Critical Analysis of Defamation Laws in India

This research paper examines the legal jurisprudence built on issues related to defamation's constitutionality. As a result, it provides a thorough examination of the law's origins as well as the current category of defamation law in India. In addition, the study paper evaluates the Supreme Court's Subramanian Swamy and R. Rajagopal decisions on the constitutionality of criminal and civil defamation, respectively.

It is argued that the standard of rationality is not properly applied in the Subramanian Swamy case. Finally, the paper concludes that courts should exercise caution if limits are placed on the right to freedom of expression, as well as the issues that the media face as a result of bad legislation.

The main goal of balancing should be to allow people to exercise their right to free speech and expression without jeopardizing their public image. The Court has also held that in determining the reasonableness of limitations, the Court has full authority to consider matters of common report, historical context, common knowledge, and the circumstances that existed at the time of legislation.

Introduction
Defamation means injury or damage to the reputation of an individual. The term defamation has been derived from the Latin word diffamare which means circulating or spreading information about an individual which could harm the reputation of the person. Therefore, Defamation is nothing but causing injury to one's reputation. Defamation is both a civil and a criminal offence. The criminal law of defamation is codified, but the civil law of defamation is not. In civil law, defamation is covered by tort law, but in criminal law, it is covered by Sections 499 to 502 of the Indian Penal Code, 1860[1].

According to Section 500 of the IPC[2], defamation is punishable by up to two years in jail or a fine. Defamation cases have been on the rise in India over the last few years. On frivolous grounds, government leaders file defamation lawsuits against each other, followed by cross-defamation lawsuits. A host of cases have been filed against politicians such as Arvind Kejriwal, Rahul Gandhi, and Smriti Irani. This has sparked debate in the media, highlighting the need to revisit India's defamation laws.

Several deliberate false statements, either written or spoken, that jeopardize a person's standing; reduce respect, regard, or trust in a person; or elicit disapproving, aggressive, or disagreeable opinions or feelings toward a person.

1. making or publishing some allegation about another person;
2. The imputation must have been made with the intent to injure and with understanding or reason to believe that it would harm the person's credibility.

1. To understand the defamation laws in India with respect to defamation as a crime and defamation as a tort.
2. To understand the categories of defamation and essential characteristics of defamation.
3. To understand the constitutional validity of section 499 and defamation as an overview as public versus individual remedy.
4. To understand the defamation through analysis of Article 19[3], Freedom of speech and expression.
5. To understand defamation through various case laws.

• In the research paper The Risks of Defamation: An analysis into the driving factors determining the outcome of commercial defamation cases the author has mentioned about the commercial defamation and the damage credibility, which has a negative impact on stock prices, consumer loyalty, and debt market access. Three key factors were established based on the literature. The causes are evaluated and analyzed using 20 historical real-life defamation case studies. All three variables are found to be present in the sample and to have a substantial impact on the outcome of a commercial defamation suit, according to the report. The findings assist policymakers and businesses in better understanding commercial defamation and developing appropriate defamation-defense strategies.
  
• Commercial defamation can have devastating effects on a company's financial performance and reputation (Cavico & Mujtaba, 2018; De Villiers, 2009; Lidsky, 2000; Redlich 1995), although this does not always seem to be the case (Shenzhen Fountain v. Caijing Magazine; McDonad v. Caijing Magazine; McDonad v. Caijing Magazine; McDonad v. Caijing Magazine; Mc Companies facing significant defamatory claims have sometimes seen little or no harm to their market performance or business value, casting doubt on the widely held academic belief. This necessitates more research into the impact of defamation on a company's financial performance, as well as the factors that affect its defamation-defense strategies. The authors point out a number of outcome-determinating variables that could influence the probability of success in defamation cases.
  
