UNIT 3 PROTECTION

OF
REPUTATION
DEFAMATION
 INTRODUCTION TO DEFAMATION
• The Indian Penal Code envisaged certain crimes which a media person
may get entangled into and face the prosecution.
• Media persons' right to free speech cannot extend to cause sedition, by
bringing disrepute of the state, or affect the reputation of individual
leading to defamation or represent obscene or base material disturbing
the moral and serene atmosphere of society. In case they do so, the
criminal provisions of Indian Penal Code are attracted.
• Thus Defamation, Sedition and Obscenity are the three major areas
where the media persons could be vulnerable to face the prosecution.
 Media and Crime of Defamation
• Journalist who defames is liable both in Civil law and criminal Law.
• Section 499 of Indian Penal Code defines defamation:
• Whoever by words either spoken of intended to be read, or by signs or by visible representation, makes or
publishes any imputation concerning any person intending to harm or knowing or having reason to believe
that such person, is said, except in cases herein after excepted, to defame that person.
• The expression makes or publishes‘ has been interpreted as supplementing each other. If a person merely
writes out a defamatory matter but does not publish the same i.e., does not circulate to others; it will not be
defamation. The word ‘makes‘ refers to originator of imputation.
• In Lingam Gouda V. Basan Gouda Patil case it was held "if one repeats, another writes a libel, and a third
approved what is written they are all makers of it, as all who concur and assent to the doing of an unlawful
act are guilty; and murdering a man‘s person in which all who are present and encourage the act are guilty,
though the sound was given by one only
• Publication; legally means communication of defamatory matter, to the third person other than the defamed
one.
• Direct communication to the defamed was held to be no publication under the Code by a majority of the Full
Bench of the Allahabad High Court in Taki Hussain case (1884,7 Allo 205 (222) F.B. ) , the accused sent a
suit notice to a policeman claiming a damages for unjustifiable search of his house made by the latter,
attributing malice, and bribery to him. The notice was full of defamatory writings. The policeman sued him
for defamation. The majority of the Full Bench held that there was no publication as contemplated under
section as there was no communication to a third person other than the defamed.
 Types of Defamation
• Libel: Publication in some permanent form for eg: writing, printing, pictures etc
• Slander: Defamation is oral or by gestures
• In Monson vs. Tussauds Ltd. [1894] 1 QB 671
• In 1894, Madame Tussauds in London erected a waxwork of Monson at the entrance to their Chamber of Horrors, bearing
a gun. Monson took exception, sued the company and was awarded one farthing in damages. The case established the
principle of "libel by innuendo" (oblique remark / hint) and Monson v Tussauds, which has been used to draw up
defamation laws in many countries since. To prove libel, there must be publication in permanent form, but this need not be
in words.
• “Libel is generally in writing or printing, but this is not necessary …it may also be in some other permanent form”
• Youssopoff vs. Metro Goldwyn –Meyer Pictures Ltd [1934] 50 TLR 581
• Question arose as to whether pictures accompanied by speech could amount to libel. The Court held that the visual aspect
would constitute libel, the speech would also qualify as libel, not independently, but only because it was a part of the
visual image.
• Under Common Law, Libel constitutes criminal as well as civil wrong whereas slander constitutes only civil wrong.
• Under Indian Law, both constitute criminal law under sec 499 of IPC.
 Types of Defamation
• Libel is actionable per se whereas Slander requires the proof of special damage
• There are 4 exception to general principle of slander :
• imputation of criminal conduct ,
• imputation of contagious/serious disease,
• imputation of unchastity
• imputation of unfitness of business
• 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 ham 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 loath some state, or in a state generally considered as disgraceful.
Intention to harm

• According to section 499, the person who defames another must have done it intending to harm or knowing
or having reason to believe that such imputation will harm the reputation.
• It is not necessary to prove that the complained actually suffered directly or indirectly from the scandalous
imputation alleged; it is sufficient to show that the accused intended to knew or had reason to believe, that the
imputation made by him would harm the reputation of the complainant, irrespective of whether the harm is
actually caused or not.
• It is not necessary that there should be an intention to harm the reputation. It is sufficient if there was reason
to believe that the imputation made would harm the reputation. Section 499 of Indian Penal Code gives four
explanations in this regard.
Explanation 1: Defamation of the dead

