Law Optional ( Criminal Defamation vs Freedom of Speech) by Rajnish Jindal

Model Answer

Question #1. What is defamation? What are the essential ingredients to constitute an offence of defamation? What legal pleas are open to a person charged with defamation? 10 marks (150 words)

Sections 499 of the IPC provides for defamation and the same is punishable under Section 500 IPC. A special provision under section 199 of the Cr.P.C has also been laid down for presentation of complaint in respect of the said offence. The aforesaid provisions aim to protect the reputation of the person which is an inseparable facet of Article 21 of the Constitution. Recently, the Hon'ble apex court has also held its validity in Subramanian Swamy vs UOI (2016) by holding that such provision has source in the word “defamation” used in Article 19(2) of the Constitution. In the given question, the point of law involved is being discussed one after other:

Defamation: The common thread which emerges from the view of famous author Salmond &Heuston on the Law of Torts and Winfield &Jolowics on Torts also from the words of Halsburys Laws of England is that defamation is a statement which tends to lower a person in the estimation of right thinking members of the society generally or to cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule or dislike. The classical definition has also been given by Justice Cave in the English case of Scott v. Sampson as a “false statement about a man to his discredit.”

Essential ingredients: The necessary ingredients required to constitute the offence of defamation is as under:

1. Mens rea: It may be in the form of intention, knowledge and reason to believe and directed toward harming the reputation of other. Unlike civil concepts of defamation, the defamation under section 499 is a typical offence and requires blameworthy or guilty mind to constitute the offence.
2. Actusreus: Publishing such harmful imputation with respect to the complainant either in the libel or slander form i. e. in writing, speaking, in sign or visual representation. Section 499 of the IPC emphasises the words " makes or publishes" to convey that defamatory matter is required to be published.

As above, it is categorical that Causing of harm to the reputation of the complainant is essence of the offence. Then the natural question is as to when an imputation may be considered harmful to the reputation of other? The answer lies in Explanation (4) of the section 499. The test is to assess the impact of the concerned statement from the perspective of reasonable man and if it is calculated to lower moral or intellectual character of the complainant or his caste or calling or credits or demonstrates him in loathsome or disgraceful state. Still further, the Explanation No. (3) appended to the section clarifies that merely because statement is in innuendo form the maker can not escape the liability.

Exceptions: Section 499 IPC defines the offence of defamation with specificity and particularity and enumerates ten broad Exceptions when statements against a person will not be considered defamatory. The provided exceptions are as under when an accused even after making defamatory statement may prove the required essentials only to the extent of preponderance of probability to avoid his conviction.

1^st Exception: unlike justification in tort, It does not protect truth as an absolute defence. It becomes available only if it is cumulatively proved that what has been imputed concerning the complainant is true and the publication of the imputation is for the public good. Thus, two ingredients are, namely, truth of the imputation and the publication of the imputation for the public good.

2^nd Exception: Every citizen has a right to comment on those act of public men which concern him as a citizen of the country, if he does not make his commentary a cloak for malice or slander. The Hon'ble apex court has in Kartar Singh vs State of Punjab AIR 1956 SC 541 held that those who fill a public position must not be too thinly skinned in reference to comments made upon them. Whoever fills a public position renders himself open to attack. He must accept an attack as a necessary, though unpleasant appendage to his office.

Since, under instant exception accuse is required to show that the opinion expressed by him was in good faith. So, such comment to be fair must has following attributes-

• It must be based on facts truly stated.
• It must not impute corrupt or dishonourable motive to the person whose conduct or work is criticised except in so far as such imputations are warranted by the facts.
• It must be honest expression of the writer's real opinion made in good faith.

3^rd Exception: unlike 2nd exception it is not confined to public servants. It enables to comment in good faith on the conduct and character of the any person touching to public question. It does not protect truth as an absolute defence. It embraces a very wide area for fair comment. So, the conduct of any person who takes part in matters concerning to the public can be commented on in good faith.

4^th Exception: 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.

5^th Exception: It is not defamation to express in good faith any opinion regarding the merits of any decided civil or criminal case or with respect to conduct of any party , witness or agent in such case or even the character of such person as far as his character appears in that conduct.

6^th Exception: It is not defamation to comment in good faith on the merits of any performance, if the author of such performance has submitted it to the judgment of the public either expressly or impliedly, including on the character of the author so far as his character appears in such performance.

7^th Exception: It is not defamation to pass in good faith any censure on the conduct of any person by another person who is either under authority of law or by way of lawful cotract has gained the stature of controlling authority with respect to the matters to which his authority relates.

8^th Exception: Under it, making over an accusation in good faith against any person before any lawful authority is not defamation.

9^th Exception: The required ingredients are firstly that the imputation must be made in good faith; secondly, the imputation must be made for protecting the of the interest of the maker or recipient of the communication or for the public good.

10^th Exception: The required ingredients are that the accused intended in good faith to convey a caution to one person against another intending for the good of the person to whom the caution was conveyed or to some person in whom that person is interested or for the public goods.

