• The term “defamation” is an all-encompassing term that covers any statement that hurts someone’s reputation.
• In India, defamation can both be a civil wrong or a criminal offence.
• The difference between the two lies in the objects they seek to achieve. While a civil wrong tends to provide for a redressal of wrongs by awarding compensation, a criminal law seeks to punish a wrongdoer and send a message to others not to commit such acts.
• In Indian laws, criminal defamation has been specifically defined as an offence under the Indian Penal Code (IPC) whereas the civil defamation is based on tort law – an area of law which does not rely on statutes to define wrongs but takes from ever-increasing body of case laws to define what would constitute a wrong.
• Moreover, in a criminal case, defamation has to be established beyond reasonable doubt but in a civil defamation suit, damages can be awarded based on probabilities.
• Section 499 of the IPC defines what amounts to criminal defamation and few subsequent provisions specify what the punishment for having committed defamation would be.
• Section 499 states defamation could be through words – spoken or intended to be read, through signs, and also through visible representations. These can either be published or spoken about a person with the intention of damaging reputation of that person, or with the knowledge or reason to believe that the imputation will harm his reputation.
• Section 500 stipulates an imprisonment of up to two years, with or without fine, for someone held guilty of criminal defamation. However, criminal defamation is a compoundable offence and parties can seek a closure of the case by reaching a compromise.
Views of the Supreme Court
• The Supreme Court said that the right to free speech cannot be used to undermine an individual’s right to dignity and reputation cannot be sullied solely because another individual can have his freedom. Protection of reputation is a fundamental right. It is also a human right. Cumulatively, it serves the social interest…it is not a restriction that has an inevitable consequence which impairs circulation of thought and ideas.
• The reputation of a person – a basic element under Article 21 – could not be allowed to be crucified at the altar of the other’s right of free speech. Right to freedom of speech and expression is not absolute. It is subject to imposition of reasonable restrictions.
• Reasonable restriction “means 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.” In other words, the restriction must be narrow and restrict only what is necessary and should not be arbitrary or excessive. If the restriction is too broad, it will have a “chilling effect on speech” which will make it unconstitutional.
• The Supreme Court has maintained the constitutional validity of Sections 499 and 500 of the Indian Penal Code, reading the right to reputation as a part of the right to life assured to citizens under Article 21 of the Constitution.