Criminal Defamation in India- A road to Abolition?

Siddharth Sijoria1

Introduction
Libel and slander, are two forms of defamation which are treated as one by Indian jurisprudence.
A person defamed can either seek remedy under the civil law for damages2 or punishment3 under
criminal law or both. Several countries have abolished criminal defamation4 for it is not only
considered as antiquated, but also restrictive of freedom of speech and expression5. While many
in India would agree that criminal defamation should be repealed, not all are convinced that the
time is right to do so. The rise in hate speeches, growing public communications on websites,
hurling insults, and an underdeveloped civil defamation law means that criminal defamation still
has a meaningful role to play in curbing intentional and malicious defamation. Though there is
no doubt that defamation is reasonable enough to qualify as a restriction on free speech6, a
question pertaining to constitutionality of criminal defamation has been raised before a division
bench of the Supreme Court in Subramanian Swamy v Union of India7and the judgment in this
case is reserved. The challenge has attacked the "chilling effect" allegedly caused by the threat
of punitive criminal action and its effective deterrence in publishing legitimate criticism and
opinion.

Advocate, Supreme Court of India.

R v Daily Mail (Editor); Ex Parte Factor (1928) 44 TLR 303, 306
3
Section 499-504 , Indian Penal Code, 1860 . Also Wood v Cox (1888) 4 TLR 652, 654,
4
In U.K, the Coroners and Justice Act, 2009 Jamaica , became the first Caribbean Country to abolish Criminal
Libel in 2013. Grenada, repealed criminal defamation law but mainains it for seditious libel and insult to Monarch.
U.K passed the Defamation Act, 2013
5
The Constitution of India,1950, article 19(1)(a), Universal Declaration of Human Rights,1948 Article 19 (UDHR),
International Covenant on Civil and Political Rights,1966, article 19, (ICCPR), European Convention on Human
Rights, 1950 article 10, American Convention on Human Rights, 1969, article 13.
2

The Constitution of India 1950, article 19(2)

.The Judgment is reserved.

This paper presents the abolitionist and retentionist views pertaining to criminal defamation
laws. In sum, it is argued that the law should be retained until civil law of defamation is
developed in India have an effective deterrence. It also provides guidelines that may be followed
to facilitate legitimate criticism of public officials without any fear of criminal prosecutions.
Against Retention
Free speech is essential to democracy8, press rights9, and propagation of ideas10. Free Speech
facilitates the freedom to express the thoughts we hate11 but the existence of criminal defamation
is often denounced as the "black sheep of communication laws"12. It is argued that the fear of
prosecutions restricts legitimate criticism of the elected government and powerful individuals.
The abolitionist often derive the strength from the dictum in New York Times v Sullivan13
wherein Justice Brennan held that a public official should accept criticism and if defamed, can
only recover damages when he proves that the statement made was with "actual malice". This
reasoning was also adopted in India in the Autoshankar case14 to assert openness in accepting
criticism by public officials15.
Does Criminal Defamation restrict free speech?
Spencer argued that criminal defamation does not impinge upon proper ambit of free speech in
punishing the author who deliberately publishes what is known to be false with the intention of
defaming another so as to do him serious harm16. The freedom of speech and expression cannot
be considered in abstract but in the context of the Indian Constitution and its provisions. Unlike
the first amendment to the United States Constitution, freedom of speech & expression in India is
not absolute but subject to various restrictions mentioned in the Constitution itself17. Defamation

Maneka Gandhi v Union of India (1978) 1 SCC 248

Bennett Coleman (1972) 2 SCC 788, Union of India v Sakal Newspaper (1962) 3 SCR 242
10
Express Newspaper v Union of India 1959 SCR 12
11
Justice Oliver Holmes in United States v Schwimmer, (1929) 279 US 644, 645
12
Greg Lisby, No Place in the Law: The Ignominy of Criminal Libel in American Jurisprudence (2004) 9
Communication Law and Policy 433, 486.
13
29 LED 2d 822 (1971)
14
Rajagopala v State of Tamil Nadu 1994 6 SCC 632
15
Derbyshire County Council v Times Newspaper ltd. (1992) 1 Q.B. 770
16
(1983) Crim L Rev at 528
17
Supra 6.
9

itself is one such restriction.18 Further the defamation clause under criminal law19 provides ten
exceptions in favour of the author of the imputation. Bonafide statements, even if untrue, made
in public interest

