TABLE OF CONTENTS

Cases ....................................................................................................................... Error! Bookmark not defined. Introduction ........................................................................................................................................................................ 6 Section 499 .......................................................................................................................................................................... 8 Scope .............................................................................................................................................................................. 10 Section 499 Is Not Violative Of Article 19 Of The Constitution ............................................................. 10 Ingredients Of An Offence Under Section 499 .............................................................................................. 10 Elements of Section 499......................................................................................................................................... 11 Whoever...................................................................................................................................... 11 By Spoken Words or by Words that are Intended to be Read, or by Signs or by Visible Representations ........................................................................................................................... 12 Makes .......................................................................................................................................... 12 Publishes ..................................................................................................................................... 12 Imputation .................................................................................................................................. 17 'Concerning any Person'................................................................................................................ 21 'Intending to Harm, or Knowing or Having Reasons to Believe That Such Imputation will Harm, the Reputation of Such Person' .................................................................................................... 22 'Harm' ............................................................................................................................................ 23 'Reputation' ................................................................................................................................... 23 Explanation 1.............................................................................................................................................................. 23 Explanation 2.............................................................................................................................................................. 24 Explanation 3.............................................................................................................................................................. 24 Explanation 4.............................................................................................................................................................. 25 Exception to Section 499 ....................................................................................................................................... 25 Exception 1 .................................................................................................................................... 30 Exception 2 .................................................................................................................................... 31 Exception 3 .................................................................................................................................... 32 Exception 4 .................................................................................................................................... 33 Exception 5 .................................................................................................................................... 33 Exception 6 .................................................................................................................................... 34 Exception 7 .................................................................................................................................... 35 Exception 8 .................................................................................................................................... 36 Exception 9 .................................................................................................................................... 36

Exception 10.................................................................................................................................. 41 Section 500 ....................................................................................................................................................................... 41 Scope .............................................................................................................................................................................. 41 Ingredients .................................................................................................................................................................. 42 Procedure..................................................................................................................................................................... 42 Section 501 ....................................................................................................................................................................... 43 Scope .............................................................................................................................................................................. 43 Ingredients .................................................................................................................................................................. 44 Procedure..................................................................................................................................................................... 44 Proof ............................................................................................................................................................................... 45 Section 502 ....................................................................................................................................................................... 45 Scope .............................................................................................................................................................................. 45 Ingredients .................................................................................................................................................................. 45 Procedure..................................................................................................................................................................... 46 Proof ............................................................................................................................................................................... 46 Concept of Online Defamation ................................................................................................................................. 47 Origin ............................................................................................................................................................................. 47 Position in India ........................................................................................................................................................ 48 SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra ..................................................................... 48 TATA Sons v. Greenpeace International ....................................................................................... 49 State of Tamil Nadu Vs Suhas Katti ............................................................................................... 50 Medha Patkar case........................................................................................................................ 50 Problem Regarding Law of Defamation ............................................................................................................... 51 Conclusion ........................................................................................................................................................................ 52 Bibliography .................................................................................................................................................................... 53 Webography .................................................................................................................................................................... 53

Cases
Abdul Aziz v. Mohammad Arab............................................................................................................. 15 Abid Ali Khan v. Prabhakar Rao ............................................................................................................ 13 Ajit v. Radha Klshan .............................................................................................................................. 14 Amar Singb v. Badaiia ........................................................................................................................... 13 Amar Singh v. KS Badalia ...................................................................................................................... 23 Annada Prasad v. Monotosan Roy........................................................................................................ 32 Asha Parekh v. State of Bihar ............................................................................................................... 22 Asok Kumar Jain and others v. State of Maharashtra .......................................................................... 16 Bakhtwar Lal v. Crown ......................................................................................................................... 21 Balraj Khanna v. Moti Ram .................................................................................................................. 26 Benjamin Gitlow v. People of the State of New York ............................................................................. 7 Bhewati v. Umabai ................................................................................................................................ 21 Bibhuti Bhusan Das Gupta v. Sudhir Kumar Mazumdar...................................................................... 29 Bola Nath v. Emperor ........................................................................................................................... 20 Boxus v. Goblet Freres ......................................................................................................................... 14 Brij Ballabh Goyal v. Satya Dav ............................................................................................................. 14 C. Piilai v. Kamnji ................................................................................................................................... 12 Chaman Lal v. State of Punjab .............................................................................................................. 34 Chandra Shekhar v. Karthikeyan .......................................................................................................... 30 Chandrashekhara PiIlai v. K Karthikeyan .............................................................................................. 16 Chellapan Pillai v. Karanjia.................................................................................................................... 18 Chimanbhai Somabhai v, Mithu Bara ................................................................................................... 44 Crown v. Uma Shankar ............................................................................................................................ 7 Dhyandevrao L Waghmode v. Allabaksh GulabNadaf ............................................................................ 7 Edara Venkayya v. Kalipattapu Chitti ................................................................................................... 20 Emperor v. Behari................................................................................................................................. 21 Empress v. Taki Hussain ........................................................................................................................ 15 Gour Chandra Rout v. Public Prosecutor ............................................................................................ 44 Government Advocate, B&O v. Gopa Bandhu Das .............................................................................. 21 Govindan Nair v. Atchuta Menon ......................................................................................................... 15 Harbhajan Singh v. State of Punjab ..................................................................................................... 30 Harsh Mendiratta v. Maharaj Singh..................................................................................................... 35 Horilal v. Vishwanath ............................................................................................................................ 18 J. Chelliah. v. Rajeshwari ....................................................................................................................... 18 J. Chellihl v. Rajeswari ......................................................................................................................... 25 Jaffar Fadu v. Emperor .......................................................................................................................... 28 Jai Debi Kaur v. Emperor ..................................................................................................................... 16 Jawaharlal Darda v. Manoharrao Ganpatrao ..................................................................................... 30 JMRoy v. Surinder Kumar Sher .............................................................................................................. 11 K S. Namjudaiah v. s.c. Thippanna ........................................................................................................ 18 K. M. Mathew v. K. A. Abraham ........................................................................................................... 42 K.V. Ramesh v. H. C. Ramesh ............................................................................................................... 14 Kanwal Lal v. State of Punjab.......................................................................................................... 18, 36

Kashi Ram v. Emperor ........................................................................................................................... 20 KeshabLal v. Provet Chandra ................................................................................................................ 14 Khima Nand v. Emperor ........................................................................................................................ 15 Krishnappa v. Swami Akhandanand ..................................................................................................... 20 KV Ramaiah v. Special Public Prosecutor ................................................................................................ 7 KV Ramaniah v. Special Public Prosecutor ............................................................................................ 10 L.C. Randhir v. Giridharilai ................................................................................................................. 30 Lalliani v. R. L Rina.............................................................................................................................. 18 Laxminarayan Singh v. Shriram Sharma ............................................................................................... 18 Luckumsey Ronji v. Hurbans Nursy...................................................................................................... 23 Lunney v. Prodigy Services Company................................................................................................... 47 M.P. Narayana Pillai and others v. M.P. Chako and another ............................................................. 24 Mitlul Rustomji Murzban v. Nueeertoanji Nowroji ............................................................................... 20 MKT Subramanium v. State .................................................................................................................. 25 MN Meera v. AC Mathew ..................................................................................................................... 15 Mohinder Singh Dhillon v. Ganga Dhar Sharma ................................................................................... 14 Momon v. Tussands .............................................................................................................................. 12 N.K Singh v. R.B. Singh .......................................................................................................................... 18 N.L. Shalt v. Patel Maganbltni Reoabhai and Another ........................................................................ 13 NCERT v. PD Bhatnagar................................................................................................................... 10, 11 Neela Kanthan Kamalasanan v. Achutan ............................................................................................. 30 New York Times Co. v. Sullivan.............................................................................................................. 35 Nomgthombum Kanhai Singh v. Bhaskar Singh ................................................................................... 20 P. M. Kathiresan v. Shanmugham ........................................................................................................ 36 Panday Surinder Nath Sinha v. Bageshwari Prasad ............................................................................ 39 Panna Lal v. Emperor ............................................................................................................................ 20 Patrick Cahill v. john Doe .................................................................................................................... 47 PR Rama Krishnan v. Subbramma SJltrigal ........................................................................................... 14 Praninchand Jaggiuandas Gandhi v. Ibrahim Mohammed ................................................................... 10 Prem Pal Singh v. Mohan Lal........................................................................................................... 10, 11 Queen-Empress v. Buthi........................................................................................................................ 15 R v. Burdett ........................................................................................................................................... 15 R. Shanker v. State ................................................................................................................................ 25 Raj Kapoor v. Narendra ......................................................................................................................... 22 Raja Ram Singh v. Emperor ................................................................................................................... 18 Ram Jethmalani v. Subramaniam Swamy............................................................................................. 40 Ram Narain v. Emperor ......................................................................................................................... 18 Rarnesh Chander v. State ...................................................................................................................... 41 re Arundhati Roy ................................................................................................................................... 32 Rekhabai v. Dattatraya ......................................................................................................................... 42 Rukmani Bai v. Radha Ballabh .............................................................................................................. 21 S. Khushboo v. Karniammal and Another ............................................................................................ 17 Sankaran v. Ram Krishna ...................................................................................................................... 44 Sanyal v. K V.R. Nair .............................................................................................................................. 13 Sarat Chandra Das v. State ................................................................................................................... 21

Sewak Ram Sobhani v. R.K. Karanjia ..................................................................................................... 38 Sharpe v. Dwi;endra Nath Bose ............................................................................................................ 18 Shoobhagi Keori v. Bokhori Ram ........................................................................................................... 16 Shutrughna Prasad Sinha v. Rajbhall Surajmai Rathi ......................................................................... 17 Slate v. D Packiaraj................................................................................................................................ 28 SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra ............................................................................. 48 SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra ........................................................................... 48 Sunlakhya Chowdhury v. HM Jadwet .................................................................................................... 10 Sunllakhya Chowdhury v. H.M. Jadwet ................................................................................................. 12 T. Salish U. Pai v. Narauan Nagappa Nayak ....................................................................................... 33 TATA Sons v. Greenpeace International ............................................................................................... 49 Thangaoelu Chettiar v. Pohnammal ..................................................................................................... 20 Tlriagaraya v. Krishnasami.................................................................................................................... 13 Todd v. Hawkins ................................................................................................................................... 41 Tsc Wai Paul v. Chang.......................................................................................................................... 34 V Palani v. S. P. Chandrabose.............................................................................................................. 43 V. IIIalh v. K. Keshavall .......................................................................................................................... 13 V. Subair v. P. K. Sudhakaran .............................................................................................................. 18 Vishwa Nath v. Shambha Nath Pandeya .............................................................................................. 24 Yeeda Menezes v. Yusuf Khan Haji Ibrahim Khan ................................................................................. 23 Yeshwant Singh v. Kushwah .................................................................................................................. 18

INTRODUCTION
Defamation is a false and unprivileged statement of fact that is harmful to someone's reputation, and published "with fault," meaning as a result of negligence or malice. "A misapplied and misapprehended term is sufficient to give rise to a fierce and interminable dispute. An artful watchword thrown among combustible materials has kindled the flame of deadly warfare and changed the destiny of an empire." Richards. I.A.: Introduction to Roger's Pocket Thesaurus.1 As expressed by Richards, a misapplied and misapprehended term is sufficient to give rise to a fierce and interminable dispute. An artful watchword thrown among combustible materials has kindled the flame of deadly warfare and changed the destiny of an empire. Every person has an inherent right to protect and preserve his reputation intact.2 It is a fundamental principle, long established that the freedom of speech and of the press which is secured by the Constitution does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and 'unbridled license that gives immunity for every possible use of language, and prevents the punishment of those who abuse this freedom ... Reasonably limited, it was said by story in the passage cited, this freedom is an inestimable privilege in a free government; without such limitation, it might become a scourge of the republic.3

Gandhi B. M., Indian Penal Code, 2nd Ed. 2006, P-707. Ibid. P-710. 3 Benjamin Gitlow v. People of the State of New York (1923) 69 Law Ed 1138.
1 2

Freedom of speech and expression under Art 19 (1) (a) cannot be taken to mean absolute freedom to say or write whatever a person chooses recklessly and without .regard to any person's honour and reputation. Indeed the right has its own natural limitation. Article 19(2) in this behalf contains safeguards of reasonable restrictions on the exercise of the right. 4 Under s 499, IPC, only such imputation as are malicious and reckless and not for public good, tranquillity or peace or public security or as are not made in good faith, have been brought within the definition of defamation which is but the abuse of the freedom of speech and expression punishable under s 500, IPC. Therefore, the provisions of s 499 cannot be said to place any unreasonable restriction on the freedom of speech or expression. Hence, s 499, IPC, is not violative of Art 19. The Constitution does not grant immunity from all punishments of abuse of freedom of speech and the accused can be put to answer criminally for the breach of reasonable restrictions on his 'freedom of speech or for his abuse of the freedom of speech. Punishment is not a restriction in itself but is indeed a consequence of the breach of restriction which the defaulter cannot escape.5 Section 499 has a large number of Exceptions. They cover the entire field of privileges available in cases of defamatory statements. In fact, these privileges represent the freedom of speech and expression which is the foundation of all democratic institutions. However, while considerable latitude is allowed in respect of these privileges, they are also subject to a large number of conditions. Loss of life and loss of reputation are two things which cannot be compensated in terms of money. Reputation especially is something which is a treasure to a person.6 The provisions of these sections act as a deterrent against the commission of the offence of defamation. However, due to restrictions imposed in s 199, CrPC 1973, it is the aggrieved person and when he is incapable, a proper person on his behalf can set the criminal law in motion against the person accused. This topic deals with the following four sections:

