1

JAMIA MILLIA ISLAMIA

LAW OF CRIMES

DEFAMATION

Submitted to: Submitted by:

Dr. Rose Varghese Zoha Aslam

B.A.LL.B(Hons)

4th semister
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CONTENTS

 CRIME
 CRIMINAL LAW
 INTRODUCTION OF THE TOPIC
 DEGFAMATION
 TYPES OF DEFAMATION
 ESSENTIALS
 DEFENCES UNDER LAW OF TORT
 PROVISIONS UNDER THE IPC
 ANALYSIS OF SECTION 499 OF IPC
 EXCEPTIONS
 CYBER CRIME
 CYBER DEFAMATION
 MEDIA AND DEFAMATION
 RECENT CASES
 CONCLUSION
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CRIME
WHAT IS A CRIME?

We must answer this question at the outset. In order to answer this question we must know
first, what is law because the two questions are closely inter-related? Traditionally, we know
a law to be a command enjoining a course of conduct. The command may be of a sovereign
or of political superiors to the political inferiors; or it may be the command of a legally
constituted body or a legislation emanating from a duly constituted legislature to all the
members of the society. A crime may, therefore, be an act of disobedience to such a law
forbidding or commanding it. But then disobedience of all laws may not be a crime, for
instance, disobedience of civil laws or laws of inheritance or contracts. Therefore, a crime
would mean something more than a mere disobedience to a law, "it means an act which is
both forbidden by law and revolting to the moral sentiments of the society." Thus robbery or
murder would be a crime, because they are revolting to the moral sentiments of the society,
but a disobedience of the revenue laws or the laws of contract would not constitute a crime.
The content of crime changes from time to time in the same country and from country to
country at the same time because it is conditioned by the moral value approved of by a
particular society in a particular age in a particular country. A crime of yesterday may
become a virtue tomorrow and so also a virtue of yesterday may become a crime tomorrow.

WHAT IS THE TEST of criminality or criminal liability? The true test of criminal
liability has had a gradual development. In the very beginning only the most serious crimes
were recognised and were singled out for punishment. The list of crimes at that time was
short. In the next stage we find that the machinery for administration of justice was refined
and developed, and procedural laws for the trial of criminal cases were also reformed. In this
process of development we find that certain fundamental principles were evolved. The first
was that nobody should be held liable unless he had the evil intent to commit it, and the
second was that the accused was to be presumed to be innocent unless he was proved to be
guilty. The former principle assumed a Latin garb and became known as actus non facit
reum, nisi mens sit rea, and was first cited as a principle by Lord Kenyon C.J. in Fowler v.
Pedger thus: "It is a principle of natural justice and of our law that actus non facit reum, nisi
mens sit rea." This principle has even in modern times been accepted to be a leading doctrine
of criminal law, for Lord Goddard C.J. observed in a case in 1949: "actus non facit reum, nisi
mens sit rea is a cardinal doctrine of the Criminal Law." This maxim which has been
accepted not only by the courts of England but also our own courts recognise that there are
two necessary elements in a crime, namely, first, a physical element, and, secondly, a mental
element. The former is known technically as actus reus and the latter as mens rea. These are
the tests of criminality known to our law and to the laws of England.
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Now, come to the ELEMENTS. The two elements of crime are mens rea and actus
reus. Apart from these two elements that go to make up a crime, there are two more
indispensable elements, namely, first, “a human being under a legal obligation to act in a
particular way and a fit subject for the infliction of appropriate punishment,” and secondly,
“an injury to another human being or to the society at large.” Thus the four elements that go
to constitute a crime are as follows: first, a human being under a legal obligation to act in a
particular way and a fit subject for the infliction of appropriate punishment: secondly, an evil
intent or mens rea on the part of such human being; thirdly, actus reus, i.e., act committed or
omitted in furtherance of such an intent; and fourthly, an injury to another human being or to
society at large by such an act

CRIMINAL LAW
Criminal law is the body of law that relates to crime. It regulates social conduct and
proscribes threatening, harming, or otherwise endangering the health, safety, and moral
welfare of people. It includes the punishment of people who violate these laws. Criminal law
differs from civil law, whose emphasis is more on dispute resolution and victim
compensation than on punishment.

WHAT ARE THE OBJECTIVES?

Criminal law is distinctive for the uniquely serious potential consequences or sanctions for
failure to abide by its rules. Every crime is composed of criminal elements. Capital
punishment may be imposed in some jurisdictions for the most serious crimes. Physical or
corporal punishment may be imposed such as whipping or caning, although these
punishments are prohibited in much of the world. Individuals may be incarcerated in prison
or jail in a variety of conditions depending on the jurisdiction. Confinement may be solitary.
Length of incarceration may vary from a day to life. Government supervision may be
imposed, including house arrest, and convicts may be required to conform to particularized
guidelines as part of a parole or probation regimen. Fines also may be imposed, seizing
money or property from a person convicted of a crime. Five objectives are widely accepted
for enforcement of the criminal law by punishments: retribution, deterrence, incapacitation,
rehabilitation and restoration.

Indian Criminal Laws are divided into three major acts i.e. Indian Penal Code, 1860,
Code of Criminal Procedure, 1973 and Indian Evidence Act, 1872. Besides
these[clarification needed] laws, special Criminal Laws are also passed by Indian Parliament
i.e., Prevention of Corruption Act, Food Adulteration Act, dowry prevention act, Commission
of Sati Act etc. thousands of minor laws are made in India.

INDIAN PENAL CODE formulated by the British during the British Raj in 1860,
forms the backbone of criminal law in India. Indian Penal Code was passed under the
chairmanship of Lord Macaulay and was enforced in 1862. It has since been amended several
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times and is now supplemented by other criminal provisions. In the state of Jammu and
Kashmir, the IPC is known as Ranbir Penal Code (RPC).1

The OBJECTIVE of this Act is to provide a general penal code for India. Though not
an initial objective, the Act does not repeal the penal laws which were in force at the time of
coming into force in India. This was so because the Code does not contain all the offences
and it was possible that some offences might have still been left out of the Code, which were
not intended to be exempted from penal consequences. Though this Code consolidates the
whole of the law on the subject and is exhaustive on the matters in respect of which it
declares the law, many more penal statutes governing various offences have been created in
addition to the code. Various ordinances and amendments being passed or done to meet the
current social strata of the society, the latest one is Criminal Law (Amendment) Ordinance,
2013 which is an Ordinance promulgated by the President of India, Pranab Mukherjee, on 3
February 2013 which provides for amendment of Indian Penal Code, Indian Evidence Act,
and Code of Criminal Procedure, 1973 on laws related to sexual offences.

The Code is universally acknowledged as a cogently drafted code, ahead of its time. It
has substantially survived for over 150 years in several jurisdictions without major
amendments. Nicholas Phillips, Justice of Supreme Court of United Kingdom applauded the
efficacy and relevance of IPC while commemorating 150 years of IPC. Modern crimes
involving technology unheard of during Macaulay's time fit easily within the Code mainly
because of the broadness of the Code's drafting.

1
http://www.ipc.in/
 6

INTRODUCTION
 “Every man has right to have his reputation preserved inviolate” -“Blackstones”.
 “For a man of honour, defamation is worse than death.” -“Bhagwat Gita”

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. The aim of the law of defamation is to protect one’s
reputation , honour , personal safety, liberty and a number of privileges.

Defamation is the general term for a legal claim involving injury to one's reputation
caused by a false statement of fact and includes both libel (defamation in written or fixed
form) and slander (spoken defamation). The crux of a defamation claim is falsity. Truthful
statements that harm another's reputation will not create liability for defamation (although
they may open you up to other forms of liability if the information you publish is of a
personal or highly private nature.

Defamation is both a crime and civil wrong. An aggrieved person may file a criminal
prosecution as well as a civil suit for damages for defamation. Withdrawl of a criminal
complaint on tender of apology is no bar to a civil action for libel unless there is a specific
agreement barring a civil action.

The law of civil defamation ,as in English and other common law countries ,is uncodified
in India ; it is largely based on case laws.The law of criminal defamation on the other hand is
codified under section 499 to 502, I.P.C. In England the publication of a libel is punishable to
the extent of 1 year imprisonment and fine; and if the publication is with the knowledge of lts
untruth 2 years vide section 5 of Libel Act,1843.

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 the truth is not satisfied merely by proving that the publisher honestly believed the
statement to be true, he must prove the statement was in fact true.
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DEFAMATION
Salmond defines the wrong of “defamation as the publication of a false and defamatory
statement about another person without lawful justification2.”

