PROSECUTION FOR DEFAMATION

PROJECT BY:

NAME: SHIVANGI

COURSE: B.B.A. LL. B (Hons.)

ROLL NO: 201855

SEMESTER: 4

SUBMITTED TO:

Mrs. Sugandh Sinha

Assistant Professor of Law

A final project submitted for the fulfillment of the course of Code of Criminal
Procedures for the degree of B.B.A LL.B

May, 2020

CHANAKYA NATIONAL LAW UNIVERSITY, NYAYA NAGAR, MITHAPUR, PATNA

- 800001

Page | 1
 DECLARATION

I hereby declare that the project entitled “Prosecution for Defamation” submitted in final
fulfillment of the requirements for award of the degree of B.BA.,LL.B at CHANAKYA
NATIONAL LAW UNIVERSITY, is an authentic work and has not been submitted to any other
University/Institute for award of any degree/diploma.

SHIVANGI

(201855)

B.BA LL.B.

SECOND YEAR.

Page | 2
 ACKNOWLEDGEMENT

Writing a project is one of the most significant academic challenges I have faced. Though this
project has been presented by me but there are many people who remained in veil, who gave
support and helped me to complete this project.

First of all, I am very grateful to my subject teacher Mrs. Sugandha Sinha, without the kind help
and support of whom, the completion of the project was a difficult task for me. She gave her
valuable time to help me complete this project by suggesting from where and how to collect the
data.

I express deep gratitude to my family and friends who continue to push me in the daunting times
of project submission and ultimately, whether directly or indirectly, helping me to complete this
project successfully.

SHIVANGI
(201855)
B.BA LL.B.
SECOND YEAR.

Page | 3
 AIMS AND OBJECTIVES

The researcher aims to briefly study the Section 199 of the Code of Criminal Procedure which is
Prosecution for Defamation in the light of Section 499-500 of the Indian Penal Code and a few
landmark cases in order to brief the section.

HYPOTHESIS
The researcher tends to presume that the constitutional validity of section 199 of Code of
Criminal Procedure and 499-500 of Indian Penal Code is questionable as it conflicts with article
19 of the constitution on the fact that these three sections restrict a person’s right to freedom of
speech and expression.

RESEARCH METHODOLOGY
This is a project work which requires exhaustive reading of various texts and journals, mainly of
modern concepts from books and articles. So, for this project, the researcher will rely on
doctrinal sources.

Page | 4
 TABLE OF CONTENTS

1. INTRODUCTION
 Meaning
 Criminal and civil defamation
 Defamation in India at present
 Types of defamation

2. CIVIL DEFAMATION
 Essentials of defamation
 Defences available to the defender against defamatory liability

3. CRIMINAL DEFAMATION
 Section 499-500 of IPC:
 Sec. 499 and 500 IPC 1860 v/s Reasonable restrictions
 Section 199 of CrPC
 Constitutionality of Criminal Defamation
 Conflict between Art. 19(1)(a) and right to reputation under Art. 21

4. CONCLUSION

5. BIBLIOGRAPHY

Page | 5
 INTRODUCTION

Meaning:
Next to his life, what man cares most is his reputation. As per Black’s Law Dictionary,
defamation means “The offence of injuring a person's character, fame, or reputation by false and
malicious statements”. Defamation in law, is attacking another’s reputation by a false publication
tending to bring the person into disrepute by communicating the same to a third party. Generally,
defamation requires that there is a false publication and without the consent of the allegedly
defamed person. Injury only to feelings is not defamation. There must also be a loss of
reputation. Actual truth of the publication is usually a defence to a charge of defamation.1

Defamation is thus the publication of a statement which reflects on a person’s reputation and
tends to lower him in the estimation of right-thinking members of society generally or tends to
make them shun or avoid him.

Criminal and Civil Defamation–

Criminal Defamation: Criminal defamation is the act of offending or defaming a person by

committing a crime or offence. For criminal defamations, you could always get the liable person
or party prosecuted. It is studied in IPC as a criminal act.

Civil Defamation: Civil defamation involves no criminal offence, but on account of this kind of
defamation, you could sue the person to get a legal compensation for your defamation. It is
studied under law of torts i.e. as a civil wrong.

