Criminal Defamation: Gandhi’s Second Monkey

  • Prakhar Raghuvanshi

If the laws of each age were formulated systematically, no part of the legal system would be more instructive than the law relating to defamation.[1] Since the law of defamation professes to protect personal character and public institutions from destructive attacks, without sacrificing freedom of thought and the benefit of public discussion, the estimate formed of the relative importance of these objects, and the degree of success attained in reconciling them, would be an admirable measure of the culture, liberality, and practical ability of each age.[2]

Defamation is an offence under Section 499[3] of the Indian Penal Code [hereinafter “I.P.C] which holds a person liable for making an imputation against a person that aims at lowering his/her reputation.

S.499. Defamation.— “Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes 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 expected, to defame that person.”

There has been a long going controversy about the constitutionality of this section. This controversy was finally resolved by the apex court, in Subramanian Swamy v. Union of India[4], where it held that section 499 of the I.P.C is constitutional. The appellant contented that the section was beyond the scope reasonable restrictions provided in Article 19(2) as the term defamation in Article 19(2) is conceptually different from what section 499 talks about.[5] In my opinion, the contention by the appellants is right, but this article is restricted to applicability of defamation, and will not discuss its constitutionality. Although  the Supreme Court upheld the constitutionality of the section, it said –

“it is not necessary for all in the chorus to sing the same song. A magistrate should be extremely careful in issuing summons on a plea for the initiation of any criminal defamation case.”[6]

Ingredients Of Criminal Defamation –

There are three essentials of defamation: – (1.) the words/imputations must be defamatory i.e. capable of injuring a person’s reputation, (2.) the words must be directed to the aggrieved party, and (3.) they must be maliciously published.[7]

Halsbury laws of England define a defamatory statement as one that aims at lowering the estimation of a person in the eyes of right-thinking members of the society. The estimation of a person by the right-thinking members of the society is one’s reputation, as against character of a person.[8] For this purpose it is necessary to define the meaning of a right thinking member of the society. Any person who is not unduly suspicious or avid for scandal can be termed a right thinking member of the society.[9] Injury to reputation is an essential ingredient of a defamatory imputation.[10] Any statement which exposes a person to ‘contempt, hatred or ridicule, or tends to injure him in his profession or trade, or causes him to be shunned or avoided by his neighbours’. In the United Kingdom it is defamatory to impute dishonesty [Greville v. Chapman, [(1844) 5 Q.B. 731] or immorality [Hulton v. Jones, (1910) A.C. 20 (H.L.) 29.].

With reference to the offence of defamation, Section 199 of the Code of Criminal Procedure, 1973[11] provides that only an ‘aggrieved party’ can file a complaint for defamation. An aggrieved party is a party that goes on to suffer some specific legal injury, aggrieved by which it proceeds to file a complaint.[12] Based on the facts and circumstances of each case ‘aggrieved party’ is ascertained by the courts. For instance, the mentioning the full name leaves no discrepancy as to whom the imputations are being made.

Making a publication with the intention to harm (which imparts mens rea) or with the knowledge that it will harm the reputation of another is a necessary ingredient of Section 499.[13] Publication here refers to communication to a person other than the accused and communicating the imputations only to the complainant does not come under the purview of publication.[14] The courts go on to state that actual harm is immaterial if it proved that the defamatory statement was made with a mala-fide intention to harm the reputation of the complainant, which is essentially the spirit of the said law.[15]

The Exceptional Case Of Exception –

There are ten exceptions to the offence of defamation given under Section 499.[16] Although, the discussion about all the exceptions is beyond the scope of this article but there is an important judgment of Karnataka High Court, with the respect to an accused who claims protection under any of the ten exceptions, which must be discussed. A claimant need not necessarily prove the ingredients of defamation with respect to accused’s imputation. In J. Sudhir Chandrashekhar v. T. Lokaprakash[17], the Court held that the accused, by way of claiming exception to defamation, admitted that the imputations published by him are per se defamatory. Thus, the claimant is discharged of the burden of proving that the accused statements were defamatory in nature.[18] To what extent we can consider this judgment to be applicable is something to be discussed. The important question is can we shift the burden of proof like this ?