According to Underhills, such a statement becomes defamation if it is made about

another without just cause or excuse, whereby he suffers injury to his reputation (not to his
self-esteem)3. He considers defamatory statement as one which imputes conduct or qualifies
tending to disparage or degrade any person, or to expose him to contempt, ridicule or public
hatred or to prejudice him in the way of his office, profession or trade.

Blackburn and George define “defamation as the tort of publishing a statement which
tends to bring a person into hatred, contempt or ridicule or to lower his reputation in the
eyes of right thinking members of society generally4.” The words “to lower his reputation in
the eyes of right thinking members of society generally” are taken from the test suggested by
Lord Atkin in Sim v. Stretch, viz. “would the words tend to lower the plaintiff in the
estimation of right thinking members of the society generally”.

Fraser thinks that a statement becomes defamatory if it exposes on to hatred, ridicule or

contempt or which causes him to be shunned or avoided, or which has a tendency to injure
him in his office, profession or trade.

However, Winfield does not agree with this definition. According to him, “defamation is
the publication of a statement which tends to lower a person in the estimation of the right
thinking members of society generally or which tends to made them shun or avoid that
person.” He thinks that a statement may possibly be defamatory even if it does not excite in
reasonable people feelings quite so strong as hatred contempt or ridicule‖. The phrase “right
thinking members of society” excludes a lay or morally blunt men or hypersensitive and
conscious persons.5

“Defamation may thus be defined as any intentional false communication, either

written or spoken, that harms a person's reputation; decreases the respect, regard, or
confidence in which a person is held; or induces disparaging, hostile, or disagreeable
opinions or feelings against a person6”. The wrong of defamation may be committed by
making defamatory statements which are calculated to expose a person to hatred, contempt or
ridicule, or to injure him in his trade, business, profession, calling or office, or to cause him to
be shunned or avoided in society. Defamation is a unique tort, especially when understood in
its historical context. Until the 16th century in England, general jurisdiction over defamation
was exercised by the clergy. Thereafter, the common law courts developed an action on the

2
Salmond on torts,13th 1961edition .P361
3
Torts, Underhills,18 1946 edition p 23
4
Elements of the Law of Torts by Blackstone and George,2 1949 edition p. 167
5
Winfield, Tort, 7 edition 1963, P.574
6
.http;//lagal dictionary, thefree dictionary.com/defamation
 8

case for slander where temporal, as distinct from spiritual damage could be established. In the
late nineteenth and early twentieth centuries, liability in defamation was extended because of
the menace to reputations occasioned by the new, popular press with its mass circulation. In
Derbyshire County Council v Times Newspapers Ltd the press scored a notable victory. The
House of Lords ruled that a democratically elected body should be open to uninhibited public
criticism and that the threat of a defamatory action would surely inhibit the freedom of
speech of the press. However, in Reynolds V Times Newspapers Ltd, the Court of Appeal
was mindful of the fact that the European Rights Convention, which stressed upon the
fundamentality of the right to freedom of speech, was destined to become a part of common
law and that thus there should be allowed the defense of qualified privilege to be raised by
the press when commenting on public figures.

TYPES OF DEFAMATION

Defamatory statements can be made as libel or as slander as discussed in the succeeding

paragraphs

Libel: The publication of a false and defamatory statement tending to injure the
reputation of another person without lawful justification or excuse. The statement must be in
a printed form, e.g., writing, printing, pictures, cartoons, statue, waxwork effigy etc. Lopes,
J., in Monson V. Tussauds points out that libels need not always be in writing or writing.
The defamatory matter may be conveyed in some other permanent form as a statue, a
caricature, an effigy, chalk mark on a wall, sign or pictures. Conversely, the spoken work is
the most obvious example of a form of expression which is slander; other examples are
gestures, and perhaps, inarticulate expressions of disapproval such as hissing or booing, or cat
calls and significant gestures, such as winking etc., In Manson V. Tussauds case, the
defendants, who kept a wax works exhibition, had exhibited a wax model of the plaintiff with
a gun, in a room adjoining the “Chamber of Horrors” (a room in the basement, in which the
wax models of notorious criminals were kept). The plaintiff has been tried for murder in
Scotland and released on a verdict of Not proven and a representation of the scene of the
alleged murder was displayed in the chamber of horrors. The Court of Appeal held that the
exhibition was libel.7 Thus it is libelous to write and publish of a man that he is a rogue or a
rascal, a swindler, a crook, a coward, a liar, a hypocrite, a villain, a blackguard, a blackleg, a
libeller, a scandalmonger or a habitual drunkard, or that he is dishonest or immoral or
wanting ingratitude. It is libelous to write that man has been guilty of oppressive insulting,
intolerant or un brotherly conduct. In such cases the onus lies on the defendant to prove from
the context in which the words were used or from the manner of their publication, e.g., in
slander the tone in which the words were uttered or other facts known to those to whom the
words were published, that words could not be understood by reasonable men to convey the
imputation suggested by the mere consideration of the words themselves i.e., they were
understood merely as a joke or (in an action for slander) a mere abuse or as in no sense
defamatory of the plaintiff. In the second class of cases the language is ambiguous as where it

7
1895 1Q.B.671
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is equally capable on the face of it of two meanings, the one defamatory and the other
innocent.

In Tolley vs. Fry, Tolley was a champion amateur golfer and member of a sports club.
The rules of the club prohibited members from associating themselves with any
advertisement media. The defendants, Fry, who were manufacturers of chocolates – caused to
appear in certain newspapers an advertisement of their chocolate, and a caricature of the
plaintiff playing a stroke at golf with defendant‘s chocolate protruding from his pocket. It
was held by the House of Lords that the innuendo was proved in view of the circumstances
and therefore, the defendants were liable.

Slander: A false and defamatory statement by spoken words and/or gestures tending to
injure the reputation of others. It is in a transient form. It also involves the sign language used
by the physically disabled. While libel is actionable per se without proof of special damage,
the slander is actionable only on proof of special damage. Special damage signifies that no
damages recoverable merely for loss of reputation by reason of the slander, and that the
plaintiff must prove loss of money or of some temporal or material advantage estimable in
money. If there is only loss of the society or consortium of one‘s friends, that is not enough.
Where there is no need to prove special damage in defamation, the plaintiff can recover
general damages or the injury to his reputation without adducing any evidence that it has in
fact been harmed, for the English law presumes that some damage will arise in the ordinary
course of things. It is enough that the immediate tendency of the words is to impair his
reputation. If the plaintiff contends that special damage has been suffered in addition to
general damages, he must allege it in his pleadings and prove it at the trial but even if he
breaks down on this point, he can still recover general damages.

In India the between libel and slander on the point whether it is actionable without
proof of special damage has not been recognized. Here, both libel and slander are criminal
offences under the Indian Penal Code and both of them are actionable in civil law without
proof of special damage as in Ms. Ramdhara v. Phulwatibai8. Slander may be the result of a
sudden provocation uttered in the heat of the moment, while the libel implies grater
deliberation and raises a suggestion of malice. Libel is likely to cause more harm to the
person defamed than slander because there is a strong tendency everywhere on the part of
most people to believe anything they see in print. In general slander is actionable only on
proof of special damage, but in the following exceptional cases slander is actionable per se or
without proof of special damage.

Words which are not defamatory in their ordinary sense may, nevertheless, convey a
defamatory meaning owing to the circumstances in which they are spoken. Such words are
actionable if it is proved that would be understood as defamatory by the persons to whom
they were published. In Boydell V. Jones9 a lawyer even took objection to the description of
“an honest lawyer” which was applied to him in the heading of a paragraph containing some
details of a case in which he was concerned; and it was held that the phrase was capable of
meaning the exact opposite of what it said or light therefore be libelous. In Cassidy V. Daily
Mirror Newspapers Ltd., a majority of the court of Appeal held the innuendo was established

8
1969 Jab.L.J.582
9
1838.4M&W. P.446
 10

and the Jury entitled her to damages as they held that the publication conveyed to reasonable
person an aspersion on the plaintiff‘s moral character.

Exceptions to “Slander not actionable per se”

In general slander is actionable only on proof of special damage, but in the following
exceptional cases Slander is actionable without proof of special damage.

