Defamation
Chapter Fifty-Nine
Syllabus topic 1, "Offences under Indian Penal Code"
Pages 284 to 288 of 802
In one line
Defamation is publishing something about a person that lowers him in the estimation of others, and almost everything worth knowing about the offence is in its ten Exceptions.
In the wording a student can write in an exam: by section 356(1) of the Bharatiya Nyaya Sanhita, 2023 whoever, by words spoken or intended to be read, or by signs or visible representations, makes or publishes any imputation concerning any person, intending to harm or knowing or having reason to believe that it will harm his reputation, is said, except in the cases excepted, to defame that person.
The provision itself
Section 356(1) as set out above, followed by four Explanations and ten Exceptions.
Explanation 1. It may amount to defamation to impute anything to a deceased person, if the imputation would harm that person's reputation 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, an association, or a collection of persons as such.
Explanation 3. An imputation in the form of an alternative, or expressed ironically, may amount to defamation.
Explanation 4, the test of harm. No imputation harms a person's reputation unless it directly or indirectly, in the estimation of others, lowers his moral or intellectual character, or his character in respect of his caste or calling, or his credit, or causes it to be believed that his body is in a loathsome state or a state generally considered disgraceful.
Section 356(2), the punishment. Simple imprisonment up to two years, or fine, or both, or with community service.
Section 356(3) and (4). Printing or engraving matter known or believed to be defamatory: two years simple, or fine, or both. Selling or offering for sale printed or engraved matter known to contain defamatory matter: the same.
Section 354. Causing or attempting to cause a person to do what he is not legally bound to do, or omit what he is legally entitled to do, by inducing him to believe that he or a person he is interested in will be rendered an object of Divine displeasure by some act of the offender: one year, or fine, or both.
Section 355. Misconduct in public by a drunken person: simple imprisonment up to twenty four hours, or fine up to one thousand rupees, or both, or community service.
Section 357. Breach of a lawful contract to attend on or supply the wants of a person who by reason of youth, unsoundness of mind, disease or bodily weakness is helpless: three months, or fine up to five thousand rupees, or both.
Defamation
The ten Exceptions
Exception 1, truth for the public good. It is not defamation to impute anything true concerning any person, if it be for the public good that the imputation should be made or published. Whether it is for the public good is a question of fact. Truth alone is not a defence to the criminal offence; it must be coupled with public good.
Exception 2, public servants. Expressing in good faith any opinion respecting the conduct of a public servant in the discharge of his public functions, or his character so far as it appears in that conduct, and no further.
Exception 3, public questions. Expressing in good faith any opinion respecting the conduct of any person touching any public question, and his character so far as it appears in that conduct, and no further.
Exception 4, court reports. Publishing a substantially true report of the proceedings of a Court or of the result of such proceedings. The Explanation brings a Magistrate or other officer holding an inquiry in open Court preliminary to a trial within the word Court.
Exception 5, decided cases. Expressing in good faith any opinion respecting the merits of a decided civil or criminal case, or the conduct of a party, witness or agent in it, or his character so far as it appears in that conduct, and no further.
Exception 6, public performances. Expressing in good faith any opinion respecting the merits of a performance its author has submitted to the judgment of the public, or the author's character so far as it appears in the performance, and no further.
Exception 7, lawful authority. A person having authority over another, conferred by law or arising out of a lawful contract, passing in good faith any censure on that other's conduct in matters to which the authority relates.
Exception 8, complaint to a lawful authority. Preferring in good faith an accusation against a person to any of those who have lawful authority over him with respect to the subject matter.
Exception 9, protection of interests. Making an imputation on another's character in good faith for the protection of the interests of the person making it, or of any other person, or for the public good.
Exception 10, caution. Conveying a caution in good faith to one person against another, intended for the good of the person to whom it is conveyed, or of someone in whom he is interested, or for the public good.
The two limits that run through the Exceptions
Good faith. Eight of the ten Exceptions require it, and by section 2(11) nothing is done in good faith which is done without due care and attention. So a defendant who published without checking cannot rely on them however honest he was.
Defamation
"And no further". Exceptions 2, 3, 5 and 6 each end with those words. They confine the comment to the conduct in question. The section's own illustrations make the point: saying that a man's book is foolish and that he must therefore be a weak man is within Exception 6; saying that his book is foolish because he is a weak man and a libertine is not, because that opinion is not founded on the book.
Distinctions that carry marks
| Civil defamation | Section 356 | |
|---|---|---|
| Remedy | Damages and an injunction | Simple imprisonment up to two years, or fine, or both, or community service |
| Truth | A complete defence | A defence only under Exception 1, and only if publication was for the public good |
| Who may sue or complain | The person defamed | The person aggrieved, on a complaint |
| Exception 2 | Exception 3 | |
|---|---|---|
| Whose conduct | A public servant, in the discharge of his public functions | Any person, touching any public question |
| Good faith | Required | Required |
| Limit | Character so far as it appears in that conduct, and no further | The same |
| Section 356(2) | Section 356(3) and (4) | |
|---|---|---|
| Who | The person who defames | The printer or engraver; the seller |
| Knowledge | Intention, knowledge or reason to believe harm | Knowledge or good reason to believe the matter defamatory; knowledge that it contains such matter |
A worked example
A journalist writes that a municipal engineer has taken money to approve unsafe buildings. The engineer complains of defamation.