A straightforward answer in my opinion would be, yes. Consider a hypothetical situation with respect to the offence of murder. Y gives grave and sudden provocation to A. A, on this provo­cation, fires a pistol at Y, neither intending nor knowing him­self to be likely to kill Z, who is near him, but out of sight. A kills Z. Here A has not committed murder, but merely culpable homicide.[19] In this scenario, A has killed Z is an undeniable fact. This means to say though A is not liable for murder, but this can’t change the fact that A killed Z. Similarly, if A is accused of the offence of defamation and claims exception 1 to section 499, viz. imputation of truth which is for public good, this means that A has accepted that his statement was defamatory in nature but since it was true and made for public good, he should not be held liable.

What The World Thinks ?

There are some strong arguments put forward by people in support of criminalization of the offence of defamation, other than the constitutional aspect. Firstly, criminal defamation is necessary to protect woman. Woman in professions in a society like ours are susceptible to defamation or most vicious forms of defamation, especially about how they have achieved things in their life (the reference here is being made to success through sexual advancements).[20] It is therefore argued that such woman should have criminal defamation as a recourse, something more than civil defamation to protect themselves.

Secondly, the supreme in Subramanian Swamy v. Union of India[21] when the court mandates the magistrate to be ‘extremely careful’, it would not result in misuse of the section. In my opinion, it should be read Section 52 of the I.P.C[22]. If something is done in good faith, i.e. with due care and attention, it shouldn’t attract the wrath of the offence and it is upon the magistrate to do so.

However, it is well settled that a coin has two faces. Criminal defamation has that bad face too in the area of applicability. There are a catena of cases which prove the misuse of the section. One such case is of the comedian Kiku Sharda. He was arrested for alleged defamatory remarks against an individual, who had a powerful public image due to followers of his sect.[23]

Conclusion –

In conclusion, it can be said that criminal defamation is a double edged sword. A false criminal suit for the offence of defamation can always be countered by a counter claim. But the main idea remains the same, one’s right to freedom of speech and expression is to be balanced with other’s right to reputation. If it can be done by civil law only is a question, to which my answer is in affirmative. However, since there is a criminal liability already imposed on it, the concern is to control its misuse. To keep in place an effective mechanism so as to ensure minimum false cases. The provision must be amended in order to safeguard the interests of the accused in cases of false complaints.


[1] Veeder, Van Vechten. “The History and Theory of the Law of Defamation. I.” Columbia Law Review, vol. 3, no. 8, 1903, pp. 546–573. JSTOR, www.jstor.org/stable/1109121.

[2] Ibid.

[3] §499, Indian Penal Code, 1860.

[4] Subramanian Swamy v. Union of India , AIR 2016 SC 2728.

[5] Ibid.

[6] Ibid.

[7] B.R.K Murthy v. State, (2013) Crim L J (AP) 1602.

[8] Kishore Samrite v. State of U.P., (2013) 2 SCC 398, ¶ 58.

[9] Hilary Young, But Names Won’t Necessarily Hurt Me: Considering the Effect of Disparaging Statements on Reputation, 37 Queen’s L.J. 1, 25 (2011).

[10] Shreya Singhal v. Union of India, (2015) 5 SCC 1, ¶ 46.

[11] §199, Code of Criminal Procedure, 1973.

[12] Subramanian Swamy v. Union of India, (2016) 7 SCC 221 ¶ 198.

[13] Sanatan Sanstha v. State of Goa, 2007 Crim L J 2216 ¶ 18.

[14] Queen Empress v. Sadashiv Atmaram, (1893) 18 Bom 205.

[15] Gobinda Pershad Pandey v. Garth, 1962 AIR 28 (Cal.) 63.

[16] Exceptions §499, Indian Penal Code, 1860.

[17] J. Sudhir Chandrashekhar v. T. Lokaprakash, I.L.R. Kar 4142.

[18] Ibid.

[19] Illustrations Exception 1 §300 , Indian Penal Code, 1860.

[20] Shreeja Sen, Priyanka Mittal, Criminal defamation is necessary to protect women: Raju Ramachandran, available at : https://www.livemint.com/Politics/32ttVeh2x0KfRCeuzQEzRL/Criminal-defamation-is-necessary-to-protect-women-Raju-Rama.html.

[21] Subramanian Swamy, supra note 4.

[22] § 52,  Indian Penal Code, 1860.

[23] Arrest of a comedian, available at : https://indianexpress.com/article/opinion/editorials/arrest-of-a-comedian/.

The author is 2nd Year Student currently studying at NLU-Jodhpur

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