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One cannot be unmindful that right to freedom of speech and expression is a highly valued and cherished right but the Constitution conceives of reasonable restriction. In that context criminal defamation which is in existence in the form of Sections 499 and 500 IPC is not a restriction on free speech that can be characterized as disproportionate. Right to free speech cannot mean that a citizen can defame the other. Protection of reputation is a fundamental right. It is also a human right. Cumulatively it serves the social interest.

Criminal defamation is in news recently for multiple reasons. Questions have been raised on whether defamation should be treated as a civil wrong or criminal offence or both. It is argued that criminalizing defamation has a harsh effect on the right to freedom of speech and expression provided under article 19.

There are many demands to make defamation only as a civil wrong.
The large scale abuse of defamation laws particularly by the workers and leaders of political parties is a matter of serious concern now-a-days. A large number of cases are being filed on the basis of statements made in the press by political leaders. Such complainant claims to be a 'person aggrieved' offended by the statement given by a political or social leader against their so-called leader or mentor.

An aggrieved person has both the remedies—civil and criminal. He is not compelled to make a choice between the two. If he has filed a criminal prosecution, he can still file a civil suit for dam ages for defamation, even though the prosecution is still pending. In fact, if he waits too long, the civil action may become time-barred.  Withdrawal o f a criminal com plaint on tender o f apology is no bar to civil action for libel unless there is a specific agreement barring a civil action.

Defamation as an offence is dealt with in section 499 o f the Indian Penal Code.  The main paragraph of the section defines what is defamation . In essence, it is an action causing harm to the reputation o f a person, by making an imputation. Two explanations to the section (the first and second) deal with defamation o f a deceased person and defamation o f a group o f persons, respectively. The third explanation to the section deals with an imputation in the form o f an alternative, or expressed ironically. The meaning of harm to reputation is dealt with in the fourth explanation.

Defamation- Meaning

The word Defamation means Abuse, Aspiration, Denigration, Depreciation, Publication etc. Ordinarily, the offence of defamation is stated to be made against a person or persons harming his/their reputation. The ingredients of defamation are-
  1. making or Publishing any imputation concerning any person,
  2. such imputation must have been made with the intention to harm with knowledge or having reason to believe that it will harm the reputation of the person concerned.
Therefore, the intention to cause harm is the most essential sine qua non of an offence of defamation under section 499 of Indian Penal Code.

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 implementing or supplementing to each other. Where the complaint did not mention the words used for supposed to be used by the accused, the Court, would not be in position to decide whether the words used amounted to insult.

Now, a debate has been started at every public forum that whether defamation should be decriminalized or not. The issue has been assumed significance by the recent incidents when Aam Admi Party leader Mr. Arvind Kejriwal was sent to jail after he refused to furnish bail bond in a defamation case launched by BJP leader Mr. Nitin Gadkari. Coincidently, the Law Commission of India has also taken cognizance on the matter and floated a consultation paper seeking opinions from the stake holders whether defamation should be decriminalized? Although, the press enjoys freedom of speech and expression under Article 19 (1) (a) of Indian Constitution, defamation is a ground of reasonable restriction under article 19(2). Currently, civil defamation is dealt with law of torts whereas criminal defamation is an offence under section 500/504, of Indian Penal Code.

Section-499 talks about Defamation

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

This section require three essentials:

  1. Making or publishing any imputation concerning any person.
  2. Such imputation must have been made by:
    1. Words, either spoken or intended to be read; or
    2. Signs; or
    3. Visible representations.
  3. Such imputation was made with the intention of harming or with knowledge or reason to believe that it will harm the reputation of the person concerning to whom it is made.

  1. Makes or publishes any imputation concerning any person:

    Every such person who is engaged in composing, dictating, writing or in any way contributing to the making of the libel is the maker of the libel. Where the matter is dictated by one person and written down by another person, both shall  be guilty of this offence. Similarly if one person speaks, another writes and third approves of it, all the three shall be guilty. The reason is that all who concur and assent to the doing of an unlawful act will be guilty of this offence.
  2. Publication of defamatory matter:

    For  the offence of defamation publication of defamatory matter is essential. In other words the defamatory matter must be communicated to some person other than the person to whom it concerns e.g. dictating a letter to a clerk is publication. Where the defamatory matter is communicated to the person defamed, such a communication will not amount to publication.

    Thus in Taki Hussain's case, a person-dispatched a public officer a notice by post which was closed in a cover. The notice contained imputation on the character of the recipient. Allahabad HC was of the view that since there was no publication of the matter, therefore, this was not constituted.

    Defamatory matter, if written on a postcard, or printed on a paper will constitute publication when it is distributed or broadcasted. A defamatory petition presented to a superior public officer, if sent to a subordinate public officer in due course for inquiry would constitute publication within the meaning of this section.

