The purpose of defamation is to protect the individual’s reputation from the attacks by others through various means like publishing something about an individual that is not a fact and can harm a person’s reputation or by speaking anything in public which is harmful for the person’s reputation. Defamation has been derived from the Latin word “defamatus” meaning “ill-fame.” The publication of any ill-statement about an individual is a criminal as well as a civil wrong, and it falls within the purview of torts when it is a civil wrong, and a person can ask for damages, i.e., he can recover the compensation for the wrong that is done to him. Also, it is an offence under the Indian Penal Code, 1860. Both the remedies, i.e., Civil as well as Criminal, can be perused cumulatively.
Comparison between England and Indian defamation law
In England for the purpose of civil liability, defamation has been classified into libel and slander; libel means any defamatory statement published in any written or permanent form whereas slander means any defamatory oral statement made.
However, in India, no such classification has been recognized. The law of civil liability is not codified and generally governed by the common law while the law of criminal liability is codified and has been enumerated under Section 499 of the Indian Penal Code, 1860. A person aggrieved can file both civil as well as a criminal suit. There is no bar to such a remedy. In order to constitute a civil liability of defamation, it is necessary to prove following points, (a) the matter should be defamatory (b) the matter has been published anywhere which is accessible to people (c) the matter refers to the person who has initiated the defamation proceedings.
However there are some special circumstances in which law confers immunity from liability of defamation, those are:
In a civil action for defamation, the truth of the defamatory matter is a complete defence because, by publication, the reputation of a person is brought to the level it deserves. Even when the statement is substantially true, but incorrect in minor particulars, the defence is still available.
Making a fair comment on matters of public interest is a defence to an action for defamation. What is permitted is a comment, i.e., an expression of opinion rather than a statement of fact. Fairness is needed too. Comment cannot be fair if it’s based on untrue facts. Administration of Government departments, public companies, courts, conducts of ministers, officers of state, public novels, etc. are considered to be of public interest.
On certain occasions, the law recognizes that the right of free speech outweighs the plaintiff’s right to reputation. The defamatory statements made on such occasions are not actionable. The privilege may be either absolute or qualified. Absolute Privilege included Parliamentary Proceedings, Judicial Proceedings, and State Communications and Qualified Privilege means any statement is made in the protection of interest, or discharge of duty like Parliamentary Proceedings:
1. Statements made by a member of either House of Parliament in Parliament, and
2. Publication by any report, paper, etc. cannot be questioned in a court of law.
Similar privilege exists in respect of State Legislatures too.
Consent: In the case of slander, the aggrieved party had invited the defendant to repeat the words complained of before witnesses.
Apology: When there are an apology and acceptance thereof, the defendant can resist the plaintiff’s suit for damages for defamation.
Defamation is treated as an offence under Section 499 of IPC, and it says that defamation will be committed when
a) words (spoken or intended to be read),
b) signs or
c) visible representations;
ii. Which are published or spoken wrong in nature concerning any person;
iii. If the allegation is spoken or published with:
a) the intention of causing harm to the reputation of the person to whom it pertains, or
b) knowledge or reason to believe that the imputation will harm the reputation of the person to whom it pertains will be harmed. The definition discussed in the penal code is subject to four important explanations along with ten exceptions. If any person is found guilty of having committed a wrong of defamation, which talks according to Sec. 499 of the IPC, the punishment is given in Sec. 500, simple imprisonment (up to two years) or fine or with both. The Code of Criminal Procedure, 1973, which lays down the procedural aspects of the law, prescribes that the wrong of defamation is non-cognizable and bailable.
Constitutionality of Criminal Defamation
The speculations about the decriminalization of Section 499 IPC was put rest after the judgment of the Apex court in the case of Subramaniam Swamy v. Union of India 4 where the constitutionality of the said section was upheld. The main contention raised by the Appellant was that the said provisions put an unreasonable restriction on the fundamental rights of the citizens and thus, fall beyond the scope of Article 19(2) of the Constitution of India. The division bench, while delivering the judgment upheld the constitutionality of the said provision and pronounced, “It is not necessary for all in the chorus to sing the same song. A magistrate should be very careful in issuing summons on a plea for the initiation of any defamation case which is criminal in nature.” This basically provides rise to the very important point of conflict between the two important fundamental rights, Article 19(1)(a) and Article 21, and which amongst the two would prevail. To dissolve this conflict, the SC went as far as to literally interpret the meaning of Freedom of speech and expression under Article 19(1) (a), 19 (2) and Right to reputation under Article 21. After a close analysis of the two provisions, the court held that the provisions should be harmoniously construed in order to uphold the constitutionality of both the provisions. Despite the attempts made by the courts to solve the ever-rising dispute between the freedom of speech and right to reputation, time and again questions have been raised and people have misused their rights. The biggest irony of the law system in the present is that it seems reluctant to interfere in cases of violating the fundamental rights and on the other aspect it also rushes into matters of policy which is not significant for them. Defamation laws embodied under Section 499 and Section 500 of IPC is a double-edged sword. If a criminal suit is lodged for defamation, which is not true by the appellant, the respondent or the other party can file a counterclaim.
Replacing criminal sanctions with the civil one cannot fulfil the criteria to balance the right of freedom of expression with the right to reputation. The main idea behind balancing the rights should be to exercise one’s freedom of speech and expression without compromising with the person’s reputation in the eyes of the public.
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