• According to this the imputation must not only be defamatory of the deceased but it must also be
hurtful to the feelings of his near relatives.
• The question depends upon the harm caused and not the harm intended, for in the case of
deceased, the latter test is inapplicable.
Explanation 2: Defamation of a company or a collection of persons

• A corporation or company could not be liable in respect of a charge of

• a murder, incest, or adultery because it could not commit those crimes. The words complained of
must attack the corporation or company in the method of conducting its affairs; must accuse it of
fraud or mismanagement or must attack its financial position.
• The class defamed must not be too large to cease of be distinct from the memory of certain trade
or profession. If a person calls the lawyers as thieves or medical men as a class of cut-throats in
disguise or the police force as a hotbed of corruption, there would be not indictable libel-because
the class is too large and the generalisation too sweeping to affect any of its composing members.
Explanation 3: Defamation by innuendo

• When a particular passage is prima facie non-defamatory the complainant can show that it is
defamatory of him from the circumstances and nature of the publication. Such a passage is called
innuendo‘. The language of irony or sarcasm very often will be better, forcible, and impressive
than a bold statement. It is thus necessary for the prosecution to establish that the words though
innocent are appearances were intended to be said in a libelous sense. So, it may be libelous to say
of an attorney that he is an honest lawyer meaning thereby he is the reverse of the honest.
Explanation 4:- What is harming the reputation?

• This explanation specifies various ways in which the reputation of a person may be harmed. It
says that the imputation must directly or indirectly lower the moral or intellectual character of
person defamed. This language of explanation 4 is loss. It was held to include degradation in caste,
community, at feasts and so on. During a feast a Hindu declared that complainant had been
excommunicated and was not fit to sit down, it was held that priest was guilty of defamation.
• Publication
• Publication in its primary sense of communication by the defendant to a person other than the defamed is the
basis of liability in English civil law of defamation i.e., in torts. This principle which is not accepted as the basic
principle of English Penal Law of defamation is accepted as the basic principle of Indian Penal Code.
• (Section 499 Expln.4) Words which may have the effect to provoking other persons at whom they are uttered
are made punishable under Sec. 504 of Indian Penal Code which deals with intentional insults with intent to
provoke breach of peace. The gist of the offence in section 499 seems to lie in the tendency of the statements
verbal or written to create that degree of pain which is felt by a person who is subjected to unfavorable criticism
and comments.
• There is another important difference between English law and Indian law in the matter relating to spoken
defamation or slander. Slander cannot be subject matter of criminal prosecution in England except when it
happens to be seditious or blasphemous and when they are against State or State religion.
• The Indian Penal Code recognises no such distinction classing both as punishable.
 Exceptions

The ten exceptions to S 499 state cases in which an imputation prima facie defamatory may be excused. They are occasions
when a man is allowed to speak out or write matters which would ordinarily defamatory. Those exceptions are;

• 1. Imputation of truth for public good, • 6. Merits of a public performance, literary

• 2. Public conduct of public servants, criticisms,
• 7. Censure in good faith by one in authority,
• 3. Public conduct of public men other than
public servants, • 8. Complaint to authority,
• 4 Comment on cases and conduct of witnesses • 9. Imputation for protection of interest
and others concerned, • 10. Caution in good faith.
• 5. Merits of cases, decisions and judicial
proceedings,
 EXCEPTIONS TO DEFAMATION

