Published On: 20th January, 2025
Authored By: Kesar Prakash Sukali
Vivekananda Education Society College of Law
Introduction
The holy Bhagavad Gita rightly states that “For a man of honour, defamation is worse than death”.[1] In the contemporary era, where personal relationships and the perception of oneself lend a favour for one’s long-term goals, one’s reputation is perhaps the most priceless possession that one can have. It is not only personal; it is a legacy that impacts relatives, friends and even the society at large. In India, religious or social status might seem irrelevant in contemporary settings, but the importance of one’s reputation is an issue that can be considered as a matter of dignity. “Izzat hai toh sab hai” is one of many sayings that floats around in India that captures the essence of every Indian’s belief in the credibility of one’s reputation. This timeless respect for a person’s reputation still exists, even as society nurtures its progress and its willingness to embrace changes, showing how much value is attached to one’s honour and status by all the members. In the circumstances outlined above, the laws on defamation have an important function aiming at providing reasonable restrictions on the right to self-respect and the freedom of expression which is sine qua non in a democratic society.
Defamation
In the words of John H. Wigmore, “Defamation is a wrong committed against a person’s reputation. It occurs when one person communicates something to a third party about another person that harms the reputation of that person in the community.”2
To simplify, defamation can be the offense of injuring a person’s character, fame, or reputation by false and malicious statements.[2]
Mainly because of historical reasons, English law divides actions for defamation into Libel and Slander. Libel is a representation made in a permanent form like writing, movie, picture etc. For Example: X printed some advertisement saying Y is bankrupt but Y was not thus it was representation in a specific form. Slander, on the other hand is the publication of a defamatory statement in transient form like spoken words or gestures. For Example: A questions the chastity of B in an interview, A is slanderous.
Defamation under Indian Penal Code and BNS ( Bharatiya Nyaya Sanhita)
Damaging the reputation of one person through writing or gestures is known as defamation. It is legal concept that protects an individual’s reputation and dignity from false or derogatory statements.
Defamation in India is not distinguished as slander or libel. Both are offences as civil wrong under the law of torts and crime and the punishment is up to 1 year of imprisonment or fine of thousand rupees or both.
For better understanding, it can be divided into two categories:
- Criminal
- Civil
Defamation Laws in India have an impact on political manoeuvring in many cases. A recent example of potential misuse of defamation laws to gain political advantage involves Rahul Gandhi, the former President of the Indian National Congress party. In 2023, a member of the ruling Bhartiya Janata Party (BJP) filed a defamation suit against Gandhi. The lawsuit claimed Gandhi made defamatory remarks about the BJP member during a public rally. This lawsuit isn’t a one-off event. People have used defamation laws as a way to quiet critics and opponents on multiple occasions.[3]
- Essentials of Defamation
For a statement to be defamatory, there are three essentials which constitutes that a statement is defamatory:
- The statement must be defamatory.
- The statement must refer to the plaintiff.
- The statement must be published.
However, there are some defences which are available to the defendant against defamatory liability.
To put it simply, the second essential is that the plaintiff has to prove all elements of the tort of defamation, including the fact that the published comment relates to the plaintiff and is injurious to the likeness of the plaintiff. Therefore, once the plaintiff demonstrates that he is the person against whom the defamatory statement was directed, there is no need to prove that the defendant intended to inflict on the plaintiff any particular harm. It should further be emphasized that the defendant does not have to mean to cause the plaintiff harm in order to be held responsible for making defamatory statements. Whenever the act of publishing a defamatory statement concerns a certain person but is not directed towards them, conceivably the defendant may be liable for defamation even though the statement is of course wellfounded, though published carelessly to her public, or some third party. Any defamatory expression must be directed at some individual or a particular group such as the directors of an organization. There may be a direct reference or an implied one. The name of the plaintiff may not need to be mentioned so long as they can be identified. The individual named in the slanderous statement may be either living or dead, though a defamation case can only be brought for a deceased individual if the person bringing that claim is interested in the case. Assumption – A, a financial institution, issues an internal memo to all its branches requesting that they refrain from issuing loans to individuals from XYZ stating that such individuals tend to default more often. In this instance, B residing in XYZ has suffered significant damages as a result of this. Here, B can sue A for defamation even though the bank did not target him specifically.
