Tortious Defamation in the light of freedom of speech and expression in India


As the technology is improving, the means of people to speak against others, instances of media houses creating a fuss out of any situation are on a rise. People do not think before speaking and this is what lands them in problem because India has put in place the defamation law. Defamation law in India can be classified into two distinct categories, one being governed by the civil law (defamation as a tort) and other under criminal law (Section 499 and 500 of Indian Penal Code).

Defamation: Meaning

Defamation essentially refers to a derogatory statement, which is generally false in nature and can harm reputation of a person. Such statement can be either in a written form or spoken, and aim towards decreasing a person’s respect or creating a hostile opinion against the person in the eyes of public. Since a man’s reputation is considered his well-owned property such statement cause direct harm to a man’s property, which is his most valuable asset.

There are certain points which are necessary for a person to succeed in a defamation suit. First is the statement should be defamatory in nature and directed towards a person whereby injuring his reputation, or exposing them to hatred. Secondly, the concerned statement should be false in nature and made on purpose specifying towards a single person or a community. Lastly, it should be available in the public domain or at least to a third party, which brings change in his thinking or affects his behavior or mindset, the statement may be available in written or oral form, it is of no concern.

The law of defamation in India has a direct relation to the Constitution of India because it provides a set of freedoms which can be exercised by a citizen of India. Articles 19 (1) (a) and 19 (2) are the one we are concerned with here because they provide the right and reasonable restrictions on freedom of speech and expression. The former article deals with identifying the right of freedom and expression while the latter enables the state to make laws so as to impose a reasonable restriction upon such right. Thus, it can be said that Defamation law is the counter balance to the right of free speech and expression provided under the constitution.

Apart from the law, there is plethora of cases available in the context of defamation, which try and set a limit to the freedom extended to citizens of India. In the matter of Subramaniam Swamy v. Union of India, where the petitioner had argued that defamation is just another tool to bind a person from expressing himself in the public, but the court held to the contrary considering that right to speech and expression doesn’t necessarily gives right to one person to defame another.

The courts play a major role in these silent concepts of defamation, where the judges have to very carefully analyze the matter as per facts and consciously apply the law to that a precedent can be laid down.But it is still a long lost debate as to what qualifies as defamation and what not, because this phenomenon varies from case to case due to difference in facts.

Various tests laid down for defamation

According to law the first test of defamation is whether the act or publication causes damage of reputation to the person against whom defamatory statement is made, the same shall be calculated according to understanding of a common man. According to the second test of defamation, the statement or publication should target a person or a group of persons. Lastly, it may be oral or writing but should bring to the knowledge of a third person. For instance if ‘A’ says defamatory words against ‘B’ in a locked room where there is no third person then it shall not be considered as a defamation.

In D.P Choudhary Case, AIR 1997 Raj 170- We can analyze the tests of defamation with the help of this case, in a local newspaper an article was published that a college girl named ‘Dainik Navjyothi’ of 17 years ran away with a boy. Later, it was found that the news article is false and it has ruined the reputation of the girl and her family, also hampered her future marriage prospects.

Defamation was proved and she was awarded damages. If we see, then in the instant case a defamatory article was published which was false and derogatory. The statement has tarnished the reputation of the girl and being published in a local newspaper, it was communicated to the mass. Hence, all the tests of defamation are present here.

In Mahendra Ram v. Harnandan Prasad, AIR 1958 Pat 445 – In the instant case, a letter was sent to the plaintiff written in Urdu. Plaintiff asked another person to read that letter. Defendant knew that plaintiff doesn’t know Urdu and he would need assistance. It would amount to defamation. All the tests of defamation are present, defamatory letter was sent in vernacular language. The content came to the knowledge of the third person and it caused harm to reputation of the plaintiff hence it is defamation in the eyes of law.

Defamation as a Tort

According to the general rule while considering defamation as a tort we must note that it can be libel that is in written form and not slander i.e. it cannot be in the form of spoken words. Hence, under torts publication of defamatory content is a must. For proving that the content is libelous it must be shown that it is incorrect, in written form, derogatory in nature and the same has been published.

Defamation and Criminal Law

Under Criminal Law, Section(s) 499 to 502 of the Indian Penal Code deals with the meaning of defamation and its’ punishment. As per Section 124A of Indian Penal Code, that deals with ‘defamation of state’ also known as sedition, any statement/ act or content that is defamatory against the state is a criminal offence. According to Section 153 ‘defamation of a class’ is mentioned, Section 295A dealing with outrageous comments that harms religious sentiments of persons.

According to Section 499 of Indian Penal Code, 1860, words or signs that cause harm to the reputation of a person or a class of persons is considered as defamation. Even if such an act or statement is made against a deceased person, it shall be considered as defamation. ‘A class of persons’ includes a body of associations or a company. Section 500 deals with the punishment for defamation.

Defamation under Criminal Law can be done through words, signs or by visible representations. It can be in the form of written content or verbal form that hampers the reputation of a person or a class of persons. The intention is to harm the reputation of the person with knowledge that it would cause him harm or tarnish his image in the society or before a group of persons.

Freedom of speech and Constitutional validity of defamatory laws

There have been many controversies related to Constitutional validity of defamatory laws and it was challenged that ‘defamation laws’ are in contravention of Article 19 of the Constitution of India. It has been ruled by the Apex Court time and again that ‘freedom of speech’ is not absolute and reasonable restrictions can be imposed on a person.

Further Article 21 of the Constitution provides the ‘right to reputation’ and no one can be allowed to tarnish ones’ reputation. Hence, both the Articles should go in consonance and cannot contradict the objective of the other.

There are also certain privileged communications that cannot be considered as defamatory in nature as per law. Under the Constitution, privilege is conferred under Article(s) 105(2) and 194(4) related to parliamentary proceedings. It provides that Members of Parliament and State Legislatures enjoy an absolute privilege inside the House.

In Registered Society v. Union of India, AIR 1999 SC 2979-It was made clear that unless the conduct is arbitrary, oppressive, and malicious, the statement or publication cannot be considered as defamation and exemplary damages should not be awarded. Hence, to prove defamation it must be proved that the act is done with a mala fide intention or it is malicious in nature.

Public interest and fair comment

Campbell v. Spottiswoode, (1863) 3 B and S 769 – The scope of fair comment in public interest was discussed in this case. While considering that the comment made is fair in nature it must be proved that it is made in good faith and it is a fair comment. Unless a contrary intention is proved against the person making such a comment that he has done so with a mala fide intention and it has hampered the reputation.

Shreya Singhal v. Union of India- It was a landmark judgment related to the right of freedom of speech and expression of a person. In this case various dimensions of fundamental rights provisioned under Article 19(a) of the Constitution were discussed. Section 66A of Information Technology Act which was criticized on the grounds of its’ being vague and it has a chilling effect on freedom of speech and hence the Court struck down the said provision and declared it as unconstitutional. While considering the validity of a legislative provision we must take it into consideration that it should not be in violation of the fundamental rights.


To every person or class of persons, reputation is an asset and hence any damage to reputation can be challenged on legal grounds. The laws related to defamation have been enacted to prevent a person from maliciously harming the reputation of another in lieu of right to free speech. Under Indian Laws distinction is recognized between slander and libel form of defamation. There are chances to escape from liability in case of slander as there is no publication of defamatory content.

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