THAKUR RAMNARAYAN COLLEGE OF LAW, MUMBAI.

Academic Year 2021 -2022

Department: LAW

Name of Assignment: EXCEPTIONS OF OFFENCE OF DEFAMATION.

Full Name: DHRUV DAYANAND MISHRA.

Roll No.: 1. Section: F.Y. LL. B (B).

Subject: LAW OF CRIME Date of Submission: ___________

PROFESOR IN CHARGE: PROFESSOR SHIVALIKA SHARMA.

Student Sign: Professor Sign:

 DEFAMATION AND IT’S EXCEPTIONS.

Introduction.
Defamation is oral or written statement that hurts someone’s reputation. In Bhagwad Gita,
“For a Man of honour Defamation is worse than death”. It is considered as Great Evil.
Reputation is an integral and important part of the dignity of the individual and Right to
reputation is inherent right guaranteed by Article 21 and it is also called as natural rights.
While Rights of freedom of speech and expression guaranteed by Article 19(1)(a) of
Constitution of India is not absolute and has imposed reasonable restrictions for exercising
rights in the interest of the security of state, friendly relations with foreign states, public
order, decency, morality, contempt of court, defamation. Only Defamation Laws protect
individual’s private interest and reputation.

In India, Defamation can be viewed as a civil offence as well as criminal offence and may be
defined as the writing, publication and speaking of a false statement which causes injury to
reputation and good name for private interest. The remedy for a civil defamation is covered
under Law of Torts. In civil defamation, a victim can move high court or subordinate courts
for seeking damages in the form of monetary compensation from accused. Section 499 and
500 of the Indian Penal Code provides an opportunity to the victim to file a criminal case for
defamation against the accused. Punishment for the guilty person for criminal defamation is
simple imprisonment which may extend to two years or fine or both. Under the criminal law,
it is bailable, non-cognizable and compoundable offence.

Defamation as the meaning of the word suggests is an injury to the reputation of a

person resulting from a statement which is false. A man’s reputation is treated as his property
and if any person poses damage to property, he is liable under the law, similarly, a person
injuring the reputation of a person is also liable under the law. Defamation is defined
in section 499 of Indian Penal Code 1860 and section 500 provides that a person committing
an offense under this section is liable with simple imprisonment for a term of 2 years or fine
or with both.
A man’s reputation is considered valuable property. Each and every man has a right to protect
his reputation. This right is indorsed as an inherent personal right and is a jus in rem i.e., a
right good against all persons in the world.
The injury caused to the reputation of a person in the eyes of the third person is defined as
Defamation. The injury can be done either by written or oral means. Provided that the
intention of the person creating the defamatory statement must be to lower the reputation of
the person against whom the statement (that harms a person’s reputation) has been made,

In the eyes of the general public. Defamation can damage a person’s emotional, physical and
financial well-being.
Essentials of Defamation.

A. The statement must be defamatory

The very first essential of the offense of defamation is that the statement must be
defamatory i.e., which tends to lower the reputation of the plaintiff. The test to check if a
particular statement is defamatory or not will depend upon how the right-thinking
members of society are likely to take it. Further, a person cannot take a defense that the
statement was not intended to be defamatory, although it caused a feeling of hatred,
contempt or dislike.

Illustrations- A publishes an advertisement in a local newspaper stating false information

that the company of B has committed fraud of Rs 20,00,000. Now, this statement will
amount to defamation as this newspaper will be read by many readers and will surely
injure the reputation of B’s company.

B. The statement must refer to the plaintiff

In an action for defamation, the plaintiff has to prove that the statement of which he
Complains referred to him, it will be immaterial that the defendant did not intend to defame
the plaintiff. If the person to whom the statement was published could reasonably infer that
the statement referred to him, the defendant will then be liable.

Illustrations- If A, a bank publishes a notice to all its branches to not give the loan to any
person from xyz as the people of xyz are more often repeated defaulters. Now due to this B, a
resident of xyz has suffered a huge loss. Now B can hold A liable for defaming him although
the bank did not directly focus on him.

C. The statement must be published

Publication of defamatory statement to some person other than the person defamed is a
most important aspect for making any person liable, and unless that is done, no action for
defamation will lie.

However, if a third person wrongfully reads a letter meant for the plaintiff, then the defendant
likely to be liable. But if the defamatory letter sent to the plaintiff is likely to be read by
somebody else, there will be a valid publication.

In the case of Mahendra Ram v. Harnandan prasad the defendant was held liable
for sending a defamatory letter to plaintiff written in Urdu knowing that the plaintiff did
not knew Urdu and the letter will very likely be read over by another person.
D. The Statement should be made

A statement can be made by words either spoken or intended to be read, or by signs or by

visible representations. For example, X is asked who stole Y’s diamond necklace. X points to
Z, intending to cause everybody to believe that Z stole the diamond necklace. This is
defamation.

