15 April 2023 7:50 AM GMT
One of Indian democracy’s treasured possessions is the freedom of speech, and it is considered to be an absolute sacrosanct. This is the reason why the constitutionality of laws in relation to criminal defamation have been questioned several times at the touchstone of freedom of speech. However, like other rights, even this right is not absolute and is subject to certain...
One of Indian democracy’s treasured possessions is the freedom of speech, and it is considered to be an absolute sacrosanct. This is the reason why the constitutionality of laws in relation to criminal defamation have been questioned several times at the touchstone of freedom of speech. However, like other rights, even this right is not absolute and is subject to certain reasonable restrictions as enumerated under Article 19(6) of the Constitution. This right can’t be put on a pedestal that would completely disregard the reputation of another and while protecting a person’s right, the rights of others can’t be jeopardized. If freedom of speech and expression is protected by Article 19(1)(a) of the Constitution, the right to reputation is also considered to be an inextricable part of the right to life protected by Article 21 and balancing these two rights is a constitutional necessity. The laws of defamation aim to create this balance by punishing those who, in the garb of free speech, have hurt the reputation of another but, at the same time protecting those who are communicating the truth or saying something in good faith. It is imperative to understand that the reputation of a person is earned over the years, and it cannot be tarnished by any other individual in a casual manner.
What Constitutes an Offence of Criminal Defamation?
The laws of criminal defamation have been codified under Section 499 of the Indian Penal Code 1860 and to fall within the confines of this Section, a person must have made an imputation about another person with either an intention, knowledge, or reason to believe that such an imputation will harm the reputation of the person against whom such an imputation is made. This imputation could be either by words, signs or visible representations and they could either be made or published. The difference between making of an imputation and publication of an imputation is that, while in the former, the communication of the imputation is only to the person concerned, whereas in the latter, the communication of the imputation is to a third party. The laws of criminal defamation are subject to ten exceptions, the first one being truth which the public good requires to be made or published.
Is Truth Always Infuriatingly Elusive or Can It Be Defined?
In order to come within the ambit of the first exception of Section 499 of the Indian Penal Code 1860, one has to establish that the imputation that has been published is ‘true’ and has been made in the interest of ‘public good’. It has also been stated that truth by itself cannot be taken as a defense if other elements of defamation are also present unless the accused is able to prove that the statements made are truthful and have been made in public interest. The onus of proof that the imputation is protected by the exceptions, is on the accused. Now the important question that lies here is, what is true and when can it be considered to be in public good?
It has been opined by Hon’ble Justice GS Patel that if there is indeed one immutable truth, and no one knows it more acutely than a Court of law, it is that, the truth is almost always infuriatingly elusive. The term ‘truth’ is often used in day-to-day life multiple times, but the term holds prime importance in the Court of law and to conclude if something is the truth takes multiple years in several cases. Hence, it becomes important to understand how the Courts have interpreted the word in relation to defamation. It has been established by the Courts that for something to be true, it must be factually verified, the accused must have made certain enquiries to find out the truth and that he has been careful and has obtained objective (not subjective) satisfaction that, what he is publishing is the truth.
To judge whether the remarks are for public good or not is a question of fact and it would be very difficult to lay down general guidelines to conclude what constitutes good faith and what does not. The position of ‘public good’ or ‘public benefit’ has been discussed from 1982 when the Second Press Commission had given their report, whereby the position of the UK and Australian laws had been discussed in the report. The Australian Law Reform Commission was of the view that truth should be a complete defense by itself in civil defamation and should not be accompanied by the need to prove that the same was made in ‘public good’ and the same view was endorsed by the Second Press Commission’s report. The same views were again reiterated by the counsels for the petitioner in the case of Subramaniam Swamy Vs. Union of India & Ors for criminal defamation. It has been clarified by the Courts, in that case, that the term ‘public good’ has been added to the exception with an intent that even if the imputation made is in relation to truth, but if it is not made for public good and has been made with an intent to malign the image of an individual, then the accused won’t be allowed to take the defense of truth. Hence, the emphasis on the term ‘public good’ is valid and the idea that public good is a vague concept, which does not need much deliberation, is flawed. The degree of proof that the accused is required to produce before the court has not been equated to the degree of proof that is required in a criminal trial. As soon as the accused has satisfied the court in providing a preponderance of probability, the onus on him stands discharged.
How to Determine the Truth?
There is no generic guideline to determine what constitutes truth because it is a very subjective matter. In the pursuit to find the truth, the courts must delve into the facts and circumstances of the case.
Defamation Trials turn into a trial against the Complainant?
