In a society that values reputation and free speech, the law strives to strike a delicate balance between protecting an individual's good name and allowing for robust public discourse. The concept of defamation addresses this balance by criminalizing statements that harm a person's reputation. With the enactment of the Bharatiya Nyaya Sanhita (BNS), 2023, which replaces the Indian Penal Code (IPC), the core principles and provisions relating to defamation are being carried forward, albeit within a modernized legal framework. Understanding defamation under the BNS is crucial for both individuals and public communicators.

What is Defamation?

Defamation is the act of making a false and derogatory statement about a person that harms their reputation. It exposes the person to hatred, contempt, or ridicule, or causes them to be shunned or avoided by society, or lowers their character in the estimation of right-thinking members of society. Importantly, the statement must be published (communicated to a third party) and must refer to the person defamed.

The English law distinguishes between two forms of defamation:

• 1. Libel: Defamation in a permanent form, such as in writing, printing, pictures, effigies, or broadcasting.
• 2. Slander: Defamation in a transient or spoken form, such as spoken words or gestures. While common law treats libel as actionable per se (without proof of special damage) and slander generally requires proof of special damage, Indian criminal law largely treats both forms equally.

Key Provisions and Essentials under Bharatiya Nyaya Sanhita (BNS)

The BNS retained the fundamental definition under Section 356 and the structure of criminal defamation from the erstwhile IPC (Section 499). The essential elements for proving defamation would likely remain:

• 1. Making or Publishing Imputation: The accused must have made or published an imputation concerning some person. This implies communication to a third party.
• 2. Manner of Imputation: The imputation can be made by words (spoken or intended to be read), by signs, or by visible representations.
• 3. Intent or Knowledge: The imputation must be made with the intention to harm, or with knowledge or reason to believe that such imputation will harm, the reputation of the person to whom it refers.

Exceptions to Defamation:

Just as under the IPC (Section 499, Exceptions) and now Section 356 of the BNS is expected to provide certain exceptions where an imputation, even if it harms reputation, will not be considered defamation. These exceptions are critical for protecting free speech and ensuring legitimate criticism. They typically include:

• 1. Truth for Public Good: It is not defamation to impute anything which is true concerning any person, if it is for the public good that the imputation should be made or published.
• 2. Public Conduct of Public Servants: Fair criticism of the public conduct of public servants in discharge of their public functions.
• 3. Conduct of Any Person Touching Any Public Question: Fair comment on the conduct of any person touching any public question.
• 4. Publication of Reports of Court Proceedings: Publishing a substantially true report of the proceedings of a Court of Justice.
• 5. Merits of Public Performance: Fair criticism of the merits of any performance which its author has submitted to the judgment of the public.
• 6. Censure by Lawful Authority: Censure passed in good faith by a person having lawful authority over another.
• 7. Accusation Preferred in Good Faith to Competent Authority: Making an accusation in good faith to a person having lawful authority over the accused.
• 8. Good Faith Imputation for Protection of Interest: Imputation made in good faith by a person for the protection of his or another's interest.
• 9. Caution Intended for Good of Person: Caution intended for the good of the person to whom it is conveyed or for the public good.

Punishment: Under IPC Section 500, the punishment was simple imprisonment for up to two years, or fine, or both. The categorization has been further strengthed under Section 356 ( 2), (3) and (4).

Relevant Cases (from IPC context, principles likely apply to BNS):

• • R. Rajagopal v. State of Tamil Nadu (1994) (Auto Shankar case): The Supreme Court discussed the right to privacy vs. freedom of the press and the limits of defamation, especially regarding public figures. It indicated that a public official cannot sue for defamation for statements related to their official conduct unless the statement is false and made with reckless disregard for truth.
• • Subramanian Swamy v. Union of India (2016): The Supreme Court upheld the constitutional validity of criminal defamation (IPC Sections 499 and 500), stating that it is a reasonable restriction on freedom of speech under Article 19(2) of the Constitution, as it balances the right to freedom of speech with the right to reputation.

Conclusion:

The concept of defamation, as it transitions into the Bharatiya Nyaya Sanhita, remains a critical aspect of India's criminal law. It seeks to protect the invaluable asset of reputation while providing necessary safeguards for genuine expression and fair comment through its well-defined exceptions. Navigating the nuances of defamation requires a careful understanding of these legal provisions and the evolving judicial interpretations, particularly in the digital age where information spreads rapidly.