Introduction

“It takes many good deeds to build a good reputation and only one bad one to lose it”- Benjamin Franklin.

When the word reputation is questioned, Jurist Blackstones has added to this proposition and stated that “Every man is entitled to have his reputation preserved inviolate”.  A man’s reputation lies in what he has earned his entire life to make an identity of himself as an individual. Reputation of a man in a society plays a very vital part of his life. Reputation is the state of being held in high esteem and honour or the general estimation that the public has for a person. The entire concept of reputation revolves around the perception of a society or on opinions which is an integral part of how we perceive thoughts and information amongst humans. Thus,in simpler terms reputation of a person is that status of good opinion that a man enjoys in the society, or how a person is looked upon in the society. Living with dignity would also include living with a good reputation in the society.

Defamation has become a burning issue in the present times; courtesy the growing media mania which has been created over the freedom of speech and expression as envisaged under article 19 (1) (a). There exists an apprehension in the mind of individuals whether in their individual or public capacity as to which statement of theirs might constitute an outbreak of public anger or excitement and or land them behind bars.

 

Definition of Defamation

The word defamation is driven from Latin word ‘Diffamare’. Semantics or Etymology of the Latin word ‘Diffamare’ provides that it means ‘Spreading evil report about someone’. Therefore defamation would simply mean causing damage to one’s reputation.  Despite the fact that defamation does link up with one’s reputation this concept is nowhere defined in any books of law.

Although there are many who have tried to define defamation but have not been able to suffice everything under one roof as exhaustive.

Despite the fact that the concept of defamation has progressed very much later, the cause of action for defamation on the other hand has been recognized since the very beginning of our civilization.

While thoroughly researching on the formation of defamation and its evolution, referring to the research right to have one’s reputation preserved intact has long been recognized in India. During dynasty of Chandra Gupta Maurya, a famous treatise has come into existence. It is known as Kautilya’sArthshastra. In said book, the author has dealt with defamation, in Chapter XVIII of Book III [79th Chapter since beginning]. The author first defines defamation. He then proceeds to classify the offence according to gravity of the statement, the person defaming, the person defamed and then apportions the punishment. Kautilya’sArthshastra is concerned with governmental duties toward the citizens. It is not the same thing as the Smritis and Shastras, which deal with all the branches of law. So, we do not find any mention of civil rights of the person defamed. It may, however, as well be that the ancients refused to put a price on one’s reputation or honour as a doctrine too sordid [morally degraded] for acceptance.

As per Black’s Law Dictionary, defamation means the offence of injuring a person’s character, fame, or reputation by false and malicious statements.

Defamation in law ,is attacking one’s reputation by a false publication which further tends to bring the person into disrepute. To constitute defamation it generally requires that the publication be false and without the consent of the allegedly defamed person. Injury only to feelings is not defamation; there must be loss of reputation. The defamed person need not be named but must be ascertainable. A class of persons is considered defamed only if the publication refers to all its members particularly if the class is very small- or if particular members are specially imputed.

The IPC under chapter XXI sections 499-502 protects an individual’s / person’s reputation. Defamation against the state is contained in section 124A [Sedition], Section 153 of the Code provides for defamation of a class i.e., community [Riot], while section 295A deals with hate speech with regards to outraging religious sentiments. [Hate Speech]

Section 499 of the IPC defines ‘defamation’ as being committed:

  1. Through: (i) words (spoken or intended to be read), (ii) signs, or (iii) visible representations;
  2. Which: are a published or spoken imputation concerning any person;
  • If the imputation is spoken or published with: (i) the intention of causing harm to the reputation of the person to whom it pertains, or (ii) knowledge or reason to believe that the imputation will harm the reputation of the person to whom it pertains will be harmed.

 

This broad definition is subject to four explanations and ten exceptions. If a person is found guilty of having committed defamation in terms of section 499 of the IPC, the punishment is stipulated in section 500, simple imprisonment for up to two years or fine or with both. The Cr PC, which lays down the procedural aspects of the law, states that the offence is noncognizable and bailable. Those who are accused of the offence would generally not be taken into custody without a warrant, and as such, an aggrieved person would not be able to simply file a police complaint but would, in most cases, have to file a complaint before a magistrate. As far as the ‘truth defence’ is concerned, although ‘truth’ is generally considered to be a defence to defamation as a civil offence, under criminal law, only truth is a defence to defamation as a crime only in a limited number of circumstances. This can make persons particularly vulnerable to being held guilty of having committed defamation under the IPC even if the imputations they made were truthful.

