DEFAMATION

To “defame” someone is to cause harm to their reputation. Defamation comes from the Latin
word “diffamare,” which means to circulate or transmit information about an individual that
could hurt the person’s reputationDefamation is a statement that injures a third party's
reputation. Defamation can be civil as well as criminal. Under Indian law, a plaintiff can
choose to sue for defamation as a criminal offence and/or as a civil offence. Civil liability (a
part of tort) is determined by the principles of English law and the victim is usually
compensated in the form of damages. Both civil and criminal defamation can be jointly
pursued. Libel and slander are the legal subcategories of defamation. Generally speaking,
libel is defamation in written words, pictures, or any other visual symbols in a print or
electronic medium. Slander is spoken defamation.
Criminal Defamation: Meaning
Section 499 of the Indian Penal Code defines criminal defamation as:
“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 cases hereinafter excepted, to defame that person.”
This offence consists of three key elements:
1. making or publishing any imputations concerning any person,
2. such imputations must have been made by words either spoken or intended to be read
or by signs or by visible representations, and
3. that is made intentionally or with knowledge or having reason to believe that it will
harm the reputation of the person concerned.
Article 19 of the Constitution grants various freedoms to its citizens. However, Article 19(2)
has imposed reasonable exemption to freedom of speech and expression granted under
Article 19(1) (a). Contempt of court, defamation and incitement to an offence are some
exceptions. Under the Criminal law, Defamation is a bailable, non-cognizable offence and
compoundable offence. Hence a policeman may arrest only with an arrest warrant issued by a
magistrate. The Indian Penal Code punishes the offence with a simple imprisonment up to
two years, or with fine, or both.
Exceptions under Section 499
Section 499 also cites exceptions. There are in total exceptions mentioned under section 499.
 Truth for Public Good : This exception provides that if any information which is
true and for the good of the public at large, then that is not covered under the act of
defamation. Things to be noted here is, first, the information should compulsorily be
true. Second, the information should be of a kind that it benefits the public. Also, it is
compulsory to publish that information.
 Fair Criticism of Public Servants :This exception provides that if an act in which
the public servant is criticized for discharging any of his public functions or and the
act of criticizing his conduct and character when it appears to be wrong and not
otherwise. Then, such an act will not amount to defamation.
 Fair comment on public conduct of public men other than public servants: If any
person expresses his/her views and opinion on the conduct of any other person who
discharges any kind of public functions, he will not be liable for the act of
defamation. The condition in regards to this is that such views and opinions should be
made in good faith and with honesty. If it is made otherwise then the act will fall
under the offense of defamation.
  Report of proceedings of Courts of justice: If any proceedings of the court or the
result of any case given by the court are published then that will not amount to
defamation. The conditions pertaining to this are such that publication should be true
and apt.
 Comment on Cases: If any person publishes any information regarding the merits of
the case or in regard to the conduct of any person who was a witness, in that case, it
will not be defamation. It is important to note, the element of good faith is requisite
here.
 Literary criticism: If any person in good faith expresses his opinion in regards to the
performance or character of the author, which the author has submitted to the
judgment of the public or viewers, then it does not amount to defamation. To explain
this, the author must have by acts or expressly submitted her/his performance to the
judgment of the public. If that is not the case, the act will amount to defamation.
 Censure by One in Authority: If any person passes censure on the conduct of any
other person, then it will not amount to defamation, provided that the person applying
censure should have the lawful authority or any authority arising out of a valid
contract, over the person on whose matters the censure is applied.
 Complaint to Authority: If any person who has lawful authority over the other
person, accuses him then it will not amount to defamation.
 Imputation for Protection of Interests :If any accusations or imputations are made on
another person in order to protect the interests of oneself, then it is not defamation
 Caution in Good Faith : If any caution is made for the good of that person or for the
good of the public then it will not amount to defamation.

Punishment for Criminal Defamation

If a person is found guilty of having committed defamation in terms of Section 499 of the
IPC, the punishment is stipulated in Section 500, i.e. simple imprisonment for up to two
years along with fine. The Criminal Procedure Code, which lays down the procedural aspects
of the law, states that the offence is non-cognizable and bailable. Those who are accused of
the offence would generally not be taken into custody without a warrant, and as such, an
aggrieved person would not be able to simply file a police complaint but would, in most
cases, have to file a complaint before a magistrate.
Constitutionality of Criminal Defamtion
The apex court’s judgement in Subramanian Swamy v. Union of India put a rest on the
speculation of defamation being decriminalised when the constitutionality of the contended
provisions were upheld. According to the appellant, these provisions cast an unreasonable
restriction on freedom of speech, one that falls beyond article 19(2) of the Constitution of
India. The counsel appearing for the State of Tamil Nadu submitted that Sec. 499 and 500
could not be said to travel beyond the reasonable limits on freedom of speech, because article
19(2) itself imposes such a restriction. Also, there has to be a debate with regard to the
conceptual meaning of the term ‘defamation’ used in article 19(2) of Constitution and
‘defamation’ in Sec. 499,IPC, 1860. It was also pointed out that the freedom of speech and
expression has to be controlled and does not include the concept of defamation as defined
under Sec. 499.
Conflict between Art. 19(1) (a) and right to reputation under Art. 21
Another question which arose before the court was whether reputation of another individual
is absolutely ephemeral, so as to hold that criminal prosecution on account of defamation
negates and violates right to free speech and expression of opinion. To answer this, the SC
goes into the interpretational analysis of freedom of speech and expression under Art. 19(1)
(a), 19(2) and right to reputation under Art. 21. After a detailed scrutiny, the court resorts to
the rule of harmonious interpretation and adopts the doctrine of ‘balancing of fundamental
rights’. With regard to the permissibility of criminal defamation, the Court opines that it can
be tested on the touchstone of constitutional fraternity (also enshrined in the preamble) and
fundamental duty. However, the court finds it difficult to come to a conclusion that the
existence of criminal defamation is absolutely obnoxious to freedom of speech and
expression but concludes that it does not invite the frown of any of the articles of Indian
Constitution nor its existence can be regarded as unreasonable restriction.