• According to Chen (2005), driving factors are legislative factors that are endogenous to a country. Scileppi (2002), Jackson (2001), Hearit (1996), and Lidsky (2000) all stress how the defaming party's power and financial resources affect company defence policy. Johnson and Gelb (2002), on the other hand, concentrate on the internet and how it has changed the laws of commercial defamation[4]. The elements of defamation are first defined. The literature review will now focus on the possible consequences of commercial defamation. Finally, it describes contributing factors and suggests methods that can be implemented.
  
• Redlich (1995) expands on the financial effect of defamation on a public corporation, claiming that defamation will result in lower credit ratings or more difficult debt market access, lowering the company's financial capability. It has an effect on business relationships and can jeopardize future transactions; for example, a business partner may withdraw from a proposed merger or joint venture. As in the case of Phillip Morris v. ABC News, Redlich considers the risk that false accusations can trigger government investigations, complicating otherwise smooth business processes.
  
• According to Lidsky (2000), stock markets trade on facts, so defamatory comments can cause stock prices to fall. De Villiers (2009) supports Redlich's claim and emphasises the economic benefits that a good reputation brings to a business. In accounting terms, credibility is a component of goodwill, which is one of the most valuable assets a business can possess. It enables businesses to charge higher rates while also ensuring long-term consumer and employee loyalty (De Villiers, 2009). The importance of these advantages decreases when they are slandered. Barth, Clement, Foster, and Kasznik (1998) conducted empirical research on the positive relationship between brand value (i.e. reputation) and stock price. Negative credibility, on the other hand, is associated with lower stock values, according to Karpoff, Lee, and Martin (2008). They estimate that when a company falsifies its financial statements and this information becomes public, the reputational cost is more than 7.5 times greater than the total cost of all legal fines.

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1. Criminal
2. Civil

1. Through word (spoken or intended to be read),
2. signs, or
3. visible representations;
   
   1. Which: are a published or spoken imputation concerning any person;
   2. If the imputation is spoken or published with:
      
      1. the intention of causing harm to the person to whom it pertains, or
      2. knowledge or

      The offence is non cognizable[6] and bailable, according to the Criminal Procedure Code, which sets out the procedural elements of the law. Many convicted of the crime would normally not be taken into custody without a warrant, because an aggrieved party would not be able to immediately file a criminal report, but would instead have to file a complaint with a judge in most cases.

      While "fact" is commonly considered to be a defence to defamation as a civil offence, only truth is a defence to defamation as a crime (assuming, of course, that it is demonstrably true) in a limited number of circumstances under criminal law. This can make people especially vulnerable to being charged with defamation under the IPC, even though the imputations they made were true.

      1. false,
      2. written,
      3. defamatory, and
      4. released in order to establish that it is libelous.

      Furthermore, if a defamation suit is filed and defamation is found to have occurred, damages will be awarded to the plaintiff (usually, the person defamed). Furthermore, an individual who is concerned about being defamed in a publication may request an injunction to stop the publication. Prepublication injunctions, on the other hand, are seldom issued because Indian courts have continued to obey the theory set out in the 1891 case of Bonnard v. Perryman:
      The Court has the authority to enjoin the publishing of a libel by an injunction or even an interlocutory injunction. However, since the exercise of the jurisdiction is discretionary, an interlocutory injunction may be issued only in the clearest cases:
      cases in which the Court would set aside the verdict as unfair if a jury did not find the matter complained of to be libelous. When the Defendant swears that he will be able to explain the libel, and the Court is not convinced that he will, an interlocutory injunction should not be issued.

      In the 2002 case of Khushwant Singh v. Maneka Gandhi[7], a division bench of the Delhi High Court applied this theory. As a result, even though there is a suspicion that the material is defamatory, it is unlikely that publication will be halted unless there are extraordinary circumstances — obviously, those under which the later payment of damages will simply not be sufficient to make up for the wrong done to the individual defamed.

      In non-exceptional cases, Indian courts have tended to support free expression and have not granted injunctions that would have the effect of stifling speech on the basis of potential defamation. It's worth noting that the Rajiv Gandhi government drafted a defamation bill to deal with the law around defamation. Due to strong criticism from the media and opposition parties over its punitive provisions, the Defamation Bill, 1988 was withdrawn.