In Subramanian Swamy v. Union of India, this petition filed by leading political figures unanimously demanded decriminalizing defamation on one hand and strengthening civil remedies and financial compensation for the loss of individual reputation. The two basic contentions of the seven issues raised in the writ petition filed by Subramanian Swamy were:

  1. Declaring Section 499 and 500 of the Indian Penal Code, 1860 as unconstitutional.
  2. Declaring Section 199(2) of the Code of Criminal Procedure, 1973 (Cr PC) as unconstitutional.

The division bench comprising of Dipak Mishra and Prafulla C. Pant JJ wherein Mishra J delivered the judgement, is a huge 268 page document upholding the constitutional validity of sections 499, 500 of the Code, 1860 and 199 of Cr PC, 1973. Wherein, the Court relied on the judgments of other countries and reaffirmed the right to reputation as a part of the right to life under Article 21. Using the principle of ‘balancing of fundamental rights’, the court held that the right to freedom and speech and expression cannot be “allowed so much room that even reputation of an individual which is a constituent of Article 21 would have no entry into that area”. It also held that Sections 499 and 500 IPC are not vaguely worded or ambiguous. Using the Constituent Assembly Debates to understand what the framers of the Constitution meant by the word “defamation” in Article 19(2), the Court held that the word is its own independent identity. It stands alone and defamation laws have to be understood as they were when the Constitution came into force.

 

Definition of freedom of speech and expression

Article 19(1)(a) of Indian Constitution says that, “All citizens have the right to freedom of speech and expression. Freedom of Speech and expression means the right to express one’s own convictions and opinions freely by words of mouth, writing, printing, pictures or any other mode.” This would also include the expression of one’s idea through any communicable medium or visible representation, such as gesture, signs, and the like. This expression connotes also publication and thus the freedom of press is included in this category. Free propagation of ideas is the necessary objective and this may be done on the platform or through the press. This propagation of ideas is secured by freedom of circulation. Liberty of circulation is essential to that freedom as the liberty of publication. Indeed, without circulation the publication would be of little value. The freedom of speech and expression includes liberty to propagate not one’s views only. It also includes the right to propagate or publish the views of other people; otherwise this freedom would not include the freedom of press.

The ShreyaSinghal case is a landmark judgement in the field of freedom of speech and expression. This epic case brings forth various dimensions which are important facets of article 19(a). Section 66A which was widely criticised for it’s over breadth, vagueness and its chilling effect on speech was struck down by the apex court as it was unconstitutional.

The term ‘chilling effect’ in legal context basically describes a situation where a speech or conduct is suppressed by fear of penalisation at the interests of an individual or group. It is the inhibition or discouragement of the legitimate exercise of natural and legal rights by the threat of legal sanction. Regarding over breadth, apex court opined that the net cast by section 66A was so wide that virtually it covered any opinion on any subject.

As stated Article 19(1) (a) of the Constitution guarantees to citizens right to freedom of speech and expression.Simultaneously,  Freedom to speech and expression also has certain reasonable restrictions which are mentioned in the immediately succeeding clause Article 19(2) of the Constitution of India, the State may make a law imposing “reasonable restrictions” on the exercise of the right to freedom of speech and expression “in the interest of” the public on the following grounds: Clause (2) of Article 19 of the Indian constitution contains the grounds on which restrictions on the freedom of speech and expression can be imposed these grounds are;

  1. For the security of the state.
  2. Friendly relations with foreign states
  3. For maintaining public order
  4. Decency or Morality
  5. Contempt of Court
  6. Defamation
  7. Incitement to an offence
  8. Sovereignty and Integrity

Thus, it is under these grounds that freedom of speech and expression is preserved and maintained in a democratic country like India. These restrictions are not given to restrain any citizen from availing their fundamental right but to ensure that law and social order is maintained in the society, accordingly no right in our country is absolute or unrestricted.