6. Court
1. Truth Fair Comment on
Reporting
Privileged Communication

2. public conduct of public

7. censure by one in authority
servants

3. Public Conduct of public

8. Accusation preferred in good faith
men other than public
to authorised person
servants

9. Imputation for protection of

4. court proceedings
interests

5. performance 10. caution in good faith

First Exception: Justification

• Imputation of truth which public good requires to be made or published: It is not defamation
to impure anything which is true concerning any person if it be for the public good that the
imputation should be made or published. Whether or not it is for the public good is a question of
fact.
• The main requirement of this exception and exception 4 is that the imputation should be true and
be for public good. The remaining exceptions require that the imputation should be made in good
faith. It is sufficient if the accused can show that the statements are substantially true in regard to
the material portion of the allegation or insinuation.
• The truth of an allegation need not be literally proved; it is enough is it is substantially true. If X
says L, B and C are a gang who live by card cheating and the accused justified libel giving several
such specific instances which had been proved in substance, it is not necessary to prove the other
instance.
• Justification or truth operates as complete defence in an action for defamation. The people can
defame others by telling truth about their deeds. Proof of truth of the allegation makes the
publisher free from the liability.
• Truth is absolute justification to a civil action for defamation.
• The defendant will succeed if he knows that what he has spoken of the plaintiff is substantially
true. The law has recognised this defence since defamation is essentially an injury to man‘s
reputation and when it is shown that what is spoken of a person is true, it means only that his
reputation has been brought down to its proper level and there is no reason for him to complain.
• All defamatory words are presumed to be false, and the plaintiff is not required to give evidence
show that they are false, but the defendant rebut his presumption by giving evidence in support of
his plea that the words are substantially true.
• The true of any defamatory words if pleaded is a complete defence in civil proceedings and for the
reason even though the words were published spitefully and maliciously. The law takes the view
that it should no allow a plaintiff to recover damages for an injury to his character or reputation
which he either does not or ought not to possess.
• In criminal law, truth is not an absolute justification. Truth is a justification only when it is given
out for public good. The reason for the distinction lies in the fact that in civil action the benefit or
detriment to the public is not in issue while it is paramount that the public should have a concern
in criminal matters.
• Public good:
• The term ‘public good‘ implies the good of the public and this word‘ public‘ has been defined to
include any class of the public or any community.
• A class or community residing in a particular locality may come within the term ‘public‘.
• Public good is the good of the general public contradistinguished from the individual.
• Truth of imputation shall amount to a defence if it was for the public benefit, that the imputation
should be published but not otherwise. Truth by itself is no justification in the criminal law
although it is sufficient justification in the civil law of torts
• The question whether the publication is or is not for the public good is a question of fact, and it
can well depend upon the matter published, the nature, occasion, and extent of publicity and the
actual good thereby accomplished.
Second Exception: Fair Comment 1