(a) Section 499- It defines the offence of defamation along with four explanations. The section also has ten Exceptions to the offence of defamation. (b) Section 500- The offence of defamation as defined under s 499 is punishable under this section with simple imprisonment which may extend upto two years, or with fine, or with both. (c) Section 501- The offence under this section is distinct from an offence under s 500. 7 Printing or engraving matter known to be defamatory is made punishable under this section though the sentence prescribed is the same as prescribed in the preceding section. (d) Section 502- The sale of printed or engraved substance containing defamatory matter is made punishable under this section. The sentence prescribed is the same as in the preceding two sections.8
KV Ramaiah v. Special Public Prosecutor AIR 1961 Andhra Pradesh 190 (DB). Nelson R A, Indian Penal Code, 10th Ed. 2008 Vol. IV, P-4673. 6 Dhyandevrao L Waghmode v. Allabaksh GulabNadaf 1999 Cr LJ 1754 (Born). 7 Crown v. Uma Shankar 18 PR 1889.
4 5

In English law the crime of private libel has the tendency to provoke breach of peace. Under Indian Penal Code, however, defamation has been made an offence without any reference to its tendency to cause acts of illegal violence. Mental suffering caused to the person defamed is the gist of this offence. In English law a distinction has been maintained between libel and slander, but under Indian law no such distinction has been recognised.9

SECTION 499
Section 499 read as follows: 499. Defamation, - Whoever, by words either spoken or intended to be read, or, by sings 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 herein after excepted, to defame that person. Explanation 1 - It may amount of 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 - It may amount to defamation to, make an imputation concerning a company or an association or collection of persons as such. Explanation 3 - An imputation in the form of an alternative or expressed ironically, may amount to defamation. Explanation 4 - 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. First Exception- Imputation of truth which public good requires to be made or published.- 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. Second Exception- 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.
8 9

Nelson, Supra note 5 at 4674 Mishra S. N., Indian Penal Code, 18th Ed. Repr. 2012, P-854.

Third Exception- 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. Fourth Exception- 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. . Explanation- A justice of the peace or other officer holding an enquiry in open court preliminary to a trial in a court of justice, is a court within the meaning of the above section. Fifth Exception- 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. Sixth Exception- 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 further. Explanation- 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. Seventh Exception- 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. Eighth Exception- 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. Ninth Exception- 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 that 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. Tenth Exception- Caution intended for good of person to whom conveyed or for public good.- It is not defamation to convey a caution, in good faith, to one person against another provided that such caution be intended for the' good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good.

SCOPE
This section defines the offence of defamation with the aid of four Explanations and ten Exceptions with more Explanations and illustrations appended to the Exceptions. 10 The authors of this Code observed that the essence of the offence of defamation consists in its tendency to cause that description of pain, which is fell by a person who knows himself to be the object of the unfavourable sentiments of his fellow-creatures, and those inconveniences to which a person, who is the object of such unfavourable sentiments, is exposed.11 The criminal law of India with regard to defamation depends on the construction of this section, and not on what is the English law on the subject 8 Whether the publication of defamatory words or uttering defamatory words, heard and listened to by people takes place in a proceeding in a court room or outside the court precincts does not matter as long as the defamatory words are intended to harm the reputation of another.12

SECTION 499 IS NOT VIOLATIVE OF ARTICLE 19 OF THE CONSTITUTION

Under s 499, IPC, only such imputations as are malicious and reckless and not for public good, tranquillity or peace or public security or as are not made in good faith, have been brought-within the definition of defamation which is but the abuse of freedom of speech and expression punishable under s 500, IPC.13 Therefore, the provisions of s 499 cannot be said to place any unreasonable restriction on the freedom of speech or expression. Hence, s 499, IPC, is not violative of Art 19 of the Constitution of India.14

INGREDIENTS OF AN OFFENCE UNDER SECTION 499

The offence of defamation consists of three essential ingredients15: (a) There must be a making or publishing of an imputation concerning a person; (b) Such imputation must have been made by words, either spoken or intended to be read, or by signs or by visible representations; and (c) The said imputation must have been made with the intention to harm, or with knowledge or reasonable belief that it will harm, the reputation of the person concerned.16

NCERT v. PD Bhatnagar 1980 Raj Cr Cas 392, 396, 1981Cr LJ(NOC) 57 (Raj). Nelson, Supra note 5 at 4681. 12 Praninchand Jaggiuandas Gandhi v. Ibrahim Mohammed Merchant 1987 Cr LJ 1795 (Bom). 13 KV Ramaniah v. Special Public Prosecutor AIR 1961 Andhra Pradesh 190 (DB), 1961 (1) Cr LJ 601. 14 Nelson, Supra note 5 at 4681. 15 Sunlakhya Chowdhury v. HM Jadwet AIR 1968 Cal 266, 271, 1968 Cr LJ 736; Prem Pal Singh v. Mohan Lal 1981 Cr LJ 1208, 1211 (Himachal Pradesh); NCERT v. PD Bhatnagar 1980 Raj Cr Cas 392, 397, 1981 Cr LJ (NOC) 57 (Raj).
10 11

The first and foremost question, which a court dealing with a criminal prosecution, involving the offence of defamation must, therefore, answer, is whether the alleged material, described as defamatory, amounts to imputation within the meaning of this expression as used in s 499. Imputation ordinarily implies an accusation.17 Imputation or accusation, alone will, however, not suffice. To constitute the offence of defamation, the prosecutor will have to prove that the imputation or accusation was made with an intention or knowledge or belief as mentioned in ingredient (c) above A person is not guilty of defamation by making the imputation or accusation unless he intends to harm, or he knows or has reason to believe that thereby he would harm, the reputation of another person. In other words, an: imputation or accusation simpliciter without proof of the requisite intention, knowledge or belief, as covered by ingredient (c) of the definition, will not constitute the offence of defamation.18 The question whether an imputation or accusation is defamatory or not is a mixed question of law and fact. If there is a controversy as to whether the material, complained of, is defamatory or not, the court will first have to decide, as a question of law, as to whether the said material is capable of being understood in a defamatory sense. If the court decides this question in the affirmative, it will then, and only, proceed to determine whether the said material, containing a defamatory potential, had, in fact, harmed the reputation of the complaint within the ambit of the definition of such harm as given in Explanation. If the material is defamatory per se, for example, where the accused imputed commission of a felonious crime to the complainant, there is no difficulty in deciding the question of law mentioned above. The court will, at once, answer it by saying that the imputation of commission of felony by the accused is capable of being understood in no other but a defamatory sense. In such a situation, the court will be justified taking the parties to evidence with a view to determine; as a question of fact, whether the said imputation had harmed the reputation of the complainant within the four corners of Explanation 4. If, on the other hand, the words of the alleged imputation are ambiguous, it becomes a question of some difficulty for the court to decide whether those words are capable of being understood in a defamatory sense. If the court decides, in the context of a particular complaint, that the words, in question, are reasonably capable of bearing a defamatory meaning, it is only thereafter that it will address itself to the question of fact regarding harm to the reputation of the complainant.

ELEMENTS OF SECTION 499

WHOEVER

Nelson, Supra note 5 at 4682. NCERT v. PD Bhatnagar 1981 Raj Cr Cas 392, 397, 1981 Cr LJ (NOC) 57 (Raj); Prem Pal Singh v. Mohan Lal 1981 Cr LJ 1208, 1211. 18 NCERT v. PD Bhatnagar 1980 Raj Cr Cas 392, 397, 1981 Cr LJ (NOC) 57 (Raj); JMRoy v. Surinder Kumar Sher 1975 Kash LJ 358.
16 17

BY SPOKEN WORDS OR BY WORDS THAT ARE INTENDED TO BE READ, OR BY SIGNS OR BY VISIBLE REPRESENTATIONS
In India a person can be defamed not only by writings, he can also be defamed by spoken words. Here at this point Indian law of defamation differs from English law of defamation. Under English law only writing, printing, engraving, or some other process only can constitute defamation. Spoken words never constitute defamation. Under that law spoken words furnish ground for a civil action. In the Indian Penal Code the words furnish ground for a civil action. In the Indian Penal Code the word defamation has been used to denote what is known as libel and slander under English law. The words 'visible representation' will include every possible form of defamation which ingenuity can devise. Thus a statute, a caricature, an effigy, chalk marks on a wall, signs or pictures may constitute a libel, 19 in addition to words spoken. The publication of a group photograph with a false caption "goonda"20 would be defamatory.21

MAKES
Every such person who is engaged in composing, dictating, writing or in any way contributing to the making of a libel is the maker of the libel. Where the matter is dictated by one person and written down by another person, both shall be guilty of this offence. Similarly if one person speaks, another writes and third approves of it, all the three shall be guilty. The reason is that all who concur and assent to the doing of an unlawful act will be guilty of this offence.22

PUBLISHES
The word 'publishes' means to make known to others. 23 As observed by Calcutta High Court, 24 the words "makes or publishes" supplements each other. 25 For the offence of defamation publication of defamatory matter is essential. In other words the defamatory matter must be communicated to some person other than the person to whom it concerns26 e.g. dictating a letter to a clerk is publication.27 Communication by one person to another is

Momon v. Tussands Ltd., (1894) 1 Q.B.D. 671. C. Piilai v. Kamnji, (1962) 2 Cri. L.J. 142 21 Mishra, Supra note 9 at 858. 22 Mishra, Supra note 9 at 855. 23 Nelson, Supra note 5 at 4686. 24 Sunllakhya Chowdhury v. H.M. Jadwet, AIR 1968 Ca1266: 1968 Cri W 736. 25 Gandhi, Supra note 1 at 715. 26 Mishra, Supra note 9 at 855. 27 V. IIIalh v. K. Keshavall, (1900) I Weir 579.
19 20

the crux of publication 28 , but communication to the person to be defamed only is no publication.29 Publication of a defamatory matter can be made by a post card, telegram, printed papers or leaflets, newspapers, 30 Journals and by broadcasting on radio or television. Talkies and cinema films or even gramophones were unknown when this Code was enacted but the word publication covers them all.31 Defamatory matter,32 if written on a postcard, or printed on a paper will constitute publication when it is distributed or broadcasted.33 In Taki Hussain's case, a person despatched a public officer a notice by post which was closed in a cover. The notice contained imputation on the character of the recipient. Allahabad High Court was of the view that since there was no publication of the matter, therefore, this offence was not constituted.34 In N.L. Shalt v. Patel Maganbltni Reoabhai and Another35, an interesting situation arose for decision. There was agitation of lawyers in Gujarat in connection with appointment and transfer of Chief Justice of High Courts. On account of the agitation the lawyers ceased to participate in court proceeding and resorted to 'satyagraha'. An editorial in a newspaper criticised as to whether it behoves to the lawyers as a class to resort to strike. The lawyers were inter alia described as "kajia dalal" i.e. dispute broker, in the editorial. In a suit for defamation against the editor, the Gujarat High Court held that the editorial did not refer to the complainant personally or to any other individual but referred to the lawyers as a class and at the most the lawyers of Gujarat. The alleged defamation could not be referred to a determinate or identifiable section or class of lawyers as distinguished from the rest of the members of lawyers fraternity. The words "Kajia Dalal" was held to be used in relation to the lawyers as a class and is not referable to a determinate section of lawyers, namely, the lawyers who were participating in the agitation. The thrust of the editorial was that lawyers should not have gone on strike. If the imputation is defamatory per SC, necessary mens rea will be presumed. The maker of the statement must know that it will harm the reputation of one concerning whom it is made. The court distinguished between 'character' and 'reputation'. The term 'reputation' means 'what is generally said or believed about the persons or things'. "Character" means fortitude or moral constitution or strength of a person. It has no relevance with the belief or opinion of others in respect of a person. Therefore, character is what a person "actually is"; while "reputation" is what neighbours and others say "what he is". The man may have, in fact, a good character and yet suffer from bad reputation or vice versa. By no stretch of reasoning, the term 'reputation' can imply ones' own belief about himself.
Amar Singb v. Badaiia, (1965) 2 Cri U 693. Bhuliram, (1962) 2 Cri U 760; See also Kundanmal, (1943) 45 Cri LJ 105: S.S. Sanyal v. K V.R. Nair, 1987 Cri U 2074 (Cal). 30 Abid Ali Khan v. Prabhakar Rao, 1968 Cri U 398; Shiv Gonda, 1968 Cri LJ 836. 31 Gandhi, Supra note 1 at 715. 32 Mishra, Supra note 9 at 855. 33 Tlriagaraya v. Krishnasami, (1892) 15 Mad. 214. 34 Taki Hussain, (1884) 7 All. 205 (F.B.). 35 1984 Cri. L.J. 1790 (Guj.).
28 29

It may be stated here that the word 'publishes' in s 499, IPC, does not contemplate that the communications, which one is bound to make to others in the normal course of his legal duties, should fall within the ambit of this section, 36 otherwise every officer, clerk and superintendent and everybody, who has to deal with a document and pass it on to others, would be taken to publish the same.37 No publication can be said to have taken place for the counsel to give the contents of a written statement to his own client or to his own clerk in the ordinary discharge of his duties as a lawyer or to handover the envelope, containing the written statements, to a clerk of another counsel.38 The dictation given by a lawyer to his clerk and transcription made by him of a per se libellous matter cannot amount to publication.39 In Boxus v. Goblet Freres, A solicitor or an advocate who dictates to his clerk a letter containing defamatory statement regarding a person is not liable for defamation.40 In K.V. Ramesh v. H. C. Ramesh,41 a newspaper published extracts from a book written about a former Prime Minister of India alleging corruption by him. The extracts also contained imputations against his other family members including sons, daughter and wife. The Karnataka High Court observed that sons could thus be said to be persons aggrieved and so complaint filed by a son cannot be quashed. The editor of the newspaper is liable for prosecution and his plea that he was merely a publisher and not an author of the matter is not tenable. Allegations of criminal conspiracy between the editor, executive editor, managing editor and the resident editor with clear intention of defamation of the complainant were made. The court held that application for quashing of proceedings on the ground that only the editor was responsible for the said publication cannot be allowed. Publication of extracts of the book in the newspaper gives a fresh cause of action for prosecution against the publisher of the newspaper.

