ARE DEFAMATION LAWS A BOON OR BANE: A PANORAMIC ANALYSIS BY: AMBIKA BHARDWAJ
ARE DEFAMATION LAWS A BOON OR BANE:
A PANORAMIC ANALYSIS
AUHTORED BY: AMBIKA BHARDWAJ
Amity Law School, Noida
Abstract
In the contemporary era of India,
people are becoming aware of their rights and want to voice their opinions and
ideas regarding them. However, the laws concerning freedom of speech are not
absolute and one can be held liable for defamation. With evolving times,
defamation has become an increasingly misused offence, which has fueled
the debate about it being a restriction on free speech. What one
needs in this scenario is stability between the defamation laws and the rights
and aspirations of Indian society. The foremost objective of defamation
jurisprudence is to fortify one’s dignity and respect. This has been secured
through numerous laws and articles. These incorporate sections 499-502 of the
Indian Penal Code, defamation as a tort, and Article 21 of the Indian
constitution. Defamation comes under the purview of civil wrongs as well as
criminal wrongs i.e. defamation can be contemplated as a tort as well as a
crime. Hence, the judiciary should be heedful while analysing the cases
concerning defamation and should pronounce a judgement that creates an ideal
blend betwixt laws in respect of defamation and fundamental rights or
aspirations of the people. This enables individuals to enjoy their
fundamental right without compromising their reputation.
This paper aims to analyse the laws
concerning defamation, their evolution, and how the laws regarding defamation
have been squandered through the hands of some people. Further, some case laws
have been mentioned to give an eloquent understanding of the topic.
Introduction
With the tides of advancement in the
contemporary era, people are voicing their opinions but sometimes, it gets
strenuous for an individual to exercise their rights without facing any
ructions. We cannot deny the fact that laws punishing defamation have aided
abundant people to safeguard their dignity and reputation. But there are always
two sides of a coin. These laws have been exploited through the hands of
numerous people. This has resulted in these laws becoming a restriction to the
freedom of speech and right to life. Having a clean and righteous reputation is
an essential segment of everyone’s life. A person’s reputation and integrity
can be damaged through the offence of defamation. Acts of malicious defamation
of others have been occurring since ancient times. The Kautilya
Arthshastra, in which the writer outlined the penalties for members of various
social classes, is where the background of defamation can be found.
Defamation is causing damage to an individual’s
reputation by publishing an untrue statement. A statement about a person that
makes him the target of animosity, mockery, or contempt, makes him avoidable or
shunned, or that tends to harm him in his job, profession, or trade is
considered defamatory. It can be classified under kinds i.e. libel and slander.
Libel defamation is when damage is caused to a person’s reputation in the minds
of right-thinking people through some written form. Examples of it include an
article, blog, or a painting. Whereas, slander is a defamatory statement spoken
by someone that tends to harm the reputation of an individual in the minds of
right-thinking people.
Research
questions
1)What are the essentials of
defamation?
2)How is defamation defined under
Section 499 of the IPC?
3) What is the punishment for
defamation?
4) Do defamation laws violate the
fundamental right of freedom of speech and expression?
Essentials
of defamation
·
The
statement must be untrue and defamatory in nature.
A statement is said to be
defamatory if it causes damage to a person’s reputation in the mind of a
prudent person. The statement can either be prima facie or have a hidden
meaning (innuendo) in it. Prima facie means that the statement is injurious to
someone’s reputation on the face of it whereas in innuendo, things are not explicitly
said.
·
The
statement has to be published.
This implies that another
prudent person must have seen or heard the statement. In Mahendra Ram v. Harnandan Prasad,[1] a letter was sent
by the defendant to the plaintiff which was in Urdu. Plaintiff was not
well-versed in the language. Hence, another person read the letter in the
presence of some people. However, the defendant was not held liable because he
wasn’t familiar with the fact that the plaintiff doesn’t know the language.
The fact that spoken
words are recognised as a form of defamation under Indian law while they are
not under English law is a key distinction between the two systems of law. [2]
·
Defamatory
words or statement must be in reference to the plaintiff.