Defamation in India at present:

In India, defamation can be seen as both Civil as well as criminal offences. The Sufferer or the
person who got defamed is offered a legal remedy in both civil as well as criminal. In civil law,
the remedy is covered under the Law of Torts where sufferer or victim may go to High Court or
any subordinate courts for compensation or damages in monetary form and, Section 499 provides
the definition of “Defamation” and legal remedy which is the punishment of simple
imprisonment which may exceed up to 2 years or Fine or Both, defined under section 500 of the
Indian Penal Code, 1862.2

1
http://www.legalserviceindia.com/legal/article-358-criminal-defamation-constitutional-or-not.html
2
https://legodesk.com/legopedia/section-499-and-500-of-ipc/

Page | 6
Types of Defamation:

Defamation has been defined under Section 499 of the Indian Penal Code (IPC) as 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 to defame that
person.

Defamation falls into two categories:

Libel – A defamatory statement published in a written form.

Slander – A defamatory statement made in a verbal form (spoken).

However, a mere defamatory statement does not amount to defamation. The publication of such
statement is a pre-requisite to establish defamation.

Youssoupoff v. MGM Pictures Ltd.3

The plaintiff (herself a Princess) complained that she could be identified with the character
Princess Natasha in the film ‘Rasputin, the Mad Monk’. On the basis that the film suggested that,
by reason of her identification with ‘Princess Natasha’, she had been seduced by Rasputin. The
defendant contended that if the film indicated any relations between Rasputin and ‘Natasha’ it
indicated a rape of Natasha and not a seduction.
Held- In a cinema film, not only the photographic part of it is considered to be libel but also the
speech which synchronises with it also. Slesser LJ said that defamation could include words
which cause a person to be shunned or avoided: ‘not only is the matter defamatory if it brings the
plaintiff into hatred, ridicule, or contempt by reason of some moral discredit on [the plaintiff’s]
part, but also if it tends to make the plaintiff be shunned and avoided and that without any moral
discredit on [the plaintiff’s] part. Thus she was awarded with damages.

In D.P. Choudhary v. Kumari Manjulata4

The plaintiff – respondent Manjulata about 17 years of age belonged to a distinguished family
and studied B.A. There was a publication of a news item in a local daily Dainik Navjyoti that last
night she ran away with a boy named Kamlesh, but she had gone to attend night classes. The
news item was untrue and negligently published with utter irresponsibility. She was shocked and
ridiculed by others. It was held that the action was defamatory and she was entitled with the
damages of Rs 10000/- by way of general damages.

3
(1934) 50 TLR 581
4
AIR 1997 Raj 170

Page | 7
 Civil Defamation

Civil defamation involves no criminal offence, but on account of this kind of defamation, you
could sue the person to get a legal compensation for your defamation. It is studied under law of
torts i.e. as a civil wrong.

Who can file a suit for civil defamation?

In Harash Mendiratta v. Maharaj Singh5, it was held that an action for defamation was
maintainable only by the person who was defamed and not by his friends, relatives and family
members.

Essentials of defamation: 

 First, the presence of defamatory content is required. Defamatory content is defined as

one calculated to injure the reputation of another by exposing him to hatred, contempt or
ridicule. However, the test for such content is the ordinary man test where meaning of the
content is considered to be what a common, ordinary man will comprehend it to be. For
example, in a case of Cassidy v. Daily Mirror Newspapers Ltd.6, the court held that
obvious innocence of the defendants was no defence. 

 Second, the claimant should be identified in the defamatory statement. The content must
be clearly addressing a particular person or a very small group for it to be defamation.
General statements like “All lawyers are thieves or all politicians are corrupt” are too
broad a classification and hence no particular lawyer or politician can consider it to be
personally attributed to them. Therefore, such statements are not defamation. In Hulton &
Co. v Jones7, a fictional article was published in a newspaper in which imputations were
cast on the character of a fictitious person named Artemus Jones. A person with the same
name filed a suit as his friends and relatives believe that the article referred to him. The
defendants were held liable even the publication was made without any intention to
defame.