    In N.L. Shah v. Patel Maganbhai Revabhai, an interesting situation arose for decision. There was agitation of lawyers in Gujarat in connection with appointment and transfer of Chief Justice of H.C. On account of the agitation the lawyers ceased to participate in court proceeding and resorted to satyagraha. An editorial in a newspaper criticized as to whether it behoves to the lawyers as a class to resort to strike. The lawyers were inter alia described as kajia dalal i.e. dispute broker, in the editorial.

    In a suit for defamation against the editor, the Gujarat High Court held that the editorial did not refer to the complainant personally or to any other individual but referred to the lawyers as a class and at the most the lawyers of Gujarat. The alleged defamation could not be referred to a determinate or identifiable section or class of lawyers as distinguished from the rest of the members of lawyers fraternity.

    The words kajia Dalal was held to be used in relation to the lawyers as a class and is not referable to a determinate section of lawyers, namely, the lawyers who were participating in the agitation. The thrust of the editorial was that lawyers should not have gone on strike. If the imputation is defamatory per se, necessary mens rea will be presumed. The maker of the statement must know that it will harm the reputation of one concerning whom it is made.

    The court distinguished between 'character' and 'reputation'. The term 'reputation' means what is generally said or believed about the persons or things. 'character' means fortitude or moral constitution or strength of a person. It has no relevance with the belief or opinion of others in respect of a person.
  3. Publication of defamatory matter in newspaper:

    A Newspaper stands, in matters of defamation, in the same position, as members of the public in general. The publisher of the newspaper shall be responsible for published defamatory matter whether he was aware of that or not. But an editor's position is somewhat different. He can escape his liability by proving that defamatory matter was published in his absence and without his knowledge and he had in good faith entrusted the temporary management of the newspaper during his absence to a competent person.
    In Ashok kumar jain v. State of Maharashtra, it was held that where a defamatory statement against a person is published in a newspaper, the editor, printer, and publisher who has made declaration and is shown in paper as such is liable.

    Where it is alleged that the Chairman of Board of Directors of Company and its General Manager took part in selling out newspaper, it is  could have prevented but they did not, they would be guilty of the offence and cannot escape liability under section 502 unless they can make out a case of exception under section 499.

    In S. Khushboo v. Karniammal, it was complained that  the statement of accused given in news magazine amounts to his defamation. It was held that the statement of accused was given to news magazine calling for societal acceptance of pre-marital sex. He did no attack on reputation of anyone in particular. It does not amount to defamation under Section 499 I.P. Code. Moreover complainant was not an aggrieved person. Hence complaint was held liable to be quashed.
  4. Defamatory article:

    In M.P. Narayana Pillai v. M.P. Chako, it was held that where an article is published in many parts and some containing defamatory materials, others not, in such a case article as a whole must be read. The impact and effect of the omputations has to be considered in the background of the entire facts and circumstances started therein. If  the disreputable part can be removed by other parts and the conclusions, then no  prosecution for defamation can be launched by picking and choosing the disreputable part alone.
Explanation 1- This explanation will come into operation when:
  1. The imputation would have hurt the deceased's reputation, and
  2. It would also have hurt the feeling of his family and relatives.
A suit was brought by the heir and nearest relation of deceased person for defamatory words spoken of such deceased person but alleged to have caused damage to the plaintiff as a member of the same family, it was held that the suit was not maintainable.

Explanation 2- An action for libel will lie at the suit of an incorporated trading company in respect of a defamation calculated to injure its reputation in the way of its business.
Explanation 3- A statement innocent in form or in the form of an alternative will amount to defamation if it is ironical.
Explanation 4- This explanation  makes it clear that the term referred bto in the Explanation has reference to imputation on a man's character made to lower him in the estimation of others and not of himself. Thus describing a woman that she has paramours wherever she goes, is per se defamatory.

Exception 1.- The requirement of this exception are:
  1. That the impugned statement must be shown to be true; and
  2. That its publication must be shown to be for public good.
This exception and exception 4 requires that the imputation should be true. The remaining exceptions do not require it to be so; they require that it should be made in good faith. It is also necessary that truth when set up as a defence must extend to the entire defamation and not only to a part of it.

In  Jawaharlal Darda v. Manoharrao Ganpatrao, the respondent Manoharrao Ganpatrao Kapiskar fiked a complaint in the Court of C.J.M alleging that by publishing news item in its newspaper Dainik Lokmath on 4-2-1984. Mr. J.L Darda  the Chief Editor of the daily along with others have committed offences punishable under sections 499, 500, 501 and 502, read with section 34, Indian Penal Code.

It was held that as the news items ws published for public good and not to malign the reputation of the complainant, therefore, no offence against the accused was made out.