There are various circumstances regarding the publication:42

i. Publication- May not always be made with clarity

A libellous statement may not always be made with clarity. A degree of indirectness or innuendo may be there and this can very well be expected since defamation is an offence. It is reasonable to think that he who defames is not anxious to invite legal consequences

Nelson, Supra note 5 at 4687. Brij Ballabh Goyal v. Satya Dav 1960 Cr LJ 1136, AIR 1960 Raj 213; Mohinder Singh Dhillon v. Ganga Dhar Sharma (1975) 77 Punj LR 716. 38 Ajit v. Radha Klshan 32 PLR 772; KeshabLal v. Provet Chandra AIR 1938 Cal 667, 39 PR Rama Krishnan v. Subbramma SJltrigal AIR 1988 Ker,18, 1988 Cr LJ 124, (1987) ILR 1 Ker 547. 40 Boxus v. Goblet Freres, (1894) 1 Q.B. 842. 41 2001 Cr LJ 3556 (Karn.). 42 Nelson, Supra note 5 at 4687.
36 37

and would be looking for loopholes. That, however, does not protect him from prosecution.43 a) Imputation per se defamatory or otherwise- Effect The only effect of an imputation being per se defamatory is that it would relieve the complainant of the burden to establish that the publication of such imputations has lowered him in the estimation of the right thinking members of the public. However, even if the imputation is not per se defamatory, that by itself would not go to the advantage of the publisher for, the complaining person can establish on evidence that the publication has in fact amounted to defamation even in spite of the apparent deficiency. Similarly, the accused cannot contend that he is entitled to discharge on the ground that the imputations in the extracted publication were not per se defamatory. b) Communication between husband and wife In England the rule appears to be well settled that except in certain well defined matters, the husband and wife are regarded as one arid in an action for libel disclosure by the husband of the libel to his wife is not publication. However, in Queen-Empress v. Buthi,44 it was held that there is no presumption of law that the wife and husband constitute one person In India for the purpose of the criminal law. c) Communication to even one person is sufficient Publication does not require proof of communication to more persons than one.45 A libel is deemed to be published as soon as the manuscript has passed out of the possession of the writer.46
ii. Publication- Proof by direct or circumstantial evidence

The question, whether there is publication or not, is one of fact, and the question may be decided either on direct evidence or on the circumstances of the case.47 Where the officer, to whom an alleged defamatory letter was addressed, was not produced and there was no evidence at all on behalf of the prosecution to show that the letter was actually read by the addressee, it was held that the prosecution had failed to prove that there was publication of the imputation alleged.
iii. Publication-Communication to complainant-No defamation

Communication of a defamatory matter to the person defamed does not amount to publication arid-is, therefore, not an offence.48

MN Meera v. AC Mathew 2002 Cr LJ 3845 (Ker). (1894) ILR 17 Mad 401. 45 Govindan Nair v. Atchuta Menon (1916) ILR 39 Mad 433. 46 R v. Burdett (1820) 2 And Aid 95, 143. 47 Khima Nand v. Emperor 38 Cr LJ 806, 1937 ALJ 128. 48 Empress v. Taki Hussain (1885) ILR 7 All 205; Abdul Aziz v. Mohammad Arab AIR 1935 Cal 736, 37 Cr LJ 133
43 44

iv.

Publication-Communication to spouse of defamed person sufficient

Communication of the defamatory matter to the husband or wife of the person defamed is a sufficient publication. Where the accused wrote letters to the husband of a woman in whom he alleged that she was a witch and by her secrecy she had caused the death of some relations of the accused, it was held that there was sufficient publication of defamatory matter.49
v. Publication-Both originator and repeater liable

The publisher of a libel is clearly responsible, irrespective of the fact whether he is the originator of the libel or is merely repeating it.67 The Penal Code makes no exception in favour of a second or third publication as compared with a first.50 Every repetition of defamatory matter is a fresh publication and constitutes a fresh cause of action.51 In Jai Debi Kaur v. Emperor,52 the accused presented an application to the Lt Governor in which she charged the complainant, a deputy collector, with instigating her opponent to bring false charges against her. On enquiry, she repeated the same statements before two magistrates. It was held that the statements, made by her to the two magistrates, were clearly publications of the original defamatory statement and there were thus three separate publications of the libel.

Publication of defamatory matter in newspaper.-A newspaper stands, in matters of defamation, in the same position, as members of the public in general. The publisher of the newspaper shall be responsible for published defamatory matter whether he was aware of that or not," But an editor's position is somewhat different. He can escape his liability by proving that defamatory matter was published in his absence and without his knowledge and he had in good faith entrusted the temporary management of the newspaper during his absence to a competent person.' The owner of the paper or journal, however as a qua owner has no responsibility. The publication of a notice in a newspaper conveying an imputation that the complainant is dishonest in the management of the affairs of the company and thus to conceal the dishonesty by methods that are themselves dishonest is defamation.53 In Asok Kumar Jain and others v. State of Maharashtra, 54 it was held that where a defamatory statement against a person is published in a newspaper, the editor, printer and publisher who has made declaration and is shown in paper as such is liable. Where it is alleged that the Chairman of Board of Directors of Company and its General Manager took part in selling out newspaper, it is indicative of the fact that they had prior knowledge of
Shoobhagi Keori v. Bokhori Ram 4 C LJ 390. Re Howard (1888) ILR 12 Born 167. 51 Duke of Branswick v Harmer (1849) 14 QBD 185; G Chandrashekhara PiIlai v. K Karthikeyan (19M) 2 Cr LJ 549, Am 1964 Ker 277. 52 16 Cr LJ 482 53 Mishra, Supra note 9 at 857. 54 1986 Cri. L.J. 1987 (Born).
49 50

defamatory matter in paper which they could have prevented but they did not, they would be guilty of the offence and cannot escape liability under Section 502 unless they can make out a case of exception under Section 499.55 In Shutrughna Prasad Sinha v. Rajbhall Surajmai Rathi,56 the respondent a social activist belonging to Marwari Community filed a complaint against the appellant for his interview published in "Star Dust" a film magazine in which he was alleged to have stated that "Marwari community have no faith and love towards India, their motherland. Complaints were filed by the respondent at Pune and Nasik. It was alleged in the complaint that this statement was published with deliberate and malicious intention of outraging the religious feelings of Marwari community and this also defamed the member of Marwari community as a class". The Magistrate at Pune took cognizance and issued the process. According to the respondents, these allegations constitute an offence under Section 295-A and Section 500 read with Section 34 of the Penal Code. The High Court had held that no offence under Section 295-A could be made out but the allegations prima facie constitute an offence under Section 500, J.P. Code. As far the complaint filed is concerned it was held that it does not contain any of the allegations constituting the offence of defamation defined in Section 499. The Magistrate at Pune was not justified in issuing process against the appellant and hence the complaint is quashed. But as regard the complaint at Nasik was concerned it was held that it was not for the Supreme Court to see whether the complaint constitutes an offence under Section 499, I.P. Code. The Magistrate at Nasik came prima facie to the conclusion that the allegations disclosed in the complaint might come within the definition of Section 499, I.P. Code. It is for the Magistrate to weigh the facts at trial and hence at this stage it is not proper for the Supreme Court to quash the complaint. In S. Khushboo v. Karniammal and Another, 57 it was complained that the statement of accused given in news magazine amounts to his defamation. It was held that the statement of accused was given to news magazine calling for societal acceptance of pre-marital sex. He did not attack on reputation of anyone in particular. It does not amount to defamation under Section 499 I.P. Code. Moreover complainant was not an aggrieved person. Hence complaint was held liable to be quashed.58

IMPUTATION
An imputation ordinarily implies an accusation or something more the expression of a suspicion.59 To impute is to lay the blame upon a person or to charge him or to allege against him something which brings him into disrepute. It connotes an accusation. The accusation

Mishra, Supra note 9 at 857. 1997 Cri. L.J. 212 (S.C). 57 (2010) 3 Cri. L.J. 2828 (S.C). 58 Gandhi, Supra note 1 at 715. 59 Nelson, Supra note 5 at 4691.
55 56

must be something more than creating or expressing suspicion. The following imputations, as observed in various cases, are held to be defamatory60: i) to call a person a drunkard61, or a black marketeer62, or an illegitimate person63; ii) to call a trader as an insolvent64; iii) to call a woman as a woman of loose character65, or that she has a paramour66 and iv) to express imputation against the deceased.67 Such imputations may be expressed in various ways, as by way of exclamation, by way of question, by way of irony or by conjecture.68 It would be defamatory to characterise a person as 'goonda', 69 or to allege that the complainant sings indecent songs in the public, or is a drunkard and abuses girls and women and is a goonda"70 or to describe a person in the heading of a defamatory pamphlet as 'sharif badmash',71 or to say that Netaji Subhash Chandra Bose was a traitor,72 or to call a person 'worthless' and ' despicable blackguard'.73 Innuendo- Where the natural and ordinary meaning of the words is not defamatory, or where the complainant wishes to rely upon additional defamatory meaning in which the words were understood by persons who had knowledge of particular facts, then he requires the help of an innuendo which is a statement by the complainant of the meaning which he attributes to the words, and existence of facts to support that meaning must be proved by him. Evidence showing two kinds of inferences cannot establish an innuendo and evidence of additional facts must- show that the complainant was the person who was intended by the words. In V. Subair v. P. K. Sudhakaran,74 where the accused described a medical practitioner as a 'professional debauch' and 'of low moral character', the complainant successfully proved that the statement was meant to attack him and the accused was held guilty of defamation. In Lalliani v. R. L Rina,75 where a girl was named as the source of inspiration in the biography of a poet, and the complainant bearing the same name sought to prove that her name was joined with the -poet, which being wrong was defamatory, the court was not convinced.76

Gandhi, Supra note 1 at 714. Horilal v. Vishwanath, 1957 Cri U 1360. 62 K S. Namjudaiah v. s.c. Thippanna, AIR 1952 Mys 123. 63 N.K Singh v. R.B. Singh, AIR 1964 Manipur 20. 64 Bhikachand, AIR 1927 Sindh 24. 65 Kanwal Lal v. State of Punjab, AIR 1963 SC 1317. 66 J. Chelliah. v. Rajeshwari, 1969 Cri U 571. 67 Laxminarayan Singh v. Shriram Sharma, 1982 Cri LR 68 (MP). 68 Ratanlal; Law of Crimes, 1998. Vol II. (24th Edn., 1998), p. 1965: 69 Chellapan Pillai v. Karanjia (1962) 2 Cr LJ 142, 1962 MLJ (Cr) 635; Yeshwant Singh v. Kushwah 1955 NVC 3695 (Madhya Bharat). 70 Re Bhulliram Jalam (1962) 2 Cr LJ 760 (2), Am 1960 Madhya Pradesh 38,2. 71 Ram Narain v. Emperor Am 1924 All 566, 26 Cr LJ 23. 72 Pat Sharpe v. Dwi;endra Nath Bose (1964) 1 CX LJ 867, 68 CWN 654. 73 Raja Ram Singh v. Emperor 19 Cr LJ 669. 74 1987 CrLJ 736 (Kef). 75 1987 Cr U 1295 (Gau). 76 Bhattacharya T., Indian Penal Code, 4 th Ed. 2004, P-694
60 61

However, the words, from which an innuendo is to be extracted, must be fair if susceptible of the meaning sought to be put upon 'them by the innuendo. If there are two interpretations possible, that meaning which is not defamatory, should be preferred.77 Where the words are obviously defamatory, the court has to consider the following facts for arriving at a decision whether the words are defamatory: a) Circumstances and context - The court must be put in possession, not only of the words used, but also of the context in which they were used in order to find the intention and the effect of the words. The court should have regard to the time and place of publication, the relationship between the parties, and, in fact, the whole circumstances of the case. b) Words should be considered as a whole - Where some passages in a petition are alleged to be defamatory, the document should be read as a whole with a view to find out the main purport, and too much importance should not be attached to a few isolated passages here and there. c) Alleged defamatory words, etc, should be interpreted in a manner in which to reasonable man would do:- The test is, whether, under the circumstances in which the writing was published, reasonable men, to whom the publication was made, would be likely to understand it in the libellous sense.78 The following imputations, as observed in various cases, are held to be defamatory: Imputation regarding insolvency An imputation of insolvency against a person in the way of his trade is per se defamatory. Imputation regarding trade or business To say that a person indulging in black-marketing on an extensive scale all over the world, or that he had been dishonest in the management of the affairs of the company and was trying to conceal that dishonesty by methods that were themselves dishonest, would be defamatory. Where a letter sent by the accused, who had purchased a watch from a company, suggested that the company gave guarantees which were worthless, that it was a deceitful company and that persons, dealing with this company, should be on their guard take particular care to see that they are not cheated, it was held that such imputations were undoubtedly defamatory. An imputation of dishonesty to a tradesman is actionable per se. To ask a witness in crossexamination whether he was doing opium smuggling business or cloth smuggling trade is per se defamatory. Imputation regarding profession To say in respect of an instructress in physical culture and dancing that the future, including the social, religious and moral future, of the girls would be spoiled by attending the classes of the type, which she conducted, is to impute, to the complainant, an unfitness which is worse