 Third, there must be a publication of the defamatory statement in either oral or written
form. Unless the content is published – made available to someone other than the
claimant, there can no defamation. In Mahendra Ram v. Harnandan Prasad8, the
defendant wrote a defamatory letter in Urdu which is not known to the plaintiff. The
letter was read over to him by a third person. It was held by the court that the defendant
was not held liable unless it was proved that at the time of writing the letter defendant

5
2002 Cr. L.J. 2651
6
(1929) 2 K.B. 331
7
(1910) A.C. 20
8
A.I.R. 1958 Pat. 445

Page | 8
 knows about the fact that plaintiff was unable to understand Urdu script and it would
necessitate reading of the letter by a third person.
.

THE INNUENDO –
Sometimes the statement may be prima facie innocent but because of some latent or secondary
meaning may be considered to be defamatory. When the natural and ordinary meaning is not
defamatory but the plaintiff wants to bring an action of defamation, he must prove the latent or
secondary meaning i.e. innuendo which makes the statement defamatory.

For example- the statement that a lady has given birth to a child is defamatory when the lady is
unmarried.

Defences available to the defender against defamatory liability:

Truth: If the statement made or published is true and the defendant is able to prove the same
then he has a complete defence under civil law. If the statement is substantially true & accurate
but some minor mistake is made without any intention to harm the plaintiff then he cannot be
held liable. Such as in Alexander v. North Eastern Railway Co.9, the plaintiff was without a
ticket and was sentenced to fine of one pound or 14 days imprisonment whereas in the notice by
railway authorities it was published that the fine of one pound or three weeks imprisonment was
imposed. The defendants were not held liable.

Fair Comment: Any fair comment on matters of public interest is a defence against an action for
defamation. Matter related to public companies, courts, government administration, public
representatives, public novels etc. are considered to be matters of public interest. If the
comments were made after the conspiracy to cause harm to plaintiff, by which, he loses focus on
his performance is actionable (Gregory v. Duke of Brunswick)10.         

Privilege: There are two kinds of privilege i.e. absolute privilege and qualified privilege. In
absolute privilege even the statement is false no action will lie against any person. This privilege
is available in respect of Parliamentary Proceedings, Judicial Proceedings and State
Communications. Whereas in qualified privilege there are certain occasions where the defendant
is exempted from defamatory liability if the statement made is not false. For example, for self-
interest a shopkeeper order his employee not to sell goods to a person named X as there is no
reliability on his honesty for payment then the shopkeeper has done no offence.

9
(1885) 6 B & S. 340
10
(1843) 6 M. & G. 205

Page | 9
Absolute privilege- No action lies for the defamatory statement even though the statement is
false or made maliciously. It applies to :
Parliamentary Privilege, Judicial proceeding and State communication.

Qualified privilege- It is necessary that the statement must have been without malice. The
defendant has to prove that statement was made on a privileged occasion fairly.

Page | 10
 Criminal Defamation

A group of Burmese migrants working on a farm in Thailand told the authorities that they were
being forced to work endless hours and sleep in chicken sheds. Their complaint was dismissed.
Now they face defamation charges brought by their employer. The proper purpose of defamation
laws is to deter and punish malicious lies. Courts can order compensation for any material injury.
However, in dozens of countries defamation is not just a civil offence, but a crime. In such
places, criticising a powerful politician or businessman, publicising wrongdoing or merely
expressing an opinion can lead to bankruptcy or jail, regardless of whether the criticism actually
hurts anyone.

For repressive governments, criminal-defamation laws can provide a more palatable way to
silence critics than locking them up. In several countries people not directly involved can bring
defamation cases. In Myanmar other members of the political party led by Aung San Suu Kyi,
the country’s most powerful politician, have filed suits on her behalf. Such laws can have public
backing. The Burmese are much keener on Ms Suu Kyi than on the journalists who set out to
scrutinize her as they would any other politician. Similarly, Thais revere their king, and Thailand
has long made criticising him a crime. The military junta that is now ruling the country has
deployed strict lèse-majesté laws against its critics. One particularly effective human-rights
lawyer faces decades in prison for the “crime” of sharing a few Facebook posts.

Section 499-500 of IPC:

Section 499 and section 500 of IPC deals with the defamation as an offence. It is considered as
the statement of fact, which is unprivileged and not true, that must harm someone's reputation,
either by spoken or written, and the same must be published before the third party. The term
Defamation covers mainly the false allegation or communication, which tarnished the reputation
or decreased the respect that they hold in the society at large.

