Definition
Criminal offence of making or publishing an imputation to harm another's reputation.
The criminal offence of making or publishing a false imputation concerning any person with intent to harm their reputation — subject to ten statutory exceptions including truth for public good.
Statutory Definition
BNS 2023, Section 356 (formerly IPC Section 499/500).
Etymology & Origin
From Latin 'diffamatio' (spreading an evil report — from 'diffamare', to defame — 'dis', apart, and 'fama', reputation, fame). In criminal law, 'defamation' is the act of spreading damaging statements about a person — injuring the 'fama' (fame/reputation) of the victim. The criminal dimension of defamation — treated as an offence against the individual's dignity — reflects the Indian view that reputation is a facet of the right to life under Article 21.
Full Legal Analysis
Criminal defamation under Section 356 of the BNS, 2023 (formerly Sections 499-500 IPC) makes the making or publishing of a defamatory imputation a criminal offence punishable with simple imprisonment up to two years, or fine, or both. Section 356 BNS provides that whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said to defame that person — subject to the exceptions.
Ten exceptions in Section 356 BNS: The provision protects legitimate expression through ten detailed exceptions. The most important are: (1) Truth for the public good — imputation of truth which is for the public good; (2) Public servant's conduct — imputation of the conduct of a public servant in the discharge of public functions; (3) Conduct of persons touching a public question — fair comment on public issues; (4) Fair report of court proceedings; (5) Merits of public performance — criticism of a court decision or the merits of a public service; (6) Literary criticism — censure of a book, speech, or artistic work; and (7) Reports authorised by courts or public authorities. These exceptions protect journalists, critics, opposition politicians, and citizens commenting on public affairs.
The Supreme Court upheld the constitutional validity of criminal defamation under Sections 499-500 IPC (now Section 356 BNS). The Constitution Bench held: (1) the right to reputation is a facet of the right to life with dignity under Article 21; (2) criminalising defamation is a reasonable restriction on free speech under Article 19(2) as a restriction in the interest of 'defamation'; (3) the ten exceptions in Section 499 IPC / Section 356 BNS provide adequate protection for legitimate free speech, journalistic criticism, and public interest commentary; and (4) the mere existence of a civil remedy for defamation does not make the criminal remedy disproportionate. The judgment firmly established that criminal defamation is constitutionally valid in India.
Process for filing a criminal defamation complaint: criminal defamation under Section 356 BNS is a non-cognizable offence — the police cannot investigate it without a Magistrate's order. The complainant must file a complaint directly before the competent Magistrate (under Section 223 BNSS, formerly Section 200 CrPC). The Magistrate examines the complainant and may issue process (summons) to the accused. The Magistrate may also ask the police to make a preliminary inquiry (BNSS Section 223). The case is tried as a summons case before the Magistrate. Because the offence is non-cognizable, there is no police FIR — the private complainant prosecutes the accused.
For advocates, criminal defamation cases require: (1) advising the client on whether to pursue civil defamation or criminal defamation (or both); (2) drafting the complaint — identifying the specific imputation, the mode of publication, and the intent to harm reputation; (3) invoking the exceptions — particularly Exception 1 (truth for public good) and Exception 9 (imputation made in good faith for protection of the defamer's interests or for the public good); and (4) defending against abuse of criminal defamation — quashing petitions under Article 226 where the defamation complaint is a strategic lawsuit to silence legitimate criticism.
This Term in Indian Statutes
Bharatiya Nyaya Sanhita, 2023, 2023
"Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person. Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both."
Subramanian Swamy: criminal defamation constitutionally valid; Article 21 — reputation is right to life facet; ten exceptions protect legitimate speech; non-cognizable offence — private complaint before Magistrate; truth for public good is complete defence