Innuendo refers to defamation by way of indirect and negative suggestion. The plaintiff must establish how the innuendo can be reasonably attributed to him. Landmark case
- Introduction
The freedom of speech and expression as well as the right to privacy are the main issues in this case. Here, a convict on death row authored a book which prompted Shankar (the convict) to file an injunction seeking to restrain the publishing of the book. The most important aspect that has been dealt with in this ruling is the principle that freedom of speech and expression is a constitutional entitlement and every citizen is imagined with the right to air his opinion to the public. The apex court cleared a book for publication.
- Facts
A factual account portrays an auto driver Shankar who is sentenced for murder and death penalty and also happens to be an author. During the same period, he wrote his autobiography whilst in detention showing, what drove him to commit the acts with other inmates, and how the inmates interacted with the prison hierarchy. However, before he died, he gave the manuscript to his wife and instructed her to see that the manuscript is published. Later knowing the content of the manuscript, the prison inspector general wrote to the petitioner, stating that the content contained in the manuscript is entirely baseless and defamatory. Further, there was a warning that legal proceedings would be initiated for printing such a book. And the petition was rejected by the high court and afterwards, this issue was raised in the supreme court under Article 32 of the constitution.
- Judgement
In answering the question, the Supreme Court ruled in favour of Shankar, the author of the book, stating that he has a basic right to free speech and expression, and the right to publish the book at any location of his choice. Many other similar cases and their precedents are mentioned in the case at hand. And as such, the right to freedom of speech and expression was given more precedence over the right to privacy, for the latter is not even a fundamental right, but rather depends on the context of every other case; however, Article 19 in itself is one of the components of the golden triangle of the Constitution of India. In addition, public officials may not pursue any claims concerning the defamatory statements that are the subject of the claim under this case.
Freedom of Speech vs Right to Reputation
This tension between the right to freedom of expression and the right to dignity is an issue that has been contested in the democratic context in most if Not all societies, and India is not an exception, as it believes in both freedom of speech and the right to dignity. Article 19(1)(a) of the Indian Constitution gives the freedom of speech and expression to the people so that they can speak, criticize the government or any institution, and participate in any civilized discussion. However, it is important to note that this right is not absolute and can be infringed upon under Article 19(2) when a number of interests including the protection of the reputation of other individuals are to be promoted.
However, the right to eat healthy is also regarded as an inalienable part of every human being’s dignity and personal liberty which is also recognized under Article 21 of the Constitution. Defamatory law and slander law seeks to protect an individual against inner calf injury owing to fictitious or vengeance statements directed at him, anything short of this has to always be attained blurry the speech perimeter.
Finding a solution requires aiming at a mean such that while ensuring that freedom of expression is maintained, the reputation of the individual is not unduly tarnished. In as much as criticism is part of free speech, that does not mean false, malicious statements should be used to harm an individual’s image. This is important not only for upholding law and order but also for allowing all the freedoms that people are entitled to, such that freedom of expression and the right to trade fairly are upheld.
Challenges in the Digital Era
The evolution of information technology and communication has, resulted to, a new category of defamation called as cyber defamation or online defamation which literally means defamation practiced on the computer. This term refers to making untrue and damaging allegations about another person using digital means. It is a type of damage that happens to one’s reputation mainly over the internet. This usually takes place in social media, websites, forums, emails and any other internet-connected services. Wright (2016) emphasizes on the importance of the responsible use of the internet and the conflict that exists between one’s right to free speech and the need to protect one from false statements made in regards to him/her. Cyber Defamation, like civil and criminal defamation, has common elements; however, the challenges posed by cyber defamation are quite distinct and lie in the speed and pervasiveness of the communications. In proving/countering allegations of cyber defamation, this may entail the assessment of a statement, the mention of a name in this regard to tracing the statement, and the assessment of the outcome to the individual’s standing.