Written defamation is known as “libel,” which is also considered as the permanent form of the
defamation, while spoken defamation is known as “slander.” Both forms of defamation, i.e., libel
and slander, derive its origins from English common law, but they are not treated as distinct from
each other in Indian jurisprudence.

Every person has a right to have his reputation preserved free from the violation. This right of
reputation is acknowledged as an inherent personal right of each and every person as part of the
right of personal security under article 21 of the Constitution of India and also considered as one
of the most important natural rights.

Page | 11
The section further goes on to provide some other vital explanation to determine what would
create or constitute defamation. Defamation under the IPC may constitute an imputation of a
deceased person that would harm the reputation of that person if he is alive and showing clear
intention which may be hurtful to the feelings and emotions of their family or any other relatives.
It may also amount to defamation to make an imputation refers to an association or company or
any collection of persons as such.

The Section however also state that no imputation is said to injures a person’s reputation, unless
that imputation directly or indirectly, in the estimation of others, lowers the respected character
or moral or intellectual character of that person, or lowers the character of that person in respect
of their caste or of their calling, or lowers the credit of that person, or causes it to be believed that
the body of that person is in a disgusting state, or a state generally considered as disgraceful.

Section 499 of the IPC also explains some exceptions. These include “imputation of truth” which
is essentially required for the “welfare of the public” and thus has to be published, on the conduct
of government officials which involves public duty, the act of any person touching any public
question and merits of the public performance, if someone publishes reports of proceedings of
Courts, merits of the case decided in Court of law or act and conduct of witnesses and others
concerned with, etc.

Sec. 499 and 500 IPC 1860 v/s Reasonable restrictions:

The pertinent question which arose before the court was whether Sec. 499 and 500 of IPC, 1860
go beyond the scope of the reasonable restrictions imposed under art. 19(2) of the Indian
Constitution?

While answering in negative, the SC gave a detailed reasoning of the explanations and
exceptions appended to Sec.499. It was submitted by the petitioners that on two earlier
occasions, R. Rajagopal alias R.R. Gopal v. State of Tamil Nadu11 it had been observed as
follows:

In all this discussion, we may clarify, we have not gone into the impact of Article 19(1) (a) read
with clause (2) thereof on Sections 499 and 500 of the Indian Penal Code. That may have to
await a proper case.

In N. Ravi v. Union of India12 wherein it had been observed as follows:

11
(1994) 6 SCC 632
12
(2007) 15 SCC 631

Page | 12
Strictly speaking on withdrawal of the complaints, the prayer about the validity of Sec. 499 has
also become academic, but having regard to the importance of the question, we are of the view,
in agreement with the learned counsel for the petitioners, that the validity aspect deserves to be
examined.

As defamatory speech is one such restriction prescribed under Art. 19(2)(1) of the Constitution.
Therefore, in order to curb speech that is defamatory, court observed that the restriction imposed
should be ‘reasonable’. In the case of Chintaman Rao v. The State of Madhya Pradesh13, the SC
laid down the meaning of the term ‘reasonable restrictions’:

The phrase "reasonable restriction" connotes 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. The word "reasonable" implies intelligent care and deliberation, that
is, the choice of a course which reason dictates. Legislation which arbitrarily or excessively
invades the right cannot be said to contain the quality of reasonableness and unless it strikes a
proper balance between the freedom guaranteed in Article 19 (1) (g) and the social control
permitted by clause (6) of Article 19, it must be held to be wanting in that quality.

It had been the one of the contentions that the exceptions make the offence more rigorous,
thereby making the concept of criminal defamation extremely unreasonable. Further, truth was
not a defence and unnecessary stress on ‘public good’. The SC, after a detailed discussion
concluded that neither the main provision nor the explanation nor the exceptions remotely
indicated any vagueness and thus cannot be called unreasonable. It also rejected the argument
that criminal defamation was not saved by the doctrine of proportionality.

