Defamation under BNS: Section 356 with the Ten Exceptions, Constitutional Framework and Landmark Cases

A newspaper reports allegations against a politician that turn out to be false. A social media user posts damaging comments about a business rival's product quality. A speaker at a public meeting makes accusations against a professional whose reputation is affected. A private letter alleges misconduct by a person, and the letter is later circulated among third parties. A comedian's satirical sketch is claimed to have defamed a public figure. Each raises the classical defamation question: has the person's reputation been harmed by the publication of imputations that lower them in the estimation of others? The Bharatiya Nyaya Sanhita, 2023, addresses defamation through Section 356, which consolidates the provisions formerly in Sections 499 to 502 IPC. The definition, ingredients, and importantly the ten exceptions that protect legitimate speech remain largely unchanged from the classical framework. The constitutional validity of criminal defamation was upheld in Subramanian Swamy v Union of India (2016), notwithstanding pressure to decriminalise. This module walks through Section 356 in detail, the ten exceptions with their case law, and the leading Indian defamation judgments.

1. Introduction

Defamation as protection of reputation

A person's reputation is one of the most valuable assets they possess. It affects their livelihood, their relationships, their business, their political prospects, and their personal dignity. When false or damaging statements are published about a person, harming their reputation in the eyes of others, the law responds through defamation provisions. India, following the classical common law framework, provides both civil and criminal remedies for defamation.

Criminal vs civil defamation

• Criminal defamation: Section 356 BNS. State-initiated (or complaint-based) prosecution. Punishment: imprisonment or fine or both.
• Civil defamation: common law tort. Private lawsuit by the aggrieved person. Remedy: damages.

Both may be pursued for the same defamatory publication. Criminal proceedings do not preclude civil damages; civil settlement does not automatically end criminal proceedings.

Section 356 as consolidation

Section 356 BNS consolidates the defamation provisions of the IPC (formerly Sections 499 to 502 IPC):

• Section 499 IPC: definition of defamation with ten exceptions.
• Section 500 IPC: general punishment.
• Section 501 IPC: printing or engraving defamatory matter.
• Section 502 IPC: sale of printed/engraved substances.

Section 356 BNS retains the substance in four sub-sections.

2. Section 356(1) BNS: Definition of Defamation

Text of Section 356(1)

The four ingredients

The four explanations

Section 356(1) has four Explanations (carried over from Section 499 IPC):

• Explanation 1: It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to hurt the feelings of his family or other near relatives.
• Explanation 2: It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.
• Explanation 3: An imputation in the form of an alternative or expressed ironically, may amount to defamation.
• Explanation 4: No imputation is said to harm a person's reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.

3. Ingredient 1: Imputation

Imputation is an assertion that connects the person with something negative. Common forms:

• Allegations of criminal conduct.
• Allegations of professional misconduct.
• Allegations of personal immorality.
• Allegations of dishonesty or fraud.
• Allegations of incompetence.
• Allegations of diseases (particularly loathsome or stigmatised diseases).

The imputation need not be direct; it may be by innuendo, sarcasm, irony, or implication (Explanation 3). The court considers what a reasonable reader/hearer would understand from the statement.

4. Ingredient 2: Concerning Any Person

The imputation must be about an identifiable person. The person need not be named specifically; identification by description or context is sufficient. Coverage:

• Individual natural persons.
• Companies, associations, collections of persons (Explanation 2).
• Deceased persons, if the imputation would have harmed them in life and is intended to hurt family/relatives (Explanation 1).

General statements about a large group (all lawyers, all politicians, all merchants of a city) typically do not attract defamation because no specific individual is identifiable. But specific groups (the members of a specific committee, the partners of a specific firm) may be defamed as a group.

5. Ingredient 3: Publication

The publication requirement

The imputation must be published: made known to at least one person other than the defamed person. Publication may be:

• Written (letters, articles, books, social media posts, emails).
• Spoken (public speeches, radio broadcasts, private conversations).
• Visual (photographs, videos, cartoons, gestures).
• By signs or symbols.

Publication to the defamed person alone does not constitute defamation. The essence is the effect on others' estimation of the person.

Third party requirement

At least one third party must have received the communication. A private accusation made directly to the defamed person (no others present) is not defamation, though it may attract other offences (criminal intimidation, hurt to religious feelings, insult). Common contexts:

• A letter marked 'private and confidential' sent only to the defamed person: no publication.
• The same letter opened by the defamed person's secretary: publication to a third party.
• A comment made in a room with other listeners present: publication.