77 78

Nelson, Supra note 5 at 4692. Nelson, Supra note 5 at 4693.

than attributing mere incapacity.79 An election poster against a rival candidate, a barrister, with the heading 'the hollowness of Mr-s' capacity as a barrister has been exposed' would amount to making a serious aspersion upon his professional status and is calculate4,itolower him in the eyes of the public as a barrister. 80 It is defamatory to publish an unskilful reproduction of an artist's work.81 Imputation regarding criminal offence If a person is falsely charged with theft, he can prosecute -the accused for defamation even though he is a low man or a man of low caste. A charge of bribery and corruption would be defamatory. Where an article in a newspaper alleged that a public servant had amassed a tidy amount by way of bribe, it was held that it was calculated to harm the reputation of the officer concerned and was defamatory.82 Imputation against chastity It would be defamatory to make any imputation against the chastity of a woman. To state that an unmarried well-connected brahmin girl had not preserved her virgin purity, 83 or that a woman had miscarriage without any knowledge whether she was married or not,84 or that the complainant, an unmarried. brahmin girl, aged thirty years, was the concubine of some persons,85 would be defamatory. In Bola Nath v. Emperor,86 the complainant, an-European lady, was living with the son of the accused, a military officer, as his wife and subsequently married him after the death of her husband. She had made several attempts either for her suicide or for the murder of her husband. During interviews with the authorities, the accused said that she was of unsound mind and was, therefore, likely to murder her husband and that she was of loose moral character. It was held that there was no justification for charging the complainant with sexual immorality and the accused was guilty of the offence of defamation in respect of' the second allegation.87 Nomgthombum Kanhai Singh v. Bhaskar Singh,88 The description of a person as illegitimate is a very serious imputation to make and such an imputation harms the reputation of the person against whom it is made. It also affects the reputation of the mother of the person and the mother's father. The imputation is all the more damaging when the parties concerned are people of high social status. Imputation against caste Statements have often been made which becomes a matter of importance for the member of the caste to consider their defamatory effect. Two questions have arisen frequently for consideration:
Mitlul Rustomji Murzban v. Nueeertoanji Nowroji AIR 1941 Bom 278, 281, 43 Cr LJ 17 Panna Lal v. Emperor AiR 1936 Lah 294, 37 Cr LJ 1033. 81 Krishnappa v. Swami Akhandanand 42 CWN 1045. 82 Nelson, Supra note 5 at 4695. 83 Edara Venkayya v. Kalipattapu Chitti AIR 1940 Mad 879, 1940 MWN 892. 84 Kashi Ram v. Emperor AIR 1930 All 493,32 Cr LJ 435. 85 Thangaoelu Chettiar v. Pohnammal 1966 Cr LJ 1149, AIR 1966 Mad 383. 86 AIR 1929 All 1, 30 Cr LJ 101. 87 Nelson, Supra note 5 at 4695. 88 (1964) 1 Cr LJ 408, AIR 1964 Manipur 20.
79 80

(i) Whether the statements are defamatory; and (ii) Whether the statements are privileged under any of the exceptions. The first question has been dealt here with respect to the statements about castes being or not being defamatory. The question of privilege has been discussed later under different Exceptions. Among Hindus, it would cause the gravest harm to allege that a man was out of caste. It is defamatory and is not covered by s 95, IPC. To say so would bring about disastrous consequences, such as deprivation of religious and social communication, and would be prima facie defamatory.89 Vulgar abuses Where the defamatory words, prima facie libellous, are used in a street quarrel and are mere vulgar abuses, there is no deliberate intention to harm the reputation of the person defames. In Emperor v. Behari ,90 'Beti ki gali' or "Bahin ki gali', having reference to the daughter or sister of the complainant, cannot be regarded as conveying any imputation as can, in any way, harm the reputation of the complainant. In Bakhtwar Lal v. Crown, 91 to say that the complainant is 'Beiman and Badmash', or is 'pichhlag' and 'Lawaris' (which does not mean illegitimate), or is chandal92 or is dishonest or fraudulent, 93 does not lead to an offence under this section.94 However, vulgar abuses are uttered in the circumstances which tend to lower the person addressed in the estimation of the people present or to bring him into ridicule and contempt, they would amount to defamation. In Bhewati v. Umabai,95 there was a quarrel between A and B over their children in which A said to B that she was the wife of the' former's husband. Similarly C, who was mother-in-law of A, said that B was the wife of her son. It was held that the imputation was a deliberate statement of fact and as it was made in the presence of several persons, it amounted to defamation.

'CONCERNING ANY PERSON'

This phrase must mean any person whose identity can be established. Imputation concerning any person may be conveyed obliquely or indirectly, or by way of question, conjecture, exclamation or by irony.96 He may be a single individual or a group where, therefore, the identity could not be established so it was held in Government Advocate, B&O v. Gopa Bandhu Das,97 that the accused could not be convicted.

Nelson, Supra note 5 at 4696. 1883 AWN 36. 91 AIR 1922Lah 459 (1), 4 LLJ 480. 92 Sarat Chandra Das v. State 1952 Cr LJ 1640, A1R 1952 Ori 351. 93 Rukmani Bai v. Radha Ballabh 1955 NUC 472, 1953 Raj LW 203. 94 Nelson, Supra note 5 at 4697. 95 1962 MPLJ (notes) 112. 96 Mishra, Supra note 9 at 857.
89 90 97

(1922) 1 Pat 414.

In Asha Parekh v. State of Bihar98, a film was alleged to be defamatory of lawyers as a class. A criminal case was filed against the producers, its artists and Chairman of the Central Board of Censors. The court held that it is necessary in such a case to show that the class of persons is so small that its identity could be established. It is not so in this case and since advocates as a class could not be defamed, the accused is not guilty under this Section. A newspaper is not a person. Consequently it cannot be defamed. In Raj Kapoor case99, the film "Kal Aaj Aur Kal' contained some imputations against the Bhangi community in general to the effect that the said community was held lower in status in the eyes of the Brahmins. It was held that since the remarks and the scene in the film being of a general nature, it was not directed against any particular group of individuals who could be identified or particularised.100

'INTENDING TO HARM, OR KNOWING OR HAVING REASONS TO BELIEVE THAT SUCH IMPUTATION WILL HARM, THE REPUTATION OF SUCH PERSON'
The essence of the offence of defamation is that the imputation must have been made either with the intention of causing harm, or with the knowledge or belief that the imputation would cause harm, to the reputation of the person defamed.101 The test to determine whether any statement is defamatory or not is whether under the circumstances in which writing was published; a person of reasonable prudence to whom publication was made would be likely to understand it in a libellous sense.102 The intention of the accused to harm the complainant is to be proved here. Imputations on a man's character lowers him in the eyes of others and this is harm; but anything which lowers a man in his own estimation is no harm, and therefore, it is no defamation.103 In Wahid Ullah Ansari case104, where certain article published in a paper contains scandalous accusation against the girl students of a college which implied that the girls were habitually guilty of misbehaviour described in the article, each girl thereby individually suffered in reputation and hence some of the girls were held entitled to maintain action for defamation.105 a) Proof of Actual Harm to Complainant- Not Necessary To sustain a charge of defamation, it is not necessary to prove that the complainant actually suffered directly or indirectly from the scandalous imputation alleged; it is sufficient to show that the accused intended that the imputation should harm, or that he knew or had reason to believe that imputation made by him would harm the reputation of the complainant.

1977Cri LJ 21 (Pat). Raj Kapoor v. Narendra, 15 Guj LR 125. 100 Gandhi, Supra note 1 at 716. 101 Nelson, Supra note 5 at 4699. 102 Mishra, Supra note 9 at 858. 103 Gandhi, Supra note 1 at 718. 104 A.I.R. 1935 All. 743. 105 Mishra, Supra note 9 at 858.
98 99

b) Intention or Knowledge In judging whether the accused had the requisite intention or knowledge, the circumstances under which, and the main object with which, the defamatory statements were made, and the background of the dispute between the parties should all be considered. Where the tenor of a document shows that the publication tends to harm the reputation of a person, the court would be justified in gathering from the terms of the matter itself that the publishers intended to harm, or they knew or had reason to believe that the imputation would harm his reputation.106

'HARM'
Harm means harm or injury to reputation of the complainant. 107 Harm' has to be the reputation itself of the person defamed.108 Words which do not disparage a man's reputation but occasion a pecuniary loss to him do not amount to defamation.109

'REPUTATION'
Reputation is a jus in rem, a right absolute and against the entire world. A man's reputation is his property. Hence, nobody can so use his freedom of speech or expression as to injure another's reputation.110 Reputation is what others believe about the complainant. Complainant's own estimation about himself is no reputation. Consequently, communication of defamatory matter to the complainant is no publication.111

EXPLANATION 1
It is regarding imputation against a dead 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 is defamation.112 This explanation will come into operation when: (a) the imputation would have hurt the deceased's reputation, and (b) it would also have hurt the feeling of his family and relatives. In Luckumsey Ronji v. Hurbans Nursy,113 a suit was brought by the heir and nearest relation of deceased person for defamatory words spoken of such deceased person but alleged to have
Nelson, Supra note 5 at 4701. Yeeda Menezes v. Yusuf Khan Haji Ibrahim Khan, AIR 1966 SC 1773: 1966 Supp SCR 123. 108 Amar Singh v. KS Badalia (1965) 2 Cr LJ 693, 697 109 Nelson, Supra note 5 at 4702. 110 Nelson, Supra note 5 at 4702. 111 Gandhi, Supra note 1 at 718. 112 Gandhi, Supra note 1 at 719.
106 107

caused damage to the plaintiff as a member of the same family; it was held that the suit was not maintainable.114

EXPLANATION 2
An action for libel will lie at the suit of an incorporated trading company in respect of a defamation calculated to injure its reputation in the way of its business. A corporation has no reputation apart from its property or trade. It cannot maintain an action for a defamation merely affecting personal reputation. This explanation covers any collection of persons but such collection of persons must be identifiable in the sense that one could with certainty say that this group of particular people has been defamed as distinguished from the rest of the community.115 In M.P. Narayana Pillai and others v. M.P. Chako and another, 116 it was held that imputations against an association or collection of persons can be defamatory only if such persons are definite and determinable body. Only if there is a definite association or collection of persons capable of being identified, it could be said that the imputation against it affects all of them and any member of the class can say that the imputation is against him also personally so as to entitle him to file a complaint for defamation. There cannot be defamation against a community as such.117 In Shatrughna Prasad Sinha v. Rajbhall Surajmal Rahi, 118 complainant alleged that the appellant in an interview published in a magazine made statements outraging religious feelings of Marwari community by alleging that the members of this community were not a class belonging to India, and had no faith and love towards India. They were traitors and enemies of India. It was held that these allegations did not disclose offence under Section 500 and hence Magistrate was not justified in issuing process against the appellant. In Vishwa Nath v. Shambha Nath Pandeya, 119 it was held that where in an article of a magazine imputations were made against a certain community in general and nor any particular group, and nor were the said imputations related to the complainant, and the said community was also not found to be a definite identifiable body of people, continuance of the case after the death of the complainant under the representation of his advocate would not be proper.

EXPLANATION 3
(1881) 5 Born. 580. Mishra, Supra note 9 at 859. 115 Mishra, Supra note 9 at 859. 116 1986 Cri. L.J. 2002 (Kcrala), 117 Mishra, Supra note 9 at 860. 118 (1996) 6 SCC 263: 1996 SCC (Cri) 1310. 119 1995 Cr LJ 277 (All).
113 114

A statement innocent in form or in the form of an alternative will amount to defamation if it is ironical.120 In R. Shanker v. State,121 in an article in department with his own underlings, the minister had made the appointment of a particular person and that this was but the prelude to further appointments of the like nature, it was held that the caption. 'So prospers the incorrupt administration of Minister Krishna Iyer' was obviously an ironical statement implying that the Minister's administration was a bad administration riddled with corruption and nepotism. In MKT Subramanium v. State,122 where the accused author through imaginary conversation between two parliamentarians of a political party brought out, through satirical and ironical expressions, confessions out of them about the misdeeds of the ministers belonging to that political party it was held to be defamation, especially because, even though the whole situation was imaginary, the imputation against the chief minister was very real and intended to harm the reputation of the complainant who had been shown to have amassed wealth by cheating the public and abusing political power.