13
AIR 1951 SC 118

Page | 13
Section 199 of CrPC:
The section deals with the prosecution for the offence of defamation as contained in Sections
499-502 in Chapter XXI of the Indian Penal Code. Sub-section (I) relates to defamation of
persons in general whereas sub-section (2) deals with defamation of some named officials in
particular.

In case of persons in general, the complaint may be made by the person aggrieved who may not
necessarily be a person defamed. For instance, a husband might be considered as the aggrieved
person where his wife is defamed So also, the father-in-law with whom the daughter-in-law is
living, might be the aggrieved person when the daughter-in-law is defamed.

Whether a person is aggrieved by the defamatory matter or not depends upon the nature of
offence and the circumstance of the case. Thus in K.M. Matthew v. TV. Balan14, a report stated
that some leaders of a strike indulged in a disgraceful conduct. It did not give all the leaders a
right to prosecute the reporter because such an indeterminate and unidentified category of
persons cannot be said to have suffered in their reputation by the contents of that defamatory
report.

A complaint filed by a person authorised by the Board of Directors by power of attorney to

initiate legal proceedings on behalf of the company is maintainable.

In the case of P. Karunakaran v. C. Jayasooryan15, a Kerala newspaper published a news item

saying that there was insufficiency of sandal wood pieces for the cremation of Late Rajiv
Gandhi, the then President of the Indian National Congress. It was held that any member of the
Congress Party could not be considered as an aggrieved person and therefore, had no locus standi
to file a complaint for defamation because it did not affect their reputation.

Where a complaint of defamation was filed by a co-operative society against an Assamese

Weekly which published a news-item mentioning society’s Managing Director as “thief”, it was
held that the society, could not be said to be an aggrieved person and hence had no locus standi
to file a complaint against the Weekly.

Sub-section (2) mentions two exceptions to the rule contained in Section 199 (1) of the Code.
One relates to minors, lunatics, idiots or persons who are sick or suffer from infirmity who are
unable to file a complaint themselves. Therefore, in their cases, some other person may, with the
leave of the Court, make a complaint on his/her behalf.

The other exception relates to defamation committed against dignitaries such as the President,
Governors of State, Ministers etc. or any other public servants employed in connection with the
affairs of the Union or of a State, in respect of his conduct in discharge of his public functions. In

14
1985 CriLJ 1039
15
1992 CriLJ 3540

Page | 14
their cases only a Court of Session can take cognizance of such offence, without the accused
being committed to it, upon a complaint made by the Public Prosecutor in writing.

It must be stated that it is not enough that a person aggrieved by commission of an offence of
defamation included in Chapter XXI, IPC is a public servant. He must also be a public servant
employed in connection with affairs of the Union or the State at the relevant time of offence
alleged by him16.

Constitutionality of Criminal Defamation:

The apex court’s judgement in Subramanian Swamy v. Union of India17 which was delivered on
May 13, 2016, put a rest on the speculation of defamation being decriminalised when the
constitutionality of the contended provisions were upheld.

Swamy’s petition: Subramanian Swamy filed a writ petition regarding the decriminalization of
defamation. The two basic contentions of the seven issues raised in the writ petition Swamy
were:18

i. Declaring Sec. 499 and 500 of the Indian Penal Code, 1860 as unconstitutional.
ii. Declaring Sec. 199(2) of the Code of Criminal Procedure, 1973 (Cr PC) as unconstitutional.

According to the appellant, these provisions cast an unreasonable restriction on freedom of

speech, one that falls beyond article 19(2) of the Constitution of India.

The counsel appearing for the State of Tamil Nadu submitted that Sec. 499 and 500 could not be
said to travel beyond the reasonable limits on freedom of speech, because article 19(2) itself
imposes such a restriction.19 Also, there has to be a debate with regard to the conceptual meaning
of the term ‘defamation’ used in article 19(2) of Constitution and ‘defamation’ in Sec. 499,IPC,
1860. It was also pointed out that the freedom of speech and expression has to be controlled and
does not include the concept of defamation as defined under Sec. 499.20

The bench raised a question that whether abolition of criminal action in other countries21 could
really have effect when the court decides on the constitutionality of a provision regard being
16
https://www.shareyouressays.com/knowledge/section-199-of-code-of-criminal-procedure-1973-cr-p-c-
explained/115060
17
AIR 2016 SC 2728
18
Ibid
19
Vijay Kant v. Union of India [T.P. (Crl) No. 94-101/2015].
20
Arvind Kejriwal v. Union of India [W.P. (Crl) No. 56/2015)].