It must be evinced that
the imputation made by the defendant refers to the plaintiff. The said
statement must be made with an intent to damage the image of another
individual or with mens rea that such an accusation will damage a person's
reputation.
In Gundi Vishnu Prasad and another Versus The State of A.P[3].,
a petition was filed under section 482 of CrPc. However, the petition was
dismissed, essentials of the defamation were mentioned and it was held that the
imputations must either be spoken or intended to be read in order for them to
constitute defamation.
In the matter of defamation, the position of a newspaper is in no
way different from that of a member of the public in general. The
responsibility in either case is the same[4]. The publisher of a
newspaper is responsible for defamatory matter published in the paper, whether
he knew the contents of such paper or not.
Section 499
Section
499- 502 of the Indian Penal Code accommodates provisions associated with
defamation. Four elucidations have been observed for section 499 of the IPC.
They are as follows-
As
per section 499 of IPC, an individual defaming any deceased person who affects
his/her relatives or would have affected the reputation or integrity of the
person if they were still alive will be held liable for defamation under this
section.
A
business has its own goodwill. Making statements about the company's or
association's operations, imposing them with fraud or managerial mistakes, or
condemning their economic state would constitute defamation. It is also
essential for the group of people to be a recognised body in order to be able
to say with certainty that they stood defamed.
Sometimes,
a statement is not prima facie defamatory. However, it has a hidden meaning to
it. This is called innuendo and one is held liable for it.
In
the fourth explanation, it has been stated that any person who has been defamed
in the eyes of society in respect of his morals or character can file against
it. This also includes if any imputations are made on one’s caste or if it
lowers the credit of that individual.
Defenses
for defamation
1)
The
accusation was done in good faith for the public interest- To adduce this
exception, two ingredients must be evinced. They are as follows-
a) The
purported imputation was accurate
b) It was done
in good faith for the public welfare
No truthfulness can justify the
imputation unless it was done in good faith. Example- When an assertion is made
by an editor of a newspaper about a public servant or a private citizen, it is
believed that it was made in good faith. However, if one tries to defame any
citizen under the garb of this exception, he’ll be liable for the same. The
publication must be made in the public interest and be free of bias in order to
pass the fair comment test.
In Chaman Lal vs. State of Punjab[5], the
Supreme Court established the criteria for proving good faith and bona fide in
this case, as stated in the exceptions to Section 499 of the Indian Penal Code.
2)
Conduct
of public servants- statements that are made regarding
the conduct of public servants don’t amount to defamation. However, the remarks
should be fair in the sense that they are motivated by the writer's sincere
desire to serve the public interest rather than by any desire to air personal
grudges.
3) Any person touching any public
question- This exception covers a much wider area as compared to exception 2. It
states that expressing a view about a person's behaviour in relation to a
public issue or about his character is not considered defamation.
4) Publication of statements concerning
proceedings of courts- It is no defamation to publish any statement regarding
the proceedings of the court if they are true in nature.
In Annanda prasad vs. Manotosan Roy[6], it was held by the court that the publication need not be true by word,
but should give a true account of the proceedings.
5) Merits of a case decided in court or
conduct of witnesses- It deals with comments regarding the merits of a case
that have been determined by the court.
6) Merits of public performance- This
exception covers the literary criticism of public performances submitted to its
judgment. It deals with the criticism of books published on literature, art,
painting, speeches made in public etc.
7) Absolute privilege: A lawsuit for
libel is barred by the assertion of privilege. In the public interest and for
the benefit of society, defamatory matters are protected by legal doctrine.
A statement has absolute privilege when its nature precludes any legal
action being taken against it, regardless of how untrue or defamatory it may be
or whether it was made maliciously.
This privilege extends to conducting parliamentary business,
administering the law, and advising the state in matters of state. This defence
is also available in the case of any defamatory remarks made by a judge, jury
members, party, witness, or advocate during a legal proceeding.
Sections 500-502
Section 500 asserts the punishment for defamation, which is simple
imprisonment for a term that may extend upto two years, fine, or both. The
offence is non- cognizable and bailable under this section. The sale of printed
or engraved products containing defamatory material is covered in Section 502
of the Indian Penal Code, which deals with the publishing or engraving of known
defamatory material in Section 501 of the Code.
