How to file a defamation case in India?

Defamation (Section 499 and 500 of Indian Penal Code) 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 causes direct harm to a man’s property, which is his most valuable asset.

Points to consider to succeed in defamation suit

There are certain points which are necessary for a person to succeed in a defamation suit:

1. First is the statement should be defamatory in nature and directed towards a person whereby injuring his reputation, or exposing them to hatred.
2. Secondly, the concerned statement should be false in nature and made on purpose specifying towards a single person or a community.
3. 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.

In case of a successful suit, the Defendant can have pled that the statement was not a false claim rather a true one, and it was a fair comment based on personal ideology in the public interest. Also, there are categories of certain people who have the benefit of making derogatory statement, provided they are made while they are in the office and the statement relates to the official work, for example Judges in the court, members of Parliament while they are in the building premises.

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.

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[1], 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.

In Mahendra Ram’s Case[2]- 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.

Public interest and fair comment

In Campbell’s Case[3]- 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.

In Devbrata Shastri’s Case[4]- The analysis was made in the instant case, that an opinion based on good faith or comments made in a fair manner that focuses on public interest or if it is regarding the conduct of a public servant related to discharge of his public duties or if it is for public good then the same cannot be considered as defamatory in nature.

In Shreya Singhal’s Case-[5] 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.

Filing of a civil suit

A civil suit can be filed u/s 19 of the CPC which pertains to civil wrong done to a person. As the law of torts say that defamation is a civil wrong where the personal rights of an individual are infringed, hence a civil suit can also be initiated against defamation. The procedure is as under:

• Order 7of CPC mentions the filing of a civil suit and so a suit for defamation can be filed under this.
• In civil cases, the parties to the suit are the plaintiff and the defendant.
• The cases that are of civil nature, must be filed in the civil courts.

Procedure

1. A plaint is filed including the name of the court, nature, name and address of parties, a declaration by the plaintiff that all the information is correct.
2. Court fees is to be paid that varies from case to case.
3. Hearing beings and therein the court decides whether the plaint contains a substantial matter or not. A written notice is sent to the defendants if it holds substantiality.
4. The required documents are to be submitted by the plaintiff within seven days from the date of notice:

• Process fee
• 2 Copies of the plaint

1. Submission of written statements come in and it must contain the arguments related to the charges and verification by the defendants. Written statement must be submitted within 30 days.
2. Plaintiff is required to file replication, which is his response to the written statement filed by the defendant. At this stage, the pleading is said to be complete.
3. Framing of issue is done by the court. List of witnesses must be filed within 15 days.
4. Issuance of summons by the Court to the parties.
5. The witnesses are cross-examined on a specified date and the court announces the date of the final hearing.
6. The court issues the final order and a certified copy of the order.
7. The parties to the suit, if they are not satisfied with the order, have other options:

• Appeal
• Reference
• Review

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.

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.

Procedure

1. Complaint to the police officer is filed mentioning all the details in diary authorized by the State Government in a non-cognizable offence.
2. The complaint is sent to the magistrate and with due permission of the Magistrate the officers proceed with the investigation.
3. A magistrate can issue a notice to the accused to appear before the court and start the proceedings.
4. Procurement of evidence and then the police file the final report with the magistrate, which also means that the investigation has been completed.
5. The two types of final reports are:
   • Closer report – it reveals that there is no evidence against the said charges and the magistrate, based on this report, either closes the case or orders further investigation.
   • Charge sheet – it contains brief facts, a copy of the FIR, Panchanamas, a list of witnesses, seizures, etc., which helps the magistrate to believe that the case is genuine and contains substance.
6. The Court takes cognizance and issues a warrant to the accused.
7. If no case is made out, then the accused person is discharged.
8. The prosecution produces the witnesses and their cross-examination.
9. The defense lawyer examines his witnesses.
10. Arguments commence and the judge decides whether the accused must be convicted or acquitted.

 

Conclusion

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.

[1]  (2016) 7 SCC 221

[2] Mahendra Ram v. Harnandan Prasad, AIR 1958 Pat 445.

[3] Campbell v. Spottiswoode, (1863) 3 B and S 769.

[4] Devbrata Shastri v. Krishna Ballabh

[5] Shreya Singhal v. Union of India, (2013) 12 SCC 73.

 

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