Published on 22nd January 2025
Authored By: Magizhini M
The Tamilnadu Dr. Ambedkar Law University, School of Excellence in Law
ABSTRACT
Defamation has always been a black hole in the judicial aspect that is subjected to continuous questions on its validity, application and constitutionality. Defamation has always been subjected to concerns about being violative of Article 19(1)(a) of the Constitution of India, the freedom of speech and expression, a fundamental right. The debate on defamation has always been made towards decriminalizing defamation. The provision that particularly dealt with the matters of criminal defamation all along a century and more was Section 499 of the Indian Penal Code, 1860. At the outset, the law was colonial which had its emphasis on controlling and restricting the freedom of speech and expression of the people. That no longer works on the State, formed democratically. Modern democracy represents the people and the people only. The extent of the freedom of speech and expression has grown fold in times greater post-independence, and post-constitution to point. Amidst the questioning on the validity of the defamation, an un-held control would lead to destruction. The author strives to present a conceptual balance between freedom of speech and expression, and the protection of the reputation of a person with the assistance of case laws and pertinent judgements.
INTRODUCTION
If a question is raised among the people, on what matters more to them besides their life, the absolute in answer in larger cases would be their reputation. According to Black’s law dictionary, Defamation means, “the offence of injuring a person’s character, fame or reputation by false and malicious statements[1]. Reputation is put upfront by the people besides anything else. Defamation has been remarked as the black mark in the communication law[2]. It is an element that is considered outdated, and many have wished that it would become extinct like any other species, due to its suppression of the fundamental right of freedom of speech and expression inscribed in the Constitution of India.
The other side of the same argument attracts it towards the allegation that defamatory statements make no greater cause or damage on the intended person, the propensity to damage is minimal, howsoever the statement remained largely unaccepted, the laws have had limited usage in the real world. There exists a but to the statement, it seems the usage has been reduced, but not extinct, rather the laws have demanded high need in recent years due to the increase in the usage of social media networks where the probability of inflammatory statements attracting hatred is flown without a barrier to stop[3]. The legitimate usage of the Defamation laws is intended towards protecting individuals from blackballs that adversely affect their reputation[4], it is not the true factum, their application functions conversely to include the yet and the more, they are used as a phenomenon to prevent people from their legitimate use of their right to freedom and expression. The action is by-fold and thus necessitates a balance between the right and the might of defamation laws to establish a peaceful harmonious line of utility.
ESSENTIALS AND CATEGORIES OF DEFAMATION
Historical categorisation of defamation is two-fold, libel and slander[5]. Libel refers to a statement that is made in permanent form, for example, any statement that is written or engraved, printed in newspapers, chronicles, etc., pictures, or statutes etc., Slander refers to statements made orally, that are transient, this includes the usage of gestures.
ESSENTIALS OF DEFAMATION
To constitute the offence of defamation, the necessaries would include:
- There should be derogatory statements, which can be libel or slander,
- The statement should be false which is not made in good faith,
- There should be a malicious intention to make and tarnish the reputation of the intended,
- The statement should be published or communicated, the communication is necessary that it merely reaches any third party besides the speaker and the recipient[6].
The face of the Defamation could be either civil (a tort) or criminal defamation. Criminal defamation has been brought under Section 356 of the Bharatiya Nyaya Sanhita, 2023, where any kind of imputation made in the form of words, including libel and slander, signs, or visible representations that are made or published with the intention to harm the reputation of any person is considered as defamation to that person. Defamation under this section also includes the imputation made against the deceased as if it would have been if the person were still alive or when it is made to hurt the feelings of the intended family or near relatives[7]. When the statement is concerned with any particular company, an association or group of persons, or something that had been made ironically denoting the same to harm the repute, would be deemed defamation. As a general rule, defamation in tort expresses wide recognition towards libel, and it must be proved to be false, written, defamatory, and published[8].
EXCEPTIONS OF DEFAMATION
Criminal defamation under Section 356 of the Bharatiya Nyaya Sanhita, 2023, imbibed itself with ten exceptions on the statements to be exempted from the allegations of defamation, the exceptions are,
- The statement that is not false and that which is made and published for a public good,
- The statement which is expressed in good faith, concerning the discharging of public functions of a public servant and no further,
- The statement which is made in good faith in correspondence to any public question,
- The publishing of the court procedures which is true,
- Expression of any statement in good faith, sidelining the merits of the case, and opinion made thereunder considering any person as a party, witness or agent, and no further in scope and extent,
- The statement which is made in good faith, expressing the opinion on the performance which the author had in his own conscience submitted to the judgement and opinion of the public,
- The statement made by any authority conferred upon such authority by law or legal contract, to the extent of which his authority extends,
- The accusation made by a person vested with the lawful authority,
- Imputation made for protecting the interests of the person making the statement, and
- Imputation made to protect the interests of the person to whom the statement is conveyed[9].
