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Criminal defamation and Judicial Intervention

Introduction


For a man of honor, defamation is death

~Bhagwat Gita

People in society are very conscious of his/her reputation. The good name held by a person in a society or the esteem held is the true essence of a good reputation. Reputation in itself does not come from the individual himself, it rather depends on the opinions of people. When people communicate their thoughts and opinions about a person to another, it gives rise to reputation.


Defamation can be a civil offence as a wrong committed against an individual also it may be a criminal offense as a wrong committed against a society as a whole. Under civil law defamation is an offense under the law of torts, This paper deals with the law governing the offense of defamation as per the Indian penal Code, 1872 by studying carefully the ingredients and the importance of mens rea and actus reus in the matter.


What constitutes defamation

Defamation is a crime that causes injury to a person’s character or reputation. The essence of defamation is to rightfully let a man enjoy his status as an honorable person in society. If anyone snatches away this right, he is bound to face consequences for his actions.

The word “defamation” has been defined as “the act of harming the reputation of another by making a false statement to a third person” according to the Black’s Law dictionary.

Section 499 of the IPC defines it as:

“Whoever by words either spoken or intended to be read, or by signs or by visible representation, makes or publishes any imputation concerning any person intending to harm, or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.”

Now before we go any further let us look at what are the essential ingredients that prima facie constitute the offense of defamation according to the definition above:

  1. Publishing an imputation about any individual.

There should a clear distinction established between making and publishing an imputation. In first glance it may seem that these two terms bear the same meaning but it should be noted that there is a stark difference between them when more deeply analyzed.

Publishing is one of the most significant features of defamation. When a person tells another person that he is a liar, it is called making an imputation. Mere communication of a defaming statement without publication would not constitute defamation.

  1. Such imputation may be made by either through

  2. Words

  3. Actions

  4. Any visual representations

Alleged imputations can take any form be it a hand gesture or a drawing or a photograph. Under civil proceedings defamation is seen to encompass either impugned words in some transient form as slander or in permanent form like writing as libel.


Comparative outlook on Defamation: English law and Indian law

It seen that the English law dissects defamation into two categories of libel and slander. Libel is a written form of defamation that may be in printed or handwritten. The essence of this is that libel tends to leave a permanent form of defamation. For e.g. if a film is held to be liable then it means that not only the picturisation of the film is held liable but also the speech which synchronizes with the videos also is actionable per se.

Slander on the other hand is defamation in a transient form. Slander is publication in spoken words or said as a part of a speech. It is the action of verbally impugning the reputation of a person with the use of words or visual representation or gesture.


Findings: Legal Analysis

Taking a look at the history of defamation, it can be seen that in the case Emperor v. Bal Gangadhar Tilak, it was argued that a man has a right to protect his reputation which should be synchronous to the rights he has over his property. Thus his/her reputation was being considered as self property. If the Anglo Indian press had published articles that brought down the character in other people’s eyes then the victim ought to have a right to challenge such action despite the freedom that the press enjoys. The advocate had also referred to the Fox’s libel act in this regard for the jury to take into account the intention and motive.


In the case Subramanian Swamy vs. Union of India, a the former made some accusations against Jaylalitha which caused disruption and a complaint for defamation against Subramanian Swamy was filed Following this Subramanian Swamy challenged the constitutionality of the criminal law of defamation on the grounds that the law imposed disproportionate restrictions on the fundamental rights guaranteed by the constitution. It was also contended that there were already civil remedies available for the same which made the criminal proceedings redundant and the provisions of the section 499 of the IPC was vague.


The case was decided by a division bench constituting of Justice Pant and Justice Mishra. The judges were of the view that every individual has the right to live with a respectable reputation and enjoy their eminence as a right under article 21 of the constitution hence causing harm to such right deserved consequences. Also a society was made up of individuals and thus causing harm to an individual was equivalent to cause harm to the society which made it a public offence. Moreover the case was based on three main points based on which the judges reached a conclusion firstly; the law of defamation protects the reputation of an individual “in the perception of the public at large”. A criminal prosecution entails harsher consequences compared of its civil counterparts thus criminal remedies are essential to keep a check on those who “deviate from…normal behavioral pattern and associate themselves with anti social elements”. Secondly right to free speech is not an absolute right thus the right to reputation cannot be crucified at the alter of the other’s right of free speech. Lastly the constitution also encourages the principle of fraternity to mandate mutual respect among individuals.


In the case Sahib Singh Mehra vs. State of Uttar Pradesh, the defendant published in his esteem daily “Kaliyug” an articles titled “Ultra Chor Kotwal ko Dante”. This article was held to be defamatory as the literal translation was that “a thief reprimanded the kotwal, a police officer”. The contents of the article could not be proved to be true and the defamatory remarks failed to be considered made in good faith for the public good. Thus the defendant’s article did not qualify to be registered for any of the exceptions of criminal defamation under section 499. The court therefore held that “press has a great power in influencing the minds of people and it is essential that they are responsible for publishing anything that tends to harms the reputation of a person. ”Thus criminal remedies would be a good deterrence in such cases.


