Notes by Akinchan Aggarwal, Advocate — B.A. (Hons.) Gold Medalist, LL.B. (University Rank 2), LL.M. (Dispute Resolution), UGC–NET, Ph.D. (Pursuing)
Almost every article on criminal defamation does the same two things: it reproduces the section, and it lists the ten exceptions. Both are useful and neither is where cases are actually won or lost.
This note works through the offence the way PSA Pillai’s Criminal Law does — and Pillai is interested in the awkward parts. Why does the Indian criminal law of defamation rest on a principle that English law treats as belonging to the civil side? Why does an honest belief not save you? Why do so many defamation complaints collapse before evidence is even led? Those are the questions that decide real cases and real answer scripts.
The law is now in Section 356 of the Bharatiya Nyaya Sanhita, 2023, which replaced Sections 499 to 502 of the Indian Penal Code. The substance survived almost untouched. Two things did change, and one of them has been very badly reported.
Where the provision now sits
| IPC, 1860 | BNS, 2023 | Subject |
|---|---|---|
| Section 499 | Section 356(1) | Definition, four Explanations, ten Exceptions |
| Section 500 | Section 356(2) | Punishment for defamation |
| Section 501 | Section 356(3) | Printing or engraving defamatory matter |
| Section 502 | Section 356(4) | Sale of printed or engraved defamatory substance |
That second change is worth pausing on, because it is routinely overstated. Community service has been added only to Section 356(2) — the ordinary offence of defaming another. It has not been added to Section 356(3) or 356(4), which continue to carry simple imprisonment up to two years, or fine, or both, and nothing else. So the printer and the seller of a defamatory publication face a narrower sentencing menu than the person who composed it. Whether that was deliberate or an oversight, it is what the section says, and it is exactly the kind of distinction an examiner enjoys.
The three ingredients
Pillai reduces the offence to three elements, and it is worth holding on to them because every defence in the chapter attacks one of the three:
- The making or publishing of an imputation concerning any person;
- By words, writing, signs or visible representations;
- With the intention of harming that person’s reputation, or knowing or having reason to believe that it will.
Note what is not in the list. There is no requirement that the imputation be false. There is no requirement of malice. And there is no requirement that anyone actually think worse of the complainant — the imputation need only be of a kind that would lower him in the estimation of others.
Publication: the point most notes get wrong
This is where Pillai is at his most interesting, and where a great many summaries online are simply inaccurate.
Reputation, as he puts it, is not what you think of yourself. It is what others think of you. So if A writes directly to B calling him a liar and a cheat, and nobody else ever sees the letter, B’s self-esteem may be wounded but his reputation is untouched. Nobody’s estimation of B has changed, because nobody else knows.
Now here is the twist. In English law, that proposition — that publication requires communication to at least one third person — belongs to the civil side, to the tort of defamation. English criminal defamation rested on a different footing altogether: breach of the peace. A libellous letter sent straight to the victim could be criminal in England precisely because it might provoke him to violence.
The Indian Penal Code did something unusual. It took the English civil principle and made it the basis of criminal liability. That is the effect of Explanation 4 to Section 499, now carried into Section 356. The Allahabad High Court, sitting as a Full Bench in Taki Hussain, held that direct communication to the person defamed is no publication under the Code.
Two further points on publication that carry real weight:
Repetition is publication. The Code makes no concession to the second or third publisher. A newspaper that reprints a libel from another paper is liable for its own publication of it; that the story appeared elsewhere first may mitigate sentence, but it is not a defence. The same applies to circulating a rumour, even one that is already current, and even where the speaker attributes it to the rumour rather than asserting it himself. Applied to social media, this is the whole law of the forwarded message.
Libel and slander are not distinguished. English law treats spoken defamation as generally outside the criminal law. The Code draws no such line — words, writing, signs and visible representations all stand equally. A caricature, an effigy, a statue, chalk marks on a wall: Pillai’s point is that “visible representation” is drafted widely enough to catch every form human ingenuity can devise.
Intention yes, malice no
In the tort of defamation the defendant’s intention is largely immaterial; malice matters mainly to defeat a privilege. Under the Code the position is close to inverted.
Intention is the gist of the offence. The imputation must be made intending to harm reputation, or with knowledge or reason to believe it will. A random remark aimed at nobody in particular falls outside the section, because there is no ascertainable person whose reputation is in issue.
