Defamation, an Injury to Reputation: An Offence?


Etymologically the word “Defamation” comes from the word “Diffamare”, which means ‘spreading an evil report about someone’. Thus, defamation essentially means bringing disrepute to someone or causing injury to reputation of someone. Hence, the question is predominantly linked to the reputation of an individual.[1]

Salmond has defined defamation as, ‘the wrong that lies in the publication of a false and defamatory statement about another person without lawful justification’. Mr. Odger in the Introduction of his book on Defamation said, “No man may disparage or destroy the reputation of another. Every man has a right to have his good name maintained unimpaired. This right is a jus in rem, a right absolute and good against all of the world. Words which produce, in any given case, appreciable injury to the reputation of another are called defamatory, and defamatory words if false are actionable.

It can be deduced that defamation i.e. injury to reputation consists of a statement concerning an individual, which brings him hatred, ridicule or contempt. But it is important to consider defamation from the point of view of a right that is allegedly encroached upon. Justice Cave in the case of Scot v. Sampson[2] defined defamation i.e. injury to reputation in the simplest and most coherent form by referring to it as, “a false statement about a man to his discredit.

Defamation in India

The Indian framework allows for Defamation also injury to reputation to be both a civil wrong and a criminal offence. The distinction is mainly with respect to the object sought to be achieved. Under civil law proceedings, the person is liable to be compensated in the form of damages, for the wrong. The essentials to be proved for a civil wrong of defamation are that the state should be (i) false; (ii) defamatory, and (iii) published.[3] The claimant can move either the high court or trial court. An important consideration in the civil action for defamation is that intention or motive does not need to be attributed to the offender. Though the remedy sought is covered under the Law of Torts, the course of relief is rare and slow.

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While on the other hand, the Indian Penal Code, 1860 gives an opportunity for an individual to move to the criminal court. Criminal defamation is defined under Section 499 of the IPC while the punishment is stipulated under Section 500.  It’s a bailable, non-cognizable and compoundable offence.

Section 499 of the IPC defines ‘defamation’ as being committed:

Whoever by words either spoken or intended to be read or by signs or by visible representation, makes or publishes any imputation concerning any person intending to harm or knowing or having reason to believe that such person, is said, except in cases hereinafter excepted, to defame that person.

It is clear that intent to cause harm is the most essential sine qua non for an offence under Section 499 of IPC. An offence punishable under Section 500 of IPC requires blameworthy mind and is not a statutory offence requiring no mens rea[4]

The word “makes” connotes to make “public” or make known to “person in general”. So, the section 499 of IPC brings under the criminal law, the person who makes the defamatory imputation. So, there can be no offence of defamation unless the defamatory statement is made or published by the accused. The word “makes” or “publishes” must be implementing or supplementing each other.[5]

The definition spans over four explanations and ten explanations. The explanations deal in provisions relating to defamation of the dead, defamation of a company or a collection of persons and defamation by innuendo. The ten exceptions to Section 499, IPC state the instances in which an imputation prima facie defamatory may be excused. These include, imputation of truth for public good, public conduct of public servant[6], fair comment on public conduct of public men other than the public servant[7], comment on cases and conduct of witnesses and others concerned[8], merits of cases, decisions and judicial proceedings, merits of a public performance, literary criticisms, censure in good faith by one in authority, complaint to authority, imputation for protection of interest[9], caution in good faith.

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As under the Constitution, the right to free speech and expression forms a Fundamental Right under Article 19(1)(a), the constitutionality of the provisions providing for defamation, and elevating it to the pedestal of an offence under the Indian Penal Code, has been in question. There has also been a debate in regard to the conceptual meaning of the term ‘defamation’ used in Article 19(2) of the Constitution and ‘defamation’ in section 499 of the IPC. It was also pointed out that the freedom of speech and expression has to be controlled and does not include the concept of defamation as defined under section 499.[10]

Though recently, The Supreme Court in the case of Subramanian Swamy v. Union of India[11], in May 2016, held the Sections 499 and 500 of the IPC dealing in criminal defamation as constitutionally valid. It upheld the right to reputation as a part of the right to life under Article 21 of the Constitution. But the debate still remains alive as the law of defamation is a colonial legacy. The Human Rights Committee of the International Covenant on Civil and Political Rights and other international bodies have urged countries to abolish criminal defamation. Given that in the year 2009, the United Kingdom, from whom India borrowed the provision of the defamation law, abolished criminal defamation.

Also read Subramanian Swamy Vs Union Of India: Criminal Defamation

[1] Summary of Papers of Judicial Officers on Defamation: its Civil and Criminal Liabilities, Maharashtra Judicial Academy and Indian Mediation Centre and Training Institute. []

[2] Scot v. Sampson, (1882) 9 QBD 491.

[3] Ratanlal and Dhirajlal, The Law of Torts, 26th Edition; page 279.

[4] Standard Chartered Bank v. Vinay Kumar Sood, 2010 CrLJ 1277 (Del).

[5] Sunilakhya v. HM Jadwet AIR 1968 Cal 266 (1968CrLJ 736 (Cal).

[6] Jhabbarmal, (1927) 26 ALJR 196, 30.

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[7] Durga Prasad Choudhuri v. State of Rajasthan, 1969 Raj. LW. 20.

[8] Satish Chandra Ghose v. Hari Sadan Mukherjee, AIR 1961 SC 613.

[9] Harbhajan Singh v. State of Punjab, AIR 1966 SC 97.

[10] Arvind Kejriwal v. Union of India [W.P. (Crl) No. 56/2015)].

[11] Subramanian Swamy v. Union of India, [W.P. (Crl) 184 of 2014].

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