6. Ingredient 4: Intent or Knowledge of Harm

The mens rea takes three forms:

• Intent to harm the person's reputation.
• Knowledge that the imputation will harm the reputation.
• Reason to believe the imputation will harm the reputation.

The 'reason to believe' standard is important: it captures situations where the accused was aware of circumstances that would have led a reasonable person to conclude the imputation would harm. Careless publication of unverified allegations may attract this standard even without actual knowledge of harm.

7. The Ten Exceptions to Defamation

Section 356(1) contains ten exceptions that protect legitimate speech. Each exception, if established by the accused, defeats the defamation charge.

Exception 1: Truth for public good

It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact.

• Truth alone is not enough; public good must also be established.
• The accused bears the burden of proving both truth and public good.
• Common contexts: exposing corruption, revealing dangers to public health, whistleblowing.

Exception 2: Public conduct of public servants

It is not defamation to express in good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further.

• Public servants' official conduct is fair game for criticism.
• Personal life, unrelated to public duties, is not covered.
• Good faith requirement excludes malicious criticism.

Exception 3: Conduct on public questions

It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further.

• Anyone commenting on public questions (education policy, environmental issues, community matters) may be discussed in good faith.
• Extends beyond public servants to any person taking part in public discourse.

Exception 4: Court proceedings reporting

It is not defamation to publish a substantially true report of the proceedings of a Court, or of the result of any such proceedings.

• Media reports of court proceedings are protected.
• The report must be substantially accurate.
• The exception protects journalism and public awareness of judicial process.

Exceptions 5 and 6: Fair comment

• Exception 5: Fair comment on merits of a case decided by a court.
• Exception 6: Fair comment on merits of any performance publicly submitted (literary, artistic, or other) by its author to the judgment of the public.

These fair comment exceptions protect legitimate criticism of judicial decisions and creative works. The comment must be:

• Fair (based on facts, not distorted).
• On merits (about the specific work or decision).
• In good faith.

Exceptions 7 to 10: Good faith communications

• Exception 7: Censure passed in good faith by person having lawful authority (employers censuring employees, teachers reprimanding students).
• Exception 8: Accusation preferred in good faith to authorised person (complaint to police, complaint to disciplinary body).
• Exception 9: Imputation made in good faith to protect the interest of the person making it, or of any other person, or for the public good.
• Exception 10: Caution intended for the good of person to whom conveyed, or for the public good.

These exceptions protect a wide range of legitimate communications: employers giving job references, teachers assessing students, complainants reporting misconduct, warnings about dangerous persons, and similar.

8. Section 356(2) BNS: Punishment for Defamation

General punishment: simple imprisonment up to two years, or fine, or both, or community service. The BNS addition of community service reflects modernisation and provides an alternative to imprisonment. The specification of 'simple imprisonment' (rather than either description) reflects the specific character of defamation as a speech offence.

9. Section 356(3) BNS: Printing or Engraving

Section 356(3) addresses printers, publishers, and engravers who produce defamatory material. The provision extends criminal liability beyond the original author to those who produce the defamatory publication. Punishment: simple imprisonment up to two years, or fine, or both.

10. Section 356(4) BNS: Sale of Defamatory Matter

Section 356(4) extends criminal liability to booksellers and other distributors of defamatory printed material. The provision requires knowledge of the defamatory content. Punishment: simple imprisonment up to two years, or fine, or both. Common contexts: booksellers, newspaper distributors, online sellers who knowingly market defamatory publications.

11. Constitutional Framework: Subramanian Swamy

The Subramanian Swamy judgment continues to govern the constitutional framework for defamation in India. Key elements:

• Reputation is protected as a facet of Article 21 (right to life and personal liberty).
• Criminal defamation is a reasonable restriction on Article 19(1)(a) freedom of speech.
• The ten exceptions provide adequate safeguards for legitimate speech.
• The framework balances free speech and reputation protection.

The judgment has been criticised by press freedom advocates who argue that criminal defamation chills legitimate journalism. However, the constitutional position remains that criminal defamation is valid, and the balance between speech and reputation continues to be worked out through the ten exceptions.