20

are protected under criminal law. The offence is bailable and punishable

with fine, or imprisonment upto 2 years or both. This is much better in contrast to Australia21,
Italy22 and Slovakia23 and other countries24 where punishment is more rigorous. Moreover the
Court casts a heavy burden upon the plaintiff or complainant to prove loss of reputation25 and to
establish that the defamatory statement damages ones reputation.26
Retaining Criminal Defamation?
With the growing internet and communication mechanism the responsibility of the State to
protect reputation and privacy of an individual as a societal interest furthers the case for retention
of criminal defamation. Though a personal matter, reputation is considered more valuable than
any other property27 and accepted as an element of right to life28to which free speech is
subject.29. Criminal defamation is also assailed for being rarely prosecuted. But rarity in
prosecution does not mean the law lacks practical relevance.30 The offence remains of relevance
in cases where the person publishing the libel is of limited means.31 In such cases, pursuing civil
action will be a fruitless exercise and thus the existence of a criminal offence would act both as
deterrent and a mechanism to ensure accountability against such "judgment proof"

18

The Constitution First Amendment Act in 1951 introduced the reasonable restrictions of defamation in Article
19(2).
19
The Indian Penal Code1860, s. 499-500
20
Ibid exception 9. See also in Mrs Jinnat Ara Borbara 1980 CrLJ NOC (Gau.)
21
3 years. The Australian Criminal Code Act 1899, s. 365
22
5 years. The Italian Criminal Code 1930, article 594-597
23
8 years. The Slovakian Criminal Code ,article 373
24
Out of 28 E.U states 23 still maintains criminal defamation.
http://www.freemedia.at/ecpm/keyfindings/criminal-defamation-laws.html
25
Balaram vs Sukh Sampat Lal AIR 1975 Raj 40
26
Sadasiba v Bansidhar AIR 1962 Orissa 115
27
Dixon v Holden (1869) LR 7 Eq488
28
Aticle 21 of the Constitution of India,1950
29
Umesh Kumar vs. State of Andhra Pradesh (2013) 10 SCC 591 at p.604
30
Privy Council in Worme v Comr of Police of Granada [2004] UKPC 8, [2004] 2 ac 430. Though the offence of
Criminal Defamation was abolished in Granada in 2012 though still the insult to monarch and government can be
prosecuted.
31
Carter-Ruck on Libel and Privacy,6th ed., by Alastair Mullis and Cameron Doley MA, Lexis Nexis 2010), pp.
536

individuals.32. For instance, in Australia, a student accused her professor of being a pedophile on
an online blog33. The professor sued the student for defamation and consequently won an
apology and a whopping sum of $3 million as damages against the student34. The student later
declared that she could never pay such an amount and won't apologize. Resultantly, the professor
was defamed and left without remedy.
In these circumstances the plaintiff is left without an effective remedy against the accusations
that have been published with the sole purpose of destroying the plaintiffs reputation in the full
knowledge that they were untrue. If the defendants know that their reckless behavior may put
them behind bars then they might think twice before publishing any libelous statement.35 .
23 out of 28 E.U states still retain criminal defamation36. In Italy, the law is still stands
notwithstanding the protest, particularly after the imposition of prison sentence to a journalist.37.
In Australia retention is essential, especially against a "judgment proof person"38. In Zimbabwe,
the situation is confusing as the court declared criminal defamation ultra vires under the old
constitution, yet justified it under their new constitution.39 Similarly the Canadian Court40 and
South African Court held criminal defamation to be consistent with their constitution41. Though
prosecution is strongly protested, there is no evidence to show that free speech is arbitrarily
muzzled as these countries provide effective measures to be taken before issuing a criminal
process.