 Imputation of Criminal Offence: When the slander imputes that the plaintiff has
committed a crime punishable with imprisonment, there must be direct imputation of
the offence, not merely suspicion of it and it is not enough if the offence imputed is
punishable with fine. The words imputing a suspicion of a crime, even though the
offence is punishable corporal, are not actionable without proof of special damage.
But the words “you are a rogue and I will prove you are rogue, for you forged my
name” are not mere imputation of a suspicion and are actionable per se. Again the
words you are guilty (innuendo) of the murder of have been held to amount to a
charge of murder and are actionable without proof of actual damage. The crime
imputed need not be indictable; it is sufficient if it is punishable corporal. Nor it is
necessary that the words should specify any particular offence. Where the imputation
of crime is accompanied by an express reference to a transaction which merely
amounts to a civil wrong, slander is not actionable per se. Where the crime imputed is
impossible and has not been committed with the knowledge of all parties etc., where
the defendant said to the plaintiff‖ Thou has killed by wife and she was then alive
within the knowledge of all, there is no such imputation as can be made the basis of a
suit without proof of special damage.

Libel, if it tends to provoke the breach of the peace is a crime as well as tort; Slander
as such is never criminal although spoken words may be punishable as being
reasonable, seditious, and blasphemous or the like. This distinction between libel and
slander is not recognized in India. In England while libel is both a crime and civil
wrong, slander is only a civil wrong. In India, However both are criminal offences.
Indian decisions relating to slander may be classified under three heads, viz. vulgar
abuse, imputation of unchastity to a woman and aspersion of caste.

 Imputation of disease: Imputation that the plaintiff is suffering from an unpleasant,

contagious or infectious disease tending likely to exclude the plaintiff from society is
actionable per se.
 Imputation of unfitness or incompetence: An imputation of unfitness, dishonesty
or incompetence in any office, profession, calling, trade or business held or carried on
by the plaintiff at the time when slander is published is actionable per se. The words
‘sala’, ‘haramjada’ ,‘sooar’ and ‘bapar beta’ were held to be mere abuse. Where
however, an abusive language is not only insulting but amounts to defamation as well
as action will lie even without proof of special damage. It has been held by the Oudh
Chief Court that to say of a high caste woman that she belongs to a low caste is a
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slander which is actionable per se not only at the instance of the woman herself, but
also at the instance of her husband.10
 Imputation of Unchastity: Imputation of unchastity or adultery to a woman or girls
is also actionable per se. It has been held that imputation of unchastity includes that
of lesbian or homosexual vice. Formerly imputation of unchastely to women or girls
was not actionable per se, except in the City of London Slander of Women Act 1891
that extended its purview to all over the Country.

In Parvathi V. Manner the defendant abused the plaintiff and said that she was not the
legally married wife of her husband, but a woman who had been ejected from several
places for unchastely. It was held that the defendant was liable. The Common Law rule
that slander is not actionable per se has not been followed in India. The reason given is
that the rule is not founded in any obvious reason or principle and that it is not in
consonance with Justice, equity and good conscience‖ English law itself underwent a
change by the Slander of Women Act.

ESSENTIALS

In Common law, a libel is a criminal offence as well as a civil wrong, but a slander is a
civil wrong only. However in Indian law, both are criminal offences under Sec. 499 of the
I.P.C. Libel is more favorable to the claimant because it is actionable per se and injury to
reputation will be presumed. However, whether the case is one of libel or slander, the
following elements must be proved by the claimant in order for the defendant to be liable for
the tort of defamation:

 The statement (the technically correct term is “imputation” is defamatory;

 It refers to the plaintiff, i.e. identifies him;
 It has been published, i.e. is communicated to at least one person other than the
claimant.

Regardless of whether a defamation action is framed in libel or slander, the plaintiff

must always prove that the words, pictures, gestures etc are defamatory. Equally, the
plaintiff must show that they refer to him. Finally he must also prove that they were
maliciously published.

These are the three essential elements in a defamation action that are discussed in
detail in the succeeding paragraphs.

 The statement must be defamatory: Any imputation which exposes one to disgrace
and humiliation, ridicule or contempt, is defamatory. It could be made in different
ways as in it could be oral, in writing, printed or by the exhibition of a picture, effigy
or statue or by some conduct. According to Lord Atkins, whether a statement is
defamatory or not depends upon how the right thinking members of society the
society are likely to take it. Yet the term “right-thinking members of society” is highly
ambiguous. The standard to be applied is that of a right-minded citizen, a man of fair

10
Gaya Din Singh v Mahabir Singh, 1. Luck 386
 12

average intelligence, and not that of a special class of persons whose values are not
shared or approved by the fair minded members of that society generally. If the likely
effect of the statement is the injury to the plaintiff‘s reputation, it is no defense to say
that it was not intended to be defamatory. When the statement causes anyone to be
regarded with feelings of hatred, contempt, ridicule, fear, dislike, or disesteem, it is
defamatory. In D.P. Choudhary v. Manjulata there was publication of a statement in
a local daily in Jodhpur that Manjulata on the pretext of attending her evening BA
classes ran away with a boy named Kamlesh. The girl belonged to a well-educated
respectable family. She was seventeen years of age. The news item was untrue and
had been irresponsibly published without any justification. This was defamatory and
the defendants, the newspaper publishers were held liable.

However, words spoken in anger or annoyance or in the heat of the moment

are not defamatory as they no way reflect on the character of being abused. The
standard applied in determining whether or not a statement is defamatory is that of a
right minded citizen, a man of fair intelligence, and not that of a special class of
persons whose values are not shared or approved by the fair minded members of
society generally. If the likely effect of that statement is injury to the plaintiff‘s
reputation, it is no defense to say that it was not intended to be defamatory. Mere
hasty expression spoken in anger, or vulgar abuse to which no hearer would attribute
any set purpose to injure character would not be actionable. Words which merely
injure the feelings or cause annoyance but in no way reflect on character or reputation
are not libelous.

Sometimes the statement being used to defame may be prim facie innocent but
becomes defamatory because of some latent or hidden meaning. In such a scenario the
plaintiff must prove the hidden meaning, which is the innuendo if s/he wants to file a
suit for defamation. For instance in Cassidy V Daily Mirror Newspapers the
newspaper published a picture of a lady and the race horse owner with the caption
underneath, Mr. M. Corrigan, the race-horse owner and Miss X whose engagement
has been announced. The newspaper was held liable in a suit that said that the lady
was the lawful wife of Mr. Corrigan and complained that the words suggested that she
had been living with him in immortality. The liability of the defendants rested on their
failure to make independent inquiry. This also brings forth another aspect of this tort
that intention to defame is not necessary and if the words are considered to be
defamatory by the persons to whom the statement is published, there is defamation.

Another feature of the law of defamation is that innuendo is also penalized if it is

defamatory. This is illustrated by the case of Sumatibai v. Nandkumar Deshpande.
In this case there was a newspaper article about how the bowls brought by
kindergarten children were not returned after they left the institution. There was an
innuendo that there was no account for the unreturned bowls and the only person who
knew what became of them was Sumatibai. It was held that the article was abusive
and reprehensible and the suggestion of misappropriation of the bowls by Sumatibai
was defamatory11. In Liberace v Daily Mirror Newspapers Ltd (1959), the American

11
Extracted on Sep 13, 2013 from http://www.indiankanoon.org/doc/1352591/
 13

pianist Liberace, who at the time was very famous for his glittering costumes and
effeminate manner, sued the Mirror over an article which described him as a ‘deadly,
winking, niggering, chromium-plated, scent-impregnated, luminous, quivering,
giggling, fruit-flavoured, mincing, icecovered heap of mother-love’.12 Liberace
claimed that the article implied he was homosexual, which he denied. Similarly, in
1986 the Star published a gossip column story about Lord Gowrie, an ex-Cabinet
Minister, who had stepped down from his post the year before. Questioning why he
had resigned, the story referred to ‘expensive habits’, and said that Lord Gowrie
would ‘snort’ at the that he had been ‘born with a silver spoon round his neck’. Lord
Gowrie sued, arguing that references to expensive habits, snorting and a silver spoon
implied that he habitually took cocaine. He won his case13. A statement is prima facie
defamatory when its natural and obvious meaning leads to that conclusion. At times
though a statement may be prima facie innocent but some latent or secondary
meaning may be considered defamatory, the burden to prove the latent meaning lies
on the plaintiff. For example, saying even A is an angel may be slander if the
statement was understood to refer to a criminal gang known as “The Angels”. In 1988
the business magazine Stationery Trade News carried an article about counterfeit
stationery products which were being imported into the UK. Towards the end of the
story, it mentioned a different problem, involving envelopes which were not made in
the UK being marketed under a brand name which sounded British. The makers of
these envelopes sued the magazine, claiming that the story implied that they were
selling counterfeit envelopes. 14 They won their case.

