CONSTITUTIONAL VALIDITY OF DEFAMATION LAWS UNDER IPC


Posted On : June 27, 2021
CONSTITUTIONAL VALIDITY OF DEFAMATION LAWS UNDER IPC
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Table of Contents

1. INTRODUCTION

After the life, what a man cares most is their reputation. Reputation is considered as a precious jewel, on which no one wants any damage.  And any damage to reputation through false statement is considered as a defamation. As per the Black’s Law Dictionary, “defamation means the offence of injuring a person’s character, fame, or reputation by false and malicious statements”. Defamation could be sub-categories into two types, “Slander” and “Libel”.

Libel - Libel mean disrespecting in a permanent form, for e.g., through writing, printing, pictures, effigy or statute.

Slander – On the other hand Slander means Depiction in a more transient form. Slander is generally through words spoken or gestures.

Slander could be a sudden provocative word spoken in the heat of moment. Whereas, Libel causes greater deliberation and is very likely to cause greater harm to the person reputation then slander, the reason being, the people in our society are more likely to believe things what they say in print. And in modern world of internet, it doesn’t take that much time to spread throughout the world.


1.1. Essential characteristics of Defamation.

To bring out a case of defamation in India there are certain characteristics which are essential to be fulfilled.

  • he statement must be a defamatory statement.
  • The said statement must refer to the plaintiff and has caused damage to his/her reputation.
  • he statement must be published or must be made in public. That means the statement must be communicated to at least one person other than the claimant.


2. DEFAMATION LAWS UNDER IPC

Section 499-502 of chapter XXI of Indian Penal Code contains provisions regarding Defamation against an Individual in India. Section 499 defines what is defamation and section 500 provide the punishment for defamation in India. Whereas the Indian Penal Code also contains provisions regarding defamation against State under Section 124A which is also known as Sedition. The Code also contains provisions on defamation of a class or a community, given under section 153 of the Indian Penal Code.

As per Section 499 of the Indian Penal Code it defines “Defamation” as being committed:

  1. “Through: (I) words (spoken or intended to be read), (II) Signs, or (III) visible representations;
  2. Which: are a published or spoken imputation concerning any person;
  3. If the imputation is spoken or published with: (I) the intention of causing harm to the reputation of the person to whom it pertains, or (II) knowledge or reason to believe that the imputation will harm the reputation of the person to whom it pertains will be harmed.”[1]

This broad definition of defamation is subject to various explanations and in total ten exceptions. A person found guilty of committing an offence as described under section 499 of Indian Penal Code in liable to be punished under section 500 of Indian Penal Code. Section 500 of the IPC contains the punishment for the same. Punishment as given under section 500 could be a, a simple imprisonment for up to two years or with fine or with both.[2] As per the Criminal Procedure Code or CrPC the offence described under Section 499 of IPC is a non-cognizable and bailable offence. That means, the aggrieved person has to make a complaint before the magistrate and not the Police and the accused person cannot be arrested without a warrant issued by a Magistrate. Only the truth is considered as a defence to defamation under IPC.

2.1. Exceptions:

A person who is making defamatory statement falls within one of the exceptions mentioned below under section 499, that person would be exempted from the punishment and would not be liable for defamation under IPC.

  •  “Attribution of any truth made for public good. Truth is seldom defence unless made for a public good.
  • Any opinion made in good faith regarding the conduct of a public servant in the discharge of his public functions.
  • Any opinion made in good faith respecting the conduct of any person which relates to a public question.
  • Publication of true reports of the proceedings of the Courts or the result of the proceedings is not defamation.
  • Any opinion made in good faith regarding the merits of any civil or criminal case decided by the Court of Justice, or the conduct of any person as a party, witness or agent to that case and no further.
  • Opinions made about the merits of any performance which its author has submitted to the judgement of the public, or about the author is not defamation if made in good faith.
  • Censures passed by persons neither having authority over another either conferred by a law or from a lawful contract in good faith is nor defamation. Censure is formal statement of severe disapproval.
  • Accusation of offence to any person having lawful authority over the alleged person in good faith is an exception to defamation. Complaints about servants to masters and children to parents are examples to the exception.
  • Statements made about the character of character is not defamation if it is made in order to protect the interests of the person making it, or any other person, or for the public good.
  • Cautions conveyed to one person against another are not defamation if it is intended for the good of the conveyed person, or any other, or for public good.”[3]


3. CONSTITUTIONALITY AND JUDICIAL INTERVENTIONS OF DEFAMATION

3.1. Subramanian Swamy v. Union of India

Facts

In the Supreme Court of India number of petitions were filed under Article 32 of the Constitution of India challenging the constitutional validity of defamation laws given under criminal laws. The laws which were challenged before the Supreme Court include Section 499 and 500 of Indian Penal Code, 1860 and Section 199(1) to 199(4) of the Criminal Procedure Code, 1973.