32

http://www.austlii.edu.au/au/journals/MurdochULawRw/2013/1.pdf
Scott Carlson, Former Students Online Accusations Against Professor Prompt Libel Suit, , 7 December 2000
Chronicle of Higher Education
34
Thomas Bartlett, Physics Professor Wins $3 Million Judgment in Libel Suit Against Ex-Student, , 4 April 2002
Chronicle of Higher Education.
35
Nigel Hunt, Teen Guilty of Facebook Slur, 22 November 2009 Sunday Mail (South Australia),.Cross, a young
man convicted for publishing a defamatory article about a police officer, was asked if he would contemplate putting
up a defamatory blog site again. He replied: no, of course not, no.
36
http://www.freemedia.at/ecpm/key-findings/criminal-defamation-laws.html
37
7 Italy Faces Reform Calls as Journalists Jailed for Libel, Press Gazette (online), 9 August 2012
38
Supra 32
39
Madanhire & Another v Attorney General [2015] ZWCC 02
33

40
41

R V Lucas [1998] 1 SCR 439, 1998 CanLII 815 (SCC)

Luzuko Kerr Hoho v State, (2008) ZASCA 98 (17.09.2008)

Establishing an alternate remedy before Abolition

Without an effective alternative to criminal defamation, its removal or absence may signify that
it is an acceptable conduct in society42. A British student received damages worth $17,500 for
alleged defamation43 however many in India would not be so lucky. For an effective abolition,
criminal defamation laws should be replaced with appropriate civil laws44. In England the
abolition was a gradual process through conscious efforts of the U.K Parliament and the Courts.
The summary to the U.K Defamation Act, 2013 explains that civil law on defamation has
developed through common law over a number of years, periodically being supplemented by
statutes, most recently the Defamation Act 1952 and the Defamation Act 1996.45 In contrast, not
a single legislation has been framed by Indian Parliament to develop civil defamation since
Independence.46
The imposition of fine should be exemplary to deter individuals. However in the recent past,
damages awarded by Courts are criticized for being excessive. In 2008, a district court awarded
Rs. 100 crores to a former Supreme Court judge against a prominent news channel for running
his name as a corrupt judge47 . In August Essar steel India sued Caravan magazine and its
publisher Delhi press, seeking damages worth Rs. 250 crores as damages for writing an alleged
defamatory article48. Similarly, National Stock Exchange filed a Rs. 100- crores defamation suit
against an online news portal Moneylife for publishing a false report on algorithm trading
mechanism. 49 The filing of suits has been often described as Strategic Law Suits Against Public
Participation (SLAPP suits) to muzzle press rights50. However enacting a comprehensive
legislation vis a vis civil defamation will be essential, especially in deterring such suits from
42

http://www.lawreform.ie/_fileupload/consultation%20papers/cpCrimeofLibel.htm pp. 187

Louisa Hearn, $17,500 Payout for Facebook Paedophile Slur, 29 July, 2010 Sydney Morning Herald,
<http://www.smh.com.au/technology/technology-news/17500-payout-for-facebook-paedophile-slur-2010072910wud.html>.
44
UN Special Rapporteur , Joint Declaration of 10 Dember 2002
45
http://www.legislation.gov.uk/ukpga/2013/26/notes/division/2
46
1947
47
https://inforrm.files.wordpress.com/2011/11/judgment.pdf
48
http://www.legallyindia.com/Bar-Bench-Litigation/read-why-essar-is-claiming-caravan-owes-it-250-crore
49
http://www.thehoot.org/free-speech/defamation/defamation-cases-multiply-8882
50
http://www.thehindu.com/2003/12/12/stories/2003121201851200.htm
43