 The statement must refer to the plaintiff: The plaintiff has to prove that the
statement which is claimed to be defamatory actually refers to him/her. It is
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 the plaintiff, the defendant is nevertheless liable. In R.K.Karanjia Vs. KMD
Thackaresey15 it was observed that the burden of proving malice in law for every
false and defamatory statement, is always on the plaintiff. In Sadosiba Panda Vs.
Bansidhar Sadhu16, it was held that proof of actual loss of reputation is not
necessary. It is sufficient to establish that the defamatory statement made would
damage one's reputation. In Hulton Co. V Jones the defendants published a fictional
article in their newspaper in which aspersions were cast on the morals of a fictitious
character-Artemus Jones, stated to be a Church warden. On this basis one Artemus
Jones, a barrister, brought an action against the defendants. The defendants pleaded
that Artemus was a fictional character and the plaintiff was not known to them and
thus they had no intention to defame him. Notwithstanding this, they were held liable
because a substantial number of persons who knew the plaintiff and had read the
editorial would have assumed it to be referring to him. However, when the defamation

12
Extracted on Sep 14, 2013, from catalogue.pearsoned.co.uk/assets/hip/gb/hip gb pearson...
13
Extracted on Sep 14, 2013, from catalogue.pearsoned.co.uk/assets/hip/gb/hip gb pearson...
14
Extracted on Sep 14, 2013, from catalogue.pearsoned.co.uk/assets/hip/gb/hip gb pearson...
15
AIR 1970 Bom. 424
16
AIR 1962 Orissa 115
 14

refers to a class of persons, no member of that group can sue unless he can prove that
the words could reasonably be considered to be referring to him. When the statement
though generally referring to a class can be reasonably considered to be referring to a
particular plaintiff, his action will succeed. In Fanu v. Malcomson, in an article
published by the defendants, it was mentioned that cruelty was practiced upon
employees in some of the Irish factories. From the article as a whole including a
reference to Waterford itself, it was considered that the plaintiff‘s Waterford factory
was aimed at in the article and the plaintiff was, therefore, successful in his action for
defamation.
 The statement must be published: Publication means making the defamatory matter
known to some other third party and unless that is done, no civil action for defamation
can lie in court. Communication to the plaintiff won‘t count because defamation is
injury to the reputation which consists in the estimation in which others hold him and
not a man‘s own opinion of himself. However, if a third party wrongfully intercepts
and reads a letter sent to the plaintiff it is not defamation. However when the
defendant knows that the letter is likely to be read by someone else and it contains
some personal information only meant for the recipient, then he will be liable. Also,
an injunction can be issued against the publication of a defamatory statement which is
likely to injure the reputation of one of the parties involved as was done in Prameela
Ravindran v. P. Lakshmikutty Amma. When the repetition of the defamatory matter
is involved, the liability of the person who repeats that defamatory matter is the same
as that of the originator, because every repetition is a fresh publication giving rise to a
fresh cause of action. Not only the author is liable but the editor, printer or publisher
would be liable in the same way. Publication means making a defamatory matter
known to some person other than the person defamed. Therefore communicating to
the plaintiff himself is not enough for defamation, however it will be defamation if the
defendant knew or ought to have known that the letter although sent to the plaintiff
will be read by a third person for example writing in a language not known to the
plaintiff which would required a translator.

Dictating a defamatory letter to the typist or sending it via postcard or

telegram is defamation since it is likely to be read by someone else. A father opening
the son‘s letter or a butler opening and reading a sealed letter meant for his employer
is not defamation since there was no publication. If a third party wrongfully reads a
letter meant for the plaintiff, the defendant is not liable. A husband and wife being
one person under the eyes of the law, communication of the defamatory matter from
the husband to the wife or vice versa is no publication. However communication of
matter defamatory of one spouse to the other is sufficient publication. Every person
who repeats the defamatory matter is liable in the same way as the originator, because
every repetition is a fresh publication giving rise to a fresh cause of action.

Section 499 of thr IPC (INDIAN PENAL CODE)defines defamation as-

 15

“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,or knowing
or having reason to believe that such imputation will harm,the reputation of such person,is
said ,except in the cases hereinafter excepted,to defame that person.”
”.The aim of the law of defamation is to protect one‘s reputation, honor, integrity, character
and dignity in the society. Defamation is both a crime and a civil wrong. An aggrieved person
may file a criminal prosecution as well as a civil suit for damages for defamation. There is no
statutory law of defamation in India except Chapter XXI (Section 499-502) of the Indian
Penal Code. These reads as under:

Section 500- Punishment for defamation-

“whoever defames another shall be punished with simple imprisonment

for a term which may extend to two years,or with fine or both”.

Section 501- printing or engraving matter known to be defamatory-

“ whoever prints or engraves any matter,knowing or having good reasonto believe that
such matter is defamatory of any person,shall be punished with simple imprisonment for a
term which may extend to two years ,or with fine or both.”

Section 502- sale of printed or engraved substance containg defamatory matter-

“ whoever sells or offers for sale any printed or engraved substance containg
defamatory matter,knowing that it contains such matter,shall be punished with simple
imprisonmentfor a term which may extend to two years,or with fine,or with both.”

The following are some defenses which may be invoked against the crime of defamation:

 Truth published for public interest;

 Any expression in good faith on the conduct or character of a public servant on a
public question.
 Publication of a substantially true report.
 It is not defamation to express in good faith any opinion regarding the merits of
any case, which has been decided by a Court of Justice, or the conduct of any
person as a party, or the witness or the agent, in such case. 
 It is not defamation to express in good faith any opinion regarding the merits of
any performance which an author has submitted to the judgment of the public.
 It is not defamation if a person having any authority over another person, either
conferred by law or arising out of a lawful contract, to pass in good faith any
censures on the conduct of that other in matters to which such lawful authority
relates. 
 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.  It is not defamation to make an imputation on the
 16

character of another person, provided it is made in good faith by person for

protection of his or other‘s interests.
 It is not defamation to convey a caution, intended for the good of a person to
whom conveyed or for public good.

In India, defamation through the internet is punishable under Article 66A of the
Information Technology Act of 2000 and may be punishable for imprisonment upto three (3)
years, and a fine. However, by virtue of Section 79 of the Information Technology
Amendment Act 2008 which became a law on February 5, 2009, social networking websites
or known as intermediaries shall not be liable for any third party information, data, or
communication link made available by him‖ and provided the following requisites are present

(a) the function of the intermediary is limited to providing access to a communication system
over which information made available by third parties is transmitted or temporarily stored;
or

(b) the intermediary does not

(i) initiate the transmission,

(ii) select the receiver of the transmission, and

(iii) select or modify the information contained in the transmission.

Section 468 (2) (c ) of the Criminal Procedure Code, stipulates that the limitation for
prosecution of offenses punishable with imprisonment for a term more than one (1) year but
not exceeding three (3) years shall be three (3) years. Under Section 199(5) of the Criminal
Procedure Code, if the offense for defamation is committed against the President/Vice
President of India, Governor of the State, Minister of a Union or of a State, or any other
public servant employed in connection with the affairs of the Union or of a State in respect of
his conduct in the discharge of his public functions, the action shall prescribe if the
Complaint to be initiated in writing by the Public Prosecutor shall not be made within a
period of six (6) months from the time of the commission of the offense. As far as defamation
under tort law is concerned, as a general rule, the focus is on libel (i.e. written defamation)
and not on slander (i.e. spoken defamation). In order to establish that a statement is libelous,
it must be proved that it is (i) false, (ii) written; (iii) defamatory, and (iv) published.

DEFENCES UNDER LAW OF TORT

However, there are defenses to the Tort of Defamation that are discussed in the succeeding
paragraphs.

 Justification by truth: In a civil action for defamation, truth is a complete defense.

However under criminal law, it must also be proved that the imputation was made for
the public good. Under the civil law, merely proving that the statement was true is a
good defense the reason being that the law will not permit a man to recover damages
in respect of an injury to a character which he either does no or ought not to possess.
In a civil action for defamation, the truth of the defamatory matter is a complete
 17

defense because by such publication, the reputation of an individual is brought to the

level he deserves. The defense is available even if the publication was made
maliciously. If a statement is substantially true but incorrect in certain minor
particulars, the defense will still be available. In Subhash Chandra Bose V. Knight &
Sons, The Statesman published in its issue of 26th November,1924, passage
commenting on the speech of Lord Lytton, the then Governor of Bengal, where-in it
was stated that the Governor said Mr. Subhash Chandra Bose was arrested under
Regulation 3 and alleged that he was the brain behind the terrorist conspiracy. The
plaintiff‘s complaint was that the writer stated a fact that he was a member and a
directing brain of a terrorist movement. The Court held that although the defendants
were entitled to refer to the fact that the Viceroy and the Governor, had caused the
arrest of the plaintiff because they were satisfied that he was a terrorist, but in a matter
of so great importance to the plaintiff it was very necessary that they should refrain
from conveying to the ordinary reader an opinion of their own which was in effect the
reiteration of a charge of criminal conspiracy.
 A fair and bona fide comment on a matter of public interest: It involves making
fair comments on matters of public interest. For this defense to be available, the
following essentials are required:
 It must be a comment, i.e., an expression of opinion rather than an assertion
of fact
 The comment must be fair, i.e., must be based on the truth and not on untrue
or invented facts
 The matter commented upon must be of public interest.

