Professional Documents
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Defamation
Defamation
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DEFAMATIO
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N
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Ziaul Haq
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BA.LLB(Hons), 2nd YEAR (IVth Sem)
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FACULTY OF LAW
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JAMIA MILLIA ISLAMIA
ACKNOWLEDGEMENT
For the successful completion of this project , I would like to thank my Criminal Law
teacher Dr Rose Verghese. She made the concepts of the topic so clear in my mind
that it became very easy for me to work on the topic. It would not have been possible
to complete the project work without her guidance.
I would also like to thank the staff of the library of faculty of law who were a constant
support throughout the project making.
Ziaul Haq
LIST OF CASES-
INTRODUCTION
The law gives protection to a man’s reputation, which to some is dearer than life
itself. Love of reputation inspires people to do great things, acquire fame and name,
which is the mainspring of life in every walk of life. The aim of the law of defamation
is to protect one’s reputation, honour and dignity in the society. A person needs
protection of his reputation, honour, integrity and character as much as the right to the
enjoyment of property, health personal safety, liberty and a number of other
privileges.
The law of civil defamation, as in English and other common law countries, is
uncodified in India; it is largely based on case law. The law of criminal defamation on
the other hand is codified in section 499 to 502 IPC. In England the publication of a
criminal libel is a punishable to the extent of 1 year imprisonment and fine; and if the
1
On tort 10th edition by W.V.H Rogers (1984).p.293.
2
AIR 1941 Mad 860(861).
publication is with the knowledge of its untruth 2 years vide section 5 of the Libel
Act, 1843.3
In a civil action for defamation in tort, truth is a defence, but in a criminal action, the
accused must prove both the truth of the matter and that its publication was for the
public good. The defence of truth is not satisfied merely by proving that the publisher
honestly believed the statement to be true, he must prove that the statement was in
fact true.
Sec-499. Defamation-
3
Smith and Hogan Criminal law, 6th edn,(1988),pp 822-825.
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.
ILLUSTRATIONS
Ingredients of Defamation
3) The said imputation should have been made with intent to harm or knowing or
having reason to believe that it will harm the reputation of such person or defame
him.4
4
R v. Robinson,(1971) 1 QB 357.
The section is aimed at protection of the reputation, integrity and honour of the
persons. The definition of the offence contains three important elements, viz..,
I. the person
II. his reputation and
III. the harm to reputation of the person with necessary mens rea (guilty mind).
If the imputation is defamatory per se, necessary mens rea will be presumed. The
maker of the statement must know that it will harm the reputation of one concerning
whom the allegation is made.
Explanation 1 includes even a dead person. The gist of the offence is dissemination of
harmful imputation concerning a person.5
Imputation
5
Narottamdas v. Patel Maganabhai Revabha, 1984 Cr LJ 1790(Guj).
6
Horilal v. Vishwanath, 1957 Cr LJ 1360.
7
K.S Namjundaiah v. S.C Thippanna AIR 1952 Mys 123.
8
Chellappen Pillai case 1961 KLT 1006.
9
Kanwal Lal case AIR 1963 SC 1317.
10
N.K Singh v. R.B.Singh AIR 1964 Manipur 20.
11
Bhikachand case AIR 1927 Sindh 24.
12
Laxminarayan Singh v. Shriram Sharma 1982 Cr LR 68(MP)
13
McCarthy. (1887) 1 LR 9 ALL 420.
Concerning any person
The words must contain an imputation concerning some particular person or persons
whose identity can be established. That person need not necessarily be a single
individual. A newspaper is not a person and therefore it is not an offence to defame a
newspaper. Defamation of a newspaper may in certain cases, involve defamation of
those responsible for its publication.14
All those who compose, dictate write or in any way contribute to the making of a libel
are liable for defamation. For instance, if one indicates, other writes and the third
approves of what is written, they are all makers of it and are jointly liable
Intention on the part of the accused to harm the reputation, or the knowledge or
reasonable belief that an imputation will harm the reputation of the person concerned
is one of the essential ingredients of the offence of defamation.
