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DEFAMATION UNDER CRIMINAL LAW (By- SHRIKANT SAWANT)
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Author Name: SHRIKANT SAWANT
Title: DEFAMATION UNDER CRIMINAL LAW
Email Id: sawantfin.9@gmail.com
Article Details
DEFAMATION UNDER CRIMINAL
LAW
Authored by- SHRIKANT
SAWANT
CLASS-LLM 2nd year, seme.-4 th.
YEAR-2021-22. ROLL NO-08.
Introduction
While the Constitution provides a
guarantee to freedom of speech and expression, which is exercised by the media,
the criminal law imposes certain restrictions on that freedom for protecting
the social or group interests and public tranquility. Article 19(2) provides
certain grounds, based on which the state can impose reasonable restrictions on
this freedom. Media-persons are basically under the same obligation as the
people in general to abide by general principles of penal law. Media in its
exercise of free criticism may slip either intentionally or through its routine
activity into any kind of criminal liability under different circumstances. The
Indian Penal Code envisaged certain crimes which a media person may get
entangled into and face the prosecution. Media persons' right to free speech
cannot extend to cause sedition, by bringing disrepute of the state, or affect
the reputation of individual leading to defamation or represent obscene or base
material disturbing the moral and serene atmosphere of society. In case they do
so, the criminal provisions of Indian Penal Code are attracted. Thus
Defamation, Sedition and Obscenity are the three major areas where the media
persons could be vulnerable to face the prosecution.
It is a commonly acknowledged
principle of every decent and morally well-established society that every
member of such society has his/her own respect and dignity among people of the
society and such reputation shall be encouraged and protected. The dignity of an
individual shall not be withdrawn under any circumstances by any means. The law
of defamation is a direct and intentional violation of the reputation of a
person either by words or signs or any publication. A defamatory statement is a
statement concerning any person which exposes him to hatred, ridicule, or
contempt or which causes him to be shunned or avoided, or which has a tendency
to injure him in his office, profession.
Abstract
Defamation is tarnishing the reputation of someone; it has
two varieties, slander and libel. Slander is spoken defamation and libel is
printed or broadcast defamation.
It is the right of each individual in the
society to possess a flawless reputation and prestigious name which shall be
recognized by the society where the individual resides. Such reputation is
based on the thoughts and opinions of what other person talks about such
individual. Therefore to have a dignified reputation in the society, it is
essential that other members of the society must have heard good things about
the individual but in case of a statement made falsely to dissert the
reputation of the individual by other members of the society, the dignity and
reputation the individual possess is violated therefore it is important to
preserve and safeguard the reputation of each individual in the society. The
law of defamation is concerned with safeguarding the reputation and such
remarks or comments of others which infringe the right to reputation of any
individual of the society.
Keywords:
Defamation, Society. under criminal ,Media Law.
I.
Media And Criminal Defamation
II.
Journalist
who defames is liable both in Civil law and criminal Law. Section 499 of
Indian Penal Code defines defamation: Whoever by words either spoken of
intended to be read, or buy signs or by visible representation, makes or
publishes any imputation concerning any person intending to harm or knowing or
having reason to believe that such person, is said, except in cases herein
after excepted, to defame that person.
The expression makes or publishes‘has been
interpreted as supplementing each other. If a person merely writes out a
defamatory matter but does not publish the same i.e., does not circulate to
others; it will not be defamation. The word ‘makes ‘refers to originator of
imputation.
The word imputation indicates something bad about
another and implies the attribution or evil, the making or an accusation,
allegation, insinuation of a charge against a person, words either spoken or
intended to be read, or by signs or by visible representation. Visible
representation‘ will be inclusive of
every possible form of defamation which human ingenuity can devise.
The publisher of a newspaper is responsible for
defamatory matter published in such paper whether he knows the contents of such
paper or not. The editor of a journal is in no better position than any other
ordinary subject with regard to his liability for libel. He is bound to take
due care and caution before he makes a libelous statement.
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1884,7 Allo 205 (222) F.B. 3 1932 55 All 253 4 1944 46 Cr.
