Author: Mrudula Mohan | Featured-Pic Credit: Shashwat Ashiya
Offence and crime, though used synonymously, describes any action done which are illegal in the eyes of law; it serves different meaning in the eyes of law. Where offences can be criminal and civil, a crime is much more serious and is dealt with criminal punishment only. It must not be surprising to know that there are some actions which can be prosecuted under both torts and penal laws, defamation charge is one among them. But whether defaming a person before the public or and his family should be called an offence or mere act of innocence or mistake which can be dealt under tort law is a question of fact. When there are both penal and non-penal remedies available for the acts of defamations, not to forget the option of settlement which is ironically forgotten, it is upon the plaintiff or the prosecutor to decide under which provision the charge sheet must be filled.
Defamation is an actionable wrong but Section 499 of the Indian Penal Code, 1860 considers defamation as a criminal offence. It defines defamation as an action which results in defamation of a person either done verbally or through such other medium of communication expressed (eg: libel or slander) in criminal laws. For any man of reputation, even one single alleged accusation or any abusive statement over him would be a slap not only to his dignity but also to his position in his society and among his peers and family. By all means, he who has been hurt by baseless and illegitimate accusations would move to court for regaining his reputation. The question which arises here is whether it would be appropriate for him to file a charge sheet under the tortious crime of defamation or penal offence of defamation. The constitutional validity of S. 499 IPC is based on Article 21 of the Indian Constitution, which guarantees the right to personal liberty including right to live with dignity.
At this point, Article19(1) (a) must not be forgotten which gives the citizen the freedom of speech. Defamation was highly debated but deliberately implied and recognized provisions during the freedom struggle. In a way, it stands for the material facts of the articles or words in question. Section 499 specifies the requirements essential for categorizing any statement or slander to be defamatory in nature based on which those statements would be deemed to be defamatory if proved to be fabricated and not true and made with no regards whatsoever to the public at large. It also provides more exceptions to list of barring a statement from being referred as defamatory in nature,
- To impute truth concerning any person for the public good.
- To express any opinion in good faith whatever regarding the Public conduct of a public servant as far it is presumed in good faith with respect to his discharge of public functions.
- To express any opinion regarding the conduct or character of any person touching any public question.
- To publish a substantially true report of the proceeding of a court of justice, or the result of any such proceedings.
- To express in good faith any opinion regarding the merits of any case, which has been decided by a court of justice or the conduct of any person as a party or witness or agent, in any such case.
- To express in good faith any opinion whatever regarding the merits of any performance which an author has submitted to the judgment of the public.
- If a person having any authority over another person, either conferred by law or arising out of any lawful contract to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates.
- To prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject matter of accusation.
- Imputation made in good faith for the protection of his or other’s interests.
- To convey a caution, intended for the good of a person to whom it is conveyed or for public good.”
And any such persons who may have made such slander or who have spread the same would be punished with imprisonment extending upto 2 years under Section 500 of the Indian Penal Code.
Defamation under tort law is in line with civil offence, with rather narrow scope starting with limited medium of communication. Until recently, burden of proof was upon aggrieved to prove such a statement is libellous, but now there is a Supreme Court’s judgement that if the material facts are proved per se defamatory, then the onus of proof would lie upon the defendant and not upon the plaintiff. Similar to prove criminal defamation, it must be proved that the statement was falsely made or fabricated, written and published, with such words which, according to a prudent man, have the ability to splinch the reputation, career and personal life of a living person. However, this does not imply that no cause of action would be taken under civil law if the defamatory statements have been made with regard to a dead person. Action can be taken if such false statement has can negatively impact over the reputation of deceased person’s heir.
Where in penal liability defamation is a non-cognizable, bailable offence punishable with prison for 2years, under tort law the aggrieved can seek injunction to restrain the publication and can also seek damages. The Court has the jurisdiction to restrain publication of any article or material which may deem to be defamatory to any person. Though an interlocutory injunction ought not to be granted when the defamer promises to justify the matters ought to be published, and the Court is not satisfied that he may not be able to do so. In most of the circumstances, the Indian courts especially have shown reluctance to issue injunction on the effect of muzzling speech on the ground of possible defamation.
It would indeed be appropriate to suggest that it has been used as a powerful weapon by famous personalities; at least that is the scenario with present politicians and actors. Moreover, many petitions have been filed to decriminalise defamation charges. Considering baseless allegations put forward by politicians, 3 out of every 5 politicians have a track record of at least some defamation charges filed against or by him before the court.
Criminal defamation is seen as a logical action to put SLAPP suits (Strategic Lawsuit Against Public Participation) over the journalists, activist, writers or any other such person who holds rather an influential position in the society. But are the courts more pressured to hold fast-track cases whenever any politician or actor files a motion for defamation?
The Supreme Court in its judgement in Harbajan Singh v. State of Punjab has pointed out two additional grounds for the prosecution or defendant to base their claim along with speculation as to onus of proof a) standard of proof adopted by the defendant; (b) ambit of “good faith” publisher resorts to while releasing the published copies of the article in question for defamatory statement. Justice K T Thomas in his article published in Indian Express and Live Law stated the later developments in the case along with detailed explanations that criminalising defamation is at the best interest to safeguard and the present legal position with respect to defamation against a publisher is just, fair and reasonable within the parameters of Article 21 and in the absence of such a penal protection for the citizen, their integrity would be vulnerable considering the improved technological influence over them.
The UK & the US legal system had the greatest influence over the entire structural functioning of Indian Legal system. But unlike them, Indian system still remains rigid, old-fashioned compared to their modified system. Leaving administrative structure in one hand, the change in statutes over several criminal provisions are drastic.
No amount of money can compensate for the loss of reputation caused due to baseless and false allegations spread over a man’s name, moreover, no individual or judge or jury can decide what a man’s reputation is worth to him. But what benefit can one gain if it is only the records which prove the innocence? Half of the population is unaware of the new laws passed by the Parliament and the judgements being pronounced in the court of law, the world or media does not care about your story unless you are a celebrity or other famous personality. For a man who is not a celebrated personality a rather beneficial compensation and public statement from the defamer accepting his mistake would not be enough to satisfy his rage or restructuring his lost dignity.
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Khushwant Singh v. Maneka Gandhi, AIR2002Delhi58
Tata Sons Ltd. v. Greenpeace International &Anr., I.A. No.9089/2010 in CS (OS) 1407/2010
Harbajan Singh Vs Punjab, AIR 1966 SC 97
About the Author: Mrudula is a 2015-20 batch student at Amity Law School, Noida.
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