Defamation - Meaning, Explanation and Exception

This article deals with Defamation: Meaning, Explanation and Exception under the Indian Penal Code. Indian Penal Code has provisions to punish offenders for committing defamation against the state under Section 124A and defamation of class contained in Section 153.

I. Defamation – Definition and Meaning

Law provides safeguards for a person’s reputation similar to the protection it provides to his life and property. Indian Penal Code has provisions to punish offenders for committing defamation against the state under Section 124A and defamation of class contained in Section 153. Additionally, Chapter XXI of IPC deals with defamation of a person.

Section 499. 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.

To establish the offence of defamation following ingredients must be satisfied:

• An imputation regarding a person must be made or published
• Such imputation could be through writing, words, signs or visible representations
• Intent behind such imputation must be to harm the reputation of the concerned about whom imputation is made or published

The word ‘reputation’ occurring in the Section does not mean a person’s own opinion about himself[1], rather it a combination of hearsay or opinion of the community against or regarding the concerned person.

A person’s opinion about one’s self is his self-esteem and is something which is internal to him; however, reputation is an external factor. Explanation 4 provides a comprehensive view regarding the same.

It is only when the publication is done that other people get to know about the defamatory imputations which have been made or published. Therefore, if ‘A’ makes any defamatory statements about ‘B’ directly to ‘B’ then the particular act will not amount to defamation.[2] A policeman received a letter which accused him of malice and bribery by the accused in this case. The accused also claimed damages for the unpardonable search of his house.

The Allahabad high court ruled in the favour of the accused that since no publication had been made to a third party, the act did not amount to defamation. Publication of the same has to be made to a third party for the act to be an offence under this Section as the information may lower the estimation of a person’s character amongst other members of the society in general.

A permanent form of defamation is also called libel and it is done using words or gestures then it is slander. Nevertheless, when an accused is aware that the communication made by him will be known or read by others in the regular course of business, then his liability arises.[3]

Repetition or republication is covered under the scope of ‘publication’. For instance, if a newspaper after reproducing a libellous article and publishes as its won, it will be liable for defamation. As Best CJ. Has observed:

“Because one man does any unlawful act to any person, another is not to be permitted to do a similar act to the same person. Wrong is not be justified or even excused by wrong.”[4]

Existence of a rumour cannot afford a defence for an act of defamation.[5] An editor, publisher, printer and even a distributor may be made liable for the circulation of a defamatory article.

The publisher cannot take the defence that he was unaware of the content of the publication.[6] Yet the Madras High court in the case of Ramanada v. Lokananda,[7] was of the view that the editor can be excused if he in good faith had entrusted in his absence persons who in his view were competent and such persons published a libellous article.

It must be noted that for defamation to be criminally prosecuted there must be the existence of an intention to harm or having the knowledge that such statements can be injurious to the reputation of the person concerned. Injury to the person’s reputation is the essence of this Section.

A random statement which is not directed towards a particular class of men or a person cannot be criminally charged under Section 499. Mere hurling of vulgar abuses cannot be ground to establish conviction under the offence of defamation.[8]

II. Explanation

Explanation 1

The imputation made or published regarding the deceased must be derogatory and must hurt the feelings of his near relatives. The essence of this explanation is the cause caused and not the intent of the harm with which it was done.

Explanation 2

The imputation must attack the method in which the company is conducting its affairs or must accuse it of fraud, attack its financial position or accuse it of mismanagement. In the case of G Narasimham v. TV Chokkappa,[9] the Apex court observed that a derogatory statement directed towards an association or a company will also cover the collection of persons. Nonetheless, it said:

“Such collection of the individual must be an identifiable body so that it is possible to say that with definiteness that a group of particular persons, as distinguished from the rest of the community, was defamed. Therefore, in the case where explanation (2) was resorted to, the identity of the company or the association or the collection of persons must be established so as to be relatable to the defamatory words or imputations.

Where writing inveighs against mankind in general, or a particular order of men it is no libel. It must descend to particulars and individuals to make it a libel.”