Further in the case Harbhajan Singh vs. State of Punjab, the defendant as penalized for some comments he made which was deemed to be defamatory. His comments were published in a number of newspapers which put the reputation of the victim at a vulnerable state. The comments were made against the son of the then chief minister, alleging him to be a smuggler and be responsible for a large number of crimes committed in the state. The court held the defendant acted in public good that the comment was made “bona fide” and thus was entitled to claim protection under exception 9 of section 499.


In the famous case Shreya Singal vs. Union of India, the judge of the Supreme Court while arranging off a writ appeal testing Section 66 An of the IT Act, set out that to be sensible, a limitation should be “narrowly tailored or narrowly interpreted so as to abridge or restrict only what is absolutely necessary.”


It is essential to take note of that slander has been kept as one of the sensible limitations alongside honesty and sovereignty of India, the security of the state, agreeable relations with unfamiliar states, public request, goodness or ethical quality, disdain of court, and induction to an offense. These limitations have been forced on the opportunity and discourse and articulation ensured under Article 19(1)(a).


The case R. Rajagopal V State of Tamil Nadu, relates to legality of common criticism. For this situation, Supreme Court of India referenced around one of the milestone judgment of the US Supreme Court in New York Times versus Sullivan expressed that administration official who is on his obligation can escape consequences just when truth is bogus and crazy respect of truth. Through this case, the appointed authorities inspected the connection between free discourse and common defamation.


The court held that customary laws of defamation stood absurdly limited under Article 19(1) (a) in light of the fact that it pushed unjustifiable preferred position of no deficiency risk. The essential attack against Section 499 was that by condemning what is fundamentally a private wrong. The Section added constraint upon free talk.


We also notice that with the progress of technology and mankind there is an unprecedented rise in use of social networking websites. A widespread medium of communication which proved its abilities especially in the COVID 19 pandemic. While we discuss the concept of defamation, the overriding increase of social networking websites also bear the scope for the offense of defamation. Such is called “virtual defamation” or “cyber defamation”.


Conclusion

The surge of such cases in India indicates that the people are starting to realize the effects of this law and are actively pursuing a remedy. Defamation not only encourages intolerance in a country but it fails to uphold the true essence of democracy. The current legal structure regarding defamation ends up being a deterrence to people to speak up and express their views. Thus it is suggested by the researcher that on first hand analysis of the same the law of criminal defamation should be scrapped off for the benefit of democracy. A civil proceeding would be enough deterrence to such offence and a centralized law for defamation could be drafted so as to reduce dependency on English laws and diminish ambiguity.

  1. References:

  2. Dhar, Kaushik, Over-Criminalisation with Respect to Defamation under IPC (August 22, 2011). Available at SSRN: https://ssrn.com/abstract=1914750 or http://dx.doi.org/10.2139/ssrn.1914750

  3. Gautam Bhatia, A Blow Against Free Speech, The Hindu, 2016; Coroners and Justice Act, 2009, §73; Index on Censorship and English Pen, A briefing on the Abolition of Seditious Libel and Criminal Libel at https://www.englishpen.org/wp-content/uploads/2015/09/seditious_libel_july09.pdf

  4. Application (APL) No. 774/2017, High Court of Bombay, S.B. Shukre, J.)Goel, Shivam, Calling Husband ‘Impotent’ in Pleadings Amounts to ‘Defamation’: X V/s Y (Criminal Application (APL) No. 774/2017, High Court of Bombay, S.B. Shukre, J.) (November 27, 2018). Available at SSRN: https://ssrn.com/abstract=3291238 or http://dx.doi.org/10.2139/ssrn.3291238

  5. K.M. Mathew (2002) to Mohammed Abdulla Khan (2017), Understanding the Law of Defamation in the Context of Newspaper Publication and Other Allied Areas

  6. Goel, Shivam, Understanding the Law of Defamation in the Context of Newspaper Publication and Other Allied Areas: From K.M. Mathew (2002) to Mohammed Abdulla Khan (2017). Wisdom Crux, Vol 2, Issue 9, July 2017, Available at SSRN: https://ssrn.com/abstract=3102335

  7. Shweta Mishra, Amit Kumar Pandey. Is Defamation Complex: Harm to Reputation and Free Speech. Journal of Law of Torts and Consumer Protection Law. 2019; 2(1): 4–11p

  8. Over-Criminalisation: An Insidious Placebo, 8 NUJS L. REV. [vi] (2015). At: https://heinonline.org/HOL/P?h=hein.journals/nujslr8&i=158

  9. Constitutional Rights and Freedom of the Media in India, 11 J. MEDIA L. & PRAC. 44 (1990). At: https://heinonline.org/HOL/P?h=hein.journals/tojmedlp11&i=44

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