• Public conduct of public servants: It is not defamation to express in good faith any opinion whatever respecting the
conduct of a public servant in the discharge of his public function or respecting his character so far as his character appear
in that conduct, and no further.
• The first exception deals with allegations of facts while the second exception deal with expressions of opinion. In the
second and the following exceptions what are protected are opinion and not the assertion. They are really fair comments
upon public men on matters of public interest. Every subject has a right to comment on those of acts of public men, which
concern him as a subject of the realm, if he does not make his commentary a cloak for malice and slander. A writer in a
public paper has the same right as any other person.
• And where a person makes the public conduct of a public men the subject of comment and it is for the public good, he is
not liable to an action if the comments are made honestly, and he honestly believed the facts to be as he states them and
there is no wilful misrepresentation of fact or any misstatement‘s which he must have known to be a misstatement if he
had exercised ordinary care. Men in public positions even though official, can claim no immunity from fair criticism. This
is the essential nature of the rule of law in all democratic countries. Similarly, the press, authors and publishers of books
have no special privilege and are in no better position than any other man.
• If a person undertakes to criticise the acts of public man, he must take care not to assert that which
is not true as the basis of his criticism and he is bound not to concede wilfully anything which
would show that the criticism is not well-founded. The opinion should not contain only half truth.
• The term ―good faith appears in most of the Exceptions. Under the Penal Code by S.52,
―Nothing is said to be done or believed in good faith which is done or believed without care and
attention. ― The code regards honesty as immaterial and the presence of a care and intention is all
in all. Absence of good faith means simply carelessness or negligence and want of due care and
caution does not imply any idea of dishonesty.
• The mere absence of ill-will does not itself prove that the imputation was made in good faith. In
determining the question of good faith the Court should have to take into account the intellectual
capacity of the person, his predilections and the surrounding facts.
• A newspaper has a public duty to ventilate abuses and if an official fails in his duty a newspaper is
absolutely within its rights in publishing facts derogatory to such official and making fair
comment on them, but it must get hold of private facts.
• Unless there are strong and cogent grounds for believing the information to be true, the editor
should not make defamatory attacks. No opinion can be considered as fair unless it contained
some subtraction of the truth.
Third Exception: Fair Comment 2
• Fair comment on public conduct of public men other than the public servant: It is not
defamation to express in good faith any opinion whatever respecting the conduct of any person
touching any public question and respecting his character, so far as his character appears in that
conduct, and no further.
• This amounts to criticism on public conduct of public persons. With a march of progress in every
democratic state, citizens take an ever-increasing interest in public affairs and these publicists form
vigilant guardians of the right of the people.
• Accused should prove that his expression was fair and honest and the alleged act, on which the
opinion was based, was true. The public career of Member of Parliament, Legislative Assembly, of
a corporation, or Municipal Council, may no doubt be the subject of comment, however harsh or
severe it may be, but none has a right to peep into his private life history. One can expose bad
character, of the person, who seeks election to a place where he will have further opportunities to
receive bribes or commit fraud. Intermediate habits of a clearly man, priest or immoral habits of a
physician, or the dishonest habits of an attorney too can be exposed, because of their public duty.
• In Campbell V. Spottiswood (L.J.Q.B. 185) the newspaper ‘Saturday Review‘ in criticising
certain letters published by the proprietor of a region's newspaper, in which he had sought
subscriptions as a means of converting the Chinese;
• It was imputed to him that he had published a false subscription list. The jury found this statement
untrue, although the writer of the article believed the imputation to be true.
• This was held to be no justification. If you impute wickedness to public person, then you must
prove that imputations are true.
• Where in a newspaper report, the main aspersion of the accused against the complainant is true,
the fact that there is some exaggeration or departure from strict truth does not deprive the accused
of the protection provided in this exception. Mere exaggeration or gross exaggeration does not
make a comment unfair.
• Subroya V. Abdul Khader Where the accused published his view concerning a Municipality that
the members knew that there was not one among them fit to be a Chairman and that the
Government should ordered that the Chairman should be a Revenue Divisional Officer, which was
a fact. The Court acquitted the accused holding that his statement did not exceed the limit of fair
comment.
• In Durga Prasad Choudhuri V. State of Rajasthan (1969 Raj. L.W. 20)
• It is held ―Fair comment cannot justify a defamatory statement which is untrue in fact. A
comment cannot be fair which is built upon facts which are not truly stated.
• In G.Chandrasekhara Pillai V. G.Raman Pillay (1964 Ker. L.J. 317) the Kerala High Court has
pointed out that plea of good faith implies the making of a genuine effort to reach the truth, and a
mere belief in the truth, without being reasonable grounds for such a plea, is not synonymous with
good faith.
Fourth Exception: Court Reporting

• Publications of reports of proceedings of Court:

• It is not defamation to publish a substantially true report of the proceedings of a court of Justice,
or of the result of any such proceedings.
• Explanation: A justice of the Peace or other officer holding an enquiry in open Court preliminary
to a trial in a Court of Justice, it a Court within the meaning of the above section.
• Where there are judicial proceedings before a properly constituted judicial tribunal exercising its
jurisdiction in open Court, then the, publications without malice, of a fair and accurate report of
what takes place before that tribunal is privileged
• Though the publication of such proceedings may be to the disadvantage of the particular
individual concerned, yet it is of vast importance to the public that the proceedings of Court of
Justice should be universally known. It is immaterial whether the proceedings were experts or not,
or whether the Court had jurisdiction or not.
• But a report of judicial proceedings cannot be published if a Court has prohibited, or where the
subject matter of the trial is obscene blasphemous. In England there is an Act to regulate those
publications, to prevent injury to public morals.
• This privilege is not confined to newspaper only. Anyone can publish such proceedings through a
pamphlet also. The reporter should not mix up the matter with comments of his own; and if
comments are made, they should not be made as a part of the report. The report must not be one-
sided or highly coloured.
• In Clement V. Lewis paper ‘Observer’ gave a true and correct account of some proceedings in the
insolvency Court, but inserted a sensational heading ―Shameful conduct of an Attorney. It was
held to be not justified.
• In the Exception 4, nothing is said as to good faith, the only requisite being that the report should
be substantially true. Such a report may, however, be punishable under Sections 292 Indian Penal
Code if it contains obscene matter.
Fifth Exception: Fair Comment on Court Proceedings