Exception 2 – Any person occupying a public position renders himself open to criticism for his actions while discharging his functions from the position he occupies. It does not merely imply absence of ill will. In order that the comment may be fair:
  1. It must be based on facts truly stated;
  2. It must not impute corrupt or dishonourale motives to the person whose conduct or work is criticized except in as far as such impultations are warranted by the fact.
  3. It must be an honest expression of the writers real opinion made in good faith:
  4. It must be for the public good.
It was held  In re Arundhati Roy, that the broad and general proposition that a reply submitted to a contempt of court in the light of  second exception to section 499 of the IPC and its contrary to the law of Contempt as adjudicated by the courts in the country from time to time and the limits prescribed by the Act and the judicial pronouncements which are well within the knowledge of all reasonable citizens.

Exception 3- The conduct of publicists who take part in politics or other matters concerning the public can be commented on in good faith.

Exception 4- The report of the proceedings of a court of justice should be without malice. It should be a fair and accurate report of what took place before the tribunal.It is not confined to judgments and orders but also covers pleadings whether relevant or not.

Exception 5-  A journalist is supposed to discharge his duties fairly and if his comments are fair no one will be permitted to complain.

Exception 6- literally criticism of public performance submitted to its judgment.It covers book published on literature, art, painting, speeches etc. The criticism must be fair and made in good faith.

Exception 7- Statements made by a person in police investigation merely expressing suspicion as to complicity of certain person in crime will not amount to defamation.

Exception 8:
  1. That the person to whom the complaint was made had lawful authority over the officer complained against;
  2. that the accusation was made in good faith.

Punishment for Defamation:

Whoever defames another shall be punished with simple imprisonment for a term which may extend to 2 yrs, or with fine, or with both.

Critical Analysis
The pertinent question which arose before the court was whether sections 499 and 500 of the IPC go beyond the scope of the reasonable restrictions imposed under article 19(2) of the Constitution of India?

While answering in negative, the Supreme Court gave a detailed reasoning of the explanations and exceptions appended to section 499. It was submitted by the petitioners that on two earlier occasions, R. Rajagopal alias R.R. Gopal v. State of Tamil Nadu it had been observed as follows:
In all this discussion, we may clarify, we have not gone into the impact of Article 19(1) (a) read with clause (2) thereof on Sections 499 and 500 of the Indian Penal Code. That may have to await a proper case.

In N. Ravi v. Union of India wherein it had been observed as follows:
Strictly speaking on withdrawal of the complaints, the prayer about the validity of Section 499 has also become academic, but having regard to the importance of the question, we are of the view, in agreement with the learned counsel for the petitioners, that the validity aspect deserves to be examined.
As defamatory speech is one such restriction prescribed under article 19(2) (1) of the Constitution.

Therefore, in order to curb speech that is defamatory, court observed that the restriction imposed should be 'reasonable'. In Chintaman Rao v. The State of Madhya Pradesh the Supreme Court laid down the meaning of the term reasonable restrictions:
The phrase reasonable restriction connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public.

The word reasonable implies intelligent care and deliberation, that is, the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Article 19(1) (g) and the social control permitted by clause (6) of Article 19, it must be held to be wanting in that quality.

Also, whether the law that imposes the restriction is reasonable should be judged in accordance with current social, economic and political circumstances of the nation. One of the rules of statutory interpretation is to interpret the words of a statute in light of the current facts and situations and not based on the facts/situations of the past. 

The law of defamation seeks to protect individual reputation. Its central problem is how to reconcile this purpose with the competing demands of free speech. Since both these interests are highly valued in our society, the former as perhaps the most dearly prized attribute of civilized human beings while the latter the very foundation of a democratic society. The apex court gave an interim time period of eight weeks to the petitioner within which they can challenge.

Meanwhile, other cases have also arisen especially in the political fora such as defamation case filed against Gogoi or the alleged arrest of Kiku Sharda. The decision brings finality to the case but raises certain questions in its wake. For instance, in a progressive economy like India, is resorting to penal provisions justified especially in an era, where reformative justice is replacing retributive justice. Besides the growing intolerance in the nation is another issue which might get a reason due to this judgement.

In such situations, there becomes a need to shed one's inhibition and discuss viable solutions. One such proposition in this area would be the right to reply. Of course, this has been debated earlier.

However, owing to the chilling effect which might be incumbent on the individual/organization; right to reply has just added on the scepticism. However, right to reply appears as a civilised manner to address matter rather than jumping on conclusions, convicting and seeking damages. Some US states and other countries have imbibed this concept. Certainly, we too can utilize this concept. The discussion brings us to the point that in cases of constitutional interpretation, the stakes become higher.

It is easy to criticize rather than actually get into the depths of matter. Of course, a healthy criticism fosters creativity and growth. Nowadays, it is easy to have a critical approach rather than actually get into the skin of the matter. Also, it cannot be ignored that the judiciary tries its best to give a harmonious construction in such matters. As citizens, we too, have a responsibility– it is time to revisit ourselves.

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