NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW

TAKE HOME ASSIGNMENT

DECRIMINALIZATION OF DEFAMATION

SUBMITTED TO : MR. SUBIR KUMAR

SUBMITTED BY : AASTHA MISHRA
SECTION : B
ROLL NO. : 565

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When the debate is lost,

slander becomes the tool
Of the loser.
-Socrates
DEFAMATION
From very early times the law has sought to protect the individual in reputation
as in his person and property. An injury to reputation is as likely , if not more ,to
disturb public peace and individual comfort and happiness as an injury to
person and property. Till comparatively modern times , the practice of waging a
duel for vindicating ones honour and good name was prevalent in England and
other European countries . the mode of protecting reputation has varied in the
laws of different times and countries. Ancient hindu law punished the defamer
but did not compensate the defamer. Roman and English law have done both. In
England however , for a long time the court of the church entertained cases of
defamation and imposed spiritual penalties like penance . by the sixteenth
century they had declined in influence and the kings court had begun to allow
the remedy of an action on the case of defamation. The law of defamation ,
assumed after the invention of printing , a good deal of importance which has
been considerably enhanced in modern times by the swift development of
journalism . The invention of broadcasting by wireless has, by extending the
area of dissemination of the spoken word , added to its power just as the
invention of printing did in the case of the written word two centuries ago. The
advent of television , internet and 24 hour news channel on tv and radio , has
multiplied that power . the ainm of the law in modern conditions is not merely
to prevent breaches of peace but also to make people adhere to standards of
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speech and writing which will preserve social order and harmony and make
public life and cooperative effort possible.

Meaning of Defamation
Defamation is the wrong done by a person to anothers reputation by words , signs , or
visual representation . it is different on one hand , from wrongful acts which injure
reputation , eg assult involving disgrace, unlawful arrest or attachment , malicious
prosecution . Defamation also differ from insult caused by words or representation .
If one causes injury to a persons reputation without any lawful justification ,
then the tort of defamation is committed . this is a tort that is very frequently in papers ,
and you would surely be able to recall a few recent incidents that have been in news.

There are two forms of defamation

LIBEL
It refers to a permanent form of defamation where defamation is rendered in a
lasting form. For eg, when it is done in written words as in a poster or a
newspaper , is etched on a wall , a cartoon in a magazine , a defamatory statue
Or plaque is erected or even when speech is rendered in a permanent form like a
recording or a motion picture . libel is considered to be far more serious than
slander as it persists in human memory and has a more lasting and harmful effect
on ones reputation .
SLANDER
It refers to the transitory or fleeting form of defamation where the defamatory
markj or mode is temporary and is not an endearing slur. For eg in a room where
A, B and C are present , A says something which lowers the reputation of B in the
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presence of C , then A is said to have slandered B. It is a non permanent or transit

form .

REQUIREMENTS OF DEFAMATION
The statement was defamatory , i.e., injuries to reputation .
A statement is said to be defamatory when, in the mind of reasonable member of
the society , the reputation of the plaintiff might fall or injure.
It was the plaintiff who was referred to by or in the statement.
If the defamatory statement was not referring to you then you cannot claim that
your reputation was injured. Of course , what is important is what the people
exposed to the statement believe. If they believe it reffered to the plaintiff, then it
will be defamation .
The statement must be published .
By publication , it is not meant that the statement must be printed . all it is
meant is that the defamatory statement or matter is made known to people other
than the person who is defamed.

DEFENCES TO DEFAMATION
Truth
If you are telling the truth substaintially , then that it a defence under civil law but
under section 499 of Indian Penal Court truth alione is not a defence , the truth
must be for public good.
Fair comment or opinion
If one is expressing an opinion rather than stating what one think is a fact , then it
is a defence .
Privilege
Absolute privilege
Its a complete defence to defamation .
In case of Parliamentary proceedings , judicial proceedings defamatory
statements made are exempted from civil as well as criminal liability.
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Qualified privileges
The person making then statement is exempted as long as the statement is made
without malice , under civil law.

LIABILITY
The Common Law deals with the defamation as a tort and Section 500 of Indian
Penal Code deals with it as a crime. Both civil and penal actions are available for
defamation. It is at the option of the person who has been defamed whether to
take civil action, criminal action or both. Civil Liability: The law of torts deal
with the defamation under 'torts affecting the persons'. A person is entitled to
claim damages for the wrong of defamation. The damages are unliquidated in
nature i.e., the standing of the person in the society decides the damages amount.
It is up to the discretion of the Court to decide the damages in a civil suit for
defamation. In case of a continuing/series of libelous articles to be published, the
defamed person can file suit for permanent injunction.
A person can move a civil suit by filing a plaint U/O 7 Rule 1 of Civil Procedure
Code, in India. In case of a series of articles to be published in furtherance to the

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libelous article, an interlocutory application U/O 39 Rule 2 of Civil Procedure

Code, may be submitted for the relief of ex-parte Ad-interim Injunction.
Emergent notice and summons shall be given to the defendant.
Criminal Liability: Sec. 500 of the Indian Penal Code provides punishment for
the offence of defamation. A private complaint may be filed directly to the
Magistrate U/Sec. 200 R/W Sec.190 of Criminal Procedure Code. Names and
addresses of the Complainant Witnesses shall be mentioned in the complaint. The
accused if found guilty shall be punished with simple imprisonment for a term
which may extend to two years, or with fine or with both.