Is the imputation defamatory? Test Explanation 4: does it, in the estimation of others, lower his moral character or his character in respect of his calling? Plainly yes.
Exception 1. If the journalist can prove the imputation is true, he must also show that it was for the public good that it be published. Whether it was is a question of fact, and the safety of buildings makes that easy here.
Exception 2. Even if he cannot prove the whole imputation true, an opinion expressed in good faith about the conduct of a public servant in the discharge of his public functions is protected, so far as his character appears in that conduct and no further.
Where the journalist would lose. If he published without checking anything, good faith fails, because section 2(11) requires due care and attention. And if he had added that the engineer is a dishonest man in his private life, that is beyond the conduct in question, and the words "and no further" take it outside Exception 2.
Change the target. Suppose the imputation is about a private company's financial position. Explanation 2 allows a company or an association to be defamed, and the complaint may be made on its behalf.
Defamation
Change it again. Suppose the imputation is about a man who died last year, and it is intended to hurt his son's feelings. Explanation 1 brings it within the section.
Change the publisher. Suppose a printing press knowingly prints the article and a bookseller knowingly sells it. Sub-sections (3) and (4) reach each of them with two years simple imprisonment, or fine, or both.
A different case. Suppose an employer writes a confidential report to his own head office saying that a manager is careless. Exception 7 protects a person having lawful authority who passes censure in good faith in a matter to which that authority relates, and Exception 8 would protect an accusation preferred in good faith to a person with lawful authority over him.
What beginners get wrong
Thinking truth alone is a defence. It is not, in criminal defamation. Exception 1 requires truth and public good.
Forgetting that good faith means due care. Section 2(11) defines it negatively, and it is what defeats most defences under the Exceptions.
Thinking only a living individual can be defamed. Explanation 1 covers a deceased person in the circumstances stated, and Explanation 2 covers a company, association or collection of persons.
Missing "and no further". It is the phrase that limits Exceptions 2, 3, 5 and 6 to the conduct in question, and the section's illustrations turn on it.
Limits and criticism
Criminal defamation is the most criticised offence in this Chapter. It permits imprisonment for speech, it is available to the powerful against critics, and the burden of proving truth and public good falls on the defendant.
The Sanhita added community service as a punishment, which softens the sanction, and left the offence itself untouched. It is one of the six offences that carry community service.
The Exceptions are drawn for an age of pamphlets. Nothing in them addresses the position of an intermediary that hosts a defamatory statement, and section 356(3) and (4), aimed at printers and sellers, do not fit a platform.
Section 354 remains in the statute. An offence of causing a person to act by inducing a belief that he will be made an object of Divine displeasure is expressed in the language of 1860, and its survival in a Chapter about defamation and insult is an accident of arrangement.
Quick revision
Section 356(1). An imputation, by words spoken or intended to be read, signs or visible representations, made or published, intending or knowing or having reason to believe it will harm reputation.
Four Explanations. A deceased person; a company, association or collection of persons; an alternative or ironic form; and the test of harm, which is the estimation of others as to moral or intellectual character, caste or calling, credit, or a loathsome or disgraceful bodily state.
Defamation
Ten Exceptions. Truth for the public good; opinion in good faith on a public servant's conduct; on any person's conduct touching a public question; a substantially true report of court proceedings; opinion on a decided case; opinion on a public performance; censure by lawful authority; accusation to a lawful authority; imputation for the protection of interests or the public good; and a caution in good faith.
The two limits. Good faith, meaning due care and attention; and "and no further".
Section 356(2) to (4). Two years simple, or fine, or both, or community service; the printer or engraver; the seller.
Sections 354, 355 and 357. Divine displeasure, one year; drunken misconduct in public, twenty four hours or one thousand rupees or community service; breach of a contract to attend on a helpless person, three months.
Test yourself
1. Is truth a defence to criminal defamation? Not by itself. Exception 1 requires the imputation to be true and that it be for the public good that it should be made or published, which is a question of fact.
2. State the test of harm in Explanation 4. An imputation harms reputation only if it directly or indirectly, in the estimation of others, lowers the person's moral or intellectual character, or his character in respect of his caste or calling, or his credit, or causes it to be believed that his body is in a loathsome or generally disgraceful state.
3. What do the words "and no further" do? They confine Exceptions 2, 3, 5 and 6 to the person's character so far as it appears in the conduct being commented on, so an opinion about his character drawn from anything else is outside the Exception.
4. Can a company be defamed? Yes. Explanation 2 provides that it may amount to defamation to make an imputation concerning a company, an association, or a collection of persons as such.
5. What punishment did the Sanhita add for defamation? Community service, under section 356(2), alongside simple imprisonment up to two years or fine or both.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.