If due to malice on the part of the defendant, the comment is a distorted one, his comment
ceases to be fair and he cannot take such a defense. In Gregory V Duke of Brunswick the
plaintiff, an actor, appeared on the stage of a theatre but the defendant and other persons in
malice started hooting and hissing and thereby caused him to lose his engagement. This was
held to actionable and an unfair comment on the plaintiff‘s performance and the defendants
were held to be guilty. For example, a former employer has a moral duty to state a servant‘s
character to a person who is going to employ the person. But if the former employer without
any enquiry publishes the character of his servant with a motive to harm the servant, the
defense of qualified privilege cannot be taken. Such communications may also be made in the
case of confidential relationships like those of husband and wife, father and son and daughter,
guardian and ward, master and servant, principal and agent. In modern times it includes
everything relating to national or local government, the administration of public institutions
whether of State or Private aided, or charitable or educational institutions; the public conduct
not only of all public officials but of all persons as priests, clergyent, judges, barristers,
political candidates, and agitation‘s who take part in public affairs, in short it includes the
conduct of every man and institution of public concern.

 Privilege: It is of two kinds, viz. absolute and qualified as discussed in the succeeding
paragraphs.
 Absolute Privilege: Certain statements are allowed to be made when the larger
interest of the community overrides the interest of the individual. No action lies
 18

for the defamatory statement even though it may be false or malicious. In such
cases, the public interest demands that an individual‘s right to reputation should
give way to the freedom of speech. This privilege is provided to Parliamentary,
judicial proceedings, Military and Naval and State proceedings. Art. 105(2) of
our Constitution provides that (a) statements made by a member of either House
of Parliament in Parliament, and (b) the publication by or under the authority of
either House of Parliament of any report, paper, votes or proceedings, cannot be
questioned in a Court of law. A similar privilege exists in respect of State
Legislatures, according to Art. 194(2). No action for libel or slander lies whether
against Judges, Counsels, Witnesses, or Parties, for words written or spoken in
the course of any proceedings before any court recognized by law, even though
the words written or spoken were written or spoken maliciously, without any
justification of excuse, and from personal ill-will, and anger against the person,
defamed. Such a privilege also extends to proceedings of the tribunals possessing
similar attributes. Protection to the judicial officers in India has been granted by
the Judicial Officer‘s protection Act, 1850. The counsel has also been granted
absolute privilege in respect of any words spoken by him in the course of
pleading the case of his client. If, however the words spoken by the counsel are
irrelevant not having any relevance to the matter before the Court, such a defence
cannot be pleaded. The privilege claimed by a witness is also subject to a similar
limit. A statement made by one officer of the State to another in the course of
official duty is absolutely privileged for reasons of public policy. Such privilege
also extends to reports made in the course of military and naval duties in the
publication.
 Qualified Privilege: For communications made in the course of legal, social or
moral duty, for self-protection, protection of common interest, for public good
and proceedings at public meetings, provided the absence of malice is proved.
Also, there must be an occasion for making the statement. Indian Penal Code
contains such a privilege in its ninth exception to Section 499. To avail this
defense, the following things must be kept in mind:
 The statement should be made in discharge of a public duty or protection
of an interest
 Or, it is a fair report of parliamentary, judicial or other public proceedings
 The statement should be made without any malice.

In India, the Parliamentary Proceedings (Protection of Publication) Act, 1977, grants

qualified privilege to the publication of reports of proceedings of parliament. According to
Sec. 3 (1) “no person shall be liable to any proceedings, civil or criminal, if any court in
respect of the publication in a newspaper of a substantially true report of any proceedings, of
either House of Parliament unless the publication is proved o have been made with malice.”
Art. 361-A which was inserted by Amendment in 1978 provides protection of publication of
proceedings of Parliament and State Legislatures. The above stated protection is not available
unless the publication has been made for public good. Thus, to claim qualified privilege in
 19

respect of parliamentary proceedings the publication should be without malice, and for public
good.

While courts have awarded damages broadly in consonance with the principles
enumerated above, they have also resorted to legal precedent and created newer case law and
legal precedent. In Byrne v Deane (1937), the claimant was a member of a golf club, whose
owners illegally kept gambling machines on the premises. Someone reported them to the
police and afterwards a poem was posted up in the club, implying that the claimant had been
the informant. He sued, and won the original case, but on appeal the courts held that the
suggestion was not defamatory, because a right-thinking member of society (or as it might be
expressed today, an ordinary, reasonable person) would not think less well of someone for
telling the police about a crime. In 1997, a columnist on the Express on Sunday’s magazine
mentioned a newspaper story which had stated that the film star Nicole Kidman had insisted
that builders working on her house should face the wall whenever she walked past. A judge
initially found that the story, though unpleasant, was not capable of being defamatory, but Ms
Kidman appealed. The Court of Appeal agreed with her that the statement was capable of
being defamatory. In the event the case was settled out of court.

PROVISIONS UNDER THE IPC

Section 499 of the Indian Penal Code (IPC) defines defamation 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, except in the cases hereinafter excepted, to defame that
person.”

Explanation 1 states that 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.

Explanation 2 states that it may amount to defamation to make an imputation

concerning a company or an association or collection of persons as such.

Explanation 3 provides that an imputation in the form of an alternative or expressed

ironically, may amount to defamation.

Explanation 4 states that 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 character of that person in respect 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.
 20

Section 499 of the IPC also provides ten exceptions to defamation17 that are broadly in
consonance with the generic principles and exceptions discussed above.

The first is the imputation of truth which public good requires be making or
publishing. 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.

The second relates to 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 as his character appears in that
conduct, and no further.

The third exception relates to the 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 his character, so far as his
character appears in that conduct, and no further. Thus, 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.

The fourth exception relates to the publication of reports of proceedings of courts. It is

not defamation to publish a substantially true report of the proceedings of a Court of Justice,
or of the result of any such proceedings.

The fifth exception relates to merits of cases 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. Thus, 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 in good faith, inasmuch as the
opinion which he expresses respects Z' s character as it appears in Z' s conduct as a witness,
and no farther. However, if A says that "I do not believe what Z asserted at that trial because I
know him to be a man without veracity"; A is not within this exception, inasmuch as the
opinion which expresses of Z‘s character, is an opinion not founded on Z‘s conduct as a
witness.

The sixth exception states that 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 farther. 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. Thus, a person who publishes a book submits that book to the judgment of the

17
Extracted on Sep 14, 2013, from http://www.indiankanoon.org/doc/1041742/15
 21

public. Similarly, a person who makes a speech in public submits that speech to the judgment
of the public. Likewise, 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 the exception,
if he says this in good faith, inasmuch 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. However, if A says-" I am not
surprised that Z‘s book is foolish and indecent, for he is weak and a libertine." A is not within
this exception, inasmuch as the opinion which he expresses of Z' s character is an opinion not
founded on Z' s book.

The seventh exception relates to 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. Thus, a Judge censuring in good faith the conduct of a witness, or of an officer of the
Court; a head of a department censuring in good faith those who are under his orders; a
parent censuring in good faith a child in the presence of other children; a schoolmaster,
whose authority is derived from a parent, censuring in good faith a pupil in the presence of
other pupils are within this exception.

The eighth exception states that 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. Thus, 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.

The ninth exception states that it is not defamation to make an imputation on the
character of another provided that the imputation be made in good faith for the protection of
the interest of the person making it, or of any other person, or for the public good. Thus, A, a
shopkeeper, says to B, who manages his business-" Sell nothing to Z unless he pays you
ready money, for I have no opinion of his honesty." A is within the exception, if he has made
this imputation on Z in good faith for the protection of his own interests. Likewise, 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.

The last and tenth exception states that 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.