The aforementioned exceptions of section 499 of the IPC are exhaustive in nature and recourse cannot be had to the English common law to add new grounds of exceptions as held by Hon'ble apex court in M. C.Verghese vs T. J. Ponnan AIR 1970 SC 1876.

Question #2. Criminal defamation is considered as a restriction on the right to freedom of speech and expression. Critically examine how a proper balance between these two can be maintained. 15 marks (250 words)

Criminal Defamation has been defined as imputation by publishing, spoken words or signs intending or knowing or having reason to believe that it will harm the reputation of the person. Harming a person’s reputation has been defined by broad strokes of the brush as an imputation which lowers the moral or intellectual character, or lowers the character of a person in respect to his caste or calling or lowers his credit or causes to be believed that the body of the person is in a loathsome or disgraceful state. Ironical expressions are also included in defamation and imputations could be against a person or a company or an association or collection of persons. Defamation has been made punishable with imprisonment up to two years or with fine or both. Imprisonment directly affects the valuable right to life and liberty guaranteed under Article 21 of the Constitution.

Imputations which are true and for the public good, public conduct of public servants and conduct of a person touching any public question have been taken out of the category of criminal defamation. Similarly, reports of court proceedings, merits of decided cases or conduct or witnesses, merits of public performances, censure by lawful authority, accusation in good faith to authorized person and imputation or caution made in good faith to protect interests or for the public good have been carved out as exceptions under Section 499 IPC. Truth is not a complete defense to a charge of criminal defamation, and it must also be proved that the imputation was made for the public good.

Freedom of speech and defamation: Defamation law acts as a counter-balance to the constitutional right of free speech (guaranteed by Article 19(1)(a) of the Constitution of India). This Article has been expansively read, through judicial interpretations, to include the "freedom of the press". But this freedom is not unfettered, as Article 19(2) allows the state to enact laws that impose "reasonable restrictions" on such freedoms. The restrictions are wide-ranging, including circumstances, among other things, in national interest; for maintaining public order; or in relation to contempt of court, or defamation.

The leeway granted under Article 19(2), along with criminal provisions (under Sections 499 and 500 of the Indian Penal Code) allow for both civil and criminal defamation to be litigated upon in India. An offence of defamation is when a person "makes or publishes" an imputation about another person, with intent, knowledge, or with reason to believe that it will harm the other's reputation. An imputation "harms" a person's reputation if, in the estimation of others, it lowers the person's character or credit, among other things. A deceased person may be affected too, if an imputation would have harmed that person's reputation if they were living, and intends to hurt the person's family. Imputations concerning a company are also defamatory.

The Apex Court in the SubramaniamSwamy judgment has upheld the criminal defamation provision holding it to be a reasonable restriction under Article 19(2) on the right to free speech and expression guaranteed under Article 19(1)(a) of the Constitution.  It is pertinent to note that despite the exceptions carved out the definition of criminal defamation remains broad and vague and creates vulnerability with the threat of curtailment of liberty through imprisonment and leaves space for harassment, especially by the rich, high and mighty. In the context of the civil defamation case by Mr. Jaitley seeking Rs. 10 crores, it is relevant to keep in mind that even the civil defamation law is by and large, recourse for wealthy public figures hiring expensive lawyers to seek damages at perceived unfair treatment and a feeling of being pilloried by the popular press.

The Delhi High Court banned the publication, distribution and sale of 'Godman to Tycoon: The Untold Story of Baba Ramdev' on the life of yoga guru Ramdev, as parts of the book were defamatory (Swami Ramdev vs. Juggernaut Books (CM(M) 556/2018)). The petitioner Ramdev alleged that the book, written by Priyanka Pathak Narain and published by Juggernaut Books in July 2017, was an unauthorized biography, and contained false and defamatory material violating his fundamental right to privacy and reputation under Article 21 of the Constitution.In this case, the Court drew interesting conclusions between freedom of speech, right to reputation, fair comment and defamation, as below:

1. Balance Between Freedom of Speech and Right to Reputation: The right to reputation of a living person under Article 21 cannot be sacrificed or crucified at the altar of another's right to freedom of speech. Both have to be harmonized, as no amount of damages can redeem the adverse impact on a person's reputation. Merely because previous similar publications exist does not permit repetition of prima facie defamatory insinuations.
2. Public Interest: The Court held that whatever may be of interest to the public, but has no element of public interest, may amount to breach of privacy. Here, the fact that the Petitioner was a public figure did not give a licence to the author and the publisher to defame him.
3. Test for Defamation: Several book reviews had been published, and that although several comments said the book was unbiased, an equal number of comments stated that the petitioner was a villain. In this context, the court decided that the test for defamation was the basis of what an ordinary reasonable reader would think of the book.
4. Fair Comment: To be justifiable as fair comment, it must appear as a comment and not mixed up with facts. In other words, a reader should be able distinguish reported facts from comments, and a comment must not convey imputations of disreputable motive unless adequately supported with evidence.

The criminal defamation law enacted in 1860 remains unchanged after the passage of a century and a half and merits revisiting by the legislature. Perhaps narrowing the definition and restricting it to defamatory statements inciting to an offence or violence as punishable offences could be an avenue of exploration in the arena of criminal defamation law.