or joint venture. As in the case of Phillip Morris v. ABC News, Redlich
considers the risk that false accusations can trigger government investigations,
complicating otherwise smooth business processes.
- According to Lidsky (2000), stock markets trade on facts, so defamatory
comments can cause stock prices to fall. De Villiers (2009) supports Redlich's
claim and emphasises the economic benefits that a good reputation brings to a
business. In accounting terms, credibility is a component of goodwill, which is
one of the most valuable assets a business can possess. It enables businesses to
charge higher rates while also ensuring long-term consumer and employee loyalty
(De Villiers, 2009). The importance of these advantages decreases when they are
slandered. Barth, Clement, Foster, and Kasznik (1998) conducted empirical
research on the positive relationship between brand value (i.e. reputation) and
stock price. Negative credibility, on the other hand, is associated with lower
stock values, according to Karpoff, Lee, and Martin (2008). They estimate that
when a company falsifies its financial statements and this information becomes
public, the reputational cost is more than 7.5 times greater than the total cost
of all legal fines.
The method of research used in this research paper is based on the secondary
data that means it is based on some pre-existing information which is known as
primary data. In the secondary research, the primary data is amalgamated and
integrated with various data and combined to give a result to a new data that is
called secondary data. Secondary research is convenient and time saving
therefore in today's world a lot of people prefer to go forward with this method
The various data that has been mentioned in the research paper are as
Defamation Laws in India
- Internet accessible data:
The various data that are easily available on the internet and that too free
of cost. It provides an ample amount of information to the people.
- SSC online and E-proxy:
The data available on these websites are really authentic and very useful
for law students.
There is no difference between libel and slander in India. Libel and slander are
also punishable offences. It can be split into two sections for easier
Defamation as a crime
The IPC preserves an individual's or person's integrity under Chapter XXI
sections 499-502. Section 124A of the Code prohibits defamation of the state
[Sedition], while Section 153 of the Code prohibits defamation of a group, such
as a community [Riot], and Section 295A prohibits hate speech that offends
religious sentiments. [Voice of Hatred] Defamation is described in Section 499
of the IPC as being committed:
- Through word (spoken or intended to be read),
- signs, or
- visible representations;
- Which: are a published or spoken imputation concerning any person;
- If the imputation is spoken or published with:
- the intention of causing harm to the person to whom it pertains, or
- knowledge or
There are four examples and ten exceptions to
this broad description. If an individual is found guilty of defamation under
section 499 of the IPC, the penalty is specified in section 500, which includes
simple imprisonment for up to two years or a fine, or both.
The offence is non
cognizable and bailable, according to the Criminal Procedure Code, which sets
out the procedural elements of the law. Many convicted of the crime would
normally not be taken into custody without a warrant, because an aggrieved party
would not be able to immediately file a criminal report, but would instead have
to file a complaint with a judge in most cases.
While "fact" is commonly
considered to be a defence to defamation as a civil offence, only truth is a
defence to defamation as a crime (assuming, of course, that it is demonstrably
true) in a limited number of circumstances under criminal law. This can make
people especially vulnerable to being charged with defamation under the IPC,
even though the imputations they made were true.
Defamation as a tort
When it comes to defamation under tort law, the emphasis is usually on libel
(i.e., published defamation) rather than slander (i.e., spoken defamation). It
must be shown that a statement is:
- defamatory, and
- released in order to establish that it is libelous.
A fascinating feature
of defamation as a tort is that it is only a crime if the defamation is of a
kind that damages the credibility of a living individual. In most cases, this
means that defaming a dead person is not a tort because, in most cases, the
plaintiff must be able to show that the defamatory words were directed at him.
This does not rule out the possibility of a cause of action if a deceased person
is defamed; for example, if a defamatory comment damages the credibility of a
deceased person's successor, a defamation action may be pursued.
a defamation suit is filed and defamation is found to have occurred, damages
will be awarded to the plaintiff (usually, the person defamed). Furthermore, an
individual who is concerned about being defamed in a publication may request an
injunction to stop the publication. Prepublication injunctions, on the other
hand, are seldom issued because Indian courts have continued to obey the theory
set out in the 1891 case of Bonnard v. Perryman:
The Court has the authority to enjoin the publishing of a libel by an injunction
or even an interlocutory injunction. However, since the exercise of the
jurisdiction is discretionary, an interlocutory injunction may be issued only in
the clearest cases:
cases in which the Court would set aside the verdict as
unfair if a jury did not find the matter complained of to be libelous. When the
Defendant swears that he will be able to explain the libel, and the Court is not
convinced that he will, an interlocutory injunction should not be issued.
