Introduction:
Defamation in simple terms, for the layman, is when a person's reputation is badly hurt which is caused by a false and disparaging statement. The ‘reputation’ of an individual is what is considered important second only to his/her life. Just as when a damage is caused by someone to a person’s property they are held liable under the law and as a result face consequences for their actions, similarly a person's reputation is recognised as their property and if anyone who harms a person's reputation they are equally held liable under the law[1].
All democratic societies are built on the foundations of freedom of speech and expression. It is a fundamental human right that should be enjoyed by everyone, regardless of their cultural, religious, ethical, political, or other backgrounds and viewpoints. The re-establishment of social relationships and maintaining harmony in society requires freedom of speech, expression, pluralism, and independence of the media. Similarly for these reasons Article 19(1)(a) of the Indian Constitution guarantees the right to freedom of speech and expression. But as we all know that phrase which says ‘freedom comes with a price’ and this is so that an individual’s ‘reputation’ is not damaged. This is very well a ‘fundamental right’ as stated under Article 21 “No person shall be deprived of his life or personal liberty except according to procedure established by law.”[2]
It is important to note that in India, defamation is both a civil and criminal offence. First we need to understand a few terms such as ‘slander’ this is defined as defamation in spoken words or gestures meanwhile the term ‘libel’ is defined as defamation in a written or printed form. Defamation is covered by the ‘Law of Torts’ in Civil Law, which imposes punishment in the form of damages which will be granted to the claimant. Meanwhile, defamation although being a bit more serious is a “bailable, a non-cognizable, and a compoundable offence”[3] under criminal law.
As a crime this damage to ‘Right to Reputation’ is governed under the Indian Penal Code of 1860 Chapter XXI under the sections 499 to 502. This does not only include an individual but also defamation against the state is protected and it is being governed under Section 124A [Sedition]. The Section 124A states that “whoever, by words, either spoken or written, or by signs, or by visible representation, 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 which may extend to three years, to which a fine may be added, or with fine.”[4]
Meanwhile, as a general rule, the focus of defamation under tort law is on libel rather than slander. To prove that a statement is libellous, it must be proven to be untrue, written, defamatory, and publicly distributed. One of the most intriguing aspects of defamation as a tort is that it is only a crime if the defamation destroys the reputation of a living person. In most situations, this means that defaming a deceased person is not a tort because, as a general rule, the plaintiff must be able to prove that the defamatory comments referred to him. However, this does not rule out the possibility that a reasonable course of action cannot be taken by their representatives if the name of a deceased person is slandered.
History:
Lord Macaulay was the one who conceived and credited for the defamation rules in India in the first proposal of the Indian Penal Code in 1837, but they were codified only in 1860. Defamation was tried in the same way and along the same line as it was in English law at the time. The objective of criminalising defamation in British India was unmistakably tied to safeguarding the ‘British Raj's’ territorial and commercial interests, state security, and in the maintenance of public order. As a result, Section 499 of the Indian Penal Code 1860 was enacted, which has remained unchanged for 158 years.[5]
SECTION 499 – DEFAMATION UNDER IPC[6]:
The main elements of Criminal Defamation under Section 499 are the publishing of any material or making any statement through words (either spoken or written), signs, visible representation which has an ‘intent to harm’ any individual's reputation. This means that this publication must be made as ‘notice’ i.e. made public. This can be better understood with a bizarre case law ‘S. Khushboo v. Kanniammal & Anr’[7] where we see a complaint being dismissed on the grounds that the accused's comment,in this case, was made to a news magazine campaigning for the acceptance and normalisation of premarital sex in society and this was in no way shape or form hurting the reputation of an individual or individuals in particular.
Meanwhile if this is proven and such a statement is published in the newspaper then not only the editor but also the printer and the publisher who has made the declaration as shown in the paper would be held liable, as we see in Ashok Kumar Jain v. State of Maharashtra[8].
Exceptions to Defamation:
There are over ten exceptions laid out and they are as follows. If the statement made is “true” and for the “public good”. If the statement or opinion is in “good faith” regarding the conduct of a public servant while they are discharging their duties and responsibilities. Any statement or opinion will also not amount to defamation when again done in ‘good faith’ regarding a ‘public question’ to a politician.
The next exception is when anyone publishes a “substantially true report” of the proceedings in a court of law or even if it is regarding the judgement that has been made by the court, it will not amount to defamation. The report should be without malice. In this instance whether or not it is done in good faith it does not matter. Discussion of merits of a case which has received its judgement even with regard to the witnesses or any of the parties shall also not be considered as defamation. Similarly ‘criticism’ also comes here as long as it is done in good faith. This exception gives those in authority (regarding public spheres) a right to censure those as long as within the scope of their authority.
