This article was written by Sakshi Jain a student of Amity Law School, Noida (Lucknow Campus).
Defamation: Non curtailment of Right to reputation
In India, defamation is a civil wrong and a criminal offense under the law of tort and Indian penal code, 1860. There is a difference between these two. One is in the law of tort, only the aggrieved party claims for compensation or damage are awarded to them. But under the penal code, criminal charges are registered against the offender.
Section 499 of IPC defines the criminal defamation and makes it a punishable offense. Section 499 of IPC states that 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. Explanation 1.—It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives. Explanation 2.—It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. Explanation 3.—An imputation in the form of an alternative or expressed ironically, may amount to defamation. Explanation 4.—No imputation is said to harm a person’s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful .
Section 499 of IPC defines criminal defamation and Section 500, punishment for it. Defamation could be by words spoken, written, signs, gestures and much more. Whenever a person makes any wrong or false comment which destroys the reputation of that particular person, it amounts to be criminal defamation. It must be proved that the there was a malicious intention behind stating that comment. Section 500 mentions the punishment under defamation. A person would be liable for imprisonment of up to two years, with or without fine. Defamation under Indian Penal Code is a compoundable offense. Therefore, any act which causes harm to the reputation of the person or believes that an imputation will harm his reputation, through any act of words, representation, signs, gestures, etc, shall be guilty of defamation under Section 499 of Indian Penal Code. Defamation is a noncognizable and bailable offense under the criminal procedure code. Hence, no person can be arrested by a mere complaint against him. It needs to be proved that that a particular act has harmed his reputation.
Defamation as a civil and criminal offense
There is a slight difference between defamation under the law of torts and defamation under Indian Penal Code. Defamation is a civil wrong under tort which only demands the damages to be compensated. No criminal action takes place against the wrongdoer. Defamation is classified under two categories. Libel and slander. Libel is the defamation occurred through writing and slander is one which is by spoken words. Libel constitutes more weight as compared to slander because libel is in a written form and makes evidence against the wrongdoer. But in the other context, slander is defamation by spoken words and barely creates an evidence to prove against the wrong doer in the court of law. Under a civil defamation, suit can be filed before the district court or high court, considering the quantum of damages demanded by the complainant. Judge will further decide that how much the aggrieved party should get. Further to this, a person who is defamed through publication or has an apprehension of being defamed through publication, he can seek the court order to grant an injunction to restrain such publication. Pre-publication injunction is rarely granted by the court because apprehension of being defamed is difficult to be proved.
There is certain exception to defamation. One of them is truth. Telling truth is a defense under defamation and a person can be escape from the charge of defamation by proving that the statement was true.
Constitutional validity of Section 499 of Indian Penal Code
Most of the politicians are booked under the defamation charges. BJP leader Subramanium Swamy, Delhi Chief Minister Arvind Kejriwal , Congress vice-president Rahul Gandhi have been charged under criminal defamation. They moved towards the court, challenging the validity of Section 499 of IPC under this offense. And filed a petition for removing this section as it infringes their right to freedom of speech and expression under Article 19(1)(a) of the constitution of India. The Hon’ble Supreme court held the validity of Section 499 constitutional. Further, it has been stated that it does not infringe the fundamental right of freedom of speech and expression but violates Article 21 of the constitution. Under article 21, every person has right to be reputed. Therefore, freedom of speech and expression is not an absolute right and has certain limitation to it.
Justices Dipak Misra and Prafulla C Pant has opined in the judgment that there needs to a balance between freedom of speech and right to reputation.
Swamy is facing three criminal defamation charges filed by J Jayalalithaa in Tamil Nadu allegedly making comments against her.
Arvind Kejriwal, Chief Minister of Delhi and 5 other APP leaders are also facing charges of criminal defamation against Arun Jaitley, the finance minister of the country by making defamatory comments on him and targeted him for alleged corruption in the Delhi and District Cricket Association. Later on, they were granted bail by the Delhi court.
In the case of Shah Rukh Khan vs. State of Rajasthan & Ors, criminal case was filed against Shah Rukh Khan alleging to make mimicry of the veteran actor Manoj Kumar in his film Om Shanti Om. The FIR was registered against Shah Rukh khan for criminal breach of trust, cheating, defamation and conspiracy. It was alleged that Shah Rukh khan has defamed in his film. The movie was released in Japan without removing that clip. He alleged that khan defamed him and filed a criminal and civil suit compensating damage of Rs. 100 crore. Kumar took back the case when Shah Rukh khan apologized him publically and assured him that the clip will be deleted from the movie.
There are following exceptions under which a person can escape from the criminal charges of defamation against him. There is not defamation if it is done for the public good. Anything which speaks or published for the public good, do not amount to defamation and that person is not held liable for the charges under Section 499 of the defamation.
Imputation made in good faith by person for his or other’s interest is also a defense to defamation. Speaking truth is also a defense of defamation charges.
Section 500 of IPC states the punishment for defamation. It says whoever defames another shall be liable to imprisonment for a term which may extend to two years or fine or both. Therefore, if a person defames any person through any medium described under the act, is liable for imprisonment for two years.
Defamation is a bailable and noncognizable offense. It is triable under the session courts. Section 499 of Indian Penal Code is about defamation. Whoever, by words spoken or visible sign, harms the reputation or makes such apprehension in the mind of the person, is expected to defame the person. Publication and conveying the words to the third person is necessary to constitute an offense under defamation. Defaming a husband in front of his wife does not constitute the defamation because, in the eyes of the law, they are one person. Therefore, the publication is a must. Many cases came up for decriminalizing the defamation and removing section 499 of IPC. But in the judgment of Subramanian Swamy vs. Union of India Ministry of Law & Ors. , it has been held that Section 499 of IPC is valid and constitutional. And no amendments will be done in Section 499. The issue rose that it violates the right to freedom of speech and expression. But the Hon.ble Supreme court held that it do not violate Article 9(1)(a) of the Constitution because freedom of speech and expression is not an absolute right and has a reasonable restriction to it. There should be a balance between Freedom of Speech and expression and right of reputation. Therefore, the petition was dropped down for decriminalizing section 499 of IPC and is still a valid section under Indian Penal Code, 1860.
 RLW 2008 (1) Raj 809
 WRIT PETITION (CRIMINAL) NO. 79 OF 2015