Libel and slander are creatures of English common law, but they are not treated as
distinct from each other in Indian jurisprudence. India offers the defamed a remedy both in
civil law for damages and in criminal law for punishment. This is unusual since defamation
as a crime is almost nonexistent anywhere in the world. While civil law for defamation is not
codified as legislation and depends on judge-made law, criminal law is in the IPC (section
499 creates a criminal offence of defamation). In a civil action, the claimant needs to prove
 22

that the statements injured the person‘s reputation and were published. The onus then shifts to
the defendant to prove that the imputations or statements were either true, or amounted to fair
comment, or were uttered or stated in circumstances offering absolute or qualified privilege
like Parliamentary or judicial proceedings. In criminal law, the burden rests on the
prosecution to prove beyond reasonable doubt that there was an offence of defamation
committed and there was intent to do so. Then it is up to the accused to substantiate that they
are protected by one of the ten exceptions listed under Section 499. These exceptions are
extremely wide. They offer protection including: stating a true fact against a person for public
good; expressing an opinion in good faith about an act of a public servant; or even making
imputations on the character of another provided it‘s in good faith and for the public good.
The Indian Constitution protects freedom of speech as a facet of fundamental rights under
Article 19, subject to reasonable restrictions, including decency and defamation. However, in
R. Rajagopal vs State Of Tamil Nadu on 7 October, 1994, the Supreme Court lay down
certain principles18:

“The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of
this country by Article 21. It is a "right to be let alone". A citizen has a right to safeguard
the privacy of his own…..none can publish anything concerning the above matters without
his consent whether truthful or otherwise and whether laudatory or critical. If he does so,
he would be violating the right to privacy of the person concerned and would be liable in
an action for damages…..So far as the Government, local authority and other organs and
institutions……are concerned, they cannot maintain a suit for damages for defaming
them. Rules 3 and 4 do not, however, mean that Official Secrets Act, 1923, or any similar
enactment or provision having the force of law does not bind the press or media. There is
no law empowering the State or its officials to prohibit, or to impose a prior restraint upon
the press/media”.

As is evident from the foregoing discussion, the definition of defamation is wide-ranging and
constantly expanding, though not for practice, particularly in India. Majorly, defamation in
contemporary times is coterminous with the rapid rise of the media industry. Needless to add,
many, if not most, defamation suits have been filed by celebrities as far back as over a
century ago. In Annie Oakley's libel case, Annie Oakley was a female sharpshooter who
traveled with Buffalo Bill's Wild West show in the late 19th century. In 1903, William
Randolph Hearst ran a story in 55 newspapers alleging that Oakley stole a man's pants in
order to buy cocaine, when in fact the woman arrested for the crime falsely gave her name as
Annie Oakley. Even though most of the papers printed a retraction, Oakley sued all 55
newspapers for libel. She spent the next six years pursuing these lawsuits, eventually winning
all but one19. Similarly, on April 16, 1996, Oprah Winfrey had Howard Lyman, a vegetarian
activist, on her show to talk about mad cow disease and the dangers of beef production. At
one point, Oprah stated that she wouldn't eat a burger ever again, prompting a group of Texas
cattlemen to sue Winfrey and Lyman under the False Disparagement of Perishable Food
Products Act of 1995. The judge ruled that the cattlemen couldn't sue under this act, treating
the case as a regular trade libel lawsuit, which is the intentional disparagement of a business'

18
Extracted on Sep 14, 2013, from http://www.indiankanoon.org/doc/501107/

19
Extracted on Sep 14, 2013, from http://www.tree.com/legal/learning-about-famous-libelcases.aspx
 23

goods and services. Winfrey emerged victorious because the judge said that the plaintiff
didn't prove that Winfrey and Lyman acted out of a flagrant disregard for the truth. Likewise,
in July 2002, Vanity Fair printed a piece alleging that Roman Polanski, the director of such
films as Rosemary's Baby, propositioned a woman on his way to his wife's funeral in 1969.
(Polanski's wife was murdered by Charles Manson's cult followers). Polanski, who left the
United States because of a child sex charge, received permission to testify from France. In
2005, a United Kingdom high court awarded Polanski £50,000 (US $81,380) in damages
after the magazine admitted that some details about the event were inaccurate.20

However, Indian courts have been conservative in awarding damages for defamation.
Several high profile cases filed against or on behalf of politicians like Arvind Kejriwal ,
Smriti Irani , Sheila Dixit21, and Home Minister Shinde22, industry like Tata Sons v.
Outlook magazine23 and Zee News v. Naveen Jindal v.24, movie actors like Vijaykanth25,
Manoj Kumar v. Shah Rukh Khan26. Damages awarded by Indian courts too have been
equally conservative. For instance, a Delhi court reduced to Rs 9,000 from Rs 15,000 costs
imposed on Narmada Bachao Andolan (NBA) activist Medha Patkar for her failure to appear
in the 13-year-old crosscases lodged against each other by her and the head of an
Ahmedabad-based NGO, V K Saxena, the President of NGO National Council for Civil
Liberties (NCCL)27. It is only in very few cases such as Justice PB Sawant v. Times Now
(2011)28 that courts have awarded damages, in the interim, in the form of a Rs. 20 crore
surety from Times Now to be invested and returned to the winner of this case. Defamation
law is gradually evolving in India with demands being made to remove the criminal liability
arising from defamation in line with global best practice. However, rampant delays in courts
have somewhat caused dilution of the law of defamation with parties remaining mostly
content with administering threats of criminal defamation and filing suits for damages
accordingly as a punitive measure rather than with any real expectation of damages being
eventually awarded by courts, unlike their UK counterparts.

CYBER CRIMES

20
Extracted on Sep 14, 2013, from http://www.tree.com/legal/learning-about-famous-libelcases.aspx
21
Extracted on Sep 14, 2013, http://www.dnaindia.com/india/1862619/report-no-relief-for-delhibjp-leader-in-
sheila-dikshit-s-defamation-case
22
Extracted on Sep 14, 2013, http://www.hindustantimes.com/India-news/NewDelhi/Courtdismisses-
defamation-case-against-Shinde/Article1-1085938.aspx
23
Extracted on Sep 14, 2013, from http://articles.timesofindia.indiatimes.com/keyword/defamation
24
Extracted on Sep 14, 2013, from http://www.rediff.com/news/report/zee-editor-filesdefamation-case-against-
jindal/20121221.htm
25
Extracted on Sep 14, 2013, from http://articles.timesofindia.indiatimes.com/2013-
0904/chennai/41764553_1_vijayakanth-public-prosecutor-writ
26
Extracted on Sep 14, 2013, from http://www.indianexpress.com/news/manoj-kumar-files-caseagainst-shah-
rukh-khan-for-defamation/1096678/ 18

27
Extracted on Sep 14, 2013, from http://zeenewsindia.com/news/defamation-cases-fine-imposed-on-medha-
patkar
28
Extracted on Sep 14, 2013, from http://indiatoday.intoday.in/story/times-now-defamation-case-rs-100-cr-fine-
sawant
 24

Cyber crimes can involve criminal activities that are traditional in nature, such as
theft, fraud, forgery, defamation and mischief, all of which are subject to the Indian
Penal Code

The abuse of computers has also given birth to a gamut of new age crimes that are
addressed by the Information Technology Act, 2000

CYBER DEFAMATION

SMC Pneumatics (India) Pvt. Ltd. vs. Jogesh Kwatra:

India’s first case of cyber defamation was reported when a company’s employee
(defendant) started sending derogatory, defamatory and obscene e-mails about its
Managing Director

The e-mails were anonymous and frequent, and were sent to many of their business
associates to tarnish the image and goodwill of the plaintiff company

The plaintiff was able to identify the defendant with the help of a private computer
expert and moved the Delhi High Court

The court granted an ad-interim injunction and restrained the employee from sending,
publishing and transmitting e-mails, which are defamatory or derogatory to the
plaintiffs

MEDIA & DEFAMATION

Restrictions on media: Under the Indian Constitution

The Supreme Court and High Courts are empowered to intervene and punish the
publication of any matter, which causes prejudice to a pending proceeding, to keep
the stream of justice clear and pure so that parties may proceed with safety both to
themselves and to their character

No person can flout the mandate of law of respecting the courts for establishment of
rule of law under the cloak of freedom of speech and expression guaranteed by the
Constitution

RECENT CASES

CASE 1 , March 21, 2014

Shimla: Himachal Pradesh High Court on Friday ordered retrial of a defamation case against
Chief Minister Virbhadra Singh by trial court of Judicial Magistrate, Una.

The case was filed by SM Katwal, former chairman of State Subordinate Services Selection
Board.
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Justice Dharam Chand Chaudhary passed the order on two separate petitions filed by Katwal,
challenging the judgement passed by the Sessions Court Una. The Sessions Court had
quashed summons issued by the Judicial Magistrate to Virbhadra Singh in two separate
defamation cases.