      • Libel is a permanent representation, such as writing, printing, painting, effigy, or law.
      • Slander is a type of defamation that is only present for a short period of time. It is primarily done through spoken words or gestures.
      1. The argument must be defamatory in the first place.
      2. The complainant must be included in the statement.
      3. The statement must be made public, which means that it must be shared with at least one person other than the applicant.
      • The Court must determine if this limitation is appropriate.
      • There are no straightforward comparisons: on the one hand, there is no question that a criminal case, regardless of its final result, is much more difficult for an individual convicted of defamation to contend with than a civil case, which is often left almost entirely in the hands of lawyers.
      • On the other hand, the burdens of proof vary, and the standard of proof imposed in civil court is lower than that required in criminal court if the goal is to protect a reputation.If subjective evidence is any indication, criminal defamation is not exclusively used to protect people's reputations.
      • It is highly vulnerable to being used as a 'matter of tactics' to suppress individual speech: for example, accusations of rape may be countered by filing a defamation FIR with the police.
      • There appears to be no mention of misuse in the arguments against criminal defamation, or indeed any data-based statements about the effects of criminal defamation.
      • Alternatively, it appears that the risk of misuse was raised in favor of Section 499's continued existence: presumption of constitutionality.
      • This Court has also held that in determining the reasonableness of limitations, the Court has full authority to consider matters of common report, historical context, common knowledge, and the circumstances that existed at the time of legislation.
      • The term fair restriction implies that restrictions should not be arbitrary or disproportionate. The very fact that criminal defamation laws are misapplied or violated does not render the provisions invalid if they are otherwise fair.

      The court rules out the application of the concept of noscitur a socii by stating that defamation has its own identity and cannot be reduced to a narrow definition. In Dilipkumar Raghavendranath Nadkarni[9], Mehmood Nayyar[10], and Umesh Kumar[11], it was argued that credibility has been held to be a facet of article 21 in the cases of Dilipkumar Raghavendranath Nadkarni, Mehmood Nayyar, and Umesh Kumar.

      Since defamation includes tarnishing an individual's image, criminal defamation cannot be used as a public remedy. The apex court responds by stating that individuals make up the group, and that defamation law protects each individual's integrity in the eyes of the general public. Furthermore, by crime concepts, a nexus is tried to be formed whereby every crime is an injury; every public offence is indeed a private wrong, and so on. It has an effect on the person as well as the society.

      The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redress) Act of 2013, as well as the Noise Pollution (Regulation and Control) Rules of 2000, both enacted under the Environment (Protection) Act of 1986, govern citizens' fundamental rights in relation to other citizens. As a result, the petitioners' argument that treating defamation[12] as a criminal offence has little public interest and thus serves no common interest or collective good is without merit.

      Analysis of Article 19: Freedom of Speech and Expression
      One of the most important elements of a democratic democracy is the fundamental right to freedom of speech and expression, which enables people to engage completely and efficiently in the country's social and political processes. Freedom of speech allows people to share their beliefs and political opinions. It eventually leads to the well-being of society and the economy. As a result, freedom of expression offers a framework by which a fair balance between peace and social change can be achieved.

      In the case of State of West Bengal vs. Subodh Gopal Bose[13], the court held that the state has a duty to defend itself from such unlawful acts and, as a result, can enact laws to do so. Article 19(1) (a) gives rise to a right that is not utter and unrestricted. There cannot be any liberty that is utter in nature and unregulated in practice in order to confer an unrestricted right.

      The rights and freedoms would have been synonymous with chaos and disorder if there had been no restraint. S. Rangarajan v. Jagjivan (No. 5) The Court held that the restriction should be based on the principle of least invasiveness, i.e., the restriction should be enforced in a manner and to the degree that is inevitable in a given situation.

