“Law Master’s Publication”
‘Offence of Defamation’
Prof. Santosh D. Bhosale
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DEFAMATION
QUESTION BANK
Q. 1 Define defamation, and explain in detail the defences of defamation?
Q. 2 What constitutes the offence of defamation under the BNS? Briefly give the
defences available to a charge of defamation.
SHORT NOTES
1. Defamation
SYNOPSIS
I]
A)
B)
Meaning & Definition
Defamation (S. 356 (1))
Explanations
1)
2)
3)
Defamation of the deceased
Defamation by an ironical expression
No defamation unless of a lower status
C)
Exceptions
1)
2)
3)
Imputation for public good
Expression of opinion as to public conduct of a public servant
Expression of opinion as to the conduct of any person touching any public
question
4)
Publication of the report of proceedings or the result of a Court of Justice
“Law Master’s Publication”
‘Offence of Defamation’
Prof. Santosh D. Bhosale
218
5)
Express opinion as to the merit of the decided case or the conduct of the
witness or others
6)
7)
Express opinion as to the merits of public performance
Censure passed in good faith
8)
Accusation preferred in good faith to authorized person
Imputation in good faith for the protection of his or others' interests
Caution intended for the good of persons to whom it was conveyed or for
9)
10)
the public good
II]
III]
I]
Punishments (S. 356 (2))-
Allied Offices (S. 356 (3) and (4))-
Meaning and Definition: -
‘Defamation’ is an offence against a person’s reputation; every person has the right
to protect and preserve their reputation. Even the fundamental right of freedom of speech
and expression is subject to reasonable restrictions. Not to defame is one of the restrictions
on the right of freedom of speech and expression. The chief purpose of the law of
defamation is to protect a person's reputation.
Defamation is both a civil and a criminal wrong. Therefore, it is also called a
“felonious tort.” We have already discussed defamation as a civil wrong in “Tort.” Now,
in this topic, we will discuss defamation as a criminal wrong.
A)
Defamation (S. 356): -
Whoever, -
i) by words spoken
or intended to be
read, or
makes or
(i)
intending to
the
publishes any
imputation
concerning
any person.
harm, or
reputation
of such a
person
(ii)
knowing or having
reason to believe
that such imputation
will harm
ii) by signs or by
visible
representations,
-is said (except in cases hereinafter excepted) to defame that person.
B)
Explanations-
There are the following 4 explanations for the definition, viz.
Defamation of the Deceased: -
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 harm the
feelings of his family or other near relatives.
2) Imputation concerning the company is defamation-
“Law Master’s Publication”
‘Offence of Defamation’
Prof. Santosh D. Bhosale
219
It may amount to defamation to make an imputation concerning a company or an
association, or a collection of persons as such.
3)
Defamation by an Ironical Expression:-
Imputation in the form of an alternative or expressed ironically may amount to
defaming actively.
4) No Defamation Unless Lower Status;-
No imputation is said to harm a person’s reputation unless that imputation is
directly or indirectly in the estimation of others.
i) lowers the moral or intellectual character of that person or
ii) lowers the character of that person in respect of his caste
or of his calling, or
iii) lowers the credit of that person or
iv) causes it to be believed that the body of that person is in a
the loathsome or disgraceful state
Illustration
a)
b)
c)
A says Z is an honest man, he never stole B’s watch, intending to cause it to be
believed that Z did steal B’s watch. This is defamation, unless it falls within one of
the exceptions.
A is asked who stole B’s watch. A point to Z, intending to cause it to be believed
that Z stole B’s watch. This is defamation unless it falls within one of the
exceptions.
A drew a picture of Z running away with B’s watch, intending it to be believed that
Z stole B’s watch. This is defamation unless it falls within one of the exceptions.
Exceptions or Defences:-
C)
To the offences of defamation, there are 10 exceptions or defenses provided by
(S. 356)-
1)
True Imputation for Public Good
It is not defamation to impute anything true concerning any person if it is for the
public good that the imputation should be made or published.