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SECTION 499 DEFINITION OF DEFAMATION

Defamation is both a civil wrong as well as a crime. It is open to the person
defamed to take the recourse of civil as well as criminal remedy. Defamation
defined by section 499 of the Indian Penal Code:
Section 499- Defamation Whoever, by words either spoken or intended to be
read, or by signs or by visible representations, makes or publishes any imputation
concerning any person intending to harm, or knowing or having reason to believe
that such imputation will harm, the reputation of such person, is said, except in
the cases hereinafter expected, of defame that person. Explanation 1-It may
amount to defamation to impute anything to a deceased person, if the imputation
would harm the reputation of that person 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 or an association or
collection of persons as such. Explanation 3-An imputation in the form of an
alternative or expressed ironically, may amount to defamation. Explanation 4-No
imputation is said to harm a person's reputation, unless that imputation directly or
indirectly, in the estimation of others, lowers the moral or intellectual character of
that person, or lowers the character of that person in respect of his caste or of his
calling, or lowers the credit of that person, or causes it to be believed that the
body of that person is in a loathsome state, or in a state generally considered as
disgraceful.

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DECRIMINALIZATION OF DEFAMATION
Due to the current debate surrounding defamation there is a strong call for
decriminalization of this conduct. Yet these arguments focus on the constitutional
validity of sec . 499 and 500 of the IPC . The contention is that it violates the
fundamental right to speech as guaranteed by the constitution .
The first issue is whether decriminalization would serve as a deterrent to
defamation.
It is contended that sec. 499 and 500 are indeed supportive in reducing
defamation and hate speech.
The argument forwarded in support of decriminalization that is that there exists a
alternate remedy in the form of civil remedy seems inadequate. The civil remedy
is in the form of compensation which does not hold the power to deter big
politicians and public figures from making defamatory statement. How can
compensation , a few rupees for them serve as a deterent and protect the
reputation of the person defamed. The chain cycle of defaming one and giving
him compensation would have a never ending end . Besides there are cases where
Indian courts have awarded 1rupee as compensation in civil suits for defamation.
These defamatory statements , given in the context of India , the land of
communal riots (the recent Muzaffarnagar riots) ,regionalism (the evident cliff
between maharastrians and biharis) , where women empowerment is still a issue
not taken seriously, where there is so much of diversification in all aspects ,
would lead us to utmost chaos and anarchy.
In India , if people are given a right to fully exercise their right to expression than
the condition can be realized from the examples of hate speech rendered by some
of the big political names .
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 Varun Gandhi at pilibhit while addressing a rally during assembly election or

take the case of Mr. Owasi from Hyderabad and his speeches that have the
capabilities of pushing any man of ordinary prudence to the edge of communal
violence , or better consider the 22 year young politician from Gujarat, Hardik
Patel who almost lead Gujarat to the state of lawlessness by his illogical and
vague arguments, to an extent, all statements made by them are certainly not in
public good rather have the power to arouse violence.
Hence one can imagine the situation if there is no strong , effective and coercive
remedy available . Since it has already been contended that compensation cannot
serve the criteria of valid punishment therefore we are left with criminal
punishment in the form of 2 year imprisonment under sec. 500 of IPC.
For the argument that criminal proceeding are tortuous and lengthy for the
accused who is acquitted at the end of the trial as innocent. I t is submitted that
just to save one innocent we cannot afford thousands, with the capability to harm
and ruin the reputation of crore ,to be relieved . The idea of justice should prevail
above any individual discomfort.
The second issue is whether we should follow the ex. of UK.
It is argued that since The UK , which gave India this provision has managed to
decriminalize defamation in 2010 limiting it to be only a civil offence , India
should follow the footsteps. This is also the case with USA, Australia, France.
It is contended that since the countries we are talking about are the most
developed and first world countries where the scenario , culture and basis
problems are very different from our context .We should make amendments
suitable to our circumstances.

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 The fact that sec 499 and 500 have existed for such a long span of time concludes
that they are time tested and applicable in India.
The third issue is whether it is a reasonable restriction on individuals right.
Our constitution guarantees the right to freedom of speech and expression subject
to reasonable restrictions elaborated inarticle 19(2) : security to state , public
order and yes , defamation . In other words I dont have the right to call someone
scoundrel without any basis in fact. Under criminal law it also has to be
considered that I must not only establish that the person I called scoundrel is
based on fact, it must also be proved that it was for public good.
With the advent of Internet , where obnoxious content is in the cyber world
forever, reputation has become all more important. Though sec .66(1) of
Information Technology act has been repealed yet cases of the same nature that
were earlier filled under this sec. are being filled under sec. 67(1). Hence, even if
the sec. has been repealed the constraints in exercising ones right to freedom still
remain.
Sec. 499 and 500 which entail a maximum of 2 year in jail for defamation are
constitutionally saved and they are to read as reasonable restrictions on an
individuals right to free speech . Article 19(2) uses the word defamation in the
context of reasonable restriction.
Since the original constitution cannot be challenged before any court of law, what
is prescribed as reasonable restriction can also not be challenged.
The issue of chilling effect .
It is contended that to create balance between irresponsible journalism , fake
sting operations and trials by media we need to have effective provisions.
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 The law grants many exceptions to safeguard critics who make statements in
good faith for public good. Freedom of expression has an important place in
liberties but its a place and not the whole story.

CONCLUSION
To conclude , quotation of renowned author William Shakespeare is the best
choice. The quotation sums up defamation and its requisite perception . in his
famous work Othello he has written that
He that filches from me my good name , Robs me of that , which
not enriches him, and makes me poor indeed.
Hence defamation should not be decriminalized.

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