The person who defames another, who prints/engraves something knowing it to be derogatory to another, or sells/offers for sale anything containing the defamatory matter shall be punished with simple imprisonment which may extend to two years with a fine or both[10].
FREEDOM OF SPEECH: THE THIN LINE OF BALANCE WITH PROTECTION OF REPUTATION
The right to swing my fist ends where the other man’s nose begins.
- Oliver Wendall Holmes Jr.
The quote quotes the striking balance to be attained between the freedom of speech and the protection of reputation. Criminal defamation is remarked to negate and violate the right to freedom of speech and expression. There should be a harmonious balance drawn between laws of defamation and the freedom of speech as the suppression of any one of the other would lead to a massive destruction. Besides Article 19(1)(a) of the Indian Constitution, the Indian Constitution, the factor of reputation attracts the scope of Article 21 of the Indian Constitution in the cases of Mehmood Nayyar Azam vs. State of Chattisgarh[11] and Umesh Kumar vs. State of Andhra Pradesh[12].
Balancing of fundamental rights by application of the rule of harmonious interpretation had been termed the superior resort after a crucial and detailed interpretation had been made by the courts with respect to Articles 19(1)(a), 19(2) and an implied basis on Article 21 of the Indian Constitution. In Umesh Kumar vs. State of Andhra Pradesh[13], the court had made clear that the existence of criminal defamation was not entirely obnoxious to the right nor was it to be considered an unreasonable restriction. The control must be exercised but in a controlled attribute. In N. Ravi vs. Union of India[14], the Court recognised the restriction imposed against defamatory speeches as one deemed reasonable under Article 19(2) of the Indian Constitution. The provisions on criminal defamation limit itself within the scope of reasonable restriction and are not arbitrary or extensive.
For example, a person named ‘A’ exercises his right to speech and expression and thereby makes statements that harm the reputation of another “B’, in this case, just because ‘A’ is vested with a right, it could not be extended in any manner to infringe the right of another, ‘B’. As the popular saying holds, ‘The right to swing my fist ends where the other man’s nose begins’, this remains the striking line of balance between the right to life and dignity and the freedom of speech and expression. One freedom of speech and expression cannot be exercised absolutely, and these defamatory laws are considered as one reasonable restriction to protect the rights of others, so long as it is not used as a weapon to suppress the rightful opinion of the person making it.
CASE LAWS
In Mobashar Jawed Akbar vs. Priya Ramani [15], the defendant, a journalist had accused the plaintiff of sexual harassment in the tweets that she had posted, and subsequently, the case was filed. But the Hon’ble District Court of Delhi had held the statements to be non-derogatory due to the existence of evidence in support of the accusations and reasoned that criminal defamation could not be allowed to be used as a sword against a person’s right to speak up infringing their constitutional right to life and dignity under Article 21 of the Indian Constitution.
In Aroon Purie vs. State of NCT of Delhi[16], the criminal defamation case against the editor-in-chief (India Today) of the report published in 2007 was quashed, but the case against the author was upheld. This proved emphasis on the elements of ‘sufficiency and specificity’, where the editor-in-chief was exempted due to the absence of things specific to him in the complaint. The justiciability of the author’s action was held to be a question of fact, which is capable of being decided at the trial stage of the proceedings.
Subramanian Swamy vs. Union of India[17], one of the most remarkable cases in Indian history, which put at rest the stimulations rounded on decriminalizing defamation, where the Supreme Court of India upheld the constitutionality of contended provisions. The contended provisions were Section 499 and 500 of the Indian Penal Code, 1860 and Section 199(2) of the Code of Criminal Procedure, 1973. The provisions were contended to be unreasonable restrictions on freedom of speech that fall beyond the reasonable restrictions under Section 19(2) of the Indian Constitution. Finally, an anatomical decision was delivered upholding the constitutionality of the contended provisions. The interest of the public was posed superior, and the criminal defamation laws were held to be proportionate[18].