L.J. 71 5 1886 9 Mad. 397 6 1894 1 Q.B. 67
1884,7 Allo 205 (222) F.B. 3 1932
55 All 253 4 1944 46 Cr. L.J. 71 5 1886 9 Mad. 397 6 1894 1 Q.B. 671.
1.Intention To Harm
According to section 499, the person who
defames another must have done it intending to harm or knowing or having reason
to believe that such imputation will harm the reputation.
It is not necessary to prove that
the complained actually suffered directly or indirectly from the scandalous
imputation alleged; it is sufficient to show that the accused intended to knew
or had reason to believe, that the imputation made by him would harm the
reputation of the complainant, irrespective of whether the harm is actually
caused or not. It is not necessary that there should be an intention to harm
the reputation. It is sufficient if there was reason to believe that the
imputation made would harm the reputation. Section 499 of Indian Penal Code
gives four explanations in this regard.
2.Defamation Of The Dead
According to this the
imputation must not only be defamatory of the deceased but it must also be
hurtful to the feelings of his near relatives. The question depends upon the
harm caused and not the harm intended, for in the case of deceased, the latter
test is inapplicable.
3.Defamation Of A Company Or
A Collection Of Persons
A corporation or company could
not be liable in respect of a charge of a murder, incest, or adultery because
it could not commit those crimes. The words complained of must attack the
corporation or company in the method of conducting its affairs; must accuse it
of fraud or mismanagement or must attack its financial position.
The class defamed must not be too
large to cease of be distinct from the memory of certain trade or profession.
If a person calls the lawyers as thieves or medical men as a class of
cut-throats in disguise or the police force as a hotbed of corruption, there
would be not indictable libel-because the class is too large and the
generalization too sweeping to affect any of its composing members.
4.Defamation By Innuendo
When a particular passage is
prima facie non-defamatory the complainant can show that it is really
defamatory of him from the circumstances and nature of the publication. Such a
passage is called ?innuendo‘. The language of irony or sarcasm very often will
be better, forcible, and impressive than a bold statement. It is thus necessary
for the prosecution to establish that the words though innocent are appearances
were intended to be said in a libelous sense. So it may be libelous to say of
an attorney that he is an honest lawyer meaning thereby he is the reverse of
the honest.
5.Publication
Publication in its primary sense of
communication by the defendant to a person other than the defamed is the basis
of liability in English civil law of defamation i.e. in torts. This principle
which is not accepted as the basic principle of English Penal Law of defamation
is accepted as the basic principle of Indian Penal Code. Section 499 Words
which may have the effect to provoking other persons at whom they are uttered
are made punishable under Sec. 504 of Indian Penal Code which deals with
intentional insults with intent to provoke breach of peace.
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8 C.A. 397774 decided on 28th
Feb.1974 (see the details of the case in next chapter, Media and Tort Law.
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The gist of the offence in
section 499 seems to lie in the tendency of the statements verbal or written to
create that degree of pain which is felt by a person who is subjected to
unfavorable criticism and comments.
There is another important
difference between English law and Indian law in the matter relating to spoken
defamation or slander. Slander cannot be subject matter of criminal prosecution
in England except when it happens to be seditious or blasphemous and when they
are against State or State religion. The Indian Penal Code recognizes no such
distinction classing both as punishable.
I.
Exceptions
The ten exceptions to Se. 499 state cases in which an
imputation prima facie defamatory may be excused.
They are occasions
when a man is allowed to speak out or write matters which would ordinarily
defamatory. Those exceptions are;
1. Imputation of truth for public good,
2. Public conduct of
public servants,
3. Public conduct of public men other than public servants,
4 Comment on cases and conduct of witnesses and others
concerned,
5. Merits of cases, decisions and judicial proceedings,
6. Merits of a public
performance, literary criticisms,
7. Censure in good faith by one in authority,
8. Complaint to
authority,
9. Imputation for protection of interest,
10. Caution in good faith.
Ii. Justification
The true of any defamatory words
if pleaded is a complete defense in civil proceedings and for the reason
even though the words were published spitefully and maliciously. The law takes
the view that it should no allow a plaintiff to recover damages for an injury
to his character or reputation which he either does not or ought not to
possess.
