The Indian Penal Code, 1860 (IPC), which lays down a chunk of the major criminal offences in our country, also deals with defamation. Now, what is defamation? Good question, I shall make an attempt to tell you what Section 499 of the IPC tells us.
The basic idea is: Any statement or a representation in any form – written, spoken or through any signal or a visible means of communication that could harm the reputation of a person amounts to defamation.
Let me break it down with the help of some illustrations (situational comedy?):
- You are at a party. You make a lewd gesture to imply that this other person, Kapil, is a ‘player’. You say things like, “Oh this Kapil, he flirts with any woman he lays eyes on!”. You further question Kapil’s character and comment on his appearance. – Congratulations, you managed to defame Kapil!
- You are at a party and you tell a bunch of people that Kapil is a miser – Again, congratulations, DEFAMATION!
- You are at a party and write chits to your friends, bitching your heart out about Kapil’s womanising ways – Ahem, you defamed him again!
(You really need to stop defaming Kapil! You have harmed his reputation enough!)
But hold on, how do you understand what will ‘harm Raju’s reputation’?
It is subjective, unclear and vague. Much like how “All Politicians are crooks!” is an often repeated joke, but is it funny? Well, that’s questionable. If you are a politician, you will not really find it funny. If you are someone who has only known horrible politicians in your life, you will laugh at this statement. But hey, Politicians are people too!
So herein lies our dilemma – what we write or speak about a person, when does it become a ‘hurting someone’s reputation’ issue and not a harmless joke? Nobody can tell because it depends on one person’s perspective: yours. But would you like to be imprisoned for a harmless joke that someone else perceived as a threat to their reputation? I don’t think so.
And that is precisely why you need to know what may amount to defamation.
To set the record straight, the Supreme Court has attempted to define the idea of defamation, reputation etc. The Supreme Court in Subramanian Swamy v Union of India, told us that Section 499 of the IPC embodies the idea that a reference that would harm the fame or good name of the person in any manner may be considered defamatory. In Nilgiris Bar Association v. T.K. Mahalingam and another, the Supreme Court understood ‘reputation’ to mean the good name, credit or honour that a person enjoys in society due to the public opinion or perception regarding him/her.
But wait a second, still don’t know when or when not to comment on another person?
Well, trust me, most of us don’t (and won’t) and it’s more than just a social awkwardness issue.
Defamation – The Classic Explanation
It seems the trouble of being unable to define defamation wasn’t enough, now there are the explanations to Section 499 of IPC to deal with. Sigh.
The explanations do a bunch of thing:
- A statement about a dead person can also be considered defamatory. The beloved family of the dead person will decide whether or not that statement is defamatory in nature. The family will decide so if the family feels that you intended the representation to be ‘hurtful’ to them. So, if you call Kapil’s dead father a miser in front of five other people and it ‘hurts’ Kapil – the deed is done. You’re liable to be prosecuted!
- The offence of defamation is applicable even for statements against companies, associations, trusts etc (‘artificial persons’, so to speak). You think Reliance Jio is a sham and want to write a blog post about it? Well, I recommend you think about it super carefully. Just because Reliance is a company doesn’t mean that what you say won’t be considered defamatory.
- Now, the best one: A defamatory statement can relate to just about anything – including caste, profession AND physical appearance! All the “politicians are theives” jokers – watch out! You think your neighbour’s hair-cut is ugly? Well, put a tape to your lips and never, ever speak of it. She might drag you to court for it.
Well, this right here is the crux of the issue with the law against defamation today – it has the potential to put a tape to your lips on the vaguest of grounds. You never know what and when might be considered defamatory. It can be used as a means to prevent you from saying, writing or representing anything that the other person doesn’t want to hear or doesn’t want the world to know.
The multi-crore ‘maan-haani’
Let’s assume that your defamatory past, with all its defamatory remarks catches up with you. You offended Kavita, she feels defamed and is now preparing to file a complaint against you. Kavita has a buffet of legal weapons she can hit you with. She is spoilt for choices.
Not only can she file a criminal complaint against you, which can land you in jail for 2 years, she can also file a civil suit for damages. That is precisely the multi-crore maan-haani suits that you might have read about in the newspapers. What is even better (for Kavita, not you), the multi-crore claim will most often not be governed by any specific, codified legal principles. These cases are decided based on the principles laid down in prior judgments on defamation of the courts in India (a.k.a, common law principles).
Judges interpret existing judgments in similar defamation cases and the principles laid down, apply it to the complaint Kapil or Kavita made against you and decide whether you have defamed either of them
Or both! You serial defamer, you!
To sum-up the outcome of defamation cases in India, let me repeat a quote I often hear: Justice is what the judge ate for breakfast.