The class made reference to be must not be so large to the extent that it would cease to remain a distinct body altogether. For instance, in the case of Narottamdas v Maganbhai,[10] the High court of Gujarat refused to convict the editors of an article who had described lawyers as dispute brokers in their newspaper.

The locus standi to file a complaint of defamation lies only with the aggrieved party affected by such derogatory imputations.

Explanation 3

The Oxford dictionary defines an innuendo as “an allusive or oblique remark or hint, typically a suggestive or disparaging one”. If a person can show that even though a statement might not appear prima facie defamatory, however, due to the subsisting circumstances and nature of its publication is derogatory to his reputation then the offence of defamation = may be said to have taken place.

Explanation 4

This explanation elaborates on the ways in which a person’s reputation may be harmed. It essentially says that derogatory statement must lower the intellectual character or the morals of a person concerned, either directly or indirectly.

In a case of Panna Lal,[11] the accused had put up a poster during an election contest against his competitor who was a barrister which stated: “The hollowness of Mr. X’s capacity as a barrister has been exposed.” The court held the accused to be guilty of defamation as the poster lower the intellectual qualities of the complainant after his aptitude as a barrister was attacked.

III. Exceptions

Exception 1 – Truth for the public good

A publication with true contents and made with an intention of the public good, howsoever derogatory will not amount to defamation. The framers of the IPC were of the opinion:

“There are undoubtedly many cases in which the spreading of true reports, prejudicial to the character of an individual, would hurt the feelings of that individual, without producing compensating advantage in any quarter.

The proclaiming to the world that a man keeps a mistress, that he is too much addicted to wine, that he is penurious in his house-keeping, that he is slovenly in his person; the raking up of ridiculous and degrading stories about the youthful indiscretions of the man, who has long lived irreproachably as a husband and a father, and who has attained some post which requires gravity and even sanctity of character, can seldom or never produce any good to the public sufficient to compensate for the pain given to the person attacked and to those who are connected with him.”

Hence, even if the veracity of a statement is unquestionable, if it serves no public good then the same act will amount to defamation.

Exception 2 – Fair Criticism of Public Servant

This exception protects opinions and not assertions. Every citizen has legal right to make fair comments on the public men in the interest of public. Nevertheless, such statements must not be made with malice and slander under the garb of exercising freedom of speech provided by Article 19 of the Indian Constitution. Men holding public positions are not immune from fair criticism.

Likewise, authors and publishers are not any different than any other person while making a comment, thereby are not warranted any special privileges or safeguards from Section 499, IPC. The words ‘good faith’ has been defined in Section 52 of IPC which stated:

“Nothing is said to be done or believed in good faith which is done or believed without due care and attention.”

The defendants in cases of defamation have the onus to prove along with the privilege occasion he also reasonable ground that the imputation was true or had knowledge or reasons to believe that the source of information was true.[12]

Exception 3 – Fair comment on public conduct of public men other than a public servant

Further, a fair, honest and true criticism of servants of public other than the official public servants will succeed to be a fair comment. Rights of freedom of speech enjoyed by the media person are same as any ordinary person. In the case of Sahib Singh v State of Uttar Pradesh, the court has opined:

“The press has great power in impressing the minds of the people and it is essential that persons responsible for publishing anything in newspaper should take good care before publishing anything which tends to harm the reputation of a person. Reckless comments are to be avoided. When one is proved to have made defamatory comments with an ulterior motive and without the least justification motivated by self-interests, he deserves a deterrence sentence.”

Exception 4 – Report of Proceedings of Court

As the judicial proceedings are a matter of public interest, accurate reports of it have been afforded with the exception to defamation. The report must aim at representing all the information and occurrences precisely how they took place to the reader of such report.

It is not required that the report must be verbatim of the entire proceeding and in fact it is not necessary for it to be complete. The nature of proceeding and whether the court was competent for the hearing or not are all immaterial for the publication of such report if it is fair and correct.