14
Shibo Prasad Pandah,(1878) 4 Cal 124.
15
AIR 1968 Cal 266
An essential difference between the Indian and the English law is that the former
recognizes words spoken as a mode of defamation, and the latter does not. By the
English law, defamation is a crime only when it is committed by writing, printing,
engraving or some similar process. The Penal code makes no distinction between
written and spoken (verbal) defamation. The term defamation under section 499 is
wide to embrace both libel and slander.
The words ‘visible representation’ will include every possible form of defamation
which ingenuity can devise. For instance, a statue, a caricature, effigy, chalk marks on
wall, signs, or pictures etc. may constitute a libel.
Publication
The defamatory matter must be published, that is communicated to some person other
than the person about whom it is addressed. For instance, dictation of defamatory
matter in a letter to clerk, writing on a postcard, or printing on paper or distributing or
broadcasting constitutes publication.
16
(1894) 1 QB 671
17
Raja Shah, (1889) P.R. No 14 of 1889.
18
Wenman v. Ash (1853) 13 CB 836.
In the matter of defamation, the position of a newspaper is in no way different from
that of a member of the public in general. The responsibility in either case is the same.
The publisher of a newspaper is responsible for defamatory matter published in the
paper, whether he knew the contents of such paper or not.
In Wahid Ullah Anwari case,20 where certain articles published in a paper contained
scandalous accusations against the girl students of a college, and implied that the girls
were habitually guilty of the misbehaviour described in the articles, each girl
individually suffering in reputation, could bring an action for defamation.
The expression ‘harms’ means harm to the reputation of the aggrieved party. The
meaning attached to the word ‘harm’ is not in the ordinary sense in which it is used.
By ‘harm’ is meant imputation on a man’s character made and expressed to others so
as to a lower him in their estimation. Anything which lowers him merely in his own
estimation does not constitute defamation.
19
1880 ILR 3 ALL 342.
20
AIR 1935 ALL 743.
Character is what a person actually is; while reputation is what neighbours and others
say that he is. A man may have in fact good character and yet suffer from bad
reputation or vice-versa.21 A man’s opinion of himself cannot be called his reputation.
In Mukund Chitnis v. Madhuri Chitnis,22 it was held that the act of husband
suspecting wife’s chastity on wedding night itself and resorting to mud-slinging and
character assassination amounts to defamation.
Section 499 provides ten exceptions to the charge of defamation when a statement
would not attract penalty. These are based on the ground of truth, good faith or public
interest, and strike a balance between freedom of speech and expression, guaranteed
under article
19(1)(a) of the constitution and the individuals right to reputation. The burden of
proof of the exception is on the accused.
21
Narottamdas v. Patil Maganbhai, 1984 Cr LJ 1790
22
AIR 1992 SC 1840
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.
I. that the alleged imputation regarding the complainant was true; and
II. that its publication was for the public good.
If any one of the two conditions is not satisfied, Exception 1 would not be attracted.
So though the truth of a defamatory matter is a complete defence to an action for
damages in a civil suit, it is not so in a prosecution for the crime of defamation.
Where a person makes a comment upon the conduct of a public servant and it is for
the public good, no action will lie against him so long as the comments are honestly
made and there is no willful misrepresentation. No amount of truth will justify a libel
unless its publication was for the public good. The question of public good has to be
considered from the point of view of the good of the general public as contrary to that
of an individual. The onus of providing the two ingredients is on the appellant. Public
good is a question of fact and good faith has also to be established as a fact.
In Vishan Sarup v. Nardeo Shastri, 24 a newspaper editor acts within his legitimate
sphere when he offers criticism of what he considers and bone fide believes it to be
for the good of the community. But he is not protected if under the garb of criticism
he employs language calculated to defame or degrade the character of a public servant
or a private citizen or a politician. In order to pass the test of fair comment the
publication must be free from malice and made bone fide in the public interest.
