All about India’s tryst with defamation law

BNS has provisioned community service as a form of punishment for defamation.

On January 20, the Supreme Court stayed defamation proceedings against Congress leader Rahul Gandhi in a Jharkhand court over remarks against Union Home Minister Amit Shah.

Rahul Gandhi had in 2018 allegedly made certain ‘derogatory’ remarks against Amit Shah who was Bharatiya Janata Party (BJP) President at that time.

It is not a first instance when a case has been filed against a national leader for defamation. Apart from this a Delhi court in first week of February is likely to hear a defamation case filed against Congress MP Shashi Tharoor filed by BJP leader Rajeev Chandrasekhar.

It is not that only political leaders have been facing defamation cases. Recently, a defamation case has been filed against Hanuman Garhi priest Mahant Raju Das in a Varanasi court for allegedly making objectionable remarks about Samajwadi Party (SP) founder late Mulayam Singh.

As a spree of defamation cases are taking place, a brief look at the various provisions, precedents and judgment related to defamation law would be useful.

Provisions related to defamation in Bharatiya Nyaya Sanhita (BNS)

There are two types of defamation -- criminal and civil. Defamation in civil law comes under the ambit of the law of torts whereas defamation, as in criminal law, is codified under Section 356 of BNS.

It states: “Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes in any manner, 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 excepted, 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.

285th report of the 22nd Law Commission 

The 22nd Law Commission in its 285th report has recommended that criminal defamation should be retained within the scheme of criminal laws in India.

The argument made by the Law Commission for retaining the Defamation Law is that the right to reputation is derived from Article 21 of the Constitution which guarantees the right to life and personal liberty and that is why it has to be protected.

BNS has provisioned community service as a form of punishment for defamation.

Law Commission cites key judgments 

In the Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni, it has been ruled that the right to reputation is a facet of the right to life of a citizen under Article 21 of the Constitution.

In the case of Kiran Bedi v. Committee of Inquiry, the Supreme Court while observing that the reason for the importance attached with regard to the matter of safeguarding the reputation of a person being prejudicially affected is not far to seek, reproduced a passage from DF Marion v. Davis which says, “The right to the enjoyment of a private reputation, unassailed by malicious slander is of ancient origin, and is necessary to human society. A good reputation is an element of personal security, and is protected by the Constitution equally with the right to the enjoyment of life, liberty and property.”

However, in R. Rajagopal v. State of Tamil Nadu, the Supreme Court tried to find a balance between the freedom of press and the right to privacy.

Defamation as a reasonable restriction on speech

The conflict between freedom of speech and expression and defamation was finally adjudicated by a two-judge bench of the Supreme Court in Subramanian Swamy v. Union of India, wherein the court upheld Sections 499 and 500 of IPC that defines the offence of defamation and provides punishment for it, respectively.

The Court held that defamation is a reasonable restriction on the right to freedom of speech and expression under Article 19(2) of the Constitution of India. The Court, commenting on the right to reputation being a part of Article 21, stated that, "Reputation being an inherent component of Article 21, we do not think it should be allowed to be sullied solely because another individual can have its freedom. It is not a restriction that has an inevitable consequence which impairs the circulation of thought and ideas....... the balance between the two rights needs to be struck. “Reputation of one cannot be allowed to be crucified at the altar of the other's right of free speech”.