Katwal, who was a member of HPSSB from 1998-2000 and Chairman from 2000 to August
2003, had filed criminal defamation case in the Court of the Judicial Magistrate, Una alleging
that he was defamed by the speeches made by Virbhadra during public meetings at Rohara
and Kotla during bye-polls alleging sale of government jobs to persons from outside the State
by the HPSSSB.

The Court of Judicial Magistrate had issued summons to Virbhadra Singh on August 16,
2005.

Later, Singh filed a revision petition in the Sessions Court, which quashed the orders of
Judicial Magistrate Court on the ground that the complainant could not be called the person
aggrieved as the imputation at the most can be said to be against the Board and that too when
the Complainant was not the Chairman of the Board.

Katwal challenged the orders in the High Court submitting that the Revision Court had
discussed the evidence like a trial court at final stage, whereas the pre-charge evidence is yet
to be led and the whole evidence is to be considered at the stage of framing charges.

He maintained that the Board (HPSSSB) is a collection of persons and its defamation is also
defamation of its members and the Chairman and that no fresh recommendation/selection was
made by the Board after his Chairmanship to the date of statement made by Singh. The High
Court observed that the Revisional Court has a limited jurisdiction to see if there is a legal bar
against continuance of criminal proceedings or framing of charges.

The Court observed that," the Sessions Court was not justified in quashing the orders of the
Magistrate Court and discussing the evidence like final stage of the case".

The court directed that the records of the case be sent back to trial court for further
proceedings. 29

CASE 2,01 March ,2014

New Delhi: Delhi's Patiala House Court on Saturday issued summons to Congress MP and
owner of Jindal Steel and Power Limited (JSPL) - Naveen Jindal and three of his associates
for making various defamatory and false statements against Zee Business Editor, Samir
Ahluwalia.

Ahluwalia had filed the defamation case against Jindal in Patiala House Court stating that in
a press conference on October 25, 2012, Jindal and his associates issued false statements
against him to tarnish his image.

Metropolitan Magistrate Swati Katiyar issued summons under Section 499 of the IPC to
Naveen Jindal, Anand Goel, Vikrant Gujral and Ravi Uppal who were present in the said
press conference.
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The court ordered Jindal and his associates to be present in the court on May 16.30

CASE 3,14 february, 2014

New Delhi: A Congress MP has filed a defamation case in Delhi High Court accusing Chief
Minister Arvind Kejriwal of tarnishing his reputation by branding him as corrupt and sought
Rs one crore in damages.

Avtar Singh Bhadana, a sitting Congress MP from Haryana, has contended in his petition
that Kejriwal on January 31 this year in a public statement termed him as one of the "most
corrupt persons of India".

"The defendant (Kejriwal) who himself is an elected representative of Delhi has chosen to
name him (Bhadana) on January 31, 2014 as one of most corrupt persons of India in his
public statement causing serious damage to plaintiff's (Bhadana) reputation among his
electorates, peers and supporters throughout India with a view to take electoral advantage in
the forthcoming Lok Sabha elections in 2014," the petition, filed through advocate Surat
Singh, said.

The petition also states "this is sad and unfortunate that, instead of giving constructive
criticism, defendant is making false and baseless allegations against respected leaders of
various political parties and business houses and business institutions."

Bhadana has also contended in his plea that despite sending a legal notice to Kejriwal, the
CM has not withdrawn his comments nor apologised for the same.

The petition also seeks a permanent injunction against Kejriwal restraining him from making
any allegations against the Congress MP.31

CASE 4,January 06,2014

New Delhi: The Delhi High Court on Monday issued notice to ex-Army Chief Gen V K
Singh among others on a plea of former Defence Intelligence Agency head Lt Gen Tejinder
Singh against a lower court order asking him to seek sanction to prosecute them in a criminal
defamation case.

Besides the former Army chief, Justice Sunil Gaur also sought responses from then Vice
Chief of Army S K Singh, retired Lt Gen D S Thakur (the then DG of Military Intelligence),
Major Gen S L Narshiman (ADG of Public Information) and Col Hitten Sawhney.

Tejinder Singh, who is pursuing the defamation complaint against Singh and others, moved
the high court after a metropolitan magistrate on December 9 asked him to first approach the
central government for grant of sanction to prosecute.

The lower court had also clarified that if the government fails to grant or refuse sanction to
prosecute within the stipulated period then it would amount to deemed sanction.

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timesofindia.indiatimes.com
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Tejinder Singh's counsel Anil Aggarwal said the magistrate though held that accused, being
governed by the Army Act and the Defence Technical Publicity Rules, were prohibited from
directly interacting with the media, but wrongly concluded that the issuance of press release
was part of their official duty.

"On the one hand the trial court is holding that their act of issuing the press release is against
the law. On the other hand, it is saying it can be purported to be in discharge of official duty.
Can something against the law ever be part of official duty," he asked.

Tejinder had filed a private defamation case against Singh and four others alleging he was
defamed by the Army through its press release issued on March 5, last year which accused
him of offering a bribe of Rs 14 crore to the then Army Chief to clear a deal of 600 trucks, a
charge refuted by him.

The press release had accused Tejinder and some serving officers of the Military Intelligence
of planting a story in the media relating to purported tapping of some sensitive phones in the
national capital.

Earlier, during the day, the high court asked Aggarwal if he was willing to sit across the table
in the mediation centre and resolve the dispute.

To this, Tejinder's counsel said he was not open to it.

He said the Army chief has been repeatedly defaming him by making allegations and has
even done so in his autobiography.

CASE 5, June 26,2012

An FIR has been registered against Vijaya Karnataka daily in Kavoor police station, under
SC ST Prevention of Atrocities Act, for publishing a defamatory and abusive article against
an SC, ST lecturer of Mangalore University. The case has been registered under IPC section
989, 499 and 501. The newspaper editor Vishweshwar Bhat, Sreesha Punacha and KV
Nagaraj have been named as accused as per the complaint lodged by Umeshchandra,
a Lecturer in Mangalore University.
The complaint lodged with Panambur DySP had said so “ A defamatory article
onMangalore University Journalism Department Lecturer Umeshchandra had been published
in Vijaya Karnataka daily under the title “ Upanyasakaremba Maharajaru, shikshakaremba
kooligalu,” wherein abusive words were used with a prejudiced mind against SC ST lecturer.
It was alleged in the write-up that the journalism department lecturer had
denied permission to a few students facing attendance shortage to appear for the
exams. Legal action has to be initiated against the Vijaya Karnataka for publishing a write-up
that would bring harm to the reputation of Mangalore University.”
Vi Ka abuses Dalits again
Even as the Kavoor police have filed an FIR against Vijaya Karnataka, the daily in the cover
page of its Saturday issue has once again published an abusive write-up and has shamelessly
termed the complainant lecturer as “Betala” “Amavasyeya Chandra” and “Blackmail
Shikshaka.’ The write-up has also alleged that “ The Atrocities against Dalits Act was being
misused.”
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Dalit assns demand arrest of Vijaya Karnataka editor.

MANGALORE : Various Dalit associations as well as students of MangaloreUniversity have
demanded the arrest of Vijaya Karnataka editor Vishweshwar Bhat for publishing a
derogatory and abusive write-up against a lecturer of the Mangalore University.
This however is not the first time that Vijaya Karnataka is publishing such write-ups. Some
time back, when advocate and human rights activist Naushad Khasimji was murdered it had
published a false report stating that “the advocate was receiving hawala money from abroad
and was backing terrorists.” This despite senior police officials denying any such terror links
of the slain advocate.
Even when churches were attacked in Mangalore, it had published an inflammatory write-up
authored by SL Bhairappa. There were widespread protests against the write-up and the
PUCL had even lodged a complaint in Pandeshwar and Bunder police stations in this regard.
Now, in its latest move, the Vijaya Karnatakais targeting Dalits,much to the resentment of the
Dalit community.32

CASE 6, September 12,2013

The government on Friday filed a defamation case against Dravida Munnetra Kazhagam
(DMK) president M. Karunanidhi and the party organ ‘Murasoli’, in connection with the
publication of a news item criticising Chief Minister Jayalalithaa’s stay at the Kodanad Estate
in The Nilgiris.

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The Canara Times
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The complaint was filed in the Principal Sessions Court by City Public Prosecutor M.L. Jegan
on behalf of Ms. Jayalalithaa.

It stated, “The reading of question and answer given by Mr. Karunanidhi in ‘Kalaignar
Pathilgal’ (Kalaignar’s answers) is libellous.”

The complaint also said the allegation made in the publication that the Chief Minister had
taken a break from office was totally unjustifiable. Such a statement was defamatory and
derogatory per se.

