Not taking into account defamation of the State (otherwise known as ‘sedition’), under Indian law, defamation is both a criminal offence and a civil wrong.
As far as its being a criminal offence is concerned, Section 499 of the Indian Penal Code, 1860, (i.e. the IPC), defines what would amount to defamation in relatively clear terms. Later Sections of the IPC specify what the punishment for having committed defamation would be, and the IPC read in conjunction with the procedural requirements laid down in the Code of Criminal Procedure, 1973, (i.e. the CrPC), makes the law relating to defamation as a crime is relatively certain, even if it is considered to be harsh by some.
As a civil wrong, however, the law is far less certain. Defamation is treated as a wrong within the superbly ill-defined realm of tort law, an area of law which does not rely on statutes to define wrongs but relies on an ever-increasing body of case law to define what would be considered to be a wrong. Although tort law finds its roots in English law, and has over the course of the centuries evolved easily accessible fundamental principles, the area is still nascent in India, and possibly in consequence, not especially well defined.
Defamation as a Crime
Section 499 of the IPC defines ‘defamation’ as being committed:
- Through: (i) words (spoken or intended to be read), (ii) signs, or (iii) visible representations;
- Which: are a published or spoken imputation concerning any person;
- 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.
This broad definition is subject to several explanations and exceptions as follows:
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.
First Exception.—Imputation of truth which public good requires to be made or published.—It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact.
Second Exception.—Public conduct of public servants.—It is not defamation to express in a good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further.
Third Exception.—Conduct of any person touching any public question.—It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further.
Fourth Exception.—Publication of reports of proceedings of Courts.—It is not defamation to publish substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings.
Explanation.—A Justice of the Peace or other officer holding an inquiry in open Court preliminary to a trial in a Court of Justice, is a Court within the meaning of the above section.
Fifth Exception.—Merits of case decided in Court or conduct of witnesses and others concerned.—It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a partly, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further.
Sixth Exception.—Merits of public performance.—It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance, and no further.
Explanation.—A performance may be submitted to the judgment of the public expressly or by acts on the part of the author which imply such submission to the judgment of the public.
Seventh Exception.—Censure passed in good faith by person having lawful authority over another.—It is not defamation in a person having over another any authority, either conferred by law or arising out of a lawful contract made with mat other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates.
Eight Exception.—Accusation preferred in good faith to authorised person.—It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation.
Ninth Exception.—Imputation made in good faith by person for protection of his or other’s interests.—It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good.
Tenth Exception.—Caution intended for good of person to whom conveyed or for public good.—It is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good.
If a person is found guilty of having committed defamation in terms of Section 499 of the IPC, the punishment is stipulated in Section 500: simple imprisonment for up to two years and/or a fine. The CrPC, which lays down the procedural aspects of the law, states that the offence is non-cognisable and bailable. Those who are accused of the offence would generally not be taken into custody without a warrant, and as such, an aggrieved person would not be able to simply file a police complaint but would, in most cases, have to file a complaint before a magistrate.
As far as the ‘truth defence’ is concerned, although ‘truth’ is generally considered to be a defence to defamation as a civil offence, under criminal law, only truth is a defence to defamation as a crime (assuming, of course, that it is demonstrably true) only in a limited number of circumstances. This can make persons particularly vulnerable to being held guilty of having committed defamation under the IPC even if the imputations the made were truthful.
Defamation as a Tort
As far as defamation under tort law is concerned, as a general rule, the focus is on libel (i.e. written defamation) and not on slander (i.e. spoken defamation). In order to establish that a statement is libellous, it must be proved that it is (i) false, (ii) written; (iii) defamatory, and (iv) published, [according to Ratanlal and Dhirajlal, The Law of Torts, 26th Edition; page 279].
An interesting aspect of defamation as a tort is that it is only a wrong if the defamation is of a nature which harms the reputation of a person who is alive. In most cases, this translates to saying that it is not a tort to defame a deceased person since, as a general rule, the plaintiff needs to be able to prove that the defamatory words referred to him. However, this does not mean that there can be no cause of action if a dead person is defamed — if, for example, a defamatory statement negatively impacts the reputation of a deceased person’s heir, an action for defamation would be maintainable.
Further, if an action for defamation is instituted, and defamation is found to have been committed, damages will be payable to the plaintiff (usually, the person defamed). In addition to this, a person apprehensive of being defamed in a publication may seek the grant of an injunction to restrain such publication. However, pre-publication injunctions are rarely granted as Indian courts have tended to follow the principle laid down in the 1891 case of Bonnard v. Perryman, which has been articulated by Westlaw as follows:
The Court has jurisdiction to restrain by injunction, and even by an interlocutory injunction, the publication of a libel. But the exercise of the jurisdiction is discretionary, and an interlocutory injunction ought not to be granted except in the clearest cases—in cases in which, if a jury did not find the matter complained of to be libellous, the Court would set aside the verdict as unreasonable. An interlocutory injunction ought not to be granted when the Defendant swears that he will be able to justify the libel, and the Court is not satisfied that he may not be able to do so.  2 Ch. 269
This principle has been followed by a division bench of the Delhi High Court in the 2002 case of Khushwant Singh v. Maneka Gandhi, AIR2002Delhi58, and the 2011 decision of the Delhi High Court in the case of Tata Sons Ltd. v. Greenpeace International & Anr., I.A. No.9089/2010 in CS (OS) 1407/2010.
As such, even if there is an apprehension that content may be of a defamatory nature, it is likely that publication would not be restrained except in exceptional cases — presumably, those cases where the later payment of damages would clearly not suffice to set right the wrong done to the person defamed. In non-exceptional circumstances, Indian courts have shown a tendency to support free speech, and have not displayed a tendency to grant injunctions which would have the effect of muzzling speech on the ground of possible defamation.