 

The ongoing debate on Defamation and its effects on Reputation and overwriting effects on Freedom of Speech and Expression

Does the Indian Constitution provide its citizens with the right to reputation? As already mentioned in the introductory of this paper on what reputation is, it can be interpreted that the right to be living with dignity would also constitute to the right to live with an upheld good reputation in that society. In the case of State of Bihar vs. L.K Advani, the Apex Court has held that right to reputation is a facet right to life.

After all dignity and reputation do go hand in hand, for when the dignity of a person in a society is lowered down so is his reputation.

In this era where mostly everything is handled on social media accounts and articles and movies etc. are published through mediums which are easily available to common public, it becomes difficult to ensure that whatever is published remains in closed connections and within close allies. In such situations, one can easily defame a person in just a fraction of seconds and question his dignity and strip him off of his reputation completely.

There was an instance which took place on the famous social media platform called Facebook where a person wrote personal and defamatory statements against his relative, this post was up on the page for merely 10 hours but to the surprise of the allegedly defamed person here, that post reached out to almost 700 of the persons close connections, family and friends and to almost 100 of other strangers who absolutely had no idea until that very post that a person such as the one allegedly defamed existed.

Such is the power of the new era of technology.

When such defamatory statements are made the first thing that is affected is the reputation of the person against whom the defamatory statement has been made, followed by the reputation of the family of the defamed person and further followed by the reputation of the close friends and family of the defamed individual. Because believe it or not, such is the society we live in, where one single person’s reputation is liked to another.

Above was an example of how defamatory statements have effects on a common man’s identity and reputation and further his dignity.  What about celebrities, politicians and public figures? What happens when defamatory statements are made on them?

In Naveen Jindal v Zee Media Corporation limited, Zee Media stated in their argument that the public is interested in the private lives of public figures and public figures should be open to such criticism and remarks.

Although this argument was further rejected by the Supreme Court, this is something to be precisely thought about.  Do their lives actually hold public interest or are we just blinded by the fact that because of their popularity and exposure to the public this gives the nation every right to say anything they wish to or to invade into their personal space and publish anything they assume to be right. Whenever there is a defamatory statement towards a single community, the community along with supporters who do not encourage such statements speak up and go on protest against such defamatory statements. But, when such statement are made towards people which hold public importance, the nation instead goes about making memes about it or simply keep quiet and enjoy the drama. This is where public morality comes to question.

Do our moral ethics teach us that one should raise their voice when it concerns their communities’ reputation being questioned and being at stake but one should not say a word or turn a deaf ear when the reputation of a well known personality is at question just because the life of the well known personality is has life which has no absolute privacy only because they are more connected with public affairs.

The right to live with dignity and alongside have the right to reputation is not a right conferred to only a section of people. Nor is the right biased towards a single community, or a single group of people, or a single type of people. These rights are conferred to all citizens irrespective of their background, irrespective of their religion, caste and or creed.

The law of defamation seeks to protect individual reputation.

Its central problem is how to reconcile this purpose with the competing demands of free speech. Since both these interests are highly valued in our society, the former as perhaps the most dearly prized attribute of civilized human beings while the latter the very foundation of a democratic society.

We have often come across situations where a case before being decided by the court of law is dealt with in news channels and newspaper and a certain view about the case is being shared in them. The right to freedom of speech and expression gives the press the right to express their views on the subject matters but does not give them the right to certainly charge allegations and accusations on individual without the fact being true in nature.  For instance certain cases that have also arisen especially in the political fora such as defamation case filed against Gogoi or the alleged arrest of KikuSharda. The decision brings finality to the case but raises certain questions in its wake. These questions then exceed to the extent of at times defaming the person in order to publish what they call is “news” and “views”.

Conclusion

The discussion brings us to the point that in cases of constitutional interpretation, the stakes become higher. It is easy to criticize rather than actually get into the depths of matter. Of course, a healthy criticism fosters creativity and growth. Nowadays, it is easy to have a critical approach rather than actually get into the skin of the matter.

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.”