In criminal law, truth is not an
absolute justification. Truth is a justification only when it is given out for
public good. The reason for the distinction lies in the fact that in civil
action the benefit or detriment to the public is not in issue while it is
paramount that the public should have a concern in criminal matters.
Ii. Landmark Cases
In the Supreme Court decision
in Harbhajan Singh v. State of Punjab17 Accused was secretary of Punjab
Praja Socialist Party. He wrote a defamatory article in Blitz about Surinder
Singh, son of the Chief Minister of Punjab S. Pratap Singh Kairon. The two
defamatory statements states that he is the leader of smugglers and is
responsible for a large number of crimes being committed in Punjab State.
8 C.A. 397774 decided on 28th Feb.1974 (see the details of
the case in next chapter, Media and Tort Law.
The statement added that because
the culprit happens to be the Chief Minister‘s son, the cases are always
shelved up. ?There was evidence that certain pending cases against some
smugglers were withdrawn by the State at the instance of the Chief Minister.
The truths of these allegations were not proved beyond the shadow of doubt in
the trial of the defamation case.
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A.I.R.1966 s.C.97 18
A.I.R. 1981 S.C.1514.
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The accused pleaded that
imputation made in good faith and for public good falling under Exception 9
though he has stated in the original trial court that he relied on the truth of
his statements falling under the First exception to S.499. Trial Court and High
Court found against the accused even on the plea of ?good faith‘ under ninth
exception namely on the ground that heehaw not conclusively established the
truth of the allegation. High Court sentenced him to undergo three months
simple imprisonment and to pay a fine of Rs.2,000/- . The Supreme Court allowed
the appeal of the accused and set aside the order
of conviction by holding that in
the circumstances of the case that the appellant was entitled to the protection
of the Ninth Exception.
II.
Media and
Crime of Sedition
Criticism of government is not sedition. The expression
?sedition‘ generally means defamation of state. But the legal meaning of
?sedition‘ is different.
Definition: Section 124A of Indian Penal Codes
defines and punishes sedition as follows:
Whoever by words, either spoken
or written, or by signs, or by visible representations, or otherwise, brings or
attempts to bring into hatred or contempt, or excites or attempts to excite
disaffection towards,
the Government
established by law in India, shall be punished with imprisonment for life to
which fine may be added, or with imprisonment which may extend to three years,
to which fine may be added, or with
·
fine The expression 'disaffection includes
disloyalty and all feelings of enmity..
·
Comments
expressing disapprobation of the measures of the Government with a view to
obtain their alteration by lawful means, without exciting or attempting to
excite hatred, contempt or disaffection, do not constitute an offence under
this section.
·
Comments
expressing disapprobation of the administrative or other action of the
Government without exciting or attempting to excite hatred, contempt or
disaffection, do not constitute an offence under this section.
1.Meaning:
Sedition is a crime against the state.
The word 'seditio' in a latin means 'going aside' The State intends to bring in
all kinds of separatist tendencies into this word and curb the writings or
campaign causing disaffection. According to Sir J Fitzjames Stephen20 are not
connected with open violence but they presuppose disaffection with the existing
government in various ways. This offence in English law is a crime against the
Crown and government,
2.Object:
The object of sedition is to
induce insurrection-(rising in the first stage or incipient rising) and
rebellion. It has been described as a disloyalty in action and it leads to
civil war, bringing into contempt the sovereign or the government or the
Constitution. This offence, therefore, is the offence of defamation of
Government.
3.English Law and Indian Law:
The Indian Law of Sedition is
almost same as the English Law. The substance of Indian Law of sedition is
contained in Sections 124A, 153A, 295. While the Section 124-A deals with
political offence of sedition, Section 153-A deals with sedition by class
hatred and Section 295-a deals with sedition by promoting religious insult.
Sedition can also be committed by questioning the territorial integrity of
frontiers, according to Criminal Law Amendment Act, 1961, Section 2.
4.Citizen's Criticism and Sedition:
Sedition is not an offence
against public order, the gist of the offence is 'incitement to disorder or
tendency or likelihood of public disorder or the reasonable apprehension
thereof', as per the Supreme Court in Kedar
Nath case.25 Moreover a citizen has a right to say or write whatever he
likes about the government. The explanations appended to the main body of
section make it clear. It is only when the words used have the pernicious
tendency or intention of creating public disorder or disturbance of law and
order that the law steps in to prevent such activity in the interest of public
order. Section 124-A is a proof of his that the Government can be criticized by
all legitimate means and the State cannot do anything.