2002 case of Khushwant Singh v. Maneka Gandhi
, a division bench of the Delhi
High Court applied this theory. As a result, even though there is a suspicion
that the material is defamatory, it is unlikely that publication will be halted
unless there are extraordinary circumstances — obviously, those under which the
later payment of damages will simply not be sufficient to make up for the wrong
done to the individual defamed.
In non-exceptional cases, Indian courts have
tended to support free expression and have not granted injunctions that would
have the effect of stifling speech on the basis of potential defamation. It's
worth noting that the Rajiv Gandhi government drafted a defamation bill to deal
with the law around defamation. Due to strong criticism from the media and
opposition parties over its punitive provisions, the Defamation Bill, 1988 was
Categories of Defamation
Defamation can be classified into the following groups for historical reasons:
Essential Characteristics of Defamation
Defamation's essential characteristics are as follows:
- Libel is a permanent representation, such as writing, printing,
painting, effigy, or law.
- Slander is a type of defamation that is only present for a short period
of time. It is primarily done through spoken words or gestures.
Constitutional Validity of Section 499
- The argument must be defamatory in the first place.
- The complainant must be included in the statement.
- The statement must be made public, which means that it must be shared
with at least one person other than the applicant.
It is claimed that it infringes on the constitutional right to freedom of speech
and expression guaranteed by Article 19(1) of the Indian Constitution. Is
defamation subject to the state's fair restrictions levied under Article 19(2)
of the Constitution?
Defamation: Public versus Individual Remedy
- The Court must determine if this limitation is appropriate.
- There are no straightforward comparisons: on the one hand, there is no
question that a criminal case, regardless of its final result, is much more
difficult for an individual convicted of defamation to contend with than a
civil case, which is often left almost entirely in the hands of lawyers.
- On the other hand, the burdens of proof vary, and the standard of proof
imposed in civil court is lower than that required in criminal court if the
goal is to protect a reputation.If subjective evidence is any indication, criminal
defamation is not exclusively used to protect people's reputations.
- It is highly vulnerable to being used as a 'matter of tactics' to
suppress individual speech: for example, accusations of rape may be
countered by filing a defamation FIR with the police.
- There appears to be no mention of misuse in the arguments against
criminal defamation, or indeed any data-based statements about the effects
of criminal defamation.
- Alternatively, it appears that the risk of misuse was raised in favor of
Section 499's continued existence: presumption of constitutionality.
- This Court has also held that in determining the reasonableness of
limitations, the Court has full authority to consider matters of common
report, historical context, common knowledge, and the circumstances that
existed at the time of legislation.
- The term fair restriction implies that restrictions should not be
arbitrary or disproportionate. The very fact that criminal defamation laws
are misapplied or violated does not render the provisions invalid if they
are otherwise fair.
The petitioners' claims stressed that defamation is a disagreement between two
people in which one person's credibility is attacked by another. As a result,
the preceding logic applies. The Supreme Court examines each and every detail
with great care. The court makes reference to the constitutional assembly
debates in an attempt to show that the framers of the Constitution did not want
to give the word defamation a limited sense.
The court rules out the application
of the concept of noscitur a socii by stating that defamation has its own
identity and cannot be reduced to a narrow definition. In Dilipkumar
Raghavendranath Nadkarni, Mehmood Nayyar, and Umesh Kumar, it was
argued that credibility has been held to be a facet of article 21 in the cases
of Dilipkumar Raghavendranath Nadkarni, Mehmood Nayyar, and Umesh Kumar.
defamation includes tarnishing an individual's image, criminal defamation cannot
be used as a public remedy. The apex court responds by stating that individuals
make up the group, and that defamation law protects each individual's integrity
in the eyes of the general public. Furthermore, by crime concepts, a nexus is
tried to be formed whereby every crime is an injury; every public offence is
indeed a private wrong, and so on. It has an effect on the person as well as the
The Sexual Harassment of Women at Workplace (Prevention, Prohibition,
and Redress) Act of 2013, as well as the Noise Pollution (Regulation and
Control) Rules of 2000, both enacted under the Environment (Protection) Act of
1986, govern citizens' fundamental rights in relation to other citizens. As a
result, the petitioners' argument that treating defamation as a criminal
offence has little public interest and thus serves no common interest or
collective good is without merit.