When the complainant presents the allegations, he has to prima facie satisfy the court that a defamatory statement has been published against him with an aim, knowledge, or reason to believe that it will harm his reputation. At this initial stage, the court must look into the complaint and the statements/ evidence of the complainant, and has to believe him. Upon such satisfaction, the court then summons the accused. While it has been argued that the defense of the exceptions should be considered at the time of summoning the accused, the same has been rejected by the court as it would be contrary to the established criminal jurisprudence. Hence, upon the starting of the trial, the accused is allowed to take the defense of truth or other defenses enumerated in the ten exceptions appended to Section 499 of the Indian Penal Code of 1860. Even though the complainant must prove his case beyond reasonable doubt, the burden that lies on the accused is discharged as soon as he succeeds in proving his case by a preponderance of probability. As soon as the burden of the accused is discharged, the onus then shifts to the complainant who still has to discharge his original onus. In spite of being a criminal proceeding, the burden of proof on the accused is similar to that of the party in a civil proceeding. Now the complainant is forced into producing evidence to prove that the statements published by the accused are in fact not true, which substantially leads to a trial against himself. Due to this unique situation, there are times when the trial turns into a prosecution by the accused to prove the alleged guilt of the complainant. This practice is counterproductive as it not only discourages the complainant to enforce their rights through the court but further aggrieves him, as now, he must establish beyond reasonable doubt that the statements published by the accused were in fact not true. At this stage, not only is his reputation harmed, but the entire onus to prove also lies on him. It seems like the complainant is being punished for approaching the court on being defamed.
During the hearing of a particular case, if there is evidence to prove that the complainant himself has indulged in an illegal activity then, instead of that court adjudging the matter, they should refer the hearing of the proceedings to the relevant authority who is competent to adjudicate the same. For example, if the accused has given a statement that indicates that the complainant in a defamation case has indulged in corruption, and with prima facie evidence he is able to establish the same, then instead of going forward with the trial in the defamation case, the court should refer the hearing of the proceedings to the relevant authority to adjudge whether the complainant has indulged in such activities or not, instead of converting the defamation case into a trial against the complainant. In case there is any truth in the statements published by the accused, there are other authorities which are competent to run a trial against them.
The idea that the case should not be turned into a trial against the complainant has been very well explained in the developments in relation to rape laws over the years., It was a common practice, earlier, that, during the hearing of a rape case, the trial was often converted to prove that the victim is of a loose moral and easy virtue, in order to discredit her testimony. This irrational practice was observed and was tried to be remedied by the 84th Report of the Law Commission of India, whereby it was recommended that amendments are needed to make the evidence regarding the character and past sexual history of the prosecutrix irrelevant in rape trials. This was substantially recommended because, rather than focusing on the guilt of the accused, the entire attention was shifted to the alleged immoral character of the complainant/ victim, which further aggravates the pain of the victim/ complainant instead of imparting any relief. In light of the same, Section 53A was inserted to the Evidence Act, which made character evidence irrelevant on the issue of consent. Additionally, an amendment was brought to the proviso of Section 146, which now states that questions related to the general immoral character of the victim cannot be questioned. This has come as a relief to rape victims as, now during the trial, the focus would not be to malign their character and would rather focus on proving the guilt of the accused. While the magnitude of the two offenses is in no way comparable, a similar provision being inserted with respect to cases of defamation may go a long way in securing the rights of the complainant. Hence, there is a need to establish such a rule in defamation cases as well to protect the complainant from further pain and hurt to reputation, whereby the trial is not conducted to prove the alleged guilt of the complainant and focuses primarily on the guilt of the accused.
Lies spread like wildfire due to which, time is of essence in a defamation case. The courts should try to verify the veracity of the statements immediately after summoning of the accused, whereby if the accused takes the plea that he has published the truth, then he should be able to prove with the evidence available with him that, what has been published is factually correct and he has made extensive enquiries to find out the truth before publishing the same. There needs to be emphasis on the fact that the truth should be verified immediately in order to protect the complainant from facing a trial against himself. If the truthfulness of a statement could only be established after the adversarial process, it clearly depicts that the accused in fact, had no knowledge about the truthfulness of the allegation at the time of publishing the imputation and was at best shooting arrows in the dark. If the truth is to be established only after the completion of the trial, the court should not allow the accused to take this plea at the commencement of the trial and shift the onus on the complainant to prove his innocence. The legislative intent behind the exception would have been to consider- a situation where the publisher has knowledge about the truth of the statement while it is being made and not after it has been made. The accused cannot be protected for making a statement recklessly disregarding the truthfulness of the allegation and then be rescued by putting the complainant on a trial. An individual’s right to reputation deserves greater protection from the court. The legislative intent while drafting any law is to protect the aggrieved party but at the same time to make sure that the rights of the accused are not hampered. However, in an endeavor to protect the accused, we can’t disregard the agony of the complainant by putting them on a trial. A complainant approaches the court of law with an aim to set the machinery of law into motion and get the desired relief. However, by asking the complainant to furnish evidence to prove their innocence is completely against the idea of justice.