The complainant also prayed the court to punish Mr. Karunanidhi and S. Selvam, printer,
publisher and editor of the daily, for the defamation.

The State government, this week, had already filed defamation cases against The Hindu and
‘The Times of India’ for carrying news items on the statements of Desiya Dravida Murpokku
Kazhagam founder Vijayakant and DMK treasurer M.K. Stalin on the Chief Minister’s stay
at the Kodanad estate. 33

CASE 7 ,June 26 2012

The Tamil Nadu Government on Tuesday filed a complaint in the Principal Sessions Court in
Chennai against a Tamil bi-weekly for publishing a news item allegedly defaming Chief
Minister Jayalalithaa.

The complaint, filed by the City Public Prosecutor on behalf of the Chief Minister, cited the
Editor, Publisher and Printer of "Junior Vikatan" as accused.

According to the complaint, the magazine in its June 24 issue had carried a news item stating
that a 'yagnam' was to be performed in the Poes Garden residence of the Chief Minister
which was defamatory.

Claiming that there was no truth in the news, the complainant submitted that at no point of
time was a yagnam or pooja supposed to be held.34

CASE 8,July 17,2012

Another Criminal Defamation Against Tamil bi-weekly Junior Vikatan

Vikatan had published article against Chief Minister M. Karunanidhi

Complaint was filed against the author of the article and Editor, Printer and Publisher

Principal Session Judge P Devdoss adjourned hearing in the case. 35

CASE 9, January 02, 2009

Defamation case against A.R Rahman and Anil Kapoor

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www.thetimes ofindia.com
34
www.ndtv.com, june 26 2012
35
www.thehindu.com
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In a complaint filed before a local court in Mumbai Tapeshwar Vishwakarma, general

secretary of Slum-dwellers Joint Action Committee, has alleged that the film depicted
slum-dwellers in bad taste as it used the derogatory and objectionable title 'Slumdog
Millionaire' thus calling Indians dogs and slum dwellers slum dogs, which is
defamatory

The meaning of 'Slumdog Millionaire' in Hindi is the millionaire dog of slum-

dwellers, Vishwakarma alleged, adding that such a name was a violation of human
rights and honour

Vishwakarma said he has already approached the national and state human rights
commissions for necessary action against Rahman and Kapoor, who portrays the role
of a game show host in the film36

CASE 10

Ram singh v Gurbachan singh &others, 20 Feb 2014

The complainant Avjinder Singh had purchased a piece of land from Basant Kaur mother of
petitioner No.1 who was more than 100 years old by a fraudulent transaction. The petitioners
1 Raj Kumar Arora attest to the accuracy and integrity of this document aggrieved by the said
transaction filed a suit for declaration and permanent injunction against complainant Avjinder
Singh and others allegedly making a defamatory statement in the complaint

Kaur defendant No.2 executed a sale deed dated 31.7.1989 in favour of defendant No.1
Avjinder Singh complainant. The sale was illegal, fake, forged, fabricated and an act of fraud
played by Avjinder Singh and Basant Kaur and was without consideration. Defendant No.1
(Avjinder Singh) is a professional bad character type of person and has taken advantage of
wrong entries in the revenue records and of the old age of defendant No.2 and plaintiff No.1
is not bound by the same. On the basis of said pleadings, the complainant filed a complaint
for offence of defamation unde Sections 499 and 500 of the Indian Penal Code. After
recording preliminary evidence, the trial Court summoned the petitioners to face trial under
Section 500 of the Indian Penal Code. Avjinder Singh complainant died on 28.10.2009. His
son Gurbachan Singh moved an application under Section 256 Cr.P.C., for his substitution as
a complainant to proceed with the pending complaint. The petitioners as accused filed reply
claiming that the complaint was liable to be dismissed after death of the complainant. The
trial Court allowed the application vide 2 Raj Kumar Arora 2014.02.25 13:46 I attest

Apex Court Judgment (SC) 666, held that the application for permission to proceed with the
complaint through Gurbachan Singh son of Avjinder Singh (deceased complainant) is
maintainable holding that the judgments in Ashwin Nanubhai Vyas Vs. The State of
Maharashtra and another 37; Ratan Singh and others Vs.Chain Singh38; and Vishwa Nath

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37
AIR 1967 SC 983
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Vs. Shambhu Nath Pandeya,39 cited by the counsel for the petitioners are not applicable to
the facts of the case. Through the instant revision petition, the petitioners claim
that defamation is a personal injury and it dies with the death of the complainant and the
judgment in case Ashwin Nanubhai Vyas (supra) has been wrongly distinguished by the trial
Court. Counsel for the petitioners has relied upon the judgment in case Ratan Singh and
others Vs.Chain Singh,40 , in support of his contention that continuation of proceedings by a
Magistrate after the death of the complainant is not warranted. Counsel for the respondent has
relied upon the judgments in Shri Balasaheb K Thackery and another Vs. Shri Venkat alias
Babur and another, Santhi Balagopal Vs.Benilde , Nathu Jeorakhan Vs.Sheopal Kuppa
and others; and Mrs.Pat Sharpe Vs. Dwijendra Nath Bose, in support of her contention that
complaint of defamation may remain alive till the decision of the trial. I have heard the
learned counsel for the petitioners as well as the learned counsel for the respondent and gone
through the facts and circumstances of the case and the case law cited by the learned counsel
for both the parties. The relevant provision of law which deals with the death of a
complainant in a summons case is Section 256 Cr.P.C., which reads as follow: - "256. Non-
appearance or death of complainant - (1) If the summons has been issued on complaint and
on the day appointed for the appearance of the accused, or any day subsequent thereto to
which the hearing may be adjourned, the complainant does not appear, the Magistrate shall
notwithstanding anything hereinbefore contained, acquit

CONCLUSION
Defamation is a relatively new tort for Indian Law. Not many defamation suits
were filed in the country until recently and the only ones that were filed were
those by film stars and the rich and the famous, against the media, trying to
salvage their reputation. However, now after the media revolution in this
country, and with people becoming more aware of their rights, the frequency of
defamation suits being filed is increasing. Recently, there have been a few cases
where a few journalists have exposed the corrupt side of the politicians by
discreetly filming a politician with a hidden camera when he was taking a bribe
for posing questions in parliament or religious heads discreetly accepting bribes
in order to go ahead and declare something about their religion, distorting
completely the religious principles they are supposed to uphold and by misuse
the authority vested in him/her. In English Common Law, reputation is the most
clearly protected and is remedied almost exclusively in civil law by an award of
damages after trial by a jury. However, the Law of Defamation like many other

38
2000 Cr.L.J.2736 (HC)
39
1995 Crl.L.J. 277 (HC),
40
2000 Cr.L.J.2736 (HC)
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branches of tort law aims at balancing the interests of the parties concerned.
These are the rights that a person has to his reputation vis-à-vis the right to
freedom of speech. The Law of Defamation provides defenses to the wrong
such as truth and privilege thus also protecting right of freedom of speech but at
the same time marking the boundaries within which it may be limited. In India
tort law is obtained from British Common Law and is yet uncodified, except for
few areas. Therefore the existing law relating to defamation places reasonable
restrictions on the fundamental right of freedom of speech and expression
conferred by Article 19(1) (a) of the Constitution and is saved by clause (2) of
Article 19.
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BIBLIOGRAPHY
Books

 David Price and Korieh Duodu, Defamation: Law, Procedure and Practise, Sweet and
Maxwell, Third Edition, 2004, London
 Justice G.P. Singh, Ratanlal and Dhirajlal, The Law of Torts, Wadhwa and
Company Nagpur, Twenty-Fourth Edition, 2007, Delhi
 Margaret Brazier and John Murphy, Street on Torts, Butterworths, Tenth Edition,
1999, London
 R. K. Bangia, Law of Torts, Allahabad Law Agency, Nineteenth Edition, 2006,
Haryana
 S.K. Desai and Kumud Desai, Ramaswamy Iyer’s The Law of Torts, Seventh
Edition, 1975, Bombay W. V. H. Rogers, Winfield and Jolowicz on Tort, Sweet and
Maxwell, Seventeenth Edition, 2006, London 20

Websitesa reffered

 http://www.indianexpress.com/news/

 http://zeenewsindia.com/news/defamation-cases/

 http://indiatoday.intoday.in/story/times-now-defamation-case

 www.wikipedia.com

 www,indiankanoon.com

 www.ndtv.com

 http://www.tree.com/legal/learning-about-famous-libelcases.aspx

 http://www.dnaindia.com/india

 http://www.hindustantimes.com/India-news/NewDelhi/

 http://www.rediff.com/news/report/zee-editor-fil