The Law of Defamation as Embodied in the Indian Penal Code (section 499) – Explained!

The law of defamation is embod­ied in section 499 of the Indian Penal Code. It reads: “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 excepted, to defame that person.”

The section requires three essentials (1) making or publishing any imputation concerning any person; (2) that imputation must have been made by (a) words, either spoken or intended to be read; (b) signs, or (c) visible representations; (3) such imputation must to with the intention of harming or with knowledge that it will harm the reputation of the person concerning whom it is made.

The explanations appended to the section quoted above lay down that it may amount to defamation

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(1) 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;

(2) To make an imputation concerning a company or an association or collection of persons as such;

(3) To make an imputation in the form of an alternative or expressed ironically;

(4) But 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.

Illustrations:

(a) A says “Z is an honest man; he never stole B’s watch,” intended to cause it to be believed that Z did steal B’s watch; (b) A is asked who stole B’s watch. A points to Z, intending to cause it to be believed that Z stole B’s watch; (c) A draws a picture of Z running away with B’s watch, intending it to be believed that Z stole B’s watch. In each of the three cases there is defamation unless it falls within one of the exceptions noted below.

The Exceptions to section 499 pointing out the cases where an ordinary defamatory statement does not involve any criminal liability are as under:

First Exception:

It is not defamation to impute 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.

In order to come within the First Exception to S. 499 of the Indian Penal Code, it has to be established that what has been imputed against the complainant (the defamed person) is true and the publica­tion of the imputation is for the public good. The onus of proving the two ingredients is on the appellant. [Chaman Lai v. State of Punjab (1971) 1S.C.J. 112].

Second Exception:

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 functions, or respecting his character, so far as his character appears in that conduct, and no further.

Third Exception:

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.

Illustrations:

It is not defamation in A to express in good faith any opinion whatever respecting Z’s conduct in petitioning Govern­ment on a public question, in signing a requisition for a meeting on a public question, in presiding or attending at such meeting, in forming or joining any society which invites the public support, in voting or canvassing for a particular candidate for any situation in the efficient discharge of the duties of which the public is interested.

Fourth Exception:

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.

Fifth Exception:

It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or crimi­nal, 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 further.

Illustrations:

(a) A says “I think Z’s evidence on that trial is so contradictory that he must be stupid or dishonest.” A is within this exception if he says this in good faith, inasmuch as the opinion which he expresses respects Z’s character as it appears in Z’s conduct as a witness, and no further,

(b) But if A says “I do not believe what Z asserted at that trial because I know him to be a man without verac­ity.” A is not within this exception, inasmuch as the opinion which he expresses of Z’s character, is an opinion not founded on Z’s conduct as a witness.

Sixth Exception It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the charac­ter of the author so far as his character appears in such performance, and no further.

Illustrations:

(a) A person who publishes a book, a person who makes a speech in public and an actor or singer who appears on a public stage, submit respectively their book, speech or acting or sing­ing to the judgment of the public, (b) A says of book published by Z “Z’s book is foolish; Z must be a weak man; Z’s book is indecent; Z must be a man of impure mind.” A is within this exception, if he says this in good faith, inasmuch as the opinion which he expresses of Z respects Z’s character only so far as it appears in Z’s books, and no further, (c) But if A says “I am not surprised that Z’s book is foolish and indecent, for he is a weak man and a libertine.” A is not within this exception, inasmuch as the opinion which he expresses of Z’s character is an opinion not founded on Z’s book.

Seventh Exception:

It is not defamation in a person having over another any authority, either conferred by law or arising out of a lawful contract made with that other, to pass in good faith any censure on the conduct of that order in matters to which such lawful authority relates.

Illustrations:

A judge censuring in good faith the conduct of a witness or of an officer of the Court; a head of a department censuring in good faith those who are under his orders; a parent censuring in good faith a child in the presence of other children; a schoolmaster, whose authority is derived from a parent, censuring in good faith a pupil in the presence of other pupils; a master censuring a servant in good faith for remissions in service; a banker censuring in good faith the cashier of his bank for the conduct of such cashier as such cash­ier are within this exception.

Eighth Exception:

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 the subject-matter of accusa­tion.

Illustrations:

If in good faith accuses Z before a Magistrate; if A in good faith complains of the conduct of Z, a servant of Z’s master; if A in good faith, complains of the conduct of Z, a child, to Z’s father A is within this exception.

The Eight Exception to S. 499 indicates that accusation in ‘good faith’ against a person to any of those who have law-authority over that person is not defamation: good faith has to be established as a fact. [Chaman Lai v. State of Punjab (1971) 1 S.C.J. 112].

Ninth Exception:

It is not defamation to make an imputation on the character of another provided that the imputation is 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.

Illustration (a):

A, a shopkeeper, says to B, who manages his business “Sell nothing to Z unless he pays you ready money, for, I have no opinion of his honesty.” A is within the exception, if he has made this imputation on Z in good faith for the protection of his own interests, (b) A, a Magistrate, in making a report to his own superior officer, casts an imputation on the character of Z. Here if the imputa­tion is made in good faith and for the public good, A is within the exception.

The Ninth Exception to S. 499 of the Indian Penal Code states that if the imputation is made in good faith for the protection of the person making it or of another person or for the public good it is not defama­tion. Good faith requires care and caution and produces in the back­ground of context and circumstances.

The position of the person mak­ing the imputation will regulate the standard of care and caution. Interest of the person has to be real and legitimate when communica­tion is made in protection of the interest of the person making it. [Chaman Lai v. The State of Punjab, (1971) 1 S.C.J. 112).

Tenth Exception:

It is not defamation to convey caution, in good faith, to one person against another, provided that such caution is intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good.

(Punishment: Two years or fine or both).