A defamatory post can almost instantaneously traverse to a vast majority of the people around the globe making it difficult to deal with or to locate. Internet also provides certain degree of freedom to allow spreading fallacies without any fear of retributions. However, due to their very nature, these sites often grapple with the line between free expression and the potential for incitement to violence. Defamation, however, is difficult to understand in relation to the internet as the internet is fast evolving making it hard for defamation laws to fit in the cyberspace. As a consequence of all this defamation and legislations provisions protecting against this vice are also becoming outdated and there are calls for the development of new frameworks to address the situation.
Criticisms of Defamation Laws in India
The laws against defamation in India have been getting a lot of bad press for a very long time, especially in light of how they can be used to suppress free speech and healthy opposition. Section 499 of the Indian Penal Code [4](IPC) criminalizes defamation and prescribes a maximum punishment of imprisonment for a term exceeding two years devoid of fine. Many critics of the IPC, including practitioners in civil defamation, view this particular aspect of the law as extreme, as in other democracies such claims are usually dealt with as civil claims. It has been pointed out that once defamation is made a criminal offense there is a high likelihood of abuse as it will criminalize individuals and for that matter activists, journalists, and whistleblowers simply for holding a view or detailing wrongdoing. Citing these violations, several individuals are often charged with illegal conduct which serves to frighten and silence members of the public and both causes and enhances the harassment of persons that had a contrary view and discourse. The proposed Bharatiya Nyaya Sanhita [5](BNS) seeks to revise the ICC that aims at modernizing these provisions but also takes into consideration some of the criticism raised earlier. While there is an attempt to rein in the scope of criminal defamation by the use of more focused vocabulary in the enactment, its detractors contend that the best option in resolving the problem is either to do away with it altogether or put in place adequate mechanisms to prevent its abuse.
One other aspect that has been highlighted in the criticism of the defamation laws in India is the lack of precision in the definitions with regard to what amounts to defamation. The existing laws are rather vague and this create broad and rather inconsistent application of them. This may lead to considerable variations of judgements depending on individual cases, even leading to a punishment of a mere opinion, parody or expressing a valid and offensive criticism. The essence of the whole issue is the existence of two remedies, civil and criminal, for the same offence and then an already overburdened judiciary stretching to accommodate the hearing of the same issue under two laws. Although the BNS aims to tackle this problem by providing more detailed definitions and delineations, opponents of this legislation assert that circumstances that infringe on one’s freedom of speech in relation to public comment about public figures requires further restrictions. It is quite common for public figure to initiate a defamation action.
Conclusion
It can be concluded that trying to navigate the intersection of freedom of speech and reputation in India, particularly with respect to the law of defamation, is very difficult. Though a right to freedom of expression can be regarded as an essential democratic value, it does not mean to say that reputation is to be stamped upon through lies, vexatious statements and imputation. Both civil and criminal defamation laws are necessary for the constructive development of society and providing respect for all individuals. In practice, however, and most particularly in view of the provisions found in the Indian Penal Code, such frameworks provoke fears of misapplication and extension and thereby inhibit the exercise of genuine speech. On top of that, the issue becomes even more complex due to the rapid emergence of cyber-related everything including cyber defamation which prompts those in charge to effect changes in the way policies are formulated and implemented with speed to manage the competing interests of free speech and individual interest protection. The BNS has the potential in updating these laws as far as legally allowed; however, success in this is subject to modifications made in order to deal with vague and ambiguous provisions which encourage the misuse of defamation legislation. Last but not least, a careful consideration is required so that while protecting the society from defamation, the basic right of free speech of individuals in a democratic state is not compromised.
Reference(s):
[1] Satya Muley: Defamation laws in India – Protecting reputation and dignity (June 18, 2023), Times of India https://timesofindia.indiatimes.com/blogs/voices/defamation–laws–in–india–protecting–reputation–and–dignity/ 2 https://www.azquotes.com/quotes/topics/defamation.html
[2] Bryan A. Garner, Black’s Law Dictionary, (12th edition,2024)
[3] Rahul Gandhi v. Purnesh Ishwarbhai Modi, 2023 (SC) 598
[4] India Penal Code (IPC), 1860
[5] Bharatiya Nyaya Sanhita (BNS), 2023