The law of defamation is a concept which was in existence since centuries. In the Roman law, defamation was a capital offence and in German & English laws, if one had insulted the other, then his tongue would be chopped off (it was considered such serious offence at that time).

The very existence of this law is based on a delicate balance between the 'Right to reputation' and 'Freedom of speech & expression' guaranteed under Article 21 and Article 19(1)(a), Constitution of India, 1950 respectively. The defamation has been carved out as exception to the Fundamental Right provided under Article 19(1)(a).

Definition
Defamation, in simple words can be defined as a communication of false information about any person (a 'person' includes an individual, a Hindu Undivided Family, an association of persons or a body of individuals, whether incorporated or not, a local authority, artificial juridical person, Government, company, firm and so on and so forth as the definition is an inclusive one) which tends to harm his reputation. It can be in a temporary form such as oral words or even in permanent one such as written words.
It can be treated as both a civil wrong as well as a criminal offence. Based on this pretext, it can be divided into two categories which are as follows: -

Civil Defamation
In a civil defamation case, a person who is defamed can move either High Court or subordinate courts and seek damages in the form of monetary compensation from the accused. The degree of burden of proof under this category is also low as civil suits do not follow the principle of 'proof beyond reasonable doubt'.

Criminal Defamation
Defamation is punishable under section 500, Indian Penal Code, 1860 (hereinafter 'IPC' for brevity) with up to two years of imprisonment or with fine or with both. The degree of burden of proof is on the higher side.

Analysis Of Section 499, IPC

In order to hold a person guilty of this offence, following essentials needs to be proved:

1. The accused must have 'made' or 'published' any imputation concerning any person (actus reus)
2. It must be proved that he did it with:
   
   • The intention to harm, or,
   • The knowledge, or,
   • The reason to believe that such imputation will harm, the reputation of such person (mens rea)

However, a mere defamatory statement does not amount to defamation. The publication of such statement is a pre-requisite to establish defamation.

It is pertaining to note here that the offence of defamation is a bailable, non-cognizable and a compoundable offence.

Section 499, IPC also cites 10 exceptions such as 'imputation of truth' which is required for the 'public good' and thus has to be published, on the public conduct of government officials, the conduct of any person touching any public question and merits of the public performance.

Apart from this provision, even section 469, IPC covers a situation wherein whoever commits forgery with the intention that the document or electronic record forged shall harm the reputation of any party, or knowledge that it is likely to be used for that purpose, then he shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.

Section 499, IPC provides for various modes by which this offence could be committed such as:

• by words, either spoken or intended to be read, or,
• by signs, or,
• by visible representations.

One must understand that such modes aren't exhaustive as with the evolution of the society and the technological innovations, a victim can't be denied justice on the pretext that the mode by which the defamation was done isn't covered within the ambit of section 499, IPC. One instance could be of 'cyber defamation'. Cyber defamation occurs when a computer connected to the internet is used as a tool, or a medium to defame a person or an entity. For example: Publishing of a defamatory statement against a person on a social networking site such as Facebook, Twitter, etc.

The law of defamation has been extended to "electronic documents". Section 469, IPC has been amended by the Information Technology Act, 2000 to include 'electronic record forged'. Section 66-A, Information & Technology Act, 2000 (hereinafter 'IT Act' for brevity), was quashed by the Supreme Court in Shreya Singhal v. Union of India[1] due to ambiguity in the definition of the word 'offensive' in the section.

The section stated that sending any offensive message to a computer or any other communication device would be an offence. Such unfettered power, under section 66-A, was being misused by the Government in curtailing and suppressing people's freedom of speech and expression and hence, it was repealed. Also, section 79, IT Act provides a safe harbour to intermediaries against any act of defamation. Accordingly, an intermediary's liability can be reduced by complying with certain obligations, such as adopting statutory due diligence, or enforcing 'notice and take down' procedures.

Why Defaming One Is An Offence?

The Supreme Court in the case of Subramanian Swamy v. Union of India, Ministry of Law & ors.[2] recognized that 'Right to reputation' is a property of a person. The Court was called upon to decide the constitutional validity of section 499, IPC. The Court held that Section 499 is not an excessive restriction under Article 19(2). It held that society is a collection of individuals, and what affects individuals also affects the society as a whole. Hence, it held that it is valid to treat defamation as a public wrong. It held that criminal defamation is not a disproportionate restriction on free speech, because protection of reputation is a fundamental right as well as a human right.

The Court reaffirmed the right to reputation as a part of the right to life under Article 21. Using the principle of 'balancing of fundamental rights', the court held that the right to freedom and speech and expression cannot be 'allowed so much room that even reputation of an individual which is a constituent of Article 21 would have no entry into that area'.