Malice is not an ingredient. And an accused who pleads that he bore the complainant no ill-will is not thereby acquitted. In Palani Asari, a magistrate acquitted on the reasoning that in the absence of actual ill-will the imputation must have been bona fide. The High Court disapproved: where words are prima facie defamatory, malice may be presumed unless a case of privilege is made out. Absence of spite is not innocence.
Who the imputation must be about
Explanation 2 allows an imputation concerning a company, an association or a collection of persons. That sounds generous until you look at how it is applied.
The test is whether the body is definite and determinable — ascertainable, so that the words can be shown to be directed at all its members, any one of whom could then complain. In Sasikumar B Menon v S Vijayan, a broadcast carried allegations against a policeman, and a complaint was filed on the footing that the reputation of the Kerala Police as a whole had been injured. The Kerala High Court held that the Kerala Police is not a determinable body at all — officers retire and are recruited constantly, so its composition, and its character, changes continuously. The complaint failed.
That case carries a second lesson, and it is one that quietly destroys complaints. The Court held that the failure to set out the defamatory words in full in the complaint was a defect that could not be cured later. If you draft a defamation complaint, extract the exact words. Paraphrase is fatal.
Only the aggrieved person may complain
This is the single most effective filter in the whole subject, and it is procedural rather than substantive.
The general rule of criminal procedure is that anybody may set the law in motion. Defamation is the standing exception. Under Section 199 of the Cr.P.C., 1973 — now Section 222 of the BNSS, 2023 — a court may take cognizance of defamation only on a complaint by the person aggrieved.
So a public-spirited third party cannot prosecute on someone else’s behalf. In Swamy Aroopananda, an advocate’s complaint about allegations made against a Commissioner of Endowments was quashed: he was not the person aggrieved. The rule cuts the other way too — in John Thomas v Dr K Jagdeesan, the Supreme Court held that where imputations are made against a company, its directors are aggrieved persons with locus to complain.
The ten exceptions — and the one word that governs eight of them
The exceptions are reproduced identically in Section 356. The important structural fact is that eight of the ten require good faith; only the First and the Fourth do not.
| Exception | Protects | Good faith needed? |
|---|---|---|
| First | Truth, where public good requires publication | No |
| Second | Opinion on the public conduct of a public servant | Yes |
| Third | Opinion on any person’s conduct touching a public question | Yes |
| Fourth | Substantially true report of court proceedings | No |
| Fifth | Opinion on the merits of a decided case, or on a party or witness | Yes |
| Sixth | Opinion on the merits of a public performance | Yes |
| Seventh | Censure by a person in lawful authority | Yes |
| Eighth | Accusation preferred to a person in lawful authority | Yes |
| Ninth | Imputation to protect one’s own or another’s interests, or public good | Yes |
| Tenth | Caution conveyed for the good of the recipient or the public | Yes |
Two features of the First Exception are worth noticing. Truth alone is not a defence to criminal defamation in India — unlike the tort, where justification stands on its own. The accused must show truth and that publication was for the public good. And the section itself declares that whether it was for the public good is a question of fact, which means it has to be established on evidence, not asserted.
Good faith means care, not honesty
This is the proposition to carry away from the chapter, and it catches people out constantly.
“Good faith” is defined in Section 52 IPC, now Section 2(11) BNS: nothing is said to be done or believed in good faith which is done or believed without due care and attention. The definition is framed negatively and it is framed around diligence. Sincerity is not the test.
Pillai’s reading of it is blunt: the Code treats honesty as immaterial and due care and attention as the crucial component. An accused who believed every word he published, but published it without checking, is outside the exceptions. He must show not merely belief, but reasonable ground for the belief — either by proving the imputation true, or by showing that the source justified reliance on it. Absence of reasonable cause for making the imputation is itself evidence of absence of good faith.
The same idea polices fair comment. No comment is fair unless it rests on some substratum of truth; you cannot invent facts and then comment on your own invention. Where a matter is genuinely of public interest the courts do not weigh the words in golden scales — exaggeration, even gross exaggeration, does not necessarily make the comment unfair if a fair-minded person might have said it in the heat of the moment. But the facts commented upon must be real.
