"Globally, the trend is moving towards decriminalizing defamation but we need to see how best the offence can be dealt with from the Indian perspective" While international bodies including the United Nations and the Organisation for Security and Co-Operation in Europe are calling for the decriminalization of defamation laws, the Indian legal system holds onto both civil...
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"Globally, the trend is moving towards decriminalizing defamation but we need to see how best the offence can be dealt with from the Indian perspective"
While international bodies including the United Nations and the Organisation for Security and Co-Operation in Europe are calling for the decriminalization of defamation laws, the Indian legal system holds onto both civil and criminal remedies for defamation – but to little avail, in terms of justice actually dispensed to the defamed.Neither have the current civil or criminal remedies been successful in inculcating a harmonized culture of diligent restraint to protect an individual’s reputation nor do they adequately protect the freedom of speech and expression from abuse.
Defamation as a criminal offence is defined under Section 499 and is punishable under Section 500 of the Indian Penal Code. The definition under Section 499 covers both ‘Libel’ (written defamation) and ‘Slander’ (spoken defamation), and is accompanied by ten exceptions. The punishment for defamation is simple imprisonment for a term which may extend to two years or a fine or both.The Criminal Procedure Code classifies defamation as a non-cognisable and bailable offence. Thus, for the criminal remedy to be set in motion, a mere Police Compliant would not suffice and a complaint would have to be made to the Magistrate, who would in turn issue ‘process’. Being a criminal offence, establishing the presence of ‘Mens rea’ is critical.
On the other hand, the civil remedy arises from defamation being a wrong under the Law of Torts. Defamation is a Felonious Tort, which implies that the civil or criminal remedy available to the aggrieved party is not available in the alternative but is concurrently available. The aggrieved party may file a suit for damages and could also ask for an interim order in the form of an injunction. As a general trend, the focus of the Courts has been more on Libel and less on Slander. The basic tenets to establish the libellous nature of a statement broadly are that the imputation should be false; it should be written, should be defamatory and should be published. Defamation over the World Wide Web is covered under Sections 66A and 79 of the Information Technology Act, 2000.
We will now cover the contemporary issues that Defamation law raises in the Indian context, both from a substantive perspective as well as a practical perspective.
As the general global trend is moving towards decriminalizing defamation law, we need to see how best the offence can be dealt with from an Indian perspective. It essentially comes down to balancing two constitutional freedoms; the freedom of speech and expression as enshrined in Article 19 and the right to life as enshrined in Article 21. While reasonable restrictions can be imposed on the freedom of speech and expression, it remains to be judged whether the threat of a penal offence best serves this purpose. Thus, two solutions can be looked at, the first being that defamation is decriminalized and is only a civil wrong as far as journalists are concerned, as they are the community most affected by the threat of criminal proceedings looming over them.
The second being that in all defamation matters, first civil action should be brought and only after the action has been successful with respect to the aggrieved party, should the criminal remedy be considered. This would ensure that the defendant isn’t harassed by virtue of a criminal proceeding in case the action brought isn’t bona fide and thus the ‘abuse’ element is also duly checked.
Section 499 of the IPC establishes ten exceptions, which are extremely broad and completely defeat the purpose of establishing defamation as a criminal offence. Most defendants would in one way or the other fall under one of these exceptions’ and the Courts so far have not streamlined their usage. The scope for abuse under these exceptions thus is extremely high and is widely seen as well. Media Houses are abusing what was given to protect them, and the ensuing defamation in the form of media trials not only defames but is prejudiced and destroys the presumption of innocence in favour of the accused. The third, fourth, seventh, eighth, ninth and tenth exceptions need to be reviewed at the earliest—as the imputations they deal with have a higher tenacity towards abuse as compared to defence. Freedom of Expression is not an absolute right and it is high time a clear signal is sent in terms of the proverbial saying “your right to stretch your arm ends where my nose starts.”
In defamation cases, when the aggrieved party approaches the Court, the loss to reputation has already occurred or is in process and the damage has been done. Therefore, it is essential that adequate damages need to be awarded to the aggrieved party. Our Courts have not evolved any comprehensive mechanism to award damages in defamation cases, covering the ambit of the monetary loss as well as the non-monetary losses suffered by the aggrieved party. Further, there is a need to explore the presence of ‘Special Damages’ that the party may have suffered in each case. It is indeed difficult to lay a straitjacket formula to compute the damages.
Since no Statute exists in India for dealing with the civil liability for defamation, the rules of equity, justice and good conscience are applicable. But these rules again, do not establish a mechanism through which damages may be easily quantified. The Indian Courts need to be more pro-active in determining damages in defamation cases, keeping in mind the duration the aggrieved party has suffered loss to his/her reputation and has waited for justice, in light of the speed of our justice dispersal.
Here, it may be interesting to look at the model followed by Australia; where while dealing with damages, there is a cap placed on the award of non-economic damages, which is reviewed on a yearly basis, and is exceeded only in exceptional circumstances. On the flip side, in case of malicious proceedings brought against the defendant–exemplary and punitive damages need to be considered to be payable to him/her by the complainant, as well–since the defendant also becomes the defamed through the vexatious proceedings. Further, mitigation of damages needs to be considered in cases where a due apology or correction has been published.
As far back as 1869 in Dixon v. Holden, it was held that “A man’s reputation is his property, more valuable than any other property”. Our Courts have generally been of the view that pre-publication injunctions should be given in the rarest of cases, as the aggrieved party has remedy in the form of damages in furtherance of the judgment in the English case—Bonnard v. Perryman in 1891. This is an area which would require review, to narrow down on what these rare circumstances would be to allow pre-publication injunctions, as once an individual’s reputation has been called into question in today’s inter-connected web-based world, correcting the damage done may take a considerably longer time and is often hard to reverse.
Disclaimer–The views expressed in this article are the personal views of the authors and are purely informative in nature.