• Merits of case decided in Courts or conduct of Witnesses and other concerned: It is not defamation
to express in good faith any opinion whatever respecting the merits of any case, civil or criminal,
or which has been decided by a Court of Justice or respecting the conduct of any person as a party,
witness or agent in any such case or respecting the character of such person, as far as his character
appears in that conduct and no farther.
• This exception protects benefice comment on cases adjudicated, but not when they are still sub
judice, Authors of the Code say ―We have allowed all persons free to discuss in good faith the
proceeding of Courts of Law, on characters of parties, agents and witnesses as connected as
connected with those proceedings. It is almost universally acknowledged that the Courts of law
ought to be thrown open to the public. The administration of justice is matter of universal interest
to the whole public.
• In commenting on such matters, a public writer, is bound to attend to the truth and put forward the truth
honestly and in good faith and to the best of his knowledge and ability. It should not merely be declamation
and invective, written not with a view to advance public good, but solely to bring into contempt and hatred
the administration of justice or injure the character of individuals. It is not fair to comment to say that the
prisoner was acquitted, when he was really guilty.
• It would be fair to give reasons showing on what points the judge had erred and why there had been a failure
of justice. The State of the law, the administration of which leads to such startling result but he cannot direct
his shafts personally against the judge calling him a have or a food or implying as such.
• It can be said that the judges had misunderstood or misapplied the law or omitted to consider or apply it
correctly. Such criticisms are daily made in the public press, and though they have a remote tendency to
bring the administration of justice into contempt.
• They are not defamatory, because they are equally protected by this exception and exception 2.
 Sixth Exception: Fair Comment on Performance

• Merits of Public performance: It is not defamation to express in good faith any opinion respecting
the merits of any performance which its author has submitted to the judgement of the public, or
respecting the character appear in such performance, and no farther.

• Explanation: A performance may be submitted to the judgement of the public expressly or by acts
on the part of the author which imply such submission to the judgement of the public.

• Publishing a book, making a public speech, performance of an actor, singer-all are submitted for
the judgement of the public.
• In Merivale v. Carison the critic wrongfully described Murivales play as immoral, though there
was nothing immoral in it, the court held defendant liable on the ground that he had overstepped
the bounds of fair criticism.
• In Dupiani V. Davis the Court held defendant liable, wherein he wrote an article in a newspaper
that advising an actor to return to his old profession, that of a waiter, when in fact, the actor was
never a waiter in his life, the defendant was held liable.
• Good faith under this exception required not ‘logical infallibility’ but due care and attention.
Seventh Exception: Privileged Communication-1

• Censure by one in authority: It is not defamation in a person over another and authority, either
conferred by law or arising but of a lawful contract made with that other, to pass in good faith any
censure on the conduct of that other in matters to which such lawful authority relates.”
• Judge censuring in good faith the conduct of a with ness or parent censuring child, teacher
censuring pulls a master to a servant, a banker to cashier-are within this exception.
• The two essential conditions for the application of this exception are:
i. that the censure must be on the conduct of the person within the scope of the critics authority:
and
ii. the censure must be passed in good faith.
Eight Exception: Privileged Communication-2

• : Accusation preferred in good faith to authorised person: It is not defamation to prefer in good faith an
accusation against any person to any of those who have lawful authority over that person with respect to subject
matter of accusation.
• If A accused Z before a magistrate; or complains of servant to master, a child to father, it is not defamation.
• To conditions for the protection under this exception are
• I) the accusation must be made to a person in authority over the party accused and
• ii) that the accusation must be preferred in good faith.
• Persons in authority would include the King, President, Ministers, members of the houses of Parliament and other
officials of State, Civil or Military. Besides these are Magistrates and the judges and the police to whom all
persons are entitled to represent their grievance falls within the scope of their authority. Besides above, persons in
domestic circles such as a husband, guardian or a father-would also come under this category of persons in
authority.
 Ninth Exception: Privileged
Communication-3
• Imputation for protection of interests: It is not defamation to make an imputation on the character
of another, provided that the imputation be made in good faith for the protection of the interest of
the person making it, or of any other person or for the public good.
• This exception rests on the ground that honest communications made in course of business and of
social intercourse should be duly protected so long as the parties act in good faith.
• Exceptions 7 of 10 fall under the same head of communication made on privileged occasion i.e., one made in
the discharge of a duty of protection of an interest in the person who makes it. Exceptions 7,8,10 are
particular instances, whereas exception 9 states a general principle.
Landmark Cases

