The term ‘Defamation’ can be well understood with a proverb ‘think before you speak’. Any statement made against the other party, which tends to lower his status among the right-minded people can get you two years of jail term! In the case of Nambi Narayan v. Silbi Mathews, the Supreme Court held that the reputation of an individual is an insegregable part of his right to live with dignity.
The law of defamation brings about a clash in two fundamental rights enshrined in the Constitution, namely freedom of speech and expression and the right to reputation which is now a fundamental right under Art. 21 of the Constitution. Both these rights should be harmoniously constructed in such a way that any of these rights are not nullified. The term defamation is a broad term and includes any intentional false communication, which may be written or oral when it harms a person’s reputation or decreases his reputation. It may be against a person or an entity. Defamation in written form is known as libel and oral defamation is known as slander. Libel and slander, both forms of defamation, derive their origin from English common law, but they are not treated as distinct from each other under the Indian jurisprudence.
DEFAMATION AS A TORT AND A CRIME
In India, defamation is both, a civil as well as criminal wrong. The difference between civil and criminal wrong is that in a civil proceeding the main focus is on the compensation of the victim whereas, in a criminal offence, the main focus will be on the punishment of the wrongdoer by way of imprisonment. Defamation is defined under Section 499 of the Indian Penal Code as follows:
‘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 case hereinafter expected to defame that person’.
The Section further explains what will constitute defamation and what will not. If a person is found guilty under Sec. 499, he will be punished under Sec. 500 of the IPC, which includes simple imprisonment for 2 years and/or a fine. Further, the Criminal Procedural Code (CrPC), which lays down the procedural aspects, provides that the offence is non-cognizable and bailable. There are certain defences provided by the Indian Penal Code for the offence of defamation such as 1. Justification or truth 2. Fair comment and 3. Privilege. These are explained as follows:
Justification or truth
The defendant cannot be held liable for the offence of defamation if his allegations against the plaintiff are proved to be true. Even if the statement has some minor changes and it is not the complete truth, the defendant cannot be held liable. In the case of Alexander v. North Eastern Railway, the plaintiff was held guilty for travelling in a train without a ticket and was sentenced with either fine or 14 days imprisonment. However, the defendant made a publication that the plaintiff was sentenced with fine and 3 weeks imprisonment. The defendant was not held liable since there were only minor changes in his statement.
A fair comment which is true and is in the public interest can be said to be a good defence to the offence of defamation. The allegations should not be made in the form of statements based on facts. It should be in the form of fair comment. The comment based on untrue facts cannot be said to be a fair comment.
There are certain times where the freedom of speech and expression outweighs the right to reputation. That is a statement made by an individual even if it is untrue and defamatory will not be taken as an offence of defamation. This defence of privilege can be used in parliamentary proceedings and in a Court of law. Any comment made by the members of either house of parliament during the parliamentary proceedings or any comment about a judge or a counsel which are relevant to the proceedings can be protected under the defence of privilege. However, the statements irrelevant to the proceedings cannot be protected and will be taken as an offence of defamation.
There are certain times where the Freedom of speech and expression outweighs the right of reputation. That is, the person cannot be held liable even if his statement against the other person is defamatory and untrue.
The Defamation under tort is a civil wrong. As far as tort is concerned, the main focus is on the libel i.e. the publication made on the permanent form. In order to establish the tort of libel, the following essentials are to be fulfilled:
- The statement was false
- It was made in a written form
- It was defamatory and
- It was published.
FREEDOM OF SPEECH v. DEFAMATION
Sometimes a genuine comment against a person may be claimed as defamation by that person. This problem shows the need to understand the difference between freedom of speech and defamation.
Article 19(1)(a) of the Constitution confers the right to freedom of speech and expression on all citizens. However, Article 19(2) allows the state to make laws which impose reasonable restrictions on this right in the interests of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
Over the years the Indian judiciary has widened the scope of freedom of speech and expression. Some of the important defamation cases which were adjudicated by the Courts are as follows:
The case of Romesh Thappar v. State of Madras, was one of the earliest cases in this regard. In this case, the Supreme Court held that the freedom of the press is a part of the freedom of speech and expression. It further observed that free press lays the foundation for all democratic organizations since free press ensures the proper functioning of a Government.