Page | 15
given to India’s own written constitution.

Judgement: 

The division bench comprising of Dipak Mishra and Prafulla C. Pant JJ, wherein J. Mishra
delivered the judgement, upholding the constitutional validity of Sec. 499, 500 of IPC, 1860 and
199 of Cr PC, 1973, pronounced that-“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.”
It is noteworthy to note that to justify the penal provisions centre pronounced about the
anarchical way of how Indian society works and opined about how criminal defamation deters
people from practising freedom of speech and expression.

Conflict between Art. 19(1)(a) and right to reputation under Art. 21:

Another question which arose before the court was whether reputation of another individual(s) is
absolutely ephemeral, so as to hold that criminal prosecution on account of defamation negates
and violates right to free speech and expression of opinion. To answer this, the SC goes into the
interpretational analysis of freedom of speech and expression under Art. 19(1)(a), 19(2) and right
to reputation under Art. 21. After a detailed scrutiny, the court resorts to the rule of harmonious
interpretation and adopts the doctrine of ‘balancing of fundamental rights’. With regard to the
permissibility of criminal defamation, the Court opines that it can be tested on the touchstone of
constitutional fraternity (also enshrined in the preamble) and fundamental duty. However, the
court finds it difficult to come to a conclusion that the existence of criminal defamation is
absolutely obnoxious to freedom of speech and expression but concludes that it does not invite
the frown of any of the articles of Indian Constitution nor its existence can be regarded as
unreasonable restriction.22

CONCLUSION

21
Kenya, Zimbabwe, Cyprus, Estonia, Ireland, Romania, Sri Lanka and the United Kingdom (UK) have repealed
criminal defamation as an offence against private individuals
22
Subramanian Swamy v. Union of India [AIR 2016 SC 2728]

Page | 16
In my view, defamation is a serious offence as goodwill and reputation is earned during the
passage of time. Injury to reputation lowers the image of a person in society and once it is
harmed it cannot be regained. However, our law provides remedies under both civil and criminal
law. Compensation of money might be not enough to the plaintiff but still, it is only remedy
which is available in a civil suit.

After analyzing all the key aspects of defamation as laid in section 499 IPC, we have found that
the essence of defamation lies in the injury to the reputation of a person. And for this injury, he
can very much sue the defendants. Defamation is of two types libel and slander. Both are
considered as criminal offenses in India. There are certain exceptions to this known as privilege.

There has been so many attacks on freedom of speech in India over the years. The problem
occurs when it makes journalists and comedians like Gogoi23 or Kiku Sharda24 under the ambit of
facing criminal action for their alleged defamatory remarks against powerful individuals or
corporations. Indian laws are shown as dysfunctional institutions and manifest penal provisions
as attractive.

The biggest irony of the present law system is that it seems reluctant to interfere in cases
infringing upon the fundamental rights and on the other hand it also rushes into policy matters
which is not relevant for them. Defamation laws embodied under Sec. 499 and 500 of IPC is a
double-edge sword. If a false criminal suit is lodged for defamation by the appellant, the
respondent can file a counter claim.

Replacing criminal sanction with the civil one cannot fulfil the criteria to balance the right of
freedom of expression with the right to reputation. The main idea behind balancing the rights
should be to exercise one’s freedom of speech and expression without compromising with the
person’s reputation in the eyes of public.

BIBLIOGRAPHY

23
Samudra Gupta Kashyap, “Tarun Gogoi appears before court in Rs 100 crore defamation case” The Indian
Express, January 18, 2016
24
Editorial, “Arrest of a comedian” The Indian Express, January 15, 2016.

Page | 17
Books:

Ratanlal and Dhrirajlal’s Law of torts

The Indian Penal Code, 1860 bare act

Ratanlal and Dhirajlal’s The Indian Penal Code

Code of Criminal Procedures, 1974 bare act

Lectures on Code of Criminal Procedure- R.V Kelkar

Websites:

indiankanoon.org

blog.ipleaders.in

legalservices.com

scconline.com

Page | 18