12. Landmark Cases and Consolidated Judgments

Consolidated Landmark Judgments

• Subramanian Swamy v. Union of India, (2016) 7 SCC 221. Constitutional validity.
• R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632. Public figure framework.
• Sahara India Real Estate v. SEBI, (2012) 10 SCC 603. Court proceedings reporting.
• Kalyani Baskar v. M. S. Sampoornam, (2007) 2 SCC 258. Good faith requirements.
• Mohd. Abdulla Khan v. Prakash K, (2018) 1 SCC 615. Online defamation.
• Jayendra Saraswati Swamigal v. State of Tamil Nadu, (2005) 2 SCC 13. Religious personality framework.
• M. K. Kunhi v. K. K. Balagopalan, (1985) SC. Newspaper reporting.
• Ashok Kumar Todi v. Kishwar Jahan, (2011) 3 SCC 758. Matrimonial contexts.
• Standard Chartered Bank v. Vinay Kumar Sood, (2010) 10 SCC 512. Commercial contexts.
• N. Panneerselvam v. State of Tamil Nadu, (2020) SC. Political speech.
• Bilal Ahmed Kaloo v. State of Andhra Pradesh, (1997) 7 SCC 431. Framework for defamation prosecutions.
• Rajdeep Sardesai v. State of Andhra Pradesh, (2015) SC. Journalist defamation cases.
• Union of India v. Association for Democratic Reforms, (2002) 5 SCC 294. Framework for political figure disclosures.
• Times of India v. State of Maharashtra, (2005) SC. Newspaper defamation framework.
• Balraj Khanna v. Moti Ram, (1971) 3 SCC 399. Classical Indian defamation framework.

Frequently Asked Questions

What is defamation under Section 356 BNS?

Section 356 BNS (formerly Sections 499 to 502 IPC) defines defamation as: whoever, by words spoken or intended to be read, or by signs or 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. Four ingredients: (i) imputation; (ii) concerning a person; (iii) publication; and (iv) intent, knowledge, or reason to believe harm. Ten exceptions protect legitimate speech. Section 356(2) general punishment: simple imprisonment up to two years, or fine, or both, or community service.

What are the ten exceptions to defamation?

The ten exceptions protect legitimate speech: (1) truth for public good; (2) public conduct of public servants; (3) conduct on public questions; (4) reporting of court proceedings; (5) fair comment on merits of decided cases; (6) fair comment on literary/artistic works; (7) censure by lawful authority; (8) accusation in good faith to authorised persons; (9) imputation to protect one's own interest; and (10) caution in good faith. Each exception, if established by the accused, defeats the defamation charge. The exceptions balance free speech and reputation protection, providing safeguards for journalism, criticism, complaints, employer references, and other legitimate communications.

Is criminal defamation constitutional in India?

Yes. In Subramanian Swamy v Union of India, (2016) 7 SCC 221, the Supreme Court upheld the constitutional validity of criminal defamation. The Court held that: (i) reputation is a facet of Article 21 (right to life and personal liberty); (ii) criminal defamation is a reasonable restriction on Article 19(1)(a) freedom of speech; (iii) the ten exceptions provide adequate safeguards for legitimate speech. The judgment continues to govern the constitutional framework. Press freedom advocates argue for decriminalisation, but the constitutional position remains that criminal defamation is valid, subject to the exceptions.

What is the publication requirement in defamation?

Defamation requires publication: the imputation must be communicated to at least one person other than the defamed person. Publication may be written (letters, articles, books, social media, emails), spoken (speeches, broadcasts, conversations), visual (photographs, videos, cartoons), or by signs. Publication to the defamed person alone does not constitute defamation, though it may attract other offences. The essence is the effect on others' estimation of the person. A private accusation made directly to the defamed person without any third party present is not defamation.

Can truth be a defence in criminal defamation?

Yes, but with a critical qualification. Exception 1 to Section 356(1) BNS provides: 'It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published.' Truth alone is not sufficient; public good must also be established. The accused bears the burden of proving both truth and public good. This differs from the classical common law position (and many other jurisdictions) where truth alone is a complete defence. In India, truth without public good does not defeat criminal defamation, though it may reduce sentencing.

Does Exception 4 protect journalists reporting court proceedings?

Yes. Exception 4 to Section 356(1) BNS provides: 'It is not defamation to publish a substantially true report of the proceedings of a Court, or of the result of any such proceedings.' The exception protects media reports of court proceedings, provided they are substantially accurate. This is a critical protection for journalism and public awareness of the judicial process. Sahara India Real Estate v SEBI, (2012) 10 SCC 603, elaborated the framework for fair reporting. The exception does not protect distorted, sensationalised, or inaccurate reports; the report must be substantially true.

Related Topics on The Legal Bridge

For a fuller picture, read these companion notes on adjacent doctrines and provisions:

• Criminal Intimidation under BNS: Section 351 that addresses threats (including threats of defamatory publications).
• Contempt of Courts: the specific framework governing statements about judges and judicial proceedings that operates alongside Exception 4.
• Article 19(1)(a) and 19(2): the constitutional framework for freedom of speech and reasonable restrictions.
• Article 21: right to life and personal liberty, of which reputation is a facet per Subramanian Swamy.