In Bijoe Emmanuel v. State of Kerala, the Supreme Court held that the right to remain silent is also included in the freedom of speech and expression. In this case, three boys were expelled from school as they refused to sing the National Anthem. The Court observed that there was no law which mandates people to sing the National Anthem and therefore, their right under Article 19(1)(a) could not be curtailed.
In the case of D.P.Choudhary v. Manjulatha, false news was published in a local newspaper stating that a 17-year-old girl eloped with some guy which had an adverse impact on her marriage prospects. She was awarded Rs.10000 by way of general damages.
In Subramaniam Swamy v. Union of India, it was argued that any attempt to suppress the public opinion, perception and democracy will affect the democratic structure of India. However, the Supreme Court upheld the constitutional validity of the law of defamation by stating that the freedom of speech enshrined in the Constitution does not mean that one citizen can defame the other.
SHOULD DEFAMATION NECESSARILY BE A CRIMINAL OFFENCE?
Defamation, as a criminal offence in India, has both positive as well as negative aspects. The negative aspects of criminalizing defamation are as follows:
Firstly, the law of defamation can be used by powerful individuals to their advantage by silencing any criticism against their activities. Thereby, it violates the democratic structure of India. Defamation law was introduced in the colonial-era during the British regime to suppress all the political criticisms.
Secondly, unlike in many other countries, defamation in India is a criminal offence and not just a criminal wrong. Hence, the media hesitates to expose any high-level political corruption with a fear of getting arrested by the police.
Thirdly, simply an imputation or accusation is enough to start defamatory proceedings against a person. Thus, even a political speech cannot be protected in India.
It is often argued that there are various defences available to the person accused in an offence of defamation. But it should be noted that these defences are available to the person only after the trial begins. In other words, the person accused should go through the exhausting long-drawn trial process before he could defend himself.
Also, the defences provided for the offence of defamation is not satisfactory. In a civil proceeding for defamation, the accused can escape by only showing that his statement was true. However, in a criminal proceeding, the accused should also show that it was made in the public interest. That is, even if the statement made by the accused was true, he will be still imprisoned for two years if he could not prove that he made the statement in the public interest. Thus Sec. 499 and Sec. 500 are violative of Art. 19 as even a truthful statement is taken as an offence of defamation. This does not fit in the concept of reasonable restriction to freedom of speech. There is no valid argument as to why the legal system is lenient in a civil proceeding for defamation and disadvantageous to persons accused in criminal defamation. Thus, this raises the question of why civil remedies such as compensation to individuals are not sufficient and why defamation should necessarily be a criminal offence.
There are of course positive aspects in criminalizing defamation such as:
The offence of defamation is meant to protect the reputation of a person who was not built overnight. Thus, any publication of a statement which tarnishes his reputation built up through years of rightful conduct, honourable living and integrity cannot be seen as a simple offence which can be compensated by money as no amount of damages can redeem the adverse impact on his/her reputation.
Also, the defamation offence dealt in Sec. 499 provides various explanations and also various defences where a statement cannot be held as a defamatory statement which is very clear and specific unlike some provisions in law which are very general and vague giving way to various misinterpretations. Thus, there is no point in declaring the present law as unconstitutional.
Thus, it is clear that the defamation law in India presently has a lot of implications. Both, the right to freedom of speech as well as the right to reputation are important rights enshrined by the Constitution which cannot be trampled upon. The practise of using the law of defamation to silence the other party from making any genuine statements or criticisms should be dealt with severely. At the same time, no one should be allowed to defame any person’s reputation which he/she has built through years. We should understand that freedom of speech is not a freedom to lie, defame nor incite hatred and abuse. Defamation laws have been enacted to prevent a person from using his/her freedom of speech and expression in a malicious way. However, it cannot go beyond its objective. No right should be allowed to take away the other right. There should be a harmonious construction between both the fundamental rights enshrined in the Constitution.
 (2018) 10 SCC 804.
 1885 6 B&S. 340.
 AIR 1950 SC 124.
 1987 AIR 748.
 AIR 1997 Raj. 170.
 2016 7 SCC 221.
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BY- Reema.N |TNDALU School of Excellence in Law