E. The intention of the wrongdoer

The person making the defamatory statement knows that the third party listening to the
statement will believe the statement to be true and it will result in causing injury to the
reputation of the person and the person can be defamed.

F. The Statement should be false

The truth is a defence to defamation so a defamatory statement should be false. The falsity of
the statement is an essential ingredient of defamation so if the statement made is true then
there is no defamation. The law does not punish any person for speaking the truth, even if it is
unpleasant.

Defamation and Freedom of Speech

The main objective behind the law of defamation is to protect the right of reputation. If
anyone makes false and disrespecting statements about another person which can defame that
person then the person who made the statement can be held guilty for defamation. The law of
defamation envisages the clash of two fundamental rights that is right to freedom of speech
and expression and the right to reputation.

Article 19(1)(a) of the Indian Constitution provides people freedom of speech i.e. Right to
speak freely without government intervention. The value of freedom of speech is that free
speech and expression are equal to democracy and infringing of this fundamental right will
amount to violating democracy. So, the argument that is raised is that delivering speech on
public matter should be safeguarded and distinguished from private speech. Therefore, the
defamation law should be balanced with the fundamental right to freedom of speech and
expression. The rules of defamation law are intended to intermediate between these two
rights.
Indian law on Libel and Slander
Unlike English law, Indian law does not make any distinction between libel and slander and
both are treated as criminal offenses under section 499 IPC. In the case of Hirabai Jehangir
v. Dinshawdulji the Bombay and Madras high court both held that no distinction needs to be
made between treating libel and slander as criminal offenses.

Innuendo
A statement is prima facie defamatory when its natural and obvious meaning leads to that
conclusion. Sometimes it may happen that the statement was prima facie innocent but
because of some secondary meaning, it may be considered to be defamatory. For this
secondary instance plaintiff must prove the secondary meaning i.e., innuendo which makes
the statement defamatory.

Illustrations

Z makes a statement that X is an honest man and he never stole my watch. Now this
statement is at first instance may be innocent, but it can be defamatory if the person to whom
it was made, interprets from this that X is a dishonest man having stolen the watch.

Defamation of class of persons

When particular words spoken are referred to a group of individuals or a class of persons,
then no single person of that group or class can sue unless he proves that the words could
reasonably be considered to referring him.

Illustration- If a person wrote that all doctors were thieves, then no particular doctor could
sue him unless there was something that pointed out that the person actually intended to
defame him individually.

This situation will be different if the person wrote that all doctors of Ganga ram hospital are
thieves and then doctors of Ganga ram hospital can sue him for defaming them.

Communication between husband and wife

In the eyes of law, both husband and wife are one person and the communication of a
defamatory matter from the husband to the wife or vice versa is no publication and will not
come within the purview of section 499. Section 122 of the Indian Evidence Act 1872 deals
with privileged communications between husband and wife and makes them out of the scope
of section 499 except in suits between married persons, or in a proceeding in which one
married person is prosecuted for any crime committed against the other.
Exceptions of Defamation.
Section 499 contains some exceptions which allow people to speak, write, or publish words
that otherwise would be considered defamatory. There are 10 exceptions under which
defamatory material can be excused. Following are the exceptions:

First Exception - Truth for the public good

If a true statement has been made or published for the public good, then it will not amount to
the offence of defamation. It is pertinent to note that the truth of the statement need not be
proved literally, but it must be substantially true.

Second Exception - Public conduct of public servants

Under this exception, opinions are protected if they are made against public servants in their
public duties. Therefore, any fair criticism or comments have been immunised if made with
good faith, i.e., they should be made without carelessness or negligence. This exception
preserves the principle of rule of law which is pivotal to democratic countries.

Third Exception - Conduct of any person touching any public question

When any statement is made in good faith regarding any public question, it is protected under
the third exception. For example, in the case of Jawaharlal Darda v. Manoharrao Ganpatrao
Kapiskar (1998), a publisher, who published a statement against a minister regarding the
misappropriation of government money, was held not guilty of the offence of defamation.

Fourth Exception - Reports of proceedings of courts

Publication of the reports which highlight the proceedings of the court will not amount to the
offence of defamation. The explanation of the fourth exception enunciates the definition of a
court. It states, “a Justice of the Peace or other officer holding an enquiry in open court
preliminary to a trial in a Court of Justice, is a court.” The report should be fair and should
not only reflect one side of the proceedings and create any kind of bias in the minds of the
readers.

Fifth Exception - Comments on cases

Comments or opinions on the merits of the case are not considered defamatory if they are
made in good faith while respecting the conduct of parties, witnesses, or agents. For instance,
A says, “I think Z’s evidence on that trial is so contradictory that he must be stupid or
dishonest.” A is within this exception if he says this is in good faith, in as much as the
opinion which he expresses respects Z’s character as it appears in Z’s conduct as a witness
and no further.
Sixth Exception - Opinion on any public performance

The sixth exception protects the opinions on the merits of performances that the performer
has submitted for the comments of the society. However, the opinion should be made with
respect to the character in the performance and should be in good faith. For example, 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, inasmuch as the opinion which he expresses of Z’s
character is an opinion and not founded on Z’s book. Further the explanation appended to this
exception states, “a performance may be submitted to the judgement of the public expressly
or by acts on the part of the author which imply such submission to the judgement of the
public.” For instance, a person who makes a speech in public submits that speech to the
judgement of the public.