• In the Supreme Court decision in Harbhajan Singh v. State of Punjab Accused was secretary of Punjab Praja Socialist Party. He
wrote a defamatory article in Blitz about Surinder Singh, son of the Chief Minister of Punjab S. Pratap Singh Kairon.
• The two defamatory statements states that he is the leader of smugglers and is responsible for a large number of crimes being
committed in Punjab State.
• The statement added that because the culprit happens to be the Chief Minister‘s son, the cases are always shelved up. There was
evidence that certain pending cases against some smugglers were withdrawn by the State at the instance of the Chief Minister. The
truths of these allegations were not proved beyond the shadow of doubt in the trial of the defamation case.

• The accused pleaded that imputation made in good faith and for public good falling under Exception 9 though he has stated in the
original trial court that he relied on the truth of his statements falling under the First exception to S.499.
• Trial Court and High Court found against the accused even on the plea of ‘good faith‘ under ninth exception namely on the
ground that heehaw not conclusively established the truth of the allegation. High Court sentenced him to undergo three months
simple imprisonment and to pay a fine of Rs.2,000/- .
• The Supreme Court allowed the appeal of the accused and set aside the order of conviction by holding that in the circumstances
of the case that the appellant was entitled to the protection of the Ninth Exception.
 Sewakram v. R.K. Karanjia
A.I.R. 1981 S.C.1514
• During the period of Emergency Sewakram ,a senior lawyer practicing at Bhopal, was placed under detention under
Section 3 (1) (a) (ii) of the Maintenance of Internal Security Act, 1971 (MISA) and was lodged at the central Jail Bhopal.

• There were among other detainees three lady detainees, including Smt. Uma Shukla. She was found to have conceived.
She got the pregnancy terminated.

• In an exparte confidential inquiry by a Deputy Secretary to the Government Homes it was found that the pregnancy was
due to illicit relations between Sewakram and Smt. Shukla, the Blitz in its three editions in English, Hindi and Urdu
flashed a summary of the report.

• The story as given but was that:-

(i) there was a mixing of male and female detainees in the central Jail,

(ii) Sewakram had the opportunity and access to mix with Smt. Shukla freely and

(iii) Smt. Shukla became pregnant by Sewakram.

• The news item was per se defamatory. After revocation of Emergency, Mr. Sewakram lodged a criminal complaint for
defamation. Mr. Karanjia prayed the Court to order the production of inquiry report, which was rejected by the Magistrate.

• Karanjia filed a revision before the High Court, wherein the inquiry report was produced and the High Court quashed the
proceedings on the ground that the respondent's case clearly falls within the ambit of exception 9 of S.499. In reaching that
conclusion the Court observed that it would be abuse of the process of the court if the trial is allowed to proceed with ultimately
would turn out to be vexatious proceeding .

• It was held that the publication of report was for the welfare of the society. A Public institution like prison had to be maintained in
rigid discipline; the rules did not permit mixing of male prisoners with female prisoners and yet the report said the prison
authorities connived at such a thing. The balance of public benefit lay in tits publicity rather than in hushing up the whole episode.
The report further shown that the publication had been honestly made in the belief of the truth of the report and also upon the
reasonable ground for such a belief, after the exercise of such means to verify its truth as would be taken by a man of ordinary
prudence under similar circumstances.
• It was held that the publication of report was for the welfare of the society. A Public institution like prisons had to
be maintained in rigid discipline; the rules did not permit mixing of male prisoners with female prisoners and yet
the report said the prison authorities connived at such a thing. The balance of public benefit lay in tits publicity
rather than in hushing up the whole episode. The report further shown that the publication had been honestly
made in the belief of the truth of the report and upon the reasonable ground for such a belief, after the exercise of
such means to verify its truth as would be taken by a man of ordinary prudence under similar circumstances.

