Defamation is an oral or written statement that injures someone’s reputation. Section 499 and Section 500 of IPC deals with the defamation as an offence. It is considered as the statement of fact, which is unprivileged and not true, that must harm someone's reputation, either by spoken or written, and the same must be published before the third party. The term Defamation covers mainly the false allegation or communication, which tarnished the reputation or decreased the respect that they hold in the society at large. Written defamation is known as “libel,” which is also considered as the permanent form of the defamation, while spoken defamation is known as “slander.” Both forms of defamation, i.e., libel and slander, derive its origins from English common law, but they are not treated as distinct from each other in Indian jurisprudence.
Every person has a right to have his reputation preserved free from the violation. This right of reputation is acknowledged as an inherent personal right of each and every person as part of the right of personal security under article 21 of the Constitution of India and also considered as one of the most important natural rights. An affection towards reputation inspires people to do great things, acquire fame and name, which is the mainspring of life in every walk of life. The main objective of the provision of the defamation is to protect one’s reputation, honour, and integrity in society.
Defamation in India at present
In India, defamation can be seen as both Civil as well as criminal offences. The Sufferer or the person who got defamed is offered a legal remedy in both civil as well as criminal. In civil law, the remedy is covered under the Law of Torts where sufferer or victim may go to High Court or any subordinate courts for compensation or damages in monetary form and c, Section 499 provides the definition of “Defamation” and legal remedy which is the punishment of simple imprisonment which may exceed up to 2 years or Fine or Both, defined under section 500 of the Indian Penal Code, 1862.
Section 499 of the IPC defined as
A person or anyone, by his words either spoken or which shown as a clear intention to be read, or by signature or by any kind of representations which is visible, makes or publishes any charges or allegation which refers any person, intending to harm, or have the knowledge or having a reason to make believe that these kinds of the allegation will harm, the reputation or dignity of such person, is to be understood by, except in the case hereinafter expected to defame that person.
The section further goes on to provide some other vital explanation to determine what would create or constitute defamation. Defamation under the IPC may constitute an imputation of a deceased person that would harm the reputation of that person if he is alive and showing clear intention which may be hurtful to the feelings and emotions of their family or any other relatives. It may also amount to defamation to make an imputation refers to an association or company or any collection of persons as such.
The Section however also state that no imputation is said to injures a person’s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the respected character or moral or intellectual character of that person, or lowers the character of that person in respect of their caste or of their calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a disgusting state, or a state generally considered as disgraceful.
Section 499 of the IPC also explain some exceptions. These include “imputation of truth” which is essentially required for the “welfare of the public” and thus has to be published, on the conduct of government officials which involves public duty, the act of any person touching any public question and merits of the public performance, if someone publishes reports of proceedings of Courts, merits of the case decided in Court of law or act and conduct of witnesses and others concerned with, etc.
Defamation under section 499 and Section 500 IPC vs. Freedom of Speech under Article 19(1)(a): –
The law of the defamation is not punishable in many countries or as we can understand by the way that defamation laws are not criminal laws in some countries of the world, for that the same reason a renowned lawyer-politician Mr Subramanian Swamy along with several other petitioners (Rahul Gandhi, Mr Kejriwal, etc.) came together to challenge the constitutionality of criminal defamation, i.e., (Sections 499 and 500 of the IPC) before the apex court i.e., Supreme Court.
a)- Reason behind the Criminal Provision of Defamation (u/s 499/500) was challenged: –
The basic reason was that it was an unreasonable restriction on the constitutionally-guaranteed Right, i.e., Right to Freedom of Speech and Expression enshrined under Article 19(1)(a) of the Constitution of India. Section 499 of the Indian Penal Code gives us the Right to sue for Defamation if the person's reputation was damaged or intended to damage by any other, and the petitioner challenged this on the ground that this was prima facie infringement of Freedom of Speech and Expression provided by the Constitution of India under Article 19(1)(a).
b)- Some of the arguments that why this criminal provision of defamation(u/s 499/500) must declare unconstitutionally: –
Firstly, Criminal provision of the defamation (under section 499/500) do not constitute a “reasonable restriction” on speech, and even truth is not an exact defence because the defence only works when the statement is for the public good, which is a question of fact by the court. This could be arbitrary because Instead of making the plaintiff prove that the accused made a false statement, section 499 gives the accused the burden of proving that the statement was not only true but also for the welfare of the public at large.
Secondly, mere on the allegation, a magistrate may issue criminal process that the accused conspired with the person who actually made the allegedly defamatory written statements, also a criminal suit under section 499 can be filed even for the speech given by the political leaders, which is considered as the most protected speech to sustain democracy.
Lastly, there is also an argument that it is not clear even why the criminal provision of defamation has existed because petitioners are in the opinion that civil remedy is more than sufficient for that.
c)- Court Held: –
However, the apex court of the country, i.e., the Supreme Court upheld criminal defamation (u/s 499/500) and its constitutional validity. The judgment delivered on May 13, 2016, by the Supreme Court in Subramanian Swamy V. The Union of India (“Judgement“) was delivered by Justice Dipak Misra, with Justice Prafulla C. Pant. The Judgment in the case started by analyzing the meaning of the terms ‘defamation’ and ‘reputation’, and their interaction of these terms with the right of the freedom of speech and expression mentioned under Article 19(1)(a) of the Indian Constitution.
The reputation of an individual must be secured as it was included in the protection of ‘dignity’, which is a very important aspect of the constitutionally protected right to life under article 21 of COI. Also, Defamation, in the right to freedom of speech and expression guaranteed under Article (19)(1)(a) is subject to reasonable restrictions. The Judgement also recognizes principles of reasonable restriction are that the restrictions which should serve the interest of public and should not be excessive; and held that reputation of an individual is a basic element enshrined under Article 21 of the Constitution and balancing of fundamental rights is a constitutional necessity.
In addition, the court also emphasize for upholding the validity of the criminal defamation is online defamation, in the age of the Internet it can be effectively countered only by making it a criminal offence, and this particular law is concerning part of the state’s “compelling interest” to protect the dignity and reputation of citizens.
Finally, the Supreme Court holds that this criminal provision of defamation is not disproportionate. The reasonableness and its proportionality of a restriction are examined from the standpoint of the interest of the general public, and not from the person upon whom the restrictions are imposed. Applying this, the Court adjudged that criminal defamation law (u/s 499/500) to be proportionate. Further, the Supreme Court dismissed the petition which challenges the constitutionality of the criminal provision of defamation, holding that it was a reasonable restriction on the right to freedom of expression enshrined under Article 19(1)(a) of the Constitution of India.
A person is bound to allow the existence of something that one may dislike or disagrees within other words -criticism, dissent, and discordance, but not expected to tolerate a rush which may tarnish the reputation of that person. (SC in Subramanian Swamy V. The Union of India [AIR 2016 SC 2728] ).