Seventh Exception - Censure by the person in authority

Censure passed by a person in authority is included within the exceptions if the following
conditions are fulfilled:

 Person is in authority over other via law or by means of any lawful contract and
 Censure is passed in good faith and
 Censure relates to the matters to which the lawful authority relates.

Eight Exception - Accusation in good faith to authorised person

If an accusation is made against any person in good faith, then it does not amount to
defamation when the person making the accusation has lawful authority over the other, that
is, the authority should have some jurisdiction in the matter. For instance, if A in good faith
accuses Z before a Magistrate, then it will be exempted under this part.

Ninth Exception - Imputation for protection of interests

When imputation is made in good faith for the protection of the interests of the person who is
making it or for any third party or in general public good, then it will not amount to the
offence of defamation. For example, A, a Magistrate, in making a report to his own superior
officer, casts an imputation on the character of Z. Here if the imputation is made in good faith
and for the public good, A is within the exception.

Tenth Exception - Conveying caution in good faith

The last exception says that if a caution is conveyed for the good of another person or for the
public good, then that caution communicated in good faith is covered under the exceptions.
The burden of proof is on the person conveying the caution that it is made in good faith and
for the public good.
Landmark Defamation cases in India.

 Subramanian Swamy v. Union of India, Min. of Law (2016)

In this case, the constitutional validity of the offence of defamation under Sections 499 and
500 of the Indian Penal Code,1860 was challenged against the right to freedom of speech and
expression, but the Supreme Court upheld the validity of these provisions.

Facts of the case

A writ petition under Article 32 of the Indian Constitution was filed which challenged the
constitutional vires of the offence of defamation under the Indian Penal Code. The petitioners
contended that the offence of defamation breaches the right to free speech and expression
under Article 19(1)(a) of the Indian Constitution.

 Chaman Lal v. State of Punjab (1970)

In this case, the Supreme Court laid down the basis of establishing the good faith and bona
fide as specified in the exceptions to Section 499 of the Indian Penal Code.

Facts of the case

According to the facts of this case, one President of the Municipal Corporation wrote a letter
which contained defamatory remarks against a nurse of the local hospital. Complaint was
filed against the accused under Section 499 of the Indian Penal Code. The accused contended
that the imputations were true and he made them in good faith. The imputations were sent to
the lawful authority.

 G. Narasimhan & Ors. etc. v. T.V. Chokappa (1972)

In this case explanation 4 of Section 499 was examined by the Supreme Court and the
principle that the defamatory remarks should relate to some specific person or group was
highlighted.

Facts of the case

A complaint was filed under Section 500 and 501 of the Indian Penal Code by the Chairman
of the Reception Committee of the Dravida Kazhagam against the editors and publishers of
the newspapers The Hindu, Indian Express and Dinamani. The conference of the committee
had passed a resolution which pleaded with the authorities to take suitable steps to see that
coveting another man’s wife is not made an offence under the Indian Penal Code”. However,
the newspapers published this news by stating that the resolution was that, “it should not be
made an offence for a person’s wife to desire another man.”
Conclusion.
Since reputation is important for every being, the offence of defamation is also crucial and
time and again, its provisions are challenged for violating the right to speech and expression
ensured by Article 19(1)(a) of the Constitution of India. Section 499 lays down the list of
exhaustive cases and circumstances where a person could be charged for making defamatory
imputations as well as where their acts could be justified under the exceptions. The
controversies around this offence are prevalent and the judiciary has played a vital role in
addressing several questions that arise. Furthermore, the Law Commission is also
instrumental in making proposals for eliminating the conflicts surrounding the offence.
It is said that the rights of one person end where the rights of another person start to apply. It
means that the Constitution of India has given the citizens certain rights and they should use
them in limit so that they should not hamper the rights of others. There is a limit to the right of
freedom of speech and expression which is regulated by the provisions of defamation. With
the court holding Dr Swamy liable to defame Mr. Jethmalani, in the case of Ram Jethmalani v.
Subramanian Swamy, the court with many such cases proves that the provisions of defamations
act as a check on Article 19 of the Constitution so as to protect the reputation of the people.
Many controversies regarding press freedom and the offense of defamation arose, which are
still a matter of debate. There is a need to improve this law and remove the arbitrariness leading
to such controversies.

References.
https://lawcorner.in
https://blog.ipleaders.in
https://indiankanoon.org
https://www.clearias.com
https://www.writinglaw.com