• The case went to Supreme Court on a technical ground whether an appellate court like High Court can quash the
original trial of the case where it was not prayed for, and in a miscellaneous application. The majority of Supreme
Court bench allowed the appeal. Behraul Islam J. dissented and said that the quashing of original proceeding is
correct. The Supreme Court also agreed that the publication of the defamatory statement by Blitz is for public good
and thus falls under the exception 9 to S.199.
 Tenth Exception: Privileged Communication

Caution in good faith: It is not defamation to convey a caution in good faith to one person against
another provided that such caution be intended for the good of the person to whom it is conveyed, or of
some person in whom the person is interested, or for the public good.
This covers cases of imputation in the discharge of a social duty such as when A says to his friend B that
his dismissed servant is a dishonest man, and ought not to be trusted. So also, a relation can advise a lady
not to marry A without giving reason. These statements are privileged.
A person cannot claim privilege by merely writing on his letter ‘private and confidential‘. But two
persons may really make communication confidentially. Relation between counsel and client, Husband
and wife, father and son, teacher and pupil, and intimate friends is confidential relation.
PENAL PROVISIONS
• S. 500: Whoever defames another shall be published with simple imprisonment for a term
which may extend to two years or with fine, or with both.

• S.501: Printing or engraving of defamatory matter is made publishable with simple

imprisonment for 2 years or with fine or with both.

• S.502: Whoever sells or offers for sale any printed or engraved substance containing
defamat00ory matter, knowing that it contains such matter, shall be punished with
•
simple imprisonment for a term which may extend to two years or with fine or with both.

•Sections 500,501 and 502 prescribe punishments for various defamatory statements.
 HATE SPEECH
AND
RACIAL SPEECH
HATE SPEECH
• Hate speech has been described as fighting words-those which by their very utterance inflict
injury or tends to incite immediate breach of peace
• The subject of hate speech have gained significance in the recent years with the increase of
communal conflagration accompanies or caused by communal hate campaigns
• The most famous of all hate campaigns was Hitler’s anti Semitic propaganda.
• He appointed Paul Joseph Goebbels as his ‘Minister of Propaganda and Public Enlightenment’
• One paper ‘Der Sturmer’ described details of sexual assault of Jews on gentile girls….
Hate Speech : Leading American and English
Cases
• Chaplinsky vs. New Hampshire 315 US 568 (1972):
• Its a United States Supreme Court case in which the Court articulated the fighting words doctrine, a
limitation of the First Amendment's guarantee of freedom of speech.
• Walter Chaplinsky, a Jehovah's Witness, was using the public sidewalk, passing out pamphlets and
calling organized religion a "racket." He was taken to the Police Headquarters, he shouted at the
Marshal: "You are a God-damned racketeer" and a “damned Fascist”.
• He was charged and convicted under a New Hampshire statute preventing intentionally offensive
speech being directed at others in a public place.
• But Chaplinsky appealed claiming that the law was "vague" and that it infringed upon his First
Amendment and Fourteenth Amendment rights to free speech.
• The Court, in a unanimous decision, upheld the arrest. Writing the decision for the Court, Justice
Frank Murphy advanced a "two-tier theory" of the First Amendment. Certain "well-defined and
narrowly limited" categories of speech fall outside the bounds of constitutional protection. Thus, "the
lewd and obscene, the profane, the slanderous," and (in this case) insulting or "fighting" words
neither contributed to the expression of ideas nor possessed any "social value" in the search for truth.
• Beuharnais vs. Illinois 343 US 250 (1952)
• President of White Circle League organized the distribution of a leaflet calling upon mayor
and City Council of Chicago to halt further encroachment, harassment and invasion of white
people and property by ‘negro’
• The result was that an Illinois law making it illegal to publish or exhibit any writing or picture
portraying the "depravity, criminality, unchastity, or lack of virtue of a class of citizens of any
race, color, creed or religion" was upheld.
• Likewise in England, R vs. Chief Metropolitan Stipendairy Magistrate ex p Choudhry
(1992):
• The common law of blasphemy was confined to protecting only the Christian religion and the
court would not extend the law of blasphemy to cover other religions because it would be
virtually impossible by judicial decision to set sufficiently clear limits to the offence if it were
to be extended.
Legal Provision in India
• Hate Speech per se does not find place under Article 19(2) of the Constitution .
• Reasonable restriction and its rules can be read into it such as ‘security of State, incitement
to an offence’ etc
• There are wide range of Statute and provisions which assist in controlling such propaganda
• The Cable Television Network (Regulation) Act , 1995 requires all programmes conform to
Programme Code and Advertisement Code
• Cinematograph Act, 1952 a film can be denied certification on various grounds that it is likely
to incite offence or it is against the integrity of India or public order
• IT Act 2000 can allow interception of information by authorities for preventing cognizable
offences
• IPC sec 153 A penalizes for promotion of class hatred. S. 505 IPC makes it a penal offence to
incite any class or community against another, S. 295A penalizes for insults to religion and to
religious belief, S. 298 punishes for deliberate words for wounding the religious feeling of another.
• Gopal Vinayak Godse versus UoI [1971]:
• “Gandhi Hatya Ani Mee” under 99A issued the forfeiture of the book as it triggered S. 153A –
‘5 test doctrine adopted' for establishing S. 153A-
• Facts:
• Nathuram Godse, was the brother of the author of the present work which is under an order of
forfeiture.
• DELHI ADMINISTRATION : DELHI NOTIFICATION: Lt. Governor of Delhi was satisfied
that the book entitled "Gandhi Hatya ani Mee" in Marathi by Gopal Godse, published by G. V.
Behere, Asmita Prakashan contains matter which promotes feelings of enmity and hatred
between Hindus and Muslims in India and the publication of which is punishable under
Section 153-A of the I.P.C. 1860. And under Sec 99A of Cr.P.C it forfeit each and every copy
and documents of the book.
• Respondent: Section 99A of the Code of Criminal Procedure violates the guarantees
contained in Articles 19(1)(a).
• Issues: Whether Sec 99A of Cr.P.C is unconstitutional?
• Held: It is constitutional and doesn’t violate Art 19
• ‘5 test doctrine adopted’:
• 1. Not necessary to prove that enmity was established as fact
• 2. Intention is not necessary
• 3. Objectionable material must be read as whole
• 4. In order to ascertain it must consider the class of readers
• 5. If writing is calculated to promote enmity then no defense to say that writing is a truthful
account of history
R. V . Bhasin vs. State of Maharashtra [2010]