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.
Exception 2 deals with criticism of public servants.
Where an editor of a newspaper is prosecuted for defamation under the section 500,
IPC for publishing some defamatory statements complaining about the conduct of the
jail superintendent towards the prisoners and about the defective sanitary fittings and
medical arrangements in the jail, the accused must show that the opinion expressed by
him was confined to the character of the official concerned so far as it appeared in his
conduct in the discharge of his public functions.
In K. Rama Rao v. Emperor,25 the accused must show that he had reasonable
grounds for believing that the conduct attributed is true. If the accused accepted the
allegations made by certain prisoners affected by the alleged conduct of the jail
24
AIR 1965 ALL 439
25
AIR 1943 Oudh 1.
superintendent as true, after hearing the interested party only and without giving the
other party concerned an opportunity to refute them, he cannot be said to have acted
with due care and attention and therefore in good faith so as to bring himself within
the second and ninth exception to section 499, IPC.
I. the facts (on which the comment is offered) should be substantially true;
II. the comments should be fair, in the sense that they are inspired by a genuine
desire on the part of the writer to serve the public interest, and not by any
intention of venting private spite; and
III. The criticism should be in the public interest, and for public good. It should
not be malicious. It is for the accused to show that these requirements are
satisfied.
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.
This exception thus has a positive as well as negative aspect. The positive aspect is
concerned with those situations wherein the exception applies, and the negative aspect
is concerned with the limitations to which the exception is subjected to.
The conduct of publicist who takes part in politics or other matters concerning the
public can be commented on in good faith.
26
(1961) 2 Cr LJ 114
Illustration
it is not defamation in A to express in good faith any opinion whatever respecting Z’s
conduct in petitioning government on a public question, in signing a requisition for a
meeting on a public question, in presiding or attending at such meeting, in forming or
joining any society which invites the public support, in voting or canvassing for a
particular candidate for any situation in the efficient discharge of the duties of which
the public is interested.
In Annanda Prasad v. Manotosan Roy,27 it was held that it is not necessary under
this exception that the proceedings of the court should be published continuously. The
publication need not be true by word, but should give a substantially true account of
the proceedings. Good faith is not an ingredient of the Exception.
27
AIR 1953 Cal 503
This exception deals with comments expressed on the merits of a case which has been
already decided in a court or comment relating to the conduct of parties and witnesses
in any such case. It is not defamation to express in good faith any opinion whatever
respecting.
a) The merits of any case, civil or criminal, which has been decided by a court; or
b) The conduct of any person as a party, witness or an agent in any such
proceeding; or
c) The character of such person, so far as his character appears in that conduct and
no further.
Illustration-
(c) as the opinion which he expresses of Z’s character, is an opinion not founded
on Z’s conduct as a witness.
This exception deals with literary criticism of public performances submitted to its
judgment. It covers criticism of books published on literature, art, painting, speeches
made in public, acting, singing etc. The criticism should be fair and made in good
faith. An opinion expressed in good faith respecting the merits of any performance
which its author has submitted to the judgment of the public is exempt from criminal
liability. Review of a published work will come under this Exception.
The explanation to the exception provides that 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.
Illustrations-
a) A person, who publishes a book, submits that book to the judgment of the
public.
b) A person, who makes a speech in public, submits that speech to the judgment
of the public.
c) An actor or singer, who appears on a public stage, submits his acting or
singing in the judgment of the public.
d) A says of a book published by Z- “Z’s book is foolish; Z must be a weak
man. Z’s book is indecent; Z must be a man of impure mind”. A is within this
exception, if he says this in good faith, in as much as the opinion which he
expresses of Z respects Z’s character only so far as it appears in Z’s book, and
no further.
e) But if A says-“I am not surprised that Z’s book is foolish and indecent, for he
is a weak man and a libertine”. A is not within this exception, in as much as
the opinion which he expresses of Z’s character is an opinion not founded on
Z’s book.