In Mahendra Ram v. Harnandan Prasad[3], a letter written in Urdu was sent to the plaintiff. Therefore, he needed another person to read it to him. It was held that since the defendant knew the plaintiff does not know Urdu and he needs assistance, the act of defendant amounted to defamation.

Another interesting yet landmark case is D.P.Choudhary vs. Manjulatha[4] wherein a publication was made in the local newspaper, Dainik Navjyothi that the plaintiff, a 17 year-old college girl ran away with a boy after she went out of the house by saying she was having lectures. This false news item had adverse effects on her and ruined her marriage prospects. It was actionable per se and she was awarded damages of Rs.10000/- by way of general damages.

In Ram Jethmalani v. Subramaniam Swamy[5], the court held Dr. Swamy guilty for defaming Ram Jethmalani by saying that he received money from a banned organization to protect the then Chief Minister of Tamil Nadu from the case of assassination of Rajiv Gandhi.

One very crucial foreign judgement came in the case of New York Times Co. v. Sullivan[6], the US Supreme Court passed a landmark judgment differentiating defamation cases filed by public officials from ordinary defamation cases. It held that to successfully sue for defamation, an official would have to prove not only that the statements made against him were false (like in ordinary cases), but also that the person who made them either knew they were false or recklessly disregarded the truth.

'It is as much the citizen's duty to criticise as it is the official's duty to administer.'- US Supreme Court in New York Times Co.(supra)

The Court took special care to identify the weighty constitutional values involved by holding that '��Criticism of their official conduct does not lose its constitutional protection merely because it is effective criticism, and hence diminishes their official reputations.' The Court confronted the fact that some of the statements in the advertisement were false, but it felt that erroneous statements were 'inevitable in free debate' and that even such falsehoods had to be protected if the freedom of speech was to have the 'breathing space' it needed to survive.

Remedies Vis-A-Vis Limitation For Taking Cognizance For Defamation

Law provides various ways to deal with this issue of defamation. Not only the defamed party can ask for damages by way of a civil defamation suit or malicious prosecution or both, but the victim can also initiate criminal proceedings qua a criminal defamation complaint as stated above. Moreover, the person can initiate both as it is a trite law that civil and criminal proceedings can go simultaneously qua the same cause of action.

As far as criminal defamation is concerned, the aggrieved person can initiate criminal proceedings by filing a complaint under section 200, Code of Criminal Procedure, 1973 (hereinafter 'Code' for brevity) before a Judicial Magistrate. Thereafter, the Magistrate may take cognizance of the matter and proceed with it in accordance with the procedure provided for the summons case since the punishment is up to two years of imprisonment. Section 468, Code provides a three-year time limit for filing such complaint. The Supreme Court in the case of Surinder Mohan Vikal v. Ascharaj Lal Chopra[7] held that the limitation period shall begin from the date when the opposite party had filed the complaint/case against the complainant and not when he gets acquitted.

The civil suit provides compensation to the aggrieved party which is not available in criminal defamation complaint. In the civil suit for defamation and malicious prosecution, the plaintiff is burdened with court fee based upon the amount claimed, whereas in a criminal complaint the court fee is negligible.

The time limit of filing civil defamation is just one year. Moreover, the plaintiff can file the suit seeking damages after his acquittal in the concerned criminal case. This aspect is different from the criminal complaint.

Although the difference in timelines does make the justice seeking mechanism complex. But in totality, it's quite fair and logical. Until the prosecution in case of criminal defamation doesn't reach its final conclusion, the plea of damages and compensation by way of the civil suit would be a farfetched idea. Whereas, if the complaint prima facie discloses the defamatory remark, then the victim doesn't have to wait for long litigation battles in order to seek justice. The timelines are indeed different, but they serve different purposes as discussed above.

Why In News?
Now the question arises as to why the repeal or subsistence of the law of defamation is again making headlines? Recently, microblogging platform Twitter expressed concerns over 'intimidation tactics' by Delhi Police and 'potential threat to freedom of expression' in India dragging the government in witness box, whereas the government hit back, calling the statement baseless, false and an attempt to defame India to hide their (Twitter's) own follies[8].

Congress MP Shashi Tharoor has withdrawn a criminal defamation case against Union Minister Ravi Shankar Prasad after the latter expressed apology for his remarks[9].
Also, this April, the sessions court recently dismissed a defamation complaint filed by deputy commissioner of police Abhishek Trimukhe against Republic TV editor-in-chief Arnab Goswami, his wife and ARG Outlier Media Pvt. Ltd. The court held that the complaint filed was not in confirmation with the law prescribed[10].

The Indian Medical Association (IMA) in May, 2021 has served a defamation notice on Ramdev for alleged disparaging remarks against allopathy and allopathic doctors, demanding an apology from him within 15 days, failing which it said it will demand a compensation of Rs 1,000 crore from the yoga guru[11].