• Full bench of Mumbai High Court upheld the notification of ban of the book Islam: A Concept of
Political World Invasions by Muslims
• Facts: Several derogatory and false statements about Muslim religion, Muslim community,
Mohammed Paigambar and Muslim priests by petitioner which poses danger to social harmony as
well as law and order situation.
• Rules: Sections 153A, 295A, 505 of IPC, Art 19(1)(a), 19(2)
• Held: Upheld Maharashtra Govt. notification of ban
• Sujato Bhadra vs. State Of West Bengal [2006]
• Arose out of challenge of the order if forfieture of the book Dwikhondito by Bangladeshi author,
Taslima Nasreen published as 3rd volume of an autobiographical trilogy …
• The challenge was upheld by special bench of Calcutta High Court on the ground that S. 153A
confined the effect to citizens of India
• Manzar Sayeed Khan versus State of Maharashtra [2007]
• Arose out of an action brought under S.153 and S. 153A against the author and publishers of book:
Shivaji: Hindu King in an Islamic India
• Group Defamation
• Defamation is another exception under Art. 19(2) within the parameters of which hate speech
could fall
• Expl. 2 of S. 499 makes it clear that the imputation have to be made against association directed
towards an identifiable group of particular persons
• In 2008 UN Human Right Council adopted a resolution condemning the ‘the defamation of
religion’ as a human right violation
• Although this contention was rejected by Germany
• Reporting Hate Speech
• More than ever Indian Press met with sharp scrutiny during the coverage of communal
riots in Gujarat
• The Editor guild indicted sections of vernacular press notably Sandesh and The Gujarat
Samachar
• Local TV channels telecasted inflammatory speeches…subsequently leading to
cancellation of the license
• E-media was misused by sending SMS such as milk being poisoned
• Email used to send hate mail
• Siddharth Varadarajan in his work :The Truth Hurts, Gujarat and the Role of Media: The Making
of a tragedy [2002]
LIBEL & SLANDER IN CYBER SPACE
ONLINE DEFAMATION