2)
Expression of Opinion as to the Public Conduct of a Public Servant
It is not defamation to express in good faith any opinion, whether respecting the
conduct of a public servant in a discharge of his public function or respecting his character
as it appears in that conduct and no further.
3)
Expression of Opinion as to the Conduct of any Person Touching any Public
Question :-
It is not defamation to express in good faith any opinion, whatever respecting the
“Law Master’s Publication”
‘Offence of Defamation’
Prof. Santosh D. Bhosale
220
conduct of any person touching any public question and respecting his character, that
appears in that conduct.
Illustration
It is not defamation in A to express in good faith any opinion whatever respecting Z’s
conduct in petitioning the Government on a public question, in signing a requisition for a
meeting on a public question, in presiding or attending 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 discharges of the duties of which the public is
interested.
4)
Publication of Report of Proceedings or Result of a Court of Justice:-
Explanation of this exception clarifies that a magistrate or other officer holding an
inquiry in open court, preliminary to a trial in a court, is a court within the meaning of the
above section.
5)
Express Opinion as to Merit of Decided Case or Conduct of Witness or
Others:-
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, witness
or agent in any such case, or respecting characters of such person, as far as his character
appears in that conduct and no further.
Illustration
a)
A says-I thinks 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 respecting 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.
6)
Express Opinion as to Merits of Public Performance:-
It is not defamation to express in good faith any opinion that respects the merits of
any performance, which it has submitted to the judgment of the public, or respecting the
character of the author. So far, the character appears in such a performance, and no further.
Explanation- A performance may be submitted to the public's judgment expressly
or by acts on the part of the author which imply such submission to the public's judgment.
Illustration
a) A person who publishes a book submits that book to the judgment of the public.
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‘Offence of Defamation’
Prof. Santosh D. Bhosale
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b)
A person who makes a speech in public submits that speech to the public's
judgment.
c) An actor or singer who appears on a public stage submits his acting or singing
to the public's judgment.
d) A says of a 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 the
exception if he says this in good faith, inasmuch as his opinion of Z respects
Z’s character only so far as it appears in Z’s book and no further.
e) 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 he expresses of Z’s character is not founded on Z’s book.
Censure Passed in Good Faith:-
7)
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 other in the matter to which lawful authority relates.
Illustration
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 in good faith the cashier of his bank for the conduct of such
cashier as such cashier is within this exception.
8) 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 with lawful authority over that person concerning the subject matter of the
accusation.
Illustration
If A in good faith accuses Z before a Magistrate; if A in good faith complains of the
conduct of Z, a servant, to 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.
9) Imputation in Good Faith for the Protection of his or others' Interest:-
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 for the public good.
Illustration
“Law Master’s Publication”
‘Offence of Defamation’
Prof. Santosh D. Bhosale
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a) A, a shopkeeper, says to B, who manages his business, “Sell nothing to Z unless
B 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.
10)
Caution Intended for the good of Persons to whom it was conveyed or for the
public
Good: -
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 that person is interested or for the public good.
II]
Punishments (S. 356 (2)):-
Whoever defames another shall be punished with simple imprisonment up to 2
years, or with a fine, or both or with community services.
III]
Allied Offences (S. 365 (3) and (4)):-
The following are the allied offences of S. 365 (1).
1)
2)
Printing engraving matter is known to be defamatory, S. 356 (3).
Sale of a printed and engraved substance containing defamatory matters
(S. 356 (4).
Both offences are punishable with imprisonment up to 2 years and a fine, or both.
*****
References-
1. “Understanding Cyber/ Online Defamation Under Indian Law”
2. “S. 356 BNS, Defamation Law: Meaning: Punishment and Complete Analysis”,
3. BNS 2023 : DEFAMATION | Bharatiya Nyaya Sanhita |
“Law Master’s Publication”
5. Defamation under the BNS Section 356: Meaning, Exceptions, Punishment, and Allied
‘Offence of Defamation’
Prof. Santosh D. Bhosale
223
6. How to Handle Criminal Defamation Cases under the BNS and BNSS