In Emperor v. Abdul Wadood Ahmed,28 it was emphasised that the responsibility of
the critic of a public performance, where he seeks to rely on the responsibility of the
critic of a public performance, where he seeks to rely on the defence of fair comment
underlying this exception is to be judged by the effect which his comment is
calculated to produce, and not by his intention. The object of the sixth exception is
that the public should in its evaluation of a performance be aided by a comment on
that performance and the comment must make it clear that the judgment of the public
is sought to be added only such evidence as is supplied by the public performance.
This exception provides that it is not defamation of a person having over another any
authority, either conferred by law or arising out of lawful contract made with another,
to pass in good faith any censure on the conduct of that other in matters to which such
lawful authority relates. The illustration to the Exception gives six instances of
censure protected by this exception, if good faith is established. For instance the
following acts of censure fall within the purview of this exception-
28
(1907) 1 LR 31 Bom 293.
IV. A school master whose authority is derived from a parent censuring a pupil in
the presence of other pupils;
VI. VI. A banker censuring the cashier of his bank for the conduct of the cashier
as such cashier.
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.
An accused relying on exception 8 to section 499, IPC need not establish the truth of
his allegation. All that he needs to do is to show that there were reasonable grounds
for believing in the allegations, and that he acted on the bona fide belief that the
allegations were true.
In Ramesh Roy v. King,30 it was held that if a person signs a petition to the chairman
of Lucknow Development Authority against defective construction of houses, along
with several other residents of the locality, he can be said to have acted in good faith.
Illustration-
29
AIR 1934 Pat 548
30
AIR 1952 Cal 228 (229).
If A in good faith accuses Z before a Magistrate; if A in good faith complains of the
conduct of Z, a servant, to Z’s master; if A in good faith complains of the conduct of
Z, a child, to Z’s father- A is within this exception.
Ninth exception- Imputation made in good faith by person for protection of his
or other’s interest
Ingredients-
There are two ingredients essential for applying the exception, viz:-
1. The statement must be made for protecting the interest of the maker or
recipient of the communication or for the public good, and;
2. The communication must be made in good faith.
The exception protecting the person to whom the communication is made has an
interest in protecting, the person making the accusation. The interest of the person
referred to in this exception has to be real and legitimate when communication is
made in protection of the interest of the person making it.
This exception refers to any imputation made in good faith. In determining the
question of good faith, regard should be had for the intellectual capacity of the
accused, his predilections (preferences) and the surrounding facts. The standard of
care and caution required varies with the circumstances of each case.
In Sahib Singh Mehra v. State of Uttar Pradesh,31 the appellant was prosecuted
under section 500 of the IPC for publishing an article entitled “ulta chor kotwal ko
dante” in a newspaper named “kalyug” dated September 23, 1960 published from
Aligarh.
The SC held that the impugned remarks were per se defamatory of the group of
persons referred to. There was nothing on the record to establish that the defamatory
remarks were made in good faith and after due care and attention as to their truth, nor
was there anything to indicate that the statements were made for the protection of the
interest of the person making it, or of any other person, or for the public good,
attracting the provisions of Exception 3 or Exception 9 of section 499 of the IPC.
In Harbhajan Singh v. State of Punjab, 32 the SC set aside the conviction of the
appellant, who had been prosecuted under section 500, IPC. Surinder Singh kairon,
the son of Pratap Singh Kairon, the then chief minister of the minister of the state of
Punjab, had complained that the appellant had published from Bombay, on July 23,
1957. Extracts from which were given wide publicity in a number of local, regional
and national papers were highly defamatory of Mr. Kairon.
The apex court said that, as the impugned statement was for the public good, the
appellant was entitled to claim the protection of Exception 9 to section 499 of the IPC.
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.
Most of the recorded decisions on the tenth exception relate to caste matters, and
things done at cast meetings. They do not decide any points of general importance or
juristic interest.
34
1892 ILR 15 Mad 214
BIBLIOGRAPHY