It has been made amply clear by the courts that an accused should be able to prove that the imputations published by him have been factually verified, that he has made enquiries to find out the truth and that he was careful and has obtained objective (not subjective) satisfaction that what he is publishing is the truth. It is clear from these judgements of various courts that the legislative intent behind the first exception is that the accused should have made enquiries before publication of the imputation and they should be published only once he has obtained an objective satisfaction about the same. In case he publishes them before obtaining such satisfaction or holding the required inquiry, he would not be protected under the same. If there is a doubt as to whether the statement is true or not, it is no defense at all. The law certainly does not envisage a situation, where the accused would be allowed to make an imputation without any factual verification and then take the advantage of the trial. The accused should be able to prove the truth of the imputation at the time of taking the defense and not rely on what will be proved later, after the entire trial has been completed. To know the truth about a particular statement after the complainant has produced evidence against himself during the trial, he can’t guarantee whether the accused was aware about those evidences while making the imputations. The justice system can’t function in a manner whereby the aggrieved party is further aggrieved by the process of law which discourages him from approaching the doors of justice in order to protect his repute. It can now be concluded that due importance has been given by various courts to the fact that the protection under the exception will be given to the accused only after he proves that he has factually verified the imputation before the publication. However, the ground reality is that even when the accused has not completely satisfied the court that he has obtained the required level of satisfaction about the truthfulness of the statement before making the imputation, the courts have a tendency to seek evidence to be able to establish whether the statement made/published is the truth or not. - This is clearly against what the intent of the legislation was. Such practice by the court highlights that clearer guidelines need to be issued by the Supreme Court which lays emphasis on how the district courts should move ahead with defamation cases and how there is a need for protecting the complainant from the possibility of the trial being converted against.
Author: Ms. Sakshi Chahar, Student, Amity Law School, Noida
Co-Author: Wasim Beg, Partner, Luthra and Luthra Law Offices, India. Views are personal.
 Subramaniam Swamy Vs. Union of India & Ors., (2016) 7 SCC 221
 Vinai Kumar Saxena Vs. Aam Aadmi Party, 2022 LiveLaw (Del) 910
 Mohd. Abdulla Khan Vs. Prakash K. (2016) 1 SCC 615
 USV (P) Ltd. Vs. Hindustan Unilever Ltd., 2022 SCC OnLine Bom 1471
 Chaman Lal Vs. State of Punjab (1970) 1 SCC 590
 Supra. at Point 1
 USV (P) Limited vs Hindustan Unilever Limited, 2022 SCC OnLine Bom 1471
 Supra. at Point 2
 J Sudhir Chandrashekhar v. T. Lokaprakash, 2001 SCC OnLine Kar 210
 Bandopant Satyappa Sangle v. Raghunath Ramchandra Bide, 1980 SCC OnLine Bom 107
 Supra. at Point 5
 Freedom of the Press and the Law of Defamation by Dayanand Garg,  1.1 NULJ 167
 Supra. at Point 1
 Jeffrey J. Diermeier Vs. State of West Bengal, (2010) 6 SCC 243
 Manoj Kumar Tiwari Vs. Manish Sisodia, 2022 LiveLaw (SC) 853
 Supra. at Point No. 1
 Supra. at Point 10
 Practical Problems in Preparation and Trial of Libel Cases by Laurence H. Eldredge, Article 3 in Issue 4 of Volume 15 of Vanderbilt Law Review
 Simpson v Hodges , Supreme Court of United States of America
 The Author is not trying to compare the gravity of the two offences, the analogy is drawn only to understand the essence of why the case should not be turned into a trial against the complainant/victim.
 84th Law Commission of India Report, Rape and Allied Laws: Some questions of Substantive Law, Procedure and Evidence, 36 (1980).
 Inserted by Criminal Law (Amendment), 2013, (13 of 2013), Sec.25.
 Subs. by Criminal Law (Amendment) Act,2013 (13 of 2013), Sec.28.
 Gertz v. Robert Welch 418 US. 323, 94 S,Ct 2997, 41 L. 2d 789(1974)
 Supra. at Point 2
 Supra. at Point 9
 Supra. at Point 10
 Lalmohan Singh v. King, 1949 SCC OnLine Cal 109