EXPLANATION 4
According to Explanation 4 an imputation which directly or indirectly, in the estimation of others, lowers the moral123 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, the imputation is defamatory.124 Thus describing a woman that she has paramours wherever she goes was held as per se defamatory in J. Chellihl v. Rajeswari125

EXCEPTION TO SECTION 499

This section has got a large number of exceptions. They cover the entire field of the privileges available in cases of defamatory statements. In fact, these privileges represent the freedom of speech and expression which is the foundation of all democratic institutions.126 The exceptions attached to the section declare that whenever a case falls within any of the exceptions, it would not be defamation. These exceptions are ten in number but they can well be condensed into seven. They constitute the privileged occasions which exempt a person from criminal liability for defamation. They may be summarised as follows:

Mishra, Supra note 9 at 860. 1959 Cr LJ 464, AIR 1959 Ker 100. 122 1971 LW (Cr) 131. 123 J. Chelliah v. Rajeswari, 1969 Cri L.J 571. 124 Gandhi, Supra note 1 at 719. 125 1969 Cri L.J 571. 126 Nelson, Supra note 5 at 4707.
120 121

As expressed in Balraj Khanna v. Moti Ram,127 the question of applicability of the exceptions in Section 499 cannot be considered at the time of entertaining the complaint to determine if a prima facie case is made out under Section 202 CrPC. It is only at the trial that the question of applicability of any of the exceptions in Section 499 or, as well as other defences can be considered. 1) Imputation for public good: It is not defamation to impute anything which is true concerning any person if it is for the public good that the imputation should be made or published-(Exception 1). 2) Expression of opinion in good faith: It is not defamation to express in good faith any opinion respectingi) the conduct of a public servant in the discharge of his public functions (Exception 2), ii) or the conduct of any person touching any public question (Exception 3), or iii) the conduct of a party, witness or agent in a civil or criminal case decided by a court (Exception 5), or iv) the character or merits of a public servant or any person or a party, witness or agent in a civil or criminal case decided by a court so far as his character appears in that conduct and no further (Exception 5) or, v) the conduct of the author of any performance which he has submitted to the judgment of the public, so far as his character appears in such performance and no further (Exception 6).128 3) Publication of reports of court proceedings: It is not defamation to publish a substantially true report of the proceedings or result of the proceedings of a court including a justice of the peace or other officer holding an inquiry in open court preliminary to a trial in a court (Exception 4).

4) Censure passed in good faith: It is not defamation to pass in good faith any censure on the conduct of a person by another having authority over him, i) conferred by law, or ii) arising out of lawful contract made with him, or iii) in matters to which such lawful authority relates (Exception 7). 5) Accusation preferred in good faith: 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 the accusation (Exception 8).

127 128

(1971) SCC 399: 1971 SCC (Cri) 647: 1971 Cri LJ 1110. Gandhi, Supra note 1 at 719.

6) Imputation made in good faith: It is not defamation to make in good faith an imputation on the character of another for (i) the protection of the interests of the person making it, or any other person, or (ii) for the public good (Exception 9).

7) Conveying caution in good faith: It is not defamation to convey a caution, in good faith to one person against another provided that such caution is intended for the good of i) the person to whom it is conveyed, or ii) some person in whom that person is interested, or iii) for the public good (Exception 10).129

Before dealing with each exception separately, points, which require consideration generally in, respect of various exceptions, are noted below under the following heads: a. b. c. d. e. analysis of the exceptions; good faith generally; excessive publication; fair comments; and ; liability of editor and publishers of newspapers.130

A. Analysis of the exceptions All the exceptions under this section may be classified in five groups, all relating to occasions as to which qualified privilege is recognized: a. Exception 1 relates to the plea of justification; b. Exceptions 2, 3, 5 and 6 relate to the plea of fair comment on a matter of public interest; c. Exceptions 7 and 8 cover the cases of censure by a lawful authority passed in good faith arid accusation made to a person in lawful authority in good faith); d. Exceptions 9 and 19 cover the case of imputation made in good faith, by a person for the public good, and the case of caution intended for the good of the person to whom it is conveyed or for the public good; and e. Exception 4 covers the plea of fair report of the public proceedings;131

B. Good faith generally

Gandhi, Supra note 1 at 720. Nelson, Supra note 5 at 4707. 131 Nelson, Supra note 5 at 4709.
129 130

It may be stated that good faith, finds place in all the Exceptions to this section except Exceptions 1 and 4. Cases falling under the different exceptions have been dealt with there. The general features of good faith, which apply to the various exceptions, have been; dealt with under s 52, IPC, which provides: 'Nothing is said to be done, or believed in 'good faith' which is done or believed without due care arid attention. Due care and attention means that the libeler should show that he had taken particular steps to investigate the truth and had satisfied himself from his enquiry, as a reasonable man, that he had come to a true construction, even though, on further searching investigation, it may not be found to be true.

C. Excessive publication A privilege under s 499, IPC, is destroyed if the publication has been unnecessarily wide and is published among persons who cannot be possibly interested in the statements made. The manner in which an imputation is made and the nature of the medium that is selected for making it are very material. Publication, in newspaper, of a charge of bribery against a magistrate is not for protection of any person or for public good. The privilege would be destroyed because publication in the newspaper in such a case is excessive.132

D. Fair comments Honest criticism ought to be, and is, recognized in any civilized system of law as indispensable to the efficient working of any public institution or office and as salutary for private persons who make themselves or their work the object of public interest. The defense of fair comments is established if the facts on a matter of public interest have been truly stated. The test is whether the opinion, which is expressed in the comment, however exaggerated, obstinate or prejudiced it may be w as honestly held by the writer. The doctrine of fair comment is based on the hypothesis that the publication inquisition is one which, broadly speaking, is true in fact, and is not made to satisfy a personal vendetta, and further the fact, stated therein, are such as would serve public interest.133

Principles of fair comments: Principles, in respect of fair comment, may be stated as under:

132 133

Slate v. D Packiaraj 52 Cr LJ 623, AIR 1951 TC 165; Jaffar Fadu v. Emperor 11 Cr LJ 588. Nelson, Supra note 5 at 4710.

i. ii.

iii. iv.

no kind of privilege attaches to the profession of press as distinguished from the members of the public; in the context of a welfare State, the role of a newspaper editor is to give outlet to public feelings, to analyze public opinion and to create and educate healthy public opinion. This must be kept in mind in judging their liability; defense of fair comment applies only to expression of opinion or imputation of character, but not to facts; and fair comment cannot be built upon facts which are not truly stated. If facts are themselves defamatory, they can be justified only by their truth.

The principles have been summarized by Garley thus; 'In order that a comment may be fair, the following conditions must be satisfied: i. ii. it must be based on facts truly stated; it must not contain imputations of corrupt or dishonorable motives on the person, whose conduct or work is criticized, save in so far as such imputation are warranted by the facts; and it must be the honest expression of the writer's real opinion.'

iii.

Position of newspapers and journalists: In the matter of defamation the position of newspaper is not in any way different from that of the public in general. The responsibility, in either case, is the same. Journalist has no more, and certainly no less, freedom of opinion than is available to any other citizen.134 The degree of care and attention is in way less in the case of newspaper publication than that required from ordinary men. The newspaper world should confine itself to allegations of facts which, before they are made public, have been thoroughly investigated and are reasonable believed by them to be capable of proof by responsible people willing to give evidence. In Bibhuti Bhusan Das Gupta v. Sudhir Kumar Mazumdar,135 in an issue of a weekly journal, a statement regarding the complainant was made that during the last municipal election he managed to get through the scrutiny of his nomination paper by taking recourse to falsehood. It was held that due care and attention should have dictated further enquiries into the allegation and as no such enquiry was made, the editor must be deemed to have acted irresponsibly. If the impugned statement is defamatory, absence of malice will not be a valid plea even for a journalist unless he can establish that his plea come within one of the exceptions to s 499, IPC.136

Nelson, Supra note 5 at 4713. AIR 1966 Cal 473, 1966 Cr LJ 986. 136 Nelson, Supra note 5 at 4714.
134 135

EXCEPTION 1
In order to invoke the applicability of this exception, there are two conditions, namely that the alleged imputation regarding the complainant must be true and it must be made or published for the public good. It is a good defence in criminal cases that the words complained of are true and that it is for public benefit that the matters charged be-published though the actual motive for publication was malevolence. It is, however, to be noted that if anyone of the two conditions is not satisfied, Exception 1 would not be attracted.137 The requirements of this exception are: a) that the impugned statement must be shown to be true; and b) that its publication must be shown to be for public good.138

The accused, under this exception has to establish not only that the imputation which he made was true but also that it was for public good and the question as to whether the accused had good reason for believing the imputation to be true is relevant to the question of good faith in Exceptions 8 and 9 of Section 499. As observed in Neela Kanthan Kamalasanan v. Achutan 139 and Chandra Shekhar v. Karthikeyan,140 the defence of truth must extend to the entire libel and not to a part only.141 The questions as to the meaning of the expression "good faith" and "public good" arose in L.C. Randhir v. Giridharilai142 and the High Court relied on the Supreme Court's judgment in Harbhajan Singh v. State of Punjab143 and said that he who pleads an exception must justify his plea, but the degree and character of which he is expected to furnish in support of his plea cannot be equated with the degree and character of the proof expected from the prosecution which is required to prove its case. His plea will be proved if the preponderance of probabilities (and not proof beyond reasonable doubt) is established in his favour.144 In Jawaharlal Darda v. Manoharrao Ganpatrao,145 the respondent Manoharrao Ganpatrao Kapiskar filed a complaint in the Court of C.J.M. alleging that by publishing a news item in its newspaper "Dainik Lokmath" on 42-1984. Mr. J.L. Darda the Chief Editor of the daily along with others have committed offences punishable under sections 499, 500, 501 and 502, read with section 34, Indian Penal Code.

Nelson, Supra note 5 at 4718. Mishra, Supra note 9 at 860. 139 1988 Cr LJ 1212 (Ker). 140 AIR 1964 Ker 277. 141 Gandhi, Supra note 1 at 721. 142 1978 Cri LJ 879. 143 AIR 1966 SC 97: 1966 Cri LJ 82. 144 Gandhi, Supra note 1 at 721. 145 AIR 1998 S.C. 2117.
137 138

The news item in the instant case was that when a question regarding mis-appropriation of Government funds was put to the Minister concerned, he had replied that a preliminary enquiry was made by the Government and it disclosed that some mis-appropriation had taken place. When questioned further about the names of persons involved, he (the Minister) had disclosed the name of five persons including that of the complainant. Under these circumstances the complainant alleged that he had been defamed. The Supreme Court observed that "what the accused had published in its newspaper was an accurate and true report of the proceedings of the Assembly. Involvement of the respondent was disclosed by the preliminary inquiry made by the Government. If the accused, bona fide believing the version of the Minister to be true published the report in good faith it cannot be said that they intended to harm the reputation of the complainant. It was held that as the news items was published for public good and not to malign the reputation of the complainant, therefore, no offence against the accused was made out.146

EXCEPTION 2
Any person occupying a public position renders himself open to criticism for his actions while discharging his functions from the position he occupies. Such a criticism must be made in good faith and it must relate to actions of public servants. Good faith presupposes reasonable degree of care and caution in making an imputation which on the face of it is defamatory. It does not merely imply absence of ill will. In order that the comment may be fair:147 a) it must be based on facts truly stated; b) it must not impute corrupt or dishonourable motives to the person whose conduct or work is criticised except in as far as such imputations are warranted by the fact; c) it must be an honest expression of the writers real opinion made in good faith; and d) it must be for the public good. Fair criticism, however, does not justify a personal incentive since an attack on a person's private life is not privileged but sometimes a private question may become a public one if public is called upon to support it. The whole character of a person cannot be under public character alone involved.148 Public men can claim no immunity from criticism even when the positions they hold are official. It is the price they pay in free countries, for the honour and privilege of occupying posts of exceptional responsibility, power and advantage. But there are limits to the attacks which may be made upon them. They are not wholly without protection. It is for the person

Mishra, Supra note 9 at 860. Mishra, Supra note 9 at 861. 148 Mishra, Supra note 9 at 861.
146 147

who has uttered these things to justify them under the Code or to establish affirmatively that he believed them to be true and that on reasonable grounds.149

Exception 2 and Contempt of Court: It was held In re Arundhati Roy, 150 that the broad and general proposition that a reply submitted to a contempt notice can, in no case, amount to contempt of court in the light of second exception to section 499 of the Indian Penal Code and is contrary to the Law of Contempt as adjudicated by the courts in the country from time to time and the limits prescribed by the Act and the judicial pronouncements which arc well within the knowledge of all reasonable citizens. The law of defamation under the Penal Code cannot be equated with the Law of Contempt of Court in general terms.151

EXCEPTION 3
The authors of the Code observe that every person ought to be allowed to comment, in good faith, on the proceedings of volunteer servants of the public (i.e. public men or leaders) with the same freedom with which we allow him to comment on the proceedings of the official servants of the public. It must be noticed that while Exception 2 allows commenting on the conduct and character of a public servant in discharge of his public functions, this exception allows commenting regarding the conduct and character of any person touching any public question. The comment, however, must be fair, on facts truly stated and made in good faith.152 One, therefore, should not cross the limits prescribed for the privilege; if he does so, he cannot be regarded as acting in good faith. The statements made by the accused must be true in its substance and effect and not in part. In Annada Prasad v. Monotosan Roy, 153 In an Allahabad newspaper, an advertisement was published, by the complainant in which he solicited the public to subscribe to a hospital of which he was the surgeon in charge, stating the number of successful operations which had been-performed. It was held ,that as such advertisement had the effect of making such hospital a 'public question' and of submitting it to the 'judgment of the public,', the accused, who had expressed himself in god fait in criticising the advertisement as unprofessional, was within the third, sixth and ninth exceptions to this section.154

Gandhi, Supra note 1 at 722. 2002 Cri. L.J. 1792 (S.C.) 151 Mishra, Supra note 9 at 861. 152 Gandhi, Supra note 1 at 722. 153 AIR 1953 Cal 503, 54 Cr LJ 1168 154 Nelson, Supra note 5 at 4722.
149 150