Journalists, judges and lawyers have no special shelter
Three groups routinely assume a protection they do not have.
The press. Media persons enjoy no higher and no lower freedom than any other citizen. The classical statement is Crompton J’s in Campbell v Spottiswood: you may attack a public person for what he has done publicly, but the moment you impute wickedness to him you must prove the imputation true. Being a journalist confers no immunity that an ordinary member of the public lacks. In Jawaharlal Darda, a publisher who reported a statement made by a minister on the floor of the House about misappropriation of government money was held not guilty — but the Supreme Court was careful to say there is no general rule governing an editor’s liability. Every case turns on its own facts.
Judges and lawyers. English law gives both absolute privilege for statements made in judicial proceedings. Indian law does not. Judges and advocates fall under the Ninth Exception like everyone else, which means their protection is qualified and conditional on good faith. Section 15 BNS (Section 77 IPC) protects a judge acting judicially — and even that protection is expressly conditioned on good faith — while the illustration to the Seventh Exception covers a judge censuring a witness in good faith — but remarks made in the course of office are not blanket-protected. For advocates the position is genuinely uncomfortable: they are professionally bound to advance their client’s instructions, yet enjoy only limited privilege for what they plead and argue. The High Courts are not uniform on this, and the competing concern — expressed in Parameswara Kurup v Krishna Pillai — is that lawyers cannot practise fearlessly if prosecutions are allowed too freely.
Three ways complaints die
Pillai closes the chapter with a set of quashing decisions that are, in practice, the most useful part of it for anyone drafting or defending a complaint.
No vicarious criminal liability. In Narendra Kapoor v Ramesh C Bansal, a defamation complaint was filed over a letter issued on a partnership firm’s letterhead. No specific allegation was made about the role of the partner who had not signed it. The Delhi High Court held there is no general vicarious criminal liability on the other partners, and quashed the complaint. Naming everyone on the letterhead is not a strategy.
Authorship must be proved. In Madhab Charan Dash v Amiya Prasad Mishra, there was no material to show that the accused had authored the letter containing the offending remarks. The Orissa High Court upheld his acquittal. Anonymous or unattributed material is a prosecution’s weakest ground.
The complaint must be by the right person, in the right form. Covered above — the aggrieved party alone, and with the defamatory words extracted in full.
Is criminal defamation constitutional?
The question was settled, for now, in Subramanian Swamy v Union of India (2016) 7 SCC 221. The Supreme Court upheld Sections 499 and 500 IPC, holding that reputation is an intrinsic part of the right to life under Article 21, and that criminal defamation is a reasonable restriction on free speech saved by Article 19(2), which expressly names defamation as a ground.
The criticism has not gone away. Successive Law Commissions have recommended reform — deleting the Explanation to the Fourth Exception, confining that Exception to reports of proceedings in open court, removing the now-obsolete sentence about public good being a question of fact (a relic of jury trial), and replacing “simple imprisonment” with imprisonment of either description. None of it was enacted. When Parliament rewrote the criminal law wholesale in 2023, it carried Section 499 across almost verbatim, added community service, and left the rest alone.
A checklist
Before filing, or when defending, run the complaint through these:
- Was there an imputation, or merely abuse? Vulgar abuse that lowers nobody’s estimation is not defamation.
- Was it published to a third person? If it went only to the complainant, consider Section 352 BNS instead.
- Is the person defamed identifiable? If a body, is it definite and determinable?
- Is the complainant the person aggrieved under Section 222 BNSS?
- Are the exact words extracted in the complaint?
- Is authorship capable of proof against each accused individually?
- If an exception is pleaded, can good faith be shown — meaning due care and attention, not sincerity?
- If truth is pleaded, can public good also be established as a fact?
Seven of those eight are answerable on the face of the papers. That is why so much of the litigation in this area happens at the quashing stage rather than at trial — and why a defamation complaint is far easier to draft badly than to draft well.
This note is written for study and general information. It follows the treatment of the subject in PSA Pillai’s Criminal Law, with the statutory position updated to the Bharatiya Nyaya Sanhita, 2023 and the Bharatiya Nagarik Suraksha Sanhita, 2023. It is not legal advice, and no lawyer–client relationship arises from reading it. For any actual dispute, consult an advocate on the specific facts.
