OFFENCES IN RELATION TO DEFAMATION

[Mr. M. GOVINDARAJAN]

Defamation - definition

Section 499 of the Indian Penal Code (‘IPC’ for short) defines the term ‘defamation’ as whoever, 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 o believe that such imputation will harm the reputation of such person, is said  to defame that person.

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.

It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.

An imputation in the form of an alternative or expressed ironically may amount to defamation.

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 characters of that person in respect of his caste or his calling, or lowers the credit of that person, or causes to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.

Exception

There are 10 exceptions to defamation as detailed below-

• Imputation of truth which public good requires to be made or published;
• Public conduct of public servants;
• Conduct of any person touching any public question;
• Publication of reports of proceedings of courts;
• Merits of case decided in Court or conduct of witnesses and others concerned;
• Merits of public performance;
• Censure passed in good faith by person having lawful authority over another;
• Accusation preferred in good faith to authorized person;
• Imputation made in good faith by person for protection of his or other’s interests;
• Caution intended for good of person to whom conveyed or for public good.

The above said exceptions to section 499 must be regarded as exhaustive as to the cases which they purport to cover and recourse cannot be had add new grounds to exception as held in ‘M.C. Verghese v. T.J. Ponnan’ – 1968 (11) TMI 111 - SUPREME COURT

Imputation of truth which public good requires to be made or published

It is not defamation to impute anything which is true connecting any person, if it be for the public good that the imputation should be made or published.  Whether or not it is for public good is a question of fact.

In ‘Harbhajan Singh v. State’, [1965 (3) TMI 101 - SUPREME COURT] it was held that this exception is available to an accused if he can show that the impugned statement was true and had been made public for the public good.

Public conduct of public servants

It is not defamation to express in 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 his character appears in that conduct, and no further.

Conduct of any person touching any public question

It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting the character, so far as the character appears in that conduct, and no further.

Publication of reports of proceedings of courts

It is no defamation to publish a substantially a true report of the proceedings of a Court of Justice, or of the result of any such proceedings.

A Justice of Peace or other officer holding an enquiry in open court preliminary o a trial in a Court of Justice is a Court within the meaning of the above.

Merits of case decided in Court or conduct of witnesses and others concerned

It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a party, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further.

Merits of public performance

It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance and no other.

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.

Censure passed in good faith by person having lawful authority over another

It is not defamation in a person having over another any authority, either conferred by law or arising out of a lawful contract made with that other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates.

In ‘Gopalakrishnan v. R. Namboodiri’ – 1984b Ker LT 1051, it was held that the communication of an official entry in a confidential report of a superior officer through official channel cannot be described as publication for initiating action for defamation.

Accusation preferred in good faith to authorized person

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.

In ‘B.S. Chavan v. S.B. Pahelwan’ – 1984 Cr LJ 350 (Bom) it was held that in order to invoke the applicability of this exception the person to whom accusation is made should have direct lawful authority over the complainan.

Imputation made in good faith by person for protection of his or other’s interests

It is not defamation to make an imputation on the character of another provided the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good.

In ‘Sewakram v. R.K. Karanjia’- 1981 (5) TMI 131 - SUPREME COURT it was held that I is for the accused to plead to prove good faith which implies the exercise of due care and caution and to show that the attack on the character of the complainant was for public good.

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 interest, or for the public good.

Privileges statements

In case of defamation there is a defence that the statements made by a person are privileged ones which are under the exceptions to section 499 of IPC.  The privilege is of two types –

• Absolute privilege; and
• Qualified privilege.

The following are considered as absolute privilege-

• Statements made in the course of Parliamentary proceedings;
• Statements protected by the Parliamentary Papers Act, 1840;
• Statements made in the course of judicial or quasi judicial proceedings;
• Statements made by an officer of State to another in the course of duty;
• Statements protected by the Parliamentary Commissioner Act, 1967;

The following are considered as qualified privilege-

• Statements made in pursuance of a legal, social or moral duty to a person who has a corresponding duty or interest to receive them;
• Statements made in the protection or furtherance of an interest to a person who has a common or corresponding duty or interest to receive them;
• Statements made in the protection of a common interest to a person sharing the same interest;
• Fair and accurate reports of judicial proceedings, however, published, and whether or not published contemporaneously with the proceedings;
• Fair and accurate reports of parliamentary proceedings and parliamentary sketches;
• Extracts from parliamentary papers and public registers;
• Certain reports published in newspapers or by broadcasting which are protected

Punishment

Section 500 of IPC provides that whoever defames another shall be punished with simple imprisonment for a term which may extent 2 years or with fine or with both.

Printing or engraving matter known to be defamatory

Section 501 of IPC provides that whoever prints or engraves any matter, knowing or having good reason to believe that such matter is defamatory of any person, shall be punished with simple imprisonment for a term which may extend to 2 years, or with fine or with both.

Sale of printed or engraved substance containing defamatory matter

Section 502 of IPC provides that whoever sells or offers for sale any printed or engraved substance containing defamatory matter, knowing that it contains such matter, shall be punished with simple imprisonment for a term which may extend to 2 years, or with fine or both.