As what seems to be a recent development in the WhiteHat Jr. defamation case, edtech player WhiteHat Jr has withdrawn the $2.6 million defamation case against its critic Pradeep Poonia. The lawsuit was filed in November 2020 at the Delhi High Court[12].

In addition, the Supreme Court last year refused to quash FIRs lodged in different states against TV news anchor Amish Devgan for his alleged defamatory remark against Sufi saint Khwaja Moinuddin Chisti during a show on June 15, 2020[13].

Why The Criminal Defamation Needs To Be Scrapped?

The criminal provisions have often been used purely as a means of harassment as majority of these cases ended being withdrawn.

• The entire criminal proceedings itself turns into punishment, regardless of the merits of the case since the criminal trials tends to take time due to pending cases in the courts side by side the accused continues to face humiliation and social ridicule in the time of social media.
   
• It has been argued by the critics that defamation law impinges upon the Fundamental Right to 'freedom of speech and expression' and that civil defamation is an adequate remedy against such wrongs. Freedom of speech and expression needs to be protected due to following reasons:
  
  1. For the discovery of truth by open discussion
  2. It is an aspect of self-fulfilment and development.
  3. To express beliefs and political attitudes.
  4. To actively participate in a democracy.
• Criminal defamation has a pernicious effect on society. For instance, last year, the Madras H.C. while quashing defamation cases houses initiated during Jayalalithaa's tenure against media held that public servants and constitutional functionaries cannot be allowed to misuse the law of criminal defamation by using the State as a tool to initiate defamation proceedings against adversaries [Thiru N. Ram v. Union of India][14].

Why Section 499, Ipc Can't Be Declared Unconstitutional?

• In case if the accused is convicted for defamation but he does not have that much liquidity to pay even 'reasonable' damages, then subjecting him to imprisonment would be appropriate punishment.
   
• Merely on the basis of apprehensions that a law could be abused or misused, it can't be repealed rather all its infirmities must be corrected such as in case of Section 377, IPC wherein this provision was partially nullified in Navtej Singh Johar v. UOI.[15]
   
• It was held in Subramanian Swamy's case(supra) that the 'right to freedom of speech and expression' is not an absolute right and has to be balanced with the 'right to reputation' which is protected under Article 21. Additionally, criminalisation of defamation to protect individual dignity of life and reputation is a 'reasonable restriction' on the fundamental right of free speech and expression.
   
• Unlike other inflexible provisions of the IPC, section 499, IPC have four explanations and 10 exceptions which do assist the courts to exclude or filter out frivolous complaints.
   
• If the criminal defamation is repealed, then the only option left with the victim would be of civil defamation wherein in order to claim compensation, he would be required to submit court fees which could be at times quite high making it difficult for him to claim relief (if he doesn't have sufficient means to pay).

Conclusion
It is high time that the administrative authorities particularly police must be professionally trained and be made aware about such laws like criminal defamation which have a high tendency of being misused against an innocent. Also, the lower judiciary needs to be properly trained in this regard so that frivolous complaints having no prima-facie case must be dismissed at the very first stage of the criminal proceedings.

The judiciary must ensure that if it is proved beyond reasonable doubt that the victim himself filed false complaint to tarnish the accused's reputation, then his complaint must be dismissed at the very threshold along with slapping him with a hefty penalty which could be punitive in nature as well if the circumstances justify so.

Reputation is an asset to each and every person. Any damage to such an asset can be legally dealt with. Defamation laws have been enacted to prevent person maliciously using their right to freedom of speech and expression.

End-Notes:

1. (2013) 12 SCC 73
2. (2016) 7 SCC 221
3. AIR 1958 Pat 445
4. AIR 1997 Raj 170
5. AIR 2006 Delhi 300
6. 376 U.S. 254
7. AIR 1978 SC 986
8. https://www.thehindu.com/news/national/twitters-statement-an-attempt-to-dictate-its-terms-to-india-government/article34659934.ece
9. https://www.theweek.in/news/india/2021/05/31/tharoor-withdraws-defamation-case-against-ravi-shankar-prasad-after-latters-apology.html
10. https://www.hindustantimes.com/cities/mumbai-news/court-dismisses-ips-officer-s-defamation-case-against-arnab-goswami-101617955794927.html
11. https://indianexpress.com/article/india/ima-defamation-notice-ramdev-7330992/
12. https://economictimes.indiatimes.com/tech/startups/whitehat-jr-withdraws-defamation-suit-against-vocal-critic/articleshow/82388210.cms?from=mdr
13. https://www.tribuneindia.com/news/nation/derogatory-remarks-against-sufi-saint-sc-refuses-to-quash-firs-against-news-anchor-amish-devgan-181093
14. 2020 SCC OnLine Mad 1023
15. AIR 2018 SC 4321
    
    Award Winning Article Is Written By: Mr.Anurag Agarwal
    

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