being filed and will serve as an effective alternative to criminal defamation. The law must
provide for showing serious harm51 to reputation, grounds for seeking particular amount in
defamation suits. In cases where the prosecutions appears to be frivolous or a SLAPP suit, the
law may provide for damages for malicious prosecutions which must be equivalent to twice the
amount claimed as damages under the law. The time period for deciding a particular case should
be also incorporated along with time for the delivery of damages. This alternative may be given
some time to operate and see whether the remedy is effectively provided to the victim under
established civil norms of civil defamation. If the alternate works effectively, then the Parliament
or Courts may consider the abolition of criminal defamation.
Checking the Abuse of Criminal Defamation
Until a comprehensive civil defamation law is developed, certain guidelines may be framed to
keep a check on abuse of criminal prosecution by public officials. The elaborate exceptions to
defamation should be considered at the time of summoning of accused to enquire if any prima
facie case is made.52 The veracity of the complaint made should also be tested by the Court in
order to prevent abuse.53 Similarly the requirement to obtain leave of the Court before
prosecution can be adopted as a necessary safeguard against frivolous and vexatious
prosecutions.54 The Judiciary can also deter frivolous complaints by granting damages for
attempting malicious prosecutions.

For instance the Bombay High Court passed an order

directing the National Stock Exchange to 50 lacs as damages to the defendant for filing a
vexatious suit.55 Under the present law, a complaint can be filed anywhere in the country, where
the defamatory statement can be viewed or read. It will be an important step to impose territorial

51

U.K Defamation Act 2013, s.1

Balraj Khanna vs. Moti Ram : (1971) 3 SCC 399. The Court had observed that exception does not arise at pre
summoning stage.
53
State of Rajasthan vs. Ani (1997) 6 SCC 162. The Trial Court should elicit veracity of complaint under section
165 of the Indian Evidence At, 1872.
54
Australian Defamation Act 1958, s 33
55
Supra 49. http://indianexpress.com/article/business/business-others/bombay-high-court-directs-nse-to-pay-rs50-lakh-damages-in-moneylife-case/
52

jurisdiction in the place where the defamatory content was made rather than creating multiple
jurisdictions to save the potential harassment of an individual.56
Conclusion
Even four horses cannot drag back the words spoken and for this reason, the interference with
free speech can be provided by a law formulated with sufficient precision to enable citizen to
regulate his conduct57, to pursue a legitimate aim58. The laws must be stable to provide adequate
and effective relief to the person who has suffered injury of reputation. In the debate of
legitimate political criticism, we must not forget about the other citizens for whom the criminal
defamation serves as an outlet to defend their honor and reputation so they do not resort to taking
law into their own hands. Free speech does not create a wholesale defamation exemption for
anything labeled as opinion59. Though retaining prosecutions has been compared with "locking
the barn after the horse has run"60, its existence is crucial in deterring the unruly horses. The laws
in India as well as outside focus less on truth and greater on public interest. The statements made
in public interest are always protected by the law. Extant defamation law does not stifle
legitimate and responsible free speech as in bonafide cases the disclosure of information have led
to the prosecution and removal of public officials and ministers in India.61. The presence of
criminal defamation strengthens its arms only against malicious and intentional injury to
reputation and only if the alleged statement fails to fall within the 10 elaborates exceptions
provided under section 499 of IPC.

The laws made must conform to the times and must keep in mind the social interest. The
practicality of the law for implementation and the circumstances that may arise after a law ceases
to operate must be considered. It is highly likely that crooked individuals will resort to gullible
and "judgment proof" persons to defame others. It is for these foreseeable reasons, I strongly
56

Dashrath Rupsingh Rathod Vs. State of Maharashtra (2014) 9 SCC 129, Court's preference is for simplifying the
law; to ensure that legal proceedings are not used as a device for harassment even of an apparent transgressor of
the law; precision and exactitude are necessary especially where the location of the litigation is concerned.
57
The Sunday Times v U.K Application No. 6538/7426 Judgment of April 1979.
58
Supra 6.
59
Milkovich v. Lorain Journal, 497 U.S. 1 (1990)
60
Harold J. Berman Talks on American Law, (Vintage Book USA, 1971) pp. 88
61
2012 3 SCC 1. (2G Case)

argue for edifying a strong alternative to criminal defamation through concerted efforts of
legislators, as it happened in U.K and other countries before abolishing it completely.
In the meanwhile, the court may frame certain guidelines, taking into consideration the
guidelines earlier suggested in the paper, to keep a check upon its abuse.