What is defamation? What are the essential ingredients to constitute an offence of defamation? Explain its exceptions. [MPCJ 2013]

Ans. Sections 499 of the IPC provides for defamation and the same is punishable under Section 500 IPC. A special provision under section 199 of the Cr.P.C has also been laid down for presentation of complaint in respect of the said offence. The aforesaid provisions aim to protect the reputation of the person which is an inseparable facet of Article 21 of the Constitution. Recently, the Hon’ble apex court has also held its validity in Subramanian Swamy vs UOI (2016) 7 SCC 221 by holding that such provision has source in the word “defamation” used in Article 19(2) of the Constitution. In the given question, the point of law involved is being discussed one after other-

Defamation :- The common thread which emerges from the view of famous author Salmond & Heuston on the Law of Torts and Winfield & Jolowics on Torts also from the words of Halsburys Laws of England is that defamation is a statement which tends to lower a person in the estimation of right thinking members of the society generally or to cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule or dislike. The classical definition has also been given by Justice Cave in the English case of Scott v. Sampson as a “false statement about a man to his discredit.”

Essential ingredients:- The necessary ingredients required to constitute the offence of defamation is as under –

  • Mens rea: It may be in the form of intention, knowledge and reason to believe and directed toward harming the reputation of other. Unlike civil concepts of defamation, the defamation under section 499 is a typical offence and requires blameworthy or guilty mind to constitute the offence.
  • Actus reus: Publishing such harmful imputation with respect to the complainant either in the libel or slander form i. e. in writing, speaking, in sign or visual representation. Section 499 of the IPC emphasizes the words “makes or publishes” to convey that defamatory matter is required to be published.

As above, it is categorical that Causing of harm to the reputation of the complainant is essence of the offence. Then the natural question is as to when an imputation may be considered harmful to the reputation of other? The answer lies in Explanation (4) of the section 499. The test is to assess the impact of the concerned statement from the perspective of reasonable man and if it is calculated to lower moral or intellectual character of the complainant or his caste or calling or credits or demonstrates him in loathsome or disgraceful state. Still further, the Explanation No. (3) appended to the section clarifies that merely because statement is in innuendo form the maker cannot escape the liability.

Exceptions:- Sec. 499 is not an absolute offence but acknowledges in all ten exception where under an accused even after making defamatory statement may prove the required essentials only to the extent of preponderance of probability to avoid his conviction. The exceptions are as under-

1st Exception:- unlike justification in tort, It does not protect truth as an absolute defence. It becomes available only if it is cumulatively proved that what has been imputed concerning the complainant is true and the publication of the imputation is for the public good. Thus, two ingredients are, namely, truth of the imputation and the publication of the imputation for the public good.

2nd Exception:- Every citizen has a right to comment on those act of public men which concern him as a citizen of the country, if he does not make his commentary a cloak for malice or slander. The Hon’ble apex court has in Kartar Singh vs State of Punjab AIR 1956 SC 541 that those who fill a public position must not be tooo thiny skinned in reference to comments made upon them. Whoever fills a public position renders himself open to attack. He must accept an attack as a necessary, though unpleasant appendage to his office.

Since, under instant exception accuse is required to show that the opinion expressed by him was in good faith. So, such comment to be fair must has following attributes-

  • It must be based on facts truly stated.
  • It must not impute corrupt or dishonorable motive to the person whose conduct or work is criticised except in so far as such imputations are warranted by the facts.
  • It must be honest expression of the writer’s real opinion made in good faith.

3rd Exception:- unlike 2nd exception it is not confined to public servants. It enables to comment in good faith on the conduct and character of the any person touching to public question who work touches on the justification in tort, It does not protect truth as an absolute defence. It embraces a very wide area for fair comment. So, the conduct of any person who takes part in matters concerning to the public can be commented on in good faith.

4th Exception:- It is not defamation to publish substantially true report of the proceedings of a court of justice or of the result of any such proceedings.

5th Exception:- It is not defamation to express in good faith any opinion regarding the merits of any decided civil or criminal case or with respect to conduct of any party , witness or agent in such case or even the character of such person as far as his character appears in that conduct.

6th Exception:- It is not defamation to comment in good faith on the merits of any performance, if the author of such performance has submitted it to the judgment of the public either expressly or impliedly, including on the character of the author so far as his character appears in such performance.

7th Exception:- It is not defamation to pass in good faith any censure on the conduct of any person by a another person who is either under authority of law or by way of lawful contract has gained the stature of controlling authority with respect to the matters to which his authority relates.

8th Exception:- Under it, making over an accusation in good faith against any person before any lawful authority  is not defamation.

9th Exception:- The required ingredients are firstly that the imputation must be made in good faith; secondly, the imputation must be made for protecting the of the interest of the maker or recipient of the communication or for the public good.

10th Exception:- The required ingredients are that the accused intended in good faith to convey a caution to one person against another intending for the good of the person to whom the caution was conveyed or to some person in whom that person is interested or for the public goods.

The aforementioned exceptions of section 499 of the IPC are exhaustive in nature and recourse cannot be had to the English common law to add new grounds of exceptions as held by hon’ble apex court in M.C.Verghese vs T. J. Ponan AIR 1970 SC 1876. Thus, Section 499 IPC defines the offence of defamation with specificity and particularity and enumerates ten broad Exceptions when statements against a person will not be considered defamatory.

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