      • Issues arise in deciding the degree to which a person may exercise his right to freedom of speech and expression without defaming another person under Article 19 of the Indian Constitution.
      • Article 19 acknowledges that fair restrictions on such exercise of the right to freedom of expression may be enforced on the basis of, among other things, defamation.
      • In the cases of Subramaniam Swamy and R. Rajagopal, the Supreme Court has delved into this aspect in terms of criminal and civil defamation. The errors in the decisions are analyzed and pointed out in this article.
      • The Supreme Court has upheld the constitutionality of defamation laws from the colonial period, outlining the rights of free expression and how they differ from defamation, and concluding that criminal penalties have no chilling impact on free speech.

      The announcement makes it clear that there has been a chilling impact on freedom of expression. They explained that their research revealed that there is a public requirement for the loss of credibility they face, and that they decided to include public solutions for private wrongs. They have sufficient evidence to believe that the decision is a heinous assault on freedom of speech. In the interests of defamation, Article 19 (2) of the Indian Constitution stipulated fair limits on freedom of expression. 9

      However, the article does not specify whether it applies to both criminal and civil defamation. Fair implies a proportionality factor in terms of the relationship between the degree to which freedom of expression has been violated and the public interest at stake. It is not required that everyone in the chorus sing the same song.

      When issuing summons on a plea for the initiation of a criminal defamation lawsuit, a magistrate should exercise extreme caution. It's worth noting that in order to justify the criminal provisions, the centre spoke about how anarchical Indian culture is and how criminal defamation prevents people from exercising their right to free speech and expression. It has been deduced that the majority of those facing criminal defamation charges are politicians against their adversaries. In Subramanian Swamy v. Union of India (2016), the Supreme Court upheld the constitutionality of Sections 499 and 500 of the Indian Penal Code, which deal with criminal defamation.

      1. because it pushed no-fault responsibility to an excessive extent. The main attack on Section 499 was that it criminalized what is essentially a private act. The Section went on to place restrictions on free speech up to a certain stage.[16]
      • Defamation reform can be better accomplished by enacting a constitutional law. Defamation should be decriminalized, and civil defamation should be reformed to make it fairer and simpler, short-circuiting SLAPP tactics. Since this is a new statute, it would be stupid if it didn't include the Internet and new media when determining who may be sued for defamation and how
        
      • Limits on civil defamation should also be established—not only must the loss of credibility be serious, but the evidence must also be significant. The defendant must show that the alleged statement caused material harm to their reputation. In defamation cases, facts, belief, and logical inference can all be viable defences. Finally, courts should have the authority to levy exemplary costs against frivolous lawsuits that waste their resources.
        
      • To relieve the judiciary's workload, it's important that courts only hear serious defamation cases that haven't been resolved amicably. Making the legal notices that complainants must file before filing a lawsuit mandatory may be one way to ensure this. In order to avoid unfounded allegations, these notices should also specify how the supposed statement was false.
        
      • Measures to address the imbalance of resources, such as indemnification clauses in journalist contracts and a form of defamation insurance, can be used to supplement legal reforms. It is to be hoped that Satpathy's well-intentioned goals will be realized. Finally, some kind of change is required—free speech is meaningless without the ability to offend others in a reasonable manner. The rich and influential will continue to censor voices raising critical concerns if the right to legitimately critique is not secured. And without those voices, the Indian state could be drastically altered or jeopardized, while Indians remain in the dark.
        
      • If special cyber courts are created and judges with advanced technological expertise preside over these courts, the judiciary may play a significant role. As a result, judicial officers and police officers must be trained in order to resolve cybercrime[17] cases more quickly and efficiently. Information and communication technology is constantly evolving, and people must keep up with it. As a result, existing legislation must be amended to keep up with technological advancements and to discourage such crimes from occurring and impacting the general public.
        