It must be established that the printed and made available for sale
material violates Section 499 of the IPC's definition of defamation. Once this
is proven, the next step is to assess whether the accused carried out the acts
that constitute the alleged offence with the required knowledge, intention,
etc. to render those acts guilty.
Defamation Laws and Free Speech
It has been descried that defamation laws have a collision with the
fundament right of right to freedom of speech and expression. The freedom of
speech and expression is, naturally, subject to appropriate limitations, as are
the rest of the fundamental rights. The Indian Constitution's Article 19(2)
makes this declaration. [7] Nothing prevents a state from
enacting laws as long as they impose reasonable restrictions on the use of the
rights guaranteed by the aforementioned subclauses in the interest of India's
sovereignty and integrity, the State's security, good relations with other
nations, the maintenance of public order, morality, or values, or in order to
prevent judicial slander, defamation, or incitement to commit an offence. By
their very definition, both laws are in conflict with one another because 1)
one safeguards a person's right to freely voice his or her beliefs and points
of view, and 2) the other is inclined to hold those same views or opinions
accountable when they damage someone's reputation. It should be remembered that
the Court must keep in mind the lofty ideals, fundamental principles, and
guiding principles of the constitution when interpreting Article 19(2). The
definition of "defamation" in Article 19(2) should not be interpreted
strictly.
In Subramaniam Swamy Vs. UOI[8], the petitioners argued that the criminal defamation crime was invalid
because it infringed upon their right to freedom of expression. In its
decision, the Court considered various definitions and applications of the
terms "defamation" and "reputation."
The Court went on to emphasise the importance of the constitutional
principles of fraternity and fundamental duty, which state that it is
everyone's responsibility to uphold the dignity of others. The Court held that
it could not draw the conclusion that the presence of criminal defamation is
detrimental to freedom of speech and expression because this is a
constitutional obligation.
The Court also considered if the criminal defamation provisions are
substantively or procedurally unreasonable, looking at whether they are
ambiguous, unjust, or disproportionate. The Court comes to the conclusion that
the four elucidations provided in the Penal Code section on defamation were
neither ambiguous nor unspecific. The Court further ruled that Section 499,
which claims that violating Art. 19(1)(a) of the Constitution by defaming a
private individual, has no relation to that clause because Art. 19(2) protects
the interests of the public rather than an individual and cannot therefore
serve as the foundation for criminal defamation.
In Shreya Singhal vs UOI[9], the ruling was based on the idea that limitations needed to be narrowly
tailored, but that criminal defamation is not a concept that fits this
description.
Conclusion
An ongoing conflict has often been noted in the complex
interplay between laws regarding defamation and free
speech. Defamation laws have a crucial role to play in protecting both
reputations and expression in democratic societies, as this paper has
explored through their historical roots, legal doctrines, and current
challenges.
By giving people and organisations a way to seek redress when false
statements endanger their reputations, defamation laws serve a vital purpose. [10]This judicial system recognises the significant influence that a
statement may possess on an individual's life, profession, or the reputation of
an organisation. It is crucial to keep in mind that freedom of speech is not
absolute. Although it is a right, it also comes with obligations.
The obligation to respect the rights and dignity of others must coexist with
it. In this situation, defamation laws serve as a necessary check to limit harm
while safeguarding the importance of the freedom of speech.
[2] KD Gaur, Textbook on Indian Penal
Code 1093 ( Universal Law Publishing 2016)
[3] Gundi
Vishnu Prasad and another Versus The State of A.P, 2006 SCC OnLine AP 1328
[4] Dongar singh v. Krishna Kant, AIR
1958 MP 216
[5] Chaman Lal vs. State of Punjab, 1970 AIR 1372
[6] Annanda prasad vs. Manotosan Roy,
AIR 1953 Cal 503
[7] INDIA CONST. art. 19
[9] Shreya Singhal vs UOI, (2015) 5
SCC 1
[10] Rajshree Chandra, Defamation:
The Weapon of Choice to Stifle Pursuit of Justice and Free Speech, The Wire
(08/09/2023) https://thewire.in/law/defamation-priya-ramani-metoo-slapp-free-speech-media