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Simply put: The what, why of defamation

Last week, Union Finance Minister Arun Jaitley slapped two defamation cases on Delhi CM Arvind Kejriwal, one a criminal case in a city court and the other a civil suit before the HC seeking Rs 10 crore as damages.

Written by Utkarsh Anand |
Updated: December 28, 2015 8:20:31 am
Arun Jaitley, Arvind Kejriwal, kejriwal, jaitley, Jaitley defamation, DDCA Arun jaitley, DDCA kejriwal, kejriwal defamation case, DDCA news, Delhi news, India news AAP leader Arvind Kejriwal (left) and BJP leader Arun Jaitley

How is ‘defamation’ defined under Indian laws?

In India, defamation can both be a civil wrong and a criminal offence. The difference between the two lies in the objects they seek to achieve. While a civil wrong tends to provide for a redressal of wrongs by awarding compensation, a criminal law seeks to punish a wrongdoer and send a message to others not to commit such acts. In Indian laws, criminal defamation has been specifically defined as an offence under the Indian Penal Code (IPC) whereas the civil defamation is based on tort law – an area of law which does not rely on statutes to define wrongs but takes from ever-increasing body of case laws to define what would constitute a wrong. Moreover, in a criminal case, defamation has to be established beyond reasonable doubt but in a civil defamation suit, damages can be awarded based on probabilities.

How is criminal defamation law placed in the IPC?

Section 499 of the IPC defines what amounts to criminal defamation and few subsequent provisions specify what the punishment for having committed defamation would be. Section 499 states defamation could be through words – spoken or intended to be read, through signs, and also through visible representations. These can either be published or spoken about a person with the intention of damaging reputation of that person, or with the knowledge or reason to believe that the imputation will harm his reputation. Section 500 stipulates an imprisonment of up to two years, with or without fine, for someone held guilty of criminal defamation. However, criminal defamation is a compoundable offence and parties can seek a closure of the case by reaching a compromise.

What is the procedural requirement for filing a criminal defamation case and how is the law set into motion?

Criminal defamation provisions are read in conjunction with the procedural requirements laid down in the Code of Criminal Procedure (CrPC). The offence has been categorised as non-cognisable and bailable and hence a mere filing of a police complaint by an aggrieved person does not entail arrest of an alleged offender. Therefore, a complaint is more often than not filed before a magistrate, seeking prosecution of alleged offenders and their arrest. The complainant needs to record his statement to convince the magistrate that the case warrants summons to the accused and their arrest. Once summoned, the prosecution is set into motion and at this stage, it becomes imperative for the accused to move for bail before the magistrate. If the complainant succeeds in establishing a prime facie case, the trial proceeds, otherwise the accused are discharged without being sent for a full-fledged trial.

How does defamation as a civil wrong work?

Here, defamation can take two forms – libel (by writings) and slander (by spoken words). In order to establish that a particular statement – written or spoken – is defamatory, it must be proved that it is false, defamatory and published and lowered the reputation of a specific person or an identifiable set of people in the eyes of the general public.

How is a civil defamation case instituted?

A civil suit can be filed before a district court or a high court, depending on the quantum of damages being sought by the complainant. After perusing the plaint, if a judge is satisfied that there is a case to seek replies from the parties from whom the damages have been demanded, notices are issued to them. Later, based on documentary and oral evidence, a decision is reached on whether the complainant deserves a compensation for being wronged. A person, while instituting a civil suit, may also demand a prohibition against further publication of the allegedly defamatory material. In addition to this, a person apprehensive of being defamed in a publication may seek a court’s order to grant an injunction to restrain such publication. However, pre-publication injunctions are rarely granted by courts in India.

What are the valid legal arguments to ward off defamation charges?

‘Truth’ is generally considered to be a defence to defamation as a civil offence but under criminal law, truth is a defence only in a limited number of circumstances. Besides the statement or writing being demonstrably true, it also requires to be proved that the imputation was made for public good. Accusations, censure or imputation made in good faith by persons having lawful authority are also a few exceptions to a charge of criminal defamation.

Is law of criminal defamation a threat to freedom to speech and expression?

Booked for criminal defamation, personalities such as BJP leader Subramanium Swamy, Congress vice-president Rahul Gandhi and Delhi Chief Minister Arvind Kejriwal had moved the Supreme Court, challenging the constitutional validity of the law on criminal defamation, as defined in the IPC. They have all argued that it impinges upon the fundamental right to freedom of speech and expression and that civil defamation is an adequate remedy against such wrongs. The court has reserved its verdict on this issue and is likely to pronounce its final word on the validity of criminal defamation law in January 2016.

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