These petitions were filed by the profound politicians of India including Subramanian Swamy, Rahul Gandhi, Arvind Kejriwal and so on. Their main contention was to decriminalize the offence of defamation given under Indian Penal Code, 1860 arguing that these laws are violating their inhibited right freedom of free speech and expression guaranteed under Article 19 of the Indian Constitution.

Contentions Submitted by the Petitioners:

The Petitioners raised 7 contentions in total in the Writ Petition before the Supreme Court. The first two contentions raised in the petitions were:

  1. Declaring Section 499 and 500 of the Indian Penal Code, 1860 as unconstitutional.
  2. Declaring Section 199(2) of the Code of Criminal Procedure, 1973 (Cr PC) as unconstitutional.

The main issue according to the petitioners was that these laws create an unreasonable restriction on freedom free speech guaranteed under article 19(2) of the Constitution. Except these two other contentions raised in the writ petitions were:

  1. “In a democratic body polity, public opinion, public perception and public criticism, are the three fundamental pillars to guide and control the Executive action and, if they are scuttled or fettered or bound by launching criminal prosecution, it would affect the growth of a healthy and matured democracy.
  2. Fundamental rights of liberty and free speech are controlled and not absolute as per the Constitution, but in the name of control the freedom of speech that pertains to criticism of certain governmental actions cannot be gagged.
  3. The individual interest in the guise of reputation cannot have supremacy over the larger public interest, for the dominant interest in a democracy is the collective interest and not the perspective individualism.
  4. The Executive does not permit expression of public opinion by instituting cases of defamation through the public prosecutors by spending the sum from the State exchequer which is inconceivable.
  5. The concept of sanction, which is enshrined under Section 199(2) of the Code of Criminal Procedure, is a conferment of unfettered power by which the citizenry right to criticize, is gradually allowed to be comotosed.”[4]

On the other side the counsel appearing for the State of Tamil Nadu relied upon the Judgement of Vijay Kant vs. Union of India, where it was held that “Sections 499 and 500 could no be said to travel beyond reasonable limits on free speech, because Article 19(2) itself imposes such restriction”[5].

Judgement : A Critical Appraisal

The Judgement was delivered by a division bench composed Justice Dipak Mishra and Justice Prafulla C. Pant. Justice Dipak Mishra delivered the judgement in a 268 pages document and the same was agreed by Justice Prafulla C. Pant. Through the Judgement both the judge decided in upholding the constitutional validity of Sections 499, 500 of Indian Penal Code and Section 199 of the Indian Criminal Procedure Code. The Judges also raised a question that abolition of criminal defamation in other countries could really affect the constitutional validity of defamation laws under IPC in India.

The Judgement critically describe the term defamation and reputation with the help of various foreign dictionaries and authorities. The Bench held that the concept of “reputation” is a part of fundamental right of right to life. The court in detailed talked about how important is freedom of speech and expression is in a democracy, but stated that there must be a reasonable restriction on it, and the purpose of such restriction is to serve the public interest and should not be excessive.

The bench observed that the Legislature has chosen the criminal law as one of the ways through which to protect an individual’s reputation. And the concerned laws under IPC does not violate the fundamental right to free speech and expression. The courts want every citizen to respect the dignity of the other citizen.

Therefore, in the conclusion the Bench held that “the penal code provision is not disproportionate. The reasonableness and proportionality of a restriction is examined from the stand point of the interest of the general public, and not from the point of view of the person upon whom the restrictions are imposed. Applying this standard, the Court judged the criminal defamation laws to be proportionate. The Court rejected the contention that defamation is fundamentally a notion of the majority meant to cripple the freedom of speech and expression as too broad a proposition to be treated as a guiding principle to adjudge the reasonableness of a restriction.”[6]


4. REFERENCES

  • Indian Penal Code, 1860
  • Criminal Procedure Code, 1973
  • Ratanlal & Dhirajlal’s The Indian Penal Code.
  • Vijay Kant v. Union of India [T.P. (Crl) No. 94-101/2015].
  • Subramanian Swamy v. Union of India (Writ Petition (Crl.) No. 184/2014)
  • Arvind Kejriwal v. Union of India [W.P. (Crl) No. 56/2015)].




[1] Indian Penal Code, 1860, S 499.

[2] Indian Penal Code, 1860. S.500.

[3] Indian Penal Code, 1860, s. 499.

[4] Subramanian Swamy v. Union of India (Writ Petition (Crl.) No. 184/2014)

[5] Vijay Kant v. Union of India [T.P. (Crl) No. 94-101/2015].

[6] Subramanian Swamy v. Union of India (Writ Petition (Crl.) No. 184/2014)

Written By:
Anik

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