      • It is suggested that an independent cybercrime investigation cell be established under the Central Bureau of Investigation. This cell should be set up on its own so that it is directly under the central government and can deal with cybercrimes such as cyber defamation. Every district in every part of India should have a cyber cell police station led by investigation officers who are well-versed in cyber laws to help them deal with criminals quickly. The government should launch public awareness campaigns to educate people about cybercrime and the precautions they should take to protect themselves.

      The applicant has an interim time frame of eight weeks in which to file an appeal, according to the supreme court. Meanwhile, other cases have surfaced, especially in political circles, such as a defamation[18] suit filed against Gogoi and the alleged arrest of Kiku Sharda. The ruling puts the case to a close, but it still raises several concerns.

      For example, penal provisions are justified in a progressive economy like India, particularly in an era when reformative justice is replacing retributive justice. Aside from the nation's increasing intolerance, there is another problem that could be exacerbated as a result of this decision. In such circumstances, it is necessary to let go of inhibitions and discuss viable options. The right to respond is one such proposal in this region.

      Of course, this has been discussed previously. However, because of the potential chilling impact on the individual/organization, the right to respond has only added to the skepticism. Right to respond, on the other hand, tends to be a more civilized way of dealing with a situation than jumping to conclusions, convicting, and demanding damages. This definition has been adopted by several states in the United States and other nations. Certainly, we will make use of this principle as well.

      The debate has led us to the conclusion that when it comes to constitutional interpretation, the stakes are higher. It is much easier to condemn than to get into the details of a situation. Of course, constructive feedback encourages innovation and development. Nowadays, it is much easier to be dismissive rather than to get to the heart of the matter. It also cannot be overlooked that the judiciary makes every effort to provide a harmonious framework in such cases. We, too, have a duty as people, and it is past time for us to take stock of our situation.

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      1. Section 499 to 502 of Indian Penal Code, 1860
      2. Section 500 of Indian Penal Code, 1860
      3. Constitution of India CAD, https://www.constitutionofindia.net/constitution_of_india/fundamental_rights/articles/Article%2019 (last visited Apr 19, 2021)
      4. Commercial Defamation and Trade Libel Chicago Business Litigation Lawyers, https://www.thebusinesslitigators.com/commercial-defamation-and-trade-libel.html (last visited Apr 19, 2021)
      5. MSG Management Study Guide Secondary Data - Meaning, its advantages and disadvantages, https://www.managementstudyguide.com/secondary_data.htm (last visited Apr 19, 2021)
      6. Cognizable Offence - Criminal Procedure Code(CrPC), https://www.helplinelaw.com/employment-criminal-and-labour/CCPC/cognizable-offence-criminal-procedure-codecrpc.html (last visited Apr 12, 2021)
      7. Khushwant Singh v. Maneka Gandhi, AIR 2002
      8. Article 19(1) of Constitution of India
      9. Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni, AIR 1983
      10. Mehmood Nayyar Azam v. State of Chhattisgarh (2012) 8 SCC 1
      11. Umesh Kumar v. State of Andhra Pradesh, AIR 2013
      12. Defamation StatPearls, https://www.statpearls.com/ArticleLibrary/viewarticle/34715 (last visited Apr 12, 2021)
      13. State of West Bengal vs. Subodh Gopal Bose 17 DEC, AIR1953
      14. Subramanian Swamy Vs Union of India, Ministry of Law & Ors, on 13th May, AIR 2016
      15. New York Times Co. v. Sullivan, 376 U.S. 254 (1964)
      16. (PDF) The Risks of Defamation: An Analysis into the Driving Factors Determining the Outcome of Commercial Defamation Cases ResearchGate, https://www.researchgate.net/publication/339509176_The_Risks_of_Defamation_An_Analysis_into_the_Driving_Factors_Determining_the_Outcome_of_Commercial_Defamation_Cases (last visited Apr 12, 2021)
      17. Cybercrime Wikipedia, https://en.wikipedia.org/wiki/Cybercrime (last visited Apr 20, 2021)
      18. R. Rajagopal v. State of Tamil Nadu,1995AIR264 (1994)

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