5.A Reasonable Restriction.
No state can be
expected to concede freedom to those who profess to put an end to it by
availing of that freedom.
I.The Person:
The writer, printer, publisher,
editor and the composer can be a person under this section. A person who has
used the article or writing for such purpose is also included. A person is
liable for everything that appears in his paper and the question of punishment
is a different thing.
Sedition trial of M. K.
Gandhi: Section 124A was invoked in March 1922 and this was a historical
case in context of Sedition. The accused this time was M.K.Gandhi and
Shankarlal Banker was co-accused.
II.A threat to Media's Freedom
The First Amendment to the
Constitution in 1951 incorporated ?public order' in Article 19(2) as a ground
on which the state could impose reasonable restrictions by law. Thus, the
inclusion of ?sedition' was held constitutional by the Supreme Court in
Kedarnath. But the Constitution-makers did not specifically state that
?sedition' should be a ground to restrict free speech. Though the additional
ground of ?public order' is held to be valid for restricting freedom of
expression, sedition cannot be read into the wide expression public order.'
7 Mohanlal V.
Ramchanran 1928 26 A.L.J.R. 361
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1893 17 Mad.87
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20 Q.B.D.275 at p 281
16 1886-3 T.L.R.184
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C.R. Criminal appeal No.173 of 1927 decided on Sept.22,1927
(Unrep.Bom)
III.
CONCLUSION
The correlation of media and
defamation cannot b conclude to the end as it is wide topic having a broad
perspective ,media is sector which is connected with ac and every field thereof
it is very necessary that every aspect of media, It has to be seen that the
information revealed is truthful and defamation does not occur .
Defamation and Media are two path
of the same road the usefulness of both terms has to be done in such way that
they don’t overlap each other as a result defamation
Is not committed. it is very
necessary that any information done at mass level should be beyond reasonable
doubt and as media performance that stage each and every time, The role of
media is very crucial in a democratic country a like India .
A journalism holds the maximum
influential toward the citizens of the country ,Therefore the mollified
information or the slightest of doubt arises from the information telecasted
then there would be adverse impact .it has to be seen that the people forming
their views based on the information telecast are not influenced adversely .
Though the a being wider sector,
it could be concluded that the defamation and media are two sides of the same
coin. but the measure that should be
taken is that they don’t overlap each other and should perform within itself
imposed limits.
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.
IV.Bibliography:
Available at:
http://copyright.lawmatters.in/2012/02/defamation.html (last visited on Feb. 9,
2016).
Supra note 1. 18Subramanian Swamy
v. Union of India (Writ Petition (Crl.) No. 184/2014), available at:
http://supremecourtofindia.nic.in/outtoday/wr18414p-2014_10_30.pdf (last
visited on Feb. 9, 2016). 19 Ibid.
2 Indian Penal Code, 1860, s.
499. 13 Ratanlal and Dhirajlal, The Law of Torts 279 (LexisNexis, New Delhi,
26th edn., 2013). 14 (1891) 2 CH 269. 15 AIR 2002 Delhi 58.
ummary of Papers of Judicial
Officers on Defamation: Its civil and criminal liability, Para 33, available
at:
http://mja.gov.in/Site/Upload/GR/Title%20NO.43(As%20Per%20Workshop%20List%20title
%20no43%20pdf).pd.
Subramanian Swamy v. Union of
India (UOI) and Ors, AIR 2016 SC 2728: 2016 Cri LJ 3214.
Consent as a Defense to Defamation, available
at: https://www.minclaw.com/legalresource-center/what-is-defamation/consent-as-a-defense-to-defamation/.
Article Information
DEFAMATION UNDER CRIMINAL LAW (By- SHRIKANT SAWANT)
Author Name: SHRIKANT SAWANT
Title: DEFAMATION UNDER CRIMINAL LAW
Email Id: sawantfin.9@gmail.com
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/06/27
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International Journal for Legal Research and Analysis
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