EXCEPTION 4
This exception requires that the report of the proceedings of a court of justice should be without malice. It should be a fair and accurate report of what took place before the tribunal. This exception does not require good faith. It is not confined to judgment and orders but also covers pleadings whether relevant or no1.2 According to the Supreme Court: "The fourth exception says that it is no defamation to publish a substantially true report of the proceedings of a court of justice but does not make any such concession to proceedings of a House of Legislature or the Parliament." It was held in T. Salish U. Pai v. Narauan Nagappa Nayak,155 that once first information report is lodged alleging commission of offences under the Indian Penal Code and public authorities take cognizance of the same initiating necessary legal action, report published in newspaper of any of the proceedings relating to crime giving contents of F.l.R. would not amount to defamation. Publication of such news item about court proceeding would squarely fall within fourth exception of section 499, Indian Penal Code and proceedings against journalist are not sustainable.156

EXCEPTION 5
This exception allows discussing the merits of a case decided in court or conduct of witnesses and others concerned. It is universally acknowledged that courts of law ought to be thrown open to the public. If this advantage is not to be lost, law must permit to report and comment on what has passed there to the vast number of people who are absent. Accordingly, the verdict of jury, the conduct of parties and of witnesses may be made subjects of free comment. However, the limits prescribed for the comment are the limits of good faith, fairness and the honest presentation of truth. This Exception, confined only to comment on cases which have been decided, and not on cases which are subjudice, deals with two classes of cases, viz: (a) with opinion respecting the merits of any civil or criminal case, and (b) with the conduct of person connected with judicial proceedings and character deducible therefrom. A declaration or an opinion expressed in his judgment by a magistrate or a judge is open to searching and severe observations, and may be freely criticized and commented upon by the editor of a newspaper. However, where the criticism is; converted into an attack upon the judge or magistrate as a conspirator against justice, a traitor to his oath, a trickster, or a, man
155 156

2002 Cri. LJ. 4416 (Karnataka). Mishra, Supra note 9 at 862.

who had maneuvered his procedure so as to defeat the truth, it is for the person, who has uttered these things, to justify them, or, under the Indian Penal Code, to establish affirmatively that he believes them, to be true, and that too an reasonable grounds.

EXCEPTION 6
Since the author of any public performance puts before the public his work or performance for judgment it is but natural that it may be commented and criticised. Here again the comment must be in good faith, honest, and fair. The judgment in case of Abdool Wadood,157 in this regard is noteworthy as it explains fair comment, malice, good faith and the object of Exception 6. The object of the exception is that the public should be aided by comment in its judgment of the public performance submitted to its judgement. Comment otherwise defamatory is justified on this ground alone. The responsibility of the critic is to be gauged by the effect which his comment is calculated to produce and not by what he says was his intention.

The right of fair comment involves two essentials: i. ii. that the imputation should be comment on the work criticised, and that it should be fair, i.e. if it produces an inference drawn from the contents of that work, it must be an inference which it is possible to draw therefrom.

Tsc Wai Paul v. Chang,158 may be considered which talks about the concept of fair comment. It was held that comment which falls within objective limits of the evidence of fair comment can lose its immunity only by proof that the defendant did not genuinely hold the view that he expressed, Honesty of the belief is the touchstone. Good faith requires not logical infallibility but due care and attention. But how far erroneous actions or statements are to be imputed to want of due care and caution must in each case be considered with reference to the general circumstances and the capacity and intelligence of the person whose conduct is in question.159 Good faith, as observed in Chaman Lal case,160 requires care and caution and prudence in the back ground of context and circumstances. In order to establish good faith and bona fide it has to be seen first that the circumstances under which the letter was written or words were uttered; secondly, whether there was any malice; thirdly, whether the appellant made any
(1901) 9 BLR 230: 31 Bom 293. (2001) EMLR 777 159 Gandhi, Supra note 1 at 723. 160 Chaman Lal v. State of Punjab. (1970) 1 sec 590: 1970 sec (Cri) 253.
157 158

enquiry before he made the allegations; fourthly, whether there are reasons to accept the version that he acted with care and caution, and finally, whether there is preponderance of probability that the appellant acted in good faith. The word malice in the legal use of that term is not limited to hostility of feeling, but by virtue of its etymological origin, extends to any state of mind which is wrong or faulty (whether evinced in action by excess or defect) such as would be unjustifiable in the circumstances and incompatible with thoroughly innocent intentions.161 What is actual malice:162 A statement made with knowledge that it was false or with reckless disregard of whether it was false or not constitutes actual malice as explained in Sullivan's case.163

EXCEPTION 7
This exception allows a person under whose authority others have been placed either by their consent or by law to censure in good faith, those who are so placed under his authority so far as regards matters to which that authority relates. This exception allows a privilege for censure by one person against another. The requirements for it are that: a) the person, passing the queasier, has authority over the other person; b) such authority w:as~cdnfe:rreabYlaVrciritarose out of a lawful contract made with that person; (c) the conduct was in matter to which such lawful authority related; and (d) it was passed in good faith.

In Harsh Mendiratta v. Maharaj Singh,164 the plaintiff was the wife of Arjun Lal Mendiratta who was working as Assistant to Project Director of Food and Agriculture Organisation of the United Nations with headquarter at Delhi. It is alleged that the defendant did not give him any charge of Assistant to the Project Director and instead had been harassing him in many ways. It is alleged that defendant Maharaj Singh expressed the views that he had no choice but to accept Mr. Mendiratta with greatest reluctance and this statement reflects on the competence of Arjun Lal Mendiratta and as such is defamatory causing mental torture, pain and agony to the plaintiff and her family. It was held by the Delhi High Court that the general remarks made by some authority regarding the competence of a subordinate would not amount to defamation. The alleged statement per se, even, if made by Maharaj Singh is not
Gandhi, Supra note 1 at 723. http://www.legalserviceindia.com/article/l380-Online-Defamation.html 163 New York Times Co. v. Sullivan, 376 U.S. 254 (1964) 164 2002 Cri. L.J. 1894 (Del.).
161 162

defamatory. It does not reflect adversely on the work, conduct, reputation or character of Mendiratta or the plaintiff. It was further observed that it is not the plaintiffs case that the defendant made any allegation in respect of person's character or moral turpitude against Mendiratta.165

EXCEPTION 8
This exception will be attracted if it is proved: a) that the person to whom the complaint was made had lawful authority over the officer complained against; and b) that the accusation was made in good faith.' It is necessary for the application of this exception that the complaint is bona fide and not made with the intention to injure anyone. A complaint to a police constable is not privileged and will not fall under this exception.' A statement in first information report will fall under this exception only if there was good faith of the person making the accusation. Accusation in a newspaper is not covered by this exception.166 As observed in Kanval Lal case167 to obtain the benefit under this exception the accused will have to prove that the person to whom the complaint was made had lawful authority over the person complained against, in regard to the subject-matter of the accusation. Such authority might be obtained by contract or by custom.168 In P. M. Kathiresan v. Shanmugham169 a complaint allegedly having defamatory remarks filed by the accused before the Superintendent of Police to take necessary action against the respondents resulted into conviction. It was held that the case squarely comes under exception 8 of Section 499, and the proceedings were quashed.170

EXCEPTION 9
Under this Exception it is not a defamation to make an imputation on the character of another if the imputation is 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.171 Thus, It is no defamation to make an imputation on the character of another provided that: i.
165 166

it is made in good faith,

Mishra, Supra note 9 at 862. Mishra, Supra note 9 at 863. 167 Kanwal Lal v. State of Punjab, AIR 1963 SC 1317: (1963) 11 Cri LJ 345. 168 Gandhi, Supra note 1 at 724. 169 1995 Cr LJ 2508 (Mad). 170 Bhattacharya, Supra note 76 at 698. 171 Nelson, Supra note 5 at 4727.

ii. iii.

for the protection of the interest of the person making it or of any other person, or for the public good.172

Good faith: Good faith' has to be proved by the accused. Whether or not good faith has been proved by an accused person in his defense to a charge of defamation under s 500, IPC, is basically a question of fact, and matter of evidence. The following considerations will be relevant in deciding the plea of good faith advanced by the accused claiming benefit of the 9th exception.' a) b) c) d) e) f) what is the nature of the imputation made, under what circumstances it was made, status of the person making imputation, malice in the mind of the accused, did he make any inquiry before he made it, what are the reasons to accept his story that he acted with due care and caution and was satisfied that the imputation was true.173

Interest of the person making it or of any other person The interest of the person has to be real and legitimate when communication is made in protection of the interest of the person making it. The privilege extends only to a communication upon the subject with respect to which the privilege extends and the privilege can be claimed in exercise of the right to safeguard the interest which creates the privilege.174 Exception 9 distinguished from Exception 1 The two requirements of the First Exception are that the impugned statement must be shown to be true and that its publication must be shown to be for public good. The proof of truth, which is one of the ingredients of the first exception, is not an ingredient of the ninth exception. What the Ninth Exception requires an accused to prove is that he made the statement in good faith. Proof of truth of the impugned statement is not an element of the ninth exception as it is of the first. In dealing with the claim of the accused under the ninth exception it is not necessary and, indeed, it is immaterial, to consider whether the accused had strictly proved the truth of the allegations made by him.175

Gandhi, Supra note 1 at 724. Gandhi, Supra note 1 at 725. 174 Gandhi, Supra note 1 at 725. 175 Nelson, Supra note 5 at 4729.
172 173

Exception 9 distinguished from Exception 8 The point of difference between Exception 8 and Exception 9 is that whereas in the former the person, to whom the complaint is made, must have lawful authority to deal with subjectmatter of the complaint and take proceedings against that person (i.e., complainant), there is no such requirement to Exception 9 where it is sufficient if a communication is made to a person for the protection of one's own interest in which the other also has an interest. This is dearly brought out by the illustrations to the Exception.176 In so far as Exception 9 is concerned its two requirements are "good faith" and "public good". R.K. Karanjia case 177 is in this connection a leading case. In this case the Blitz Weekly published a news article captioned "MISA rape in Bhopal Jail". The weekly gave summary of a report of an ex parte confidential enquiry held by the Deputy Secretary (Home), Government of M.P. The gist of story was that there was mixing of male and female detenues in the Central Jail, Bhopal, which the appellant, who at the material time was a detenue, held under MISA in that jail, had access to a female MISA detenu and she became pregnant through the appellant. After release from jail the appellant lodged a criminal complaint for defamation against the respondent who is the Chief Editor of the Weekly and other respondents connected with the publication of the article. A Single Judge of the High Court quashed the proceedings on the ground that the respondent's case clearly fell within the ambit of the Ninth Exception to Section 499 IPC. The judge observed that it would be abuse of the process of the court if the trial was allowed to proceed which ultimately would turn out to be a vexatious proceeding.

Applicability of Exception 9 To know the applicability of Exception 9 in general we must know the Privileges given to some people by this Exception. Privilege is of two kinds: Absolute and qualified. In general, privilege is the legal concept of being entitled or authorised to do or not to do something, as one pleases, free from legal restriction by another. A person in circumstances of absolute privilege may communicate defamatory matter with immunity from action for damages. It is frequently equated with liberty, the correlative concept attaching to the other party being absence of right, or no right or inability. Absolute privilege attaches to parliamentary and official communications, communications in the course of administration of justice and certain other cases and wholly protects the maker from liability for defamation.

176 177

Nelson, Supra note 5 at 4729. Sewak Ram Sobhani v. R.K. Karanjia, (1981) 3 SCC 208: 1981 SCC (Cri) 698.

Qualified privilege attaches to communications made by persons having a duty to make them to persons having an interest to receive them. It protects the maker provided the communication was not made maliciously or spitefully.178 Judges, advocates, parties and witnesses are protected by absolute privileges in England when they speak anything while performing their duties. In India they are absolutely free from civil liability for the reason that the Law of Tort in India is not codified and consequently their liability is determined according to English Common Law. Insofar as criminal liability is concerned, it is determined according to this section of Indian Penal Code and its exceptions. Consequently their liability is qualified and for being immune from it, existence of good faith is necessary.179 Before proving the case of defamation guidelines mentioned in Panday Surinder Nath Sinha v. Bageshwari Prasad180, case can be considered. Where distinction between absolute and qualified privilege was brought out as under: i. In absolute privilege, it is the occasion which is privileged and when once the nature of the occasion is shown, it follows, as a necessary inference, that every communication on that occasion is protected; in qualified privilege, the occasion is not privileged, until the defendant has shown how that occasion was used. It is not enough to have an interest or a duty in making a statement the necessity of the existence of an interest of duty in making the statement complained of, must also be shown. In absolute privilege, the defendant gets absolute exemption from liability; in a qualified privilege, the defendant gets a conditional exemption from liability. In absolute privilege, the defendant is exempted from liability even when there is malice on his part; in qualified privilege, the defendant is exempted from liability only when there is no malice on his part. In absolute privilege, statements are protected in all circumstances, irrespective of the presence of good or bad motives; in qualified privilege, even after a case of qualified privilege has been established by the defendant, it may be met by the plaintiff proving in reply improper or evil motive on the part of the defendant, in which case defense of qualified privilege vanishes and the plaintiff succeeds; and In absolute privilege as well as in qualified privilege, the defendant has to prove his plea of privilege, but with this difference that in absolute privilege the defense is absolute and irrefutable by plaintiff, whereas in qualified privilege the defense is not absolute but reputable by the plaintiff.181

ii.

iii.

iv.

v.