CONCLUSION
The thin line of balance had remained to the question of law. There have been judicial decisions directed at making a balance between the freedom of speech and expression and the protection of the reputation of the person. In everything concerned, there exists a vacuum in the balance, paving the way for many new concerns that are dynamic and have grown strong with time.
The harmony to be charter is always a struggle, the tremendous decision upholding the criminal law provisions of Sections 499 and 500 of the Indian Penal Code, 1860 and Section 199(2) of the Code of Criminal Procedure, 1973, as constitutionally valid gave rise to the setbacks in the free speech rights in India[19]. The concern was shown towards the suppression of the right to freedom of speech and expression to protect the reputation of another. In deciding the acceptability of any statement to be made in good faith, it is always a question of fact, where in a case it was held to be vitiated as acceptable only at the trial stages of the proceedings, and which differs from case to case. There is one rule on the question of fact to be made in good faith. From the interpretations and construction pursued in different cases, there had been justification on the part of the judiciary in creating a balance, and an equivalency of shift in the responsibility is directed thus forward, to be citizens to make constructive criticisms and not mere words in latent nature.
REFERENCES
[1] Shivi, ‘Defamation Laws and Judicial Intervention: A Critical Study’ (2016) ILI Law Review <https://ili.ac.in/pdf/paper10.pdf> accessed 10 December 2024
[2] Lisby GC, ‘No Place in the Law: The Ignominy of Criminal Libel in American Jurisprudence’ (2004) 9 Communication Law and Policy 443
[3] Niloufer Selvadurai & Md Rizwanul Islam, ‘The application of criminal defamation to inflammatory comments made on social networking sites: A new role for an old law?’ (2012) 36(1) Criminal Law Journal <https://www.researchgate.net/profile/Md-Rizwanul-Islam/publication/323933415_The_application_of_the_law_of_criminal_defamation_to_inflammatory_comments_made_on_social_networking_sites_A_new_role_for_an_old_law/links/64ef90c2f850d430c36aaa47/The-application-of-the-law-of-criminal-defamation-to-inflammatory-comments-made-on-social-networking-sites-A-new-role-for-an-old-law.pdf?origin=publication_detail&_tp=eyJjb250ZXh0Ijp7ImZpcnN0UGFnZSI6InB1YmxpY2F0aW9uIiwicGFnZSI6InB1YmxpY2F0aW9uRG93bmxvYWQiLCJwcmV2aW91c1BhZ2UiOiJwdWJsaWNhdGlvbiJ9fQ> accessed 12 December 2024
[4] Ibid
[5]Kavyasri SJ, ‘Punishment for defamation’ (Blogipleaders 10 May 2023) <https://blog.ipleaders.in/punishment-for-defamation/#Types_of_defamation> assessed 11 December 2024
[6] Ibid
[7] Bhartiya Nyaya Sanhita 2023, s 356
[8] Ratanlal and Dhirajlal, The Law of Torts (26th edn, LexisNexis 2013) 279
[9] Bhartiya Nyaya Sanhita 2023, s 356
[10] Bhartiya Nyaya Sanhita 2023, s 356(2)
[11] Mehmood Nayyar Azam vs. State of Chattisgarh, (2012) 8 SCC 1
[12] Umesh Kumar vs. State of Andhra Pradesh, (2013) 10 SCC 591
[13] Ibid
[14] N. Ravi vs. Union of India, (2007) 15 SCC 631
[15] Somya Jain, ‘The acquittal of Priya Ramani: Awakening of judicial conscience’ (Blogipleaders 9 July 2021) <https://blog.ipleaders.in/acquittal-priya-ramani-awakening-judicial-conscience/> assessed 12 December 2024
[16] Shiv Sapra & Ruchika Darira, ‘(The Viewpoint) To quash, or not to quash’ (Bar and Bench 10 November 2022) <https://www.barandbench.com/law-firms/view-point/the-viewpoint-to-quash-or-not-to-quash> assessed 11 December 2024
[17] Subramanian Swamy vs. Union of India, (Writ Petition (Crl.) No. 184/2014),
<https://indiankanoon.org/doc/80997184/> assessed 12 December 2024
[18]Shivi, ‘Defamation Laws and Judicial Intervention: A Critical Study’ (2016) ILI Law Review <https://ili.ac.in/pdf/paper10.pdf> accessed 10 December 2024
[19] ‘Subramanian Swamy v. Union of India’, (Global Freedom of Expression Columbia University) <https://globalfreedomofexpression.columbia.edu/cases/subramanian-swamy-v-union-india/> assessed 12 December 2024