SECTION 500 – PUNISHMENT FOR DEFAMATION UNDER IPC[9]:
This clause states that a person who defames another person can be sentenced to simple imprisonment for up to two years, a fine, or both. This is a “non-cognizable and a bailable offence”.
SECTION 501 – PRINTING OR ENGRAVING DEFAMATORY MATTER[10]:
The following conditions must be met in order for this section to be applied:
The accused printed or engraved defamatory material and knew or had reason to believe that such material was defamatory. A person who commits an offence under this section needs to face simple imprisonment for up to two years, a fine, or both.
SECTION 502 – SALE OF PRINTED OR ENGRAVED DEFAMATORY MATTER[11]:
This section supplements the preceding section's provisions. This section's essentials are as follows:
Selling or offering to sell any printed or engraved substance while knowing it contains defamatory material. A person who commits an offence under this section may face simple imprisonment for up to two years, a fine, or both.
Conclusion:
In conclusion, the use of the Sedition Act by the police should be limited, and approval from the Home Ministry should be necessary. The investigation and trial must be completed as quickly as possible. Social media should not be regulated by the government in the online arena. Rather, social media platforms should have a self-regulatory mechanism in place to monitor the content submitted by their users. Third, courts must play an active role in upholding the constitution's guarantee of free speech and expression. They must investigate situations if they discover an infringement of an individual's basic rights.
The freedom to free speech will benefit greatly as a result of this action. This right should be the subject of extensive public awareness campaigns. The more informed a citizen is, the less fundamental rights violations will occur. The Indian Supreme Court has intervened on several occasions to defend the right to freedom of speech and expression.
While encouraging free speech is crucial, it must be assured that it is not used for hate speech against any caste, race, religion, or other group. Allowing such discourse to be protected under the banner of free speech will destabilise society. Allowing everyone to say whatever they want, regardless of whether or not it is offensive, would be a violation of other people's rights. This is one of the main reasons why our founders included "reasonable limits" in our constitution. The right to freedom of speech and expression is one of the most important rights for bringing about change in society. New ideas enter the system only through the free exchange of thoughts and ideas, while the old take a backseat.
India's constitution, like that of most democratic governments around the world, has clauses safeguarding free speech and expression. Despite the constitutional guarantee, the right to freedom of expression faces significant obstacles in the country. Misuse of laws such as sedition, defamation, and censorship in the internet arena are unquestionably among the most serious concerns about the right. Government regulation of the online media has increased in recent years. The Press Freedom Index has been steadily declining, indicating that journalists are being intimidated just for doing their jobs. Despite the obstacles, proactive and informed citizens can take the lead in defending the right by pressuring the government to repeal legislation that they believe threaten free speech and expression. In addition, as the Constitution's Guardians, the Supreme Court should take a considerably more active role in preserving Article 19(1)(a) than it currently does.
-- [1] Rashmi Senthilkumar,Defamation Law in India,Legal Service India (June 21, 2022, 8:46 PM), https://www.legalserviceindia.com/legal/article-2224-defamation-law-in-india.html [2] INDIA CONST. art. 21 [3] Utkarsh Agarwal,A Simple Guide to Understanding Civil and Criminal Defamation,iPleaders,(June 21, 2022 8:55PM), https://blog.ipleaders.in/civil-and-criminal-defamation/ [4] Indian Penal Code,1860,§124A,No.45,Acts of Parliament,1860(India) [5] Yusra Khatoon & Avinash Ray, Critical Analysis of Evolution and Legality of Defamation in India, PubPub (June 22, 2022, 9:00 PM), https://assets.pubpub.org/a5ap0fz4/da5906c8-e02e-4192-b7cb-4148dd512a99.pdf [6] Kanooniyat,https://kanooniyat.com/2021/01/defamation-under-ipc-section-499-502/, (June 21, 2022) [7] S. Khushboo v. Kanniammal & Anr (2010) 5 SCC 600 [8] Ashok Kumar Jain v. State of Maharashtra,(1986) 402 Bombay HC [9] Kanooniyat,https://kanooniyat.com/2021/01/defamation-under-ipc-section-499-502/, (June 21, 2022) [10] Kanooniyat,https://kanooniyat.com/2021/01/defamation-under-ipc-section-499-502/, (June 21, 2022) [11] Kanooniyat,https://kanooniyat.com/2021/01/defamation-under-ipc-section-499-502/, (June 21, 2022)
This article is written by Ashish Eapen of Christ (Deemed to be University), Bengaluru, Karnataka.