Gandhi, Supra note 1 at 727. Gandhi, Supra note 1 at 728. 180 AIR 1961 Pat 164. 181 http://www.legalserviceindia.com/article/l380-Online-Defamation.html
178 179

In Ram Jethmalani v. Subramaniam Swamy,182 it was held that If the defamatory statement is quite unconnected with and irrelevant to the main statement which is ex-hypothesis privileged then it is more accurate to say that the privilege does not extend thereto than to say that the result may be the same, that the defamatory statement is evidence of malice.

Applicability of exception 9 with regards to: a) Advocates: In absence of express malice or wantonness or private motive, the advocate is protected under the exception. The court ordinarily presumes that the defamatory matter was published in good faith and made on instructions. b) Witness: A witness has no absolute privilege as regards statement made by him. He has only a qualified privilege under exception 1 or 9 Where a witness is compelled to give an answer in making a defamatory statement and answer was given on the basis of compulsion he will be protected by this exception, c) Parties: Parties will be entitled to protection under exception 9 if the statement is bona fide and with a view to protect their interest.183 d) Judge: Section 77, Indian Penal Code protects judges for acts done when acting judicially. Where the judge censures the conduct of a witness in good faith he is protected. An action for defamation cannot be maintained against a judge for words, spoken by him whilst trying a cause in court, even though such words are alleged to be false, malicious and without reasonable cause. e) Club committee: The committee members of a social dub, even if wrong, are given protection under this exception, but for this exception it would be impossible for such a body to function. f) Reports: The reports of an officer in the execution of his duty under his superior's orders which contains defamatory imputations against others, but which does not appear to have been made recklessly or unjustifiably is covered by this exception. A totally false report however will not be protected. g) Legislators: An absolute privilege is attached to the speeches made on the floor of the house either of Parliament or State Legislature. Exceptions to section 499 are exhaustive and cannot be enlarged.184 h) Pleadings and affidavits: The authority is strongly against the absolute immunity for defamatory statements contained in the pleading or affidavits, unless they are made in
AIR 2006 Delhi 300, 126 (2006) DLT 535. Mishra, Supra note 9 at 864. 184 Mishra, Supra note 9 at 865.
182 183

good faith and without malice. The Allahabad, Bombay, Calcutta, Madras and Patna High Courts accept this view.185

EXCEPTION 10
This Exception deals with cases; for instance, where one warns another against employing a third person in his, service saying that he is a dishonest person. To bring a case within this exception, it must be proved that the accused intended, in good faith, to convey a caution to one person against other, that such caution was conveyed by the proper medium. The gist of the tenth exception is that the imputation must be made in good faith.186 To convey a caution in good faith to one person against another, is no defamation provided: i. ii. iii. it is intended for the good of the person to whom it is conveyed, or for the good of some person in whom that person is interested, or for the public good.

The provision is very clear and the important requirements are the good of the person or public good and absence of malice or bad faith. As observed in Todd v. Hawkins,187 an advice or caution given to a woman by her friend or relative that she should not marry a particular person is privileged and does not amount to defamation as it is intended for the good of that woman. However, it has to be noted that the advice should have been given in good faith, one with care and caution and it should not be published unsuitably.188

SECTION 500
Section 500 reads as follows:

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 with both.

SCOPE
This section provides the penalty for the simple and plain act of defamation as defined in the preceding s 499, IPC.189 Filing of private complaint under s 500, IPC, which ultimately was quashed, would not amount to defamation. Equally; it cannot be stated that the service of

Gandhi, Supra note 1 at 729. Nelson, Supra note 5 at 4739. 187 8 C & P 88. 188 Gandhi, Supra note 1 at 729. 189 Rarnesh Chander v. State AIR 1966 Punj 93, 1966 Cr LJ 292.
185 186

summons on the said complaint would amount to defamation, as the service of summons was only in pursuance of the order of the court.190 This section provided punishment for defamation. The quantum of punishment according to this section may extend to two years, whether with or without fine.191

INGREDIENTS
So far as the ingredients of s 500, IPC, are concerned the complainant has to make out a case of: a) making any imputation concerning the complainant by the accused, b) that such imputation was made by words spoken or written or by sign or visible representations, and c) that such imputation was made with the intention of harming or with the knowledge or having reason to believe that it would harm the reputation of the complainant against whom such statement was made.192

PROCEDURE
The offence under this section is non-cognisable, bailable, compoundable, and triable by the court of session if offence is committed against the President or the Vice-President or the Governor of a State or administrator of the Union Territory or a minister in, respect of his conduct in the discharge of his public functions when instituted upon a complaint made by the public prosecutor, and by a magistrate of the first class in any other case, and may also be tried summarily.193

Cases In Rekhabai v. Dattatraya, it was held that where an offence of defamation is committed through a letter, the case can be tried either at the place where the letter was written and posted or at the place where the letter was received and read.194 In K. M. Mathew v. K. A. Abraham,195 the appellants were either managing editor, chief editor or resident editor of their respective newspaper publications. The complainant alleged that either the managing editor, chief editor or resident editor had knowledge of libellous publication and were responsible for publishing the defamatory matter in their respective newspaper publications. In none of these cases the editor had come forward and pleaded guilty to the effect that he was the person responsible for selecting the alleged defamatory
Nelson, Supra note 5 at 4741. Mishra, Supra note 9 at 865. 192 Nelson, Supra note 5 at 4741. 193 Nelson, Supra note 5 at 4742. 194 Mishra, Supra note 9 at 865. 195 2002 Cr LJ 411l (SC).
190 191

matter published. The Supreme Court observed mat it would be a matter of evidence in each case. If the complainant was allowed to proceed only against the editor whose name was printed in the newspaper against whom there is a Statutory presumption under section 7 of the Press and Registration of Books Act, 1867 and in each case the editor succeeds in proving that he was not the-editor having control over the selection of the alleged libellous matter published in the newspaper, the complainant would be left without any remedy to redress his grievance against the real culprit, The Supreme Court, therefore, held that the quashing of complaint against the appellants was, therefore, improper.196 In V Palani v. S. P. Chandrabose,197 the Madras High Court bas held that filing a private complaint under section 500 of the Code which was ultimately quashed does not amount to defamation. Equally, service of summons on the said complaint would not amount to defamation as service of summons was only in pursuance of order of the court.198

SECTION 501
Section 501 reads as follows: 501. Printing or engraving matter known to be defamatory.-- 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 two years, or with fine, or with both.

SCOPE
An offence under this section is distinct from an offence under the preceding s 500, IPC. What is made punishable under that section is defamation, whether verbal or written. However, if the matter is otherwise defamatory, the mere printing or engraving of it would of all under this section if the offender has good reason to believe that such matter is defamatory. This section does not expressly refer to the publication of defamatory matter or to any intention to cause harm to the reputation of the person against whom imputations are made. One person may be guilty of defamation and another person, who prints or engraves it, would be only an abettor of that offence. By the provisions of this section, such abetment has been made an independent offence by itself. It is however, possible that a person tn.ly be guilty of both offences under s 500 and 501, IPC, if he not only makes or publishes defamatory matter, but also prints or engraves it. If the publisher is also the printer of the newspaper. The case against him would also be covered by this section, it would not, in any way, affect his liability as a publisher under the preceding s 500, IPC. The publisher cannot escape his liability for the offence under s 500, if the case be otherwise proved against him, merely because of his having got the issue in question printed.45 He cannot also escape his
Bhattacharya, Supra note 76 at 700. 2003 Cr LJ 2594 (Mad.). 198 Bhattacharya, Supra note 76 at 701.
196 197

liability by alleging that he had entrusted the selection of news items to the editor.46 In Gour Chandra Rout v. Public Prosecutor, 199 the accused, the editor printed and publisher of a newspaper, published statements, grossly defamatory of the Governor, which were not true, and the accused published the statement neither in good faith nor for the public good. It was held that the conviction of the accused as editor under s 500 and as the printer and publisher under s 501 was correct. Where, however, a declared printer was absent in good faith and the defamatory article appeared without his knowledge, it was held that this was sufficient for his acquittal.200

INGREDIENTS
The offence under Section 501 is quite distinct from offence under Section 500, and it applies to the publisher and printer of a newspaper. It has two ingredients: i. Printing or engraving any matter, and ii. Knowledge or belief that such matter is defamatory. 201 If the matter to be printed is in a language unknown to the printer, he would not be made liable because the second ingredient would not exist.202 One has to note that publication of a matter or an item of news without twisting the same or without an ulterior motive can never amount to defamation.203

PROCEDURE
The offence under this section is non-cognisable, bailable, compoundable by the person defamed, and triable by the court of sessions if the offence is committed against the President or Vice-President or the Governor of a State or Administrator of a Union territory or Minister in respect of his conduct in the discharge of his public functions when instituted upon a complaint made by the public prosecutor, and by a magistrate of the first class in any other case, and may also be tried summarily. In case of a complaint made in respect of an offence under this section, the court is not competent to alter or amend the complaint and to treat it as one under the preceding s 500, IPC, the elements of the two offences being different.204 The offence is punishable with imprisonment up to 2 years, or with fine or with both.

(1962) 2 Cr LJ 617, AIR 1962 Ori 197. Nelson, Supra note 5 at 4761. 201 Gandhi, Supra note 1 at 730. 202 Sankaran v. Ram Krishna, 1960 Cri LJ 479. 203 Chimanbhai Somabhai v, Mithu Bara, 1984GLH (4J) 107. 204 Nelson, Supra note 5 at 4762.
199 200

PROOF
In order to establish a charge under this section, prove that: a) the accused printed or engraved any matter; b) the said matter was defamatory; and c) he did so knowing or having good reason to believe, that it was defamatory of a person. Under s 7 of the Press and Registration of Books Act 1867, a declaration, made by a person, to the effect that he is the printer of a newspaper, shall be sufficient evidence (unless, the contrary be proved), as against that person, that he was the printer of every portion of every issue of the newspaper named in the declaration. 57 Such presumption may, however, be rebutted.205

SECTION 502
Section 502 reads as follows: 502. Sale of printed or engraved substance containing defamatory matter.- 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 two years, or with fine, or with both.

SCOPE
Section 499, ante, deals with the general offence of defamation, punishment for which is prescribed in s 500, IPC. Under the preceding s 501, a person, who prints or engraves any matter, knowing, or having reason to believe, that such matter is defamatory, is made punishable. And this section deals with the offence of selling, or offering to sell, any printed or engraved substance, containing defamatory matter, knowing that it contains such matter. To constitute an offence under this section, in spite of the fact that the printed or engraved matter, sold or offered for selling, is a defamatory matter, it is essential that the offender should then know that the printed or engraved matter, which he sold, or which he offered for selling, contained defamatory matter. In the absence of-such knowledge, no offence under this section is made. It is possible that the seller may not have the requisite knowledge though he might have sold a certain defamatory matter.206

INGREDIENTS
205 206

Nelson, Supra note 5 at 4762. Nelson, Supra note 5 at 4764.

By this section selling of a defamatory matter is made punishable. It thus supplements the previous provisions. It has two ingredients: i. ii. selling or offering for sale any printed or engraved substance; knowledge that such substance contains defamatory matter.207

PROCEDURE
The offence under this section is non-cognisable, bailable, compoundable by the person defamed, and triable by the court of sessions if the offence is committed against the President or Vice-President or the Governor of a State or Administrator of a Union territory or a Minister in respect of his conduct in the discharge of his public functions when instituted upon a complaint made by the public prosecutor, and by a magistrate of the first class in any other case, and may also be tried summarily.208 The offence is punishable with imprisonment up to 2 years, or with fine or with both.

PROOF
To bring the offence home it is necessary to prove that the seller of the matter knew its contents. That is, publication is proved when he sells it. As observed in Sardar Dayal Singh case209, a person who conducts a business in the course of which he has to sell books or papers, or the like. which may contain matter which is injurious to the reputation of another person, is bound by reason of the penalty imposed by this section, if not otherwise, to abstain from selling any book or the like, which to his knowledge contains the matter which is defamatory. If he sells in ignorance of the contents, he is not guilty under this section, but if he sells, notwithstanding knowledge of the contents, he is guilty under this section.210

Gandhi, Supra note 1 at 730. Nelson, Supra note 5 at 4764. 209 P.R. No.8 of 1891, pp. 25-26: Ratanlal, p. 2024. 210 Gandhi, Supra note 1 at 730.
207 208

CONCEPT OF ONLINE DEFAMATION

The law of defamation addresses harm to a person's reputation or good name through slander and libel. The Internet has made it easier than ever before to disseminate defamatory statements to a worldwide audience with impunity. For some time, courts have struggled with remedies for Web defamation. The problem has been magnified by the difficulty in identifying the perpetrator, and the degree to which Internet Service Providers (ISP's) should be held accountable for facilitating the defamatory activity.211 The Law however, developed though it may be in the United States and Europe, is not growing at the same rate as the Internet is, in India.

ORIGIN
Let us now see how nations have dealt with similar problems: The Communications Decency Act 1996 (CDA) (United States Enactment) Section 223 of this Act clearly lays down that any person who puts information on the web which is obscene, lewd, lascivious, filthy, or indecent, with intent to annoy, abuse, threaten, or harass another person; will be punished either with imprisonment or with fine. It is thus clear that the ISP will not be held liable.