Analysis of Article 19: Freedom of Speech and Expression
One of the most important elements of a democratic democracy is the fundamental
right to freedom of speech and expression, which enables people to engage
completely and efficiently in the country's social and political processes.
Freedom of speech allows people to share their beliefs and political opinions.
It eventually leads to the well-being of society and the economy. As a result,
freedom of expression offers a framework by which a fair balance between peace
and social change can be achieved.
In the case of State of West Bengal vs. Subodh Gopal Bose
, the court held
that the state has a duty to defend itself from such unlawful acts and, as a
result, can enact laws to do so. Article 19(1) (a) gives rise to a right that is
not utter and unrestricted. There cannot be any liberty that is utter in nature
and unregulated in practice in order to confer an unrestricted right.
and freedoms would have been synonymous with chaos and disorder if there had
been no restraint. S. Rangarajan v. Jagjivan
(No. 5) The Court held that the
restriction should be based on the principle of least invasiveness, i.e., the
restriction should be enforced in a manner and to the degree that is inevitable
in a given situation.
Ram the Court offered the test of proximate and direct nexus with the term, it
was held that the Court should bear in mind that the restriction should be
founded on the principle of least invasiveness, i.e. the restriction should be
imposed in a manner and to the A individual has the right to a good reputation
and should not be subjected to a defamatory circumstance. The Court will also
decide whether the upcoming incident is intrinsically dangerous to the public
Subramanian Swamy V. Union of India
- Issues arise in deciding the degree to which a person may exercise his
right to freedom of speech and expression without defaming another person
under Article 19 of the Indian Constitution.
- Article 19 acknowledges that fair restrictions on such exercise of the
right to freedom of expression may be enforced on the basis of, among other
- In the cases of Subramaniam Swamy and R. Rajagopal, the Supreme Court has
delved into this aspect in terms of criminal and civil defamation. The errors in
the decisions are analyzed and pointed out in this article.
- The Supreme Court has upheld the constitutionality of defamation laws
from the colonial period, outlining the rights of free expression and how
they differ from defamation, and concluding that criminal penalties have no
chilling impact on free speech.
The Supreme Court's two-judge bench, consisting of Justice Dipak Mishra and
Justice P.C. Pant, agreed to uphold the constitutional validity of the country's
criminal defamation laws, ruling that the laws do not conflict with the right to
free expression. Many leaders and media figures were rounded off as a result of
the final decision. Some also suggested that it would stifle freedom of
expression. Rather than its educational importance, the case will be remembered
for its indistinct colorful languages.
The announcement makes it clear that
there has been a chilling impact on freedom of expression. They explained that
their research revealed that there is a public requirement for the loss of
credibility they face, and that they decided to include public solutions for
private wrongs. They have sufficient evidence to believe that the decision is a
heinous assault on freedom of speech. In the interests of defamation, Article 19
(2) of the Indian Constitution stipulated fair limits on freedom of expression.
However, the article does not specify whether it applies to both criminal and
civil defamation. Fair implies a proportionality factor in terms of the
relationship between the degree to which freedom of expression has been violated
and the public interest at stake. It is not required that everyone in the chorus
sing the same song.
When issuing summons on a plea for the initiation of a
criminal defamation lawsuit, a magistrate should exercise extreme caution. It's
worth noting that in order to justify the criminal provisions, the centre spoke
about how anarchical Indian culture is and how criminal defamation prevents
people from exercising their right to free speech and expression. It has been
deduced that the majority of those facing criminal defamation charges are
politicians against their adversaries. In Subramanian Swamy v. Union of India
(2016), the Supreme Court upheld the constitutionality of Sections 499 and 500
of the Indian Penal Code, which deal with criminal defamation.