Exception 5 – Case Comments

Protection has been attributed to case comments of the adjudicated decisions of cases when they are executed bonafidely. Justice Fitzgerald said that:

“It is open for one to show that error was committed on the part of the judges or jury, nay, further, for myself I will say that the judges invite discussion of their acts in the administration of the law, and it is a relief to them to see error pointed out, if it is committed yet whilst they invite the fair discussion, it is not open to a journalist to impute corruption.”[13]

Exception 6 – Literary Criticism

A fair and honest discussion is essential for the history to transcend and science to advance. For that, the public must be afforded with the opportunity to make free criticisms of public performances that are submitted to its judgement.

Hereunder are certain ingredients which must be complied with to afford the protection under this exception:

• Express or implied invitation by the author to the public for criticism, which he may do by basically just publishing his work although he might not distribute the same for review
• The criticism must be pertinent to the standard of the performance as distinguished from the basic capability of the performer
• Must be made in good faith

Exception 7 – Censure by one in authority

There are two essential elements corresponding to this exception:

• The critic must an authority to censure the person concerned
• Existence of good faith in the censure

This privilege cannot be justified if the publication is done in excess of the purpose behind the emergence of such contempt. For example – a person might have just condemnation with regards to his subordinate, however, publishing censure related to the same in a newspaper destroys the privilege under this exception.

Exception 8 – Complaint to Authority

The framers of the IPC observed with regards to this exception that: “We allow a person to prefer an accusation against another, in good faith, to any person who has lawful authority to restrain or punish the accused.”

Hereunder are two conditions which must be satisfied to avail the privilege of this exception:

• Accusation to be made to the person in authority
• Existence of good faith

Exception 9 – Imputation for Protection of Interests

This exception encompasses the first exception affixed to Section 499 which laid down for public good. This exception says that due protection must be availed to the communications of parties acting in good faith, in course of business and social intercourse. The veracity of every word published by the defendant is not necessary. The Apex court has observed:

“In deciding whether an accused person acted in good faith under the Ninth Exception, it is not possible to lay down any rigid rule or test. The question has to be considered on the facts and circumstances in which the imputation was made, the malice, the due care and attention and satisfaction as appearing in the case where defamation is alleged.”[14]

Professionals like the accountants, doctors, counsels, judges enjoy the privilege provided by Exception 9 but it is not an absolute one.

The landmark case of Chaman Lal v. State of Punjab,[15]the Apex court has laid down certain principles for the purpose of proving good faith pertaining to Exception 8 and 9 that have been enumerated hereunder which is required to be proved:

• Circumstances when such words were uttered or letter was written
• Existence of malice
• Prior to making allegation whether any enquiry made
• Presence of reasonable ground to rely on the version of the accused that his actions were in compliance with due care and caution
• Preponderance of probability that the act of the defendant was in compliance with good faith

Explaining the scope of Exception 9 the observed that:

“Even if good faith be taken to have been established, the imputation has to be made for the protection of the interest of the person making it. Beside the person making the imputation, the person to whom the imputation is conveyed must have a common interest with the person making it which is served by the communication.”[16]

Exception 10 – Caution in Good Faith

A person needs to establish that the imputations were as a result of ‘good faith’ and meant for ‘public good’. One is not required to prove beyond reasonable doubt and only proving a preponderance of probability discharges the onus from the accused.

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[1] Perspective Publication v State of Maharashtra AIR 1971 SC 221

[2] Taki Hussain [1884] ILR 7 All 205

[3] Sukhdeo Vithal Pansare v Prabhakar Sukhdeo Pansare [1974] Cr LJ 1435 [Bom]

[4] Dicrespigny v Wellesly 5 Wing 404

[5] Watkin v Hall LR 3 QR 396

[6] Re McLeod [1880] ILR 3 All 342

[7] [1886] 9 ILR Mad 387

[8] Empress v Amir Hasan 1883 AWN 167

[9] AIR 1972 SC 2609

[10] [1984] Cr LJ 1790 [Guj]

[11] [1935] Cr LJ 1039

[12] Harbhajan Singh v State of Punjab AIR 1966 SC 97

[13] Re Sullivan 11 CSX 57

[14] Harbhajan Harbhajan Singh v State of Punjab AIR 1966 SC 97

[15] AIR 1970 SC 1372

[16] AIR 1963 SC 1317

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