Section 230 Protection for Private Blocking and Screening of Offensive Material No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.212

Important international cases which further clarified the law regarding online defamation: Lunney v. Prodigy Services Company (Opinion Decided 2/12 99) In its first major ruling on privacy and defamation in cyberspace, the court of appeals held that an ISP is merely a conduit for information, as opposed to a publisher, and consequently is no more responsible than a telephone company for defamatory materials transmitted over its lines.213 Patrick Cahill v. john Doe The Delaware Supreme Court held that when guidelines on the top of the blogs state that the forum is dedicated to opinions, then the statements are considered not as matter of facts. However, in Singapore two ethic Chinese were punished under the countrys anti sedition law for posting anti Moslem remarks in their weblogs. Internet service providers are thus in general, immune from liability for information that originates with third parties.214
http://www.legalserviceindia.com/articles/article+a.htm http://www.legalserviceindia.com/article/l380-Online-Defamation.html 213 http://www.legalserviceindia.com/article/l380-Online-Defamation.html 214 http://www.legalserviceindia.com/article/l380-Online-Defamation.html
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POSITION IN INDIA
There is no doubt that the US law is clear. Several cases have also arisen in this regard. The Supreme Court has held that the ISP cannot be held liable for defamatory content. It is only a question of time before the same problems and questions will have to be answered in the Indian context.215 The problems for ISPs are just beginning. Some sites have already been blocked due to government directives. Bloggers in India are getting together to protest against the sudden blocking of popular Google-owned blog-hosting site Blogger by some (ISPs) like Spectranet, Mahanagar Telephone Nigam Limited (MTNL), Reliance Powersurfer, Airtel Broadband and Sify. On July 15, 2009, the Department of Telecommunications (DoT) had sent ISPs a list of sites to be blocked. R H Sharma, senior engineer with MTNL, said the list ran into some 22 pages. Now, several bloggers have organized themselves into a Bloggers Collective and are planning to file a Right to Information application to obtain the list. Under the Information Technology Act, 2000, a body called the Computer Emergency Response Team, or CERT-IN, was created along the lines of similar authorities the world over. Although its main task is in the domain of Internet security, it also oversees Internet censorship under a clause that seeks to ensure 'balanced flow of information.' Any government department seeking a block on any web site has to approach CERT-IN, which then instructs the DoT to block the site after confirming the authenticity of the complaint. In 2003, one of the first things CERT-IN did was to approve the blocking of an obscure mailing list run by a banned militant outfit, the Hynniewtrep National Liberation Council (HNLC) of the Khasi tribe in Meghalaya. Ironically, the popularity and visibility of the list went up by leaps and bounds, despite it being blocked by all ISPs. Many could still see the list via email or proxy surfing. Whether such blocking is arbitrary, unreasonable and unfair and in violation of Articles 14, 19 and 21 of the Constitution of India is a question, which remains to be answered by the Indian Courts.216

SMC PNEUMATICS (INDIA) PVT. LTD. V. JOGESH KWATRA

In India's first case of cyber defamation, a Court of Delhi assumed jurisdiction over a matter where a corporates reputation was being defamed through emails and passed an important exparte injunction. The Delhi High Court has passed an ex-parte ad interim injunction in the case entitled "SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra"217 being Suit No. 1279/2001. This matter is being handled by India's leading Cyber lawyer Mr. Pavan Duggal. In this case, the defendant Jogesh Kwatra being an employ of the plaintiff company started sending derogatory,
http://www.legalserviceindia.com/articles/defonline.htm http://www.legalserviceindia.com/article/l380-Online-Defamation.html 217 No. 1279/2001 Delhi HC.
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defamatory, obscene, vulgar, filthy and abusive emails to his employers as also to different subsidiaries of the said company all over the world with the aim to defame the company and its Managing Director Mr. R K Malhotra. The plaintiff file a suit for permanent injunction restraining the defendant from doing his illegal acts of sending derogatory emails to the plaintiff. Arguing on behalf of the plaintiffs Mr. Pavan Duggal contended that the emails sent by the defendant were distinctly obscene, vulgar, abusive, intimidating, humiliating and defamatory in nature. Mr. Duggal further argued that the aim of sending the said emails was to malign the impacable reputation of the plaintiffs all over India and the world. Mr. Duggal further contended that the acts of the defendant in sending the emails had resulted in invasion of legal rights of the plaintiffs. Further the defendant is under a duty not to send the aforesaid emails. It is pertinent to note that after the plaintiff company discovered the said employ could be indulging in the matter of sending abusive emails, the plaintiff terminated the services of the defendant. Mr. Duggal added. After hearing detailed arguments of Mr. Duggal, Hon'ble Mr. Justice J D Kapoor of the Delhi High Court passed an ex-parte ad interim injunction observing that a prima facie case had been made out by the plaintiff. Consequently, the Delhi High Court restrained the defendant from sending derogatory, defamatory, obscene, vulgar, humiliating and abusive emails either to the plaintiffs or to its sister subsidiaries all over the world including their Managing Directors and their Sales and Marketing departments. Further, Hon'ble Justice J D Kapoor also restrained the defendant from publishing, transmitting or causing to be published any information in the actual world as also in cyberspace which is derogatory or defamatory or abusive of the plaintiffs. The matter has now been posted for 4th of October, 2001. This order of Delhi High Court assumes tremendous significance as this is for the first time that an Indian Court assumes jurisdiction in a matter concerning cyber defamation and grants an ex-parte injunction restraining the defendant from defaming the plaintiffs by sending derogatory, defamatory, abusive and obscene emails either to the plaintiffs or their subsidiaries.218

TATA SONS V. GREENPEACE INTERNATIONAL219

Justice S. Ravindra Bhat, authoring the judgment noted that, though the internet has a wider reach and potential for injury, traditional standards for the grant of injunctions in cases of libel will be applicable. The court reasoned that these traditional standards are well developed and there is no constitutional mandate which allows the court to create a differentiation. If this reasoning is strictly applied it would mean that the conventional rules of defamation will be applied in cases of internet defamation. If applied liberally, courts may in cases of a legislative vacuum, apply other developed legal principles without differentiation.

218 219

http://cyberlaws.net/cyberindia/defamation.htm IA 9089/2010 in CS (OS) 1407/2010 Delhi HC

STATE OF TAMIL NADU VS SUHAS KATTI220

The case related to posting of obscene, defamatory and annoying message about a divorcee woman in the yahoo message group. E-Mails were also forwarded to the victim for information by the accused through a false e-mail account opened by him in the name of the victim. The posting of the message resulted in annoying phone calls to the lady in the belief that she was soliciting. 221 Based on a complaint made by the victim in February 2004, the Police traced the accused to Mumbai and arrested him within the next few days. The accused was a known family friend of the victim and was reportedly interested in marrying her. She however married another person. This marriage later ended in divorce and the accused started contacting her once again. On her reluctance to marry him, the accused took up the harassment through the Internet. On the prosecution side 12 witnesses were examined and entire documents were marked as Exhibits. The court relied upon the expert witnesses and other evidence produced before it, including witnesses of the Cyber Cafe owners and came to the conclusion that the crime was conclusively proved and convicted the accused. This is considered as the first case in Tamil Nadu, in which the offender was convicted under section 67 of Information Technology Act 2000 in India.222 Honourable Sri.Arulraj, Additional Chief Metropolitan Magistrate, Egmore, delivered the judgement on 5-11-04 as follows: The accused is found guilty of offences under section 469, 509 IPC and 67 of IT Act 2000 and the accused is convicted and is sentenced for the offence to undergo RI for 2 years under 469 IPC and to pay fine of Rs.500/-and for the offence u/s 509 IPC sentenced to undergo 1 year Simple imprisonment and to pay fine of Rs.500/- and for the offence u/s 67 of IT Act 2000 to undergo RI for 2 years and to pay fine of Rs.4000/- All sentences to run concurrently.223

MEDHA PATKAR CASE

A Delhi court paved the way for the trial of Narmada Bachao Andolan (NBA) activist Medha Patkar by framing charges against her in a defamation case filed by an NGO chief in 2001 following a news report on an online portal. Metropolitan Magistrate Munish Markan framed charges against Patkar under section 500 of IPC (defamation) which entails a maximum punishment of two years jail. The court passed the order on a defamation suit filed by VK Saxena, President of Ahmedabad-based NGO, National Council for Civil Liberties, alleging a news report based

CMM, Egmore, Chennai in 2004} http://mpcyberpolice.nic.in/pdf/7.pdf 222 http://www.img.kerala.gov.in/docs/downloads/cyber%20crimes.pdf 223 http://www.naavi.org/cl_editorial_04/suhas_katti_case.htm

220 221

on NBA's press release was published on a website claiming he had donated Rs40,000 to NBA through another NGO. Patkar and Saxena have been locked in criminal cases of defamation against each other since 2000 after she filed a suit against him for advertisements published against her and NBA. She had filed a defamation suit for publishing an article 'true face of Medha Patkar and her NBA' in 2000 in which the court has already framed charges against Saxena earlier. During hearing, advocate V.K. Ohri, appearing for Patkar, alleged Saxena was an "agent of Gujarat government", a charge refuted by Saxena who, in turn, alleged Patkar was an "agent of foreign elements". Ohri argued if there was anything defamatory in the news report, the website, which had carried it, should be prosecuted and not Patkar.224

PROBLEM REGARDING LAW OF DEFAMATION

One of the major criticisms of the current defence is that by definition it lacks clarity. The use of the word fair is in a sense misleading since it is only used in its restricted meaning. It is not intended, by mere use of the word, that there should be a liberal all-catching approach to what might be deemed as fair. Also, the defence is only defeated if malice is proved. However, confusingly, malice does not mean spite, hate or improper motive as it ordinarily does, but without honest belief. This has led many commentators to believe that the name of the defence should be changed or simplified to honest opinion to reflect this.225 Cost- If you are sued for defamation, you could end up paying tens of thousands of money in legal fees, even if you win. If you lose, you could face a massive pay-out on top of the fees. The large costs, due especially to the cost of legal advice, mean that most people never sue for defamation. If you don't have much money, you don't have much chance against a rich opponent, whether you are suing them or they are suing you. Cases can go on for years. Judgements can be appealed. The costs become enormous. Only those with deep pockets can pursue such cases to the end. The result is that defamation law is often used by the rich and powerful to deter criticisms. It is seldom helpful to ordinary people whose reputations are attacked unfairly.226 Complexity- Defamation law is so complex that most writers and publishers prefer to be safe than sorry, and do not publish things that are quite safe because they're not sure. Judges and lawyers have excessive power because outsiders cannot understand how the law will be
http://www.dnaindia.com/india/report_medha-patkar-put-on-trial-in-defamation-case_1606093 http://www.inhouselawyer.co.uk/index.php/media-entertainment-a-sport/8137-reforming-the-lawof-defamation-an-honest-opinion 226 http://www.uow.edu.au/~bmartin/dissent/documents/defamation.html
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applied. Those who might desire to defend against a defamation suit without a lawyer are deterred by the complexities. Slowness- Sometimes defamation cases are launched years after the statement in question. Cases often take years to resolve. This causes anxiety, especially for those sued, and deters free speech in the meantime. As the old saying goes, "Justice delayed is justice denied."

CONCLUSION
India is the only country which has both civil as well as criminal defamation in its legal books. That is another reason why rights of the people should clearly be laid down. People in India are liable for defamation not just to the extent of payment of damages but also undergoing imprisonment. Millions of people could be charged for defamation just by giving their opinion which in the eyes of some may be defamatory.227 Defamation law doesn't work well to protect reputations. It prevents the dialogue and debate necessary to seek the truth. More speech and more writing is the answer to the problem rather than defamation law, which discourages speech and writing and suppresses even information that probably wouldn't be found defamatory if it went to court. Published statements -including libellous ones -- are open, available to be criticised and refuted. The worst part of defamation law is its chilling effect on free speech. The most effective penalty for telling lies and untruths is loss of credibility. Systems of communication should be set up so that people take responsibility for their statements, have the opportunity to make corrections and apologies, and lose credibility if they are repeatedly exposed as untrustworthy. Defamation law, with its reliance on complex and costly court actions for a tiny fraction of cases, doesn't work. Defamation actions and threats to sue for defamation are often used to try to silence those who criticise people with money and power. The law and the legal system need to be changed, but in the meantime, being aware of our rights and observing some simple guidelines can help us make informed choices about what to say and publish.228

227 228

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BIBLIOGRAPHY
Gandhi B. M., Indian Penal Code, Eastern Book Company, Lucknow, 2nd Ed. 2006. Nelson R. A., Indian Penal Code, LexisNexis ButterWorths, 10th Ed. 2008 Vol. IV. Mishra S. N., Indian Penal Code, Central Law Publications, 18th Ed. Repr. 2012. Ratanlal & Dhiraj Lal, Law of Crimes, Bharat Law House, Vol. II 24th Ed. 1998. Bhattacharya T., Indian Penal Code, Central Law Agency, Allahabad, 4th Ed. 2004.

WEBOGRAPHY
http://www.legalserviceindia.com/article/l380-Online-Defamation.html http://www.legalserviceindia.com/articles/article+a.htm http://www.legalserviceindia.com/articles/defonline.htm http://cyberlaws.net/cyberindia/defamation.htm http://mpcyberpolice.nic.in/pdf/7.pdf http://www.img.kerala.gov.in/docs/downloads/cyber%20crimes.pdf http://www.naavi.org/cl_editorial_04/suhas_katti_case.htm http://www.inhouselawyer.co.uk/index.php/media-entertainment-a-sport/8137-reformingthe-law-of-defamation-an-honest-opinion http://www.uow.edu.au/~bmartin/dissent/documents/defamation.html http://www.dnaindia.com/india/report_medha-patkar-put-on-trial-in-defamationcase_1606093 http://delhicourts.nic.in/CYBER%20LAW.pdf http://www.slideshare.net/cyberlawconsulting/email-crimes-and-it-lawnasscom-cybersafe-2010-9453682