R. Rajagopal V State of Tamil Nadu
The constitutionality of civil defamation is the subject of this case. In this
case, the Supreme Court of India referred to a landmark US Supreme Court
decision in New York Times v. Sullivan, which claimed that a government
official on duty can only recover damages if the truth argument is false and
there is a reckless disregard for truth. The judges looked at the relationship
between free expression and civil defamation in this case. The court ruled that
Article 19(1) of the Constitution imposed an unreasonable restriction on common
- because it pushed no-fault responsibility to an excessive extent. The
main attack on Section 499 was that it criminalized what is essentially a
private act. The Section went on to place restrictions on free speech up to
a certain stage.
- Defamation reform can be better accomplished by enacting a
constitutional law. Defamation should be decriminalized, and civil
defamation should be reformed to make it fairer and simpler,
short-circuiting SLAPP tactics. Since this is a new statute, it would be
stupid if it didn't include the Internet and new media when determining who
may be sued for defamation and how
- Limits on civil defamation should also be established—not only must the
loss of credibility be serious, but the evidence must also be significant.
The defendant must show that the alleged statement caused material harm to
their reputation. In defamation cases, facts, belief, and logical inference
can all be viable defences. Finally, courts should have the authority to levy exemplary
costs against frivolous lawsuits that waste their resources.
- To relieve the judiciary's workload, it's important that courts only
hear serious defamation cases that haven't been resolved amicably. Making
the legal notices that complainants must file before filing a lawsuit
mandatory may be one way to ensure this. In order to avoid unfounded
allegations, these notices should also specify how the supposed statement
- Measures to address the imbalance of resources, such as indemnification
clauses in journalist contracts and a form of defamation insurance, can be
used to supplement legal reforms. It is to be hoped that Satpathy's well-intentioned
goals will be realized. Finally, some kind of change is required—free speech is
meaningless without the ability to offend others in a reasonable manner. The
rich and influential will continue to censor voices raising critical concerns if
the right to legitimately critique is not secured. And without those voices, the
Indian state could be drastically altered or jeopardized, while Indians remain
in the dark.
- If special cyber courts are created and judges with advanced
technological expertise preside over these courts, the judiciary may play a
significant role. As a result, judicial officers and police officers must be
trained in order to resolve cybercrime cases more quickly and
efficiently. Information and communication technology is constantly
evolving, and people must keep up with it. As a result, existing legislation
must be amended to keep up with technological advancements and to discourage
such crimes from occurring and impacting the general public.
- It is suggested that an independent cybercrime investigation cell be
established under the Central Bureau of Investigation. This cell should be set
up on its own so that it is directly under the central government and can deal
with cybercrimes such as cyber defamation. Every district in every part of India
should have a cyber cell police station led by investigation officers who are
well-versed in cyber laws to help them deal with criminals quickly. The
government should launch public awareness campaigns to educate people about
cybercrime and the precautions they should take to protect themselves.
The aim of defamation law is to protect people's reputations. Its central issue
is how to balance this goal with conflicting demands for freedom of expression.
Since both of these interests are highly regarded in our society, the former as
perhaps the most cherished trait of civilized humans, and the latter as the
bedrock of a democratic society.
The applicant has an interim time frame of
eight weeks in which to file an appeal, according to the supreme court.
Meanwhile, other cases have surfaced, especially in political circles, such as a
defamation suit filed against Gogoi and the alleged arrest of Kiku Sharda.
The ruling puts the case to a close, but it still raises several concerns.
example, penal provisions are justified in a progressive economy like India,
particularly in an era when reformative justice is replacing retributive
justice. Aside from the nation's increasing intolerance, there is another
problem that could be exacerbated as a result of this decision. In such
circumstances, it is necessary to let go of inhibitions and discuss viable
options. The right to respond is one such proposal in this region.
this has been discussed previously. However, because of the potential chilling
impact on the individual/organization, the right to respond has only added to
the skepticism. Right to respond, on the other hand, tends to be a more
civilized way of dealing with a situation than jumping to conclusions,
convicting, and demanding damages. This definition has been adopted by several
states in the United States and other nations. Certainly, we will make use of
this principle as well.
The debate has led us to the conclusion that when it comes to constitutional
interpretation, the stakes are higher. It is much easier to condemn than to get
into the details of a situation. Of course, constructive feedback encourages
innovation and development. Nowadays, it is much easier to be dismissive rather
than to get to the heart of the matter. It also cannot be overlooked that the
judiciary makes every effort to provide a harmonious framework in such cases.
We, too, have a duty as people, and it is past time for us to take stock of our
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