Law of Torts
Civil and Criminal Defamation: A Suit for Reputation and a Prosecution for an Offence
India is one of the few common law countries that retains criminal defamation, and the two remedies run side by side on the same facts. The civil action is a tort: the plaintiff sues for damages and an injunction, publication to a third person is essential, truth alone is a complete defence, and the standard of proof is the balance of probabilities. The criminal proceeding is under section 356 of the Bharatiya Nyaya Sanhita, 2023: it is set in motion by a complaint, publication to the person defamed may suffice, truth is a defence only if the publication was also for the public good, and the standard is proof beyond reasonable doubt. The two are independent, and a defendant may lose one and win the other.
1. The Comparison
Civil defamation | Criminal defamation | |
The wrong | A tort | An offence under section 356 of the Bharatiya Nyaya Sanhita, 2023 |
Who proceeds | The person defamed, by suit | Ordinarily the person aggrieved, by complaint |
Publication | To a third person. Publication to the plaintiff alone is not enough | Communication to the person defamed may suffice, the harm being to his reputation in his own estimation as well |
Intention | Not required. Liability is strict as to the defamatory meaning | Intention to harm, or knowledge or reason to believe that harm would follow, is required |
Truth | A complete defence by itself | A defence only if the imputation was true AND its publication was for the public good |
Standard of proof | The balance of probabilities | Beyond reasonable doubt |
The relief | Damages, an injunction, an apology | Simple imprisonment up to two years, or fine, or both, or community service |
Compromise | Freely permitted | The offence is compoundable by the person defamed |
Against whom | Any person, and a company may sue and be sued | A person, and a company may be a complainant |
Limitation | One year, under Articles 75 and 76 of the Limitation Act, 1963 | Governed by the limitation provisions for offences of that punishment |
2. The Offence
Section 356, Bharatiya Nyaya Sanhita, 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. The section carries four Explanations and ten Exceptions. Punishment: simple imprisonment for a term which may extend to two years, or with fine, or with both, or with community service. |
- The four Explanations cover imputations concerning a deceased person, where they would harm his reputation if living and are intended to hurt the feelings of his family; imputations concerning a company or an association or collection of persons as such; imputations expressed ironically or by way of alternative; and the meaning of harming reputation, which is to lower a person in the moral or intellectual character of others, or in respect of his caste or calling, or his credit, or to cause it to be believed that his body is in a loathsome state or in a state generally considered as disgraceful.
- The ten Exceptions are the statutory equivalents of the civil defences and are wider in some respects and narrower in one crucial respect.
- Community service as a punishment is new to the Sanhita and did not appear in the corresponding provision of the Indian Penal Code, 1860.
3. The Ten Exceptions
The exception | What it protects |
First | The imputation of anything true which the public good requires to be made or published. Whether it is for the public good is a question of fact |
Second | Any opinion expressed in good faith respecting the conduct of a public servant in the discharge of his public functions |
Third | Any opinion expressed in good faith respecting the conduct of any person touching any public question |
Fourth | A substantially true report of the proceedings of a court of justice |
Fifth | An opinion expressed in good faith respecting the merits of a case decided by a court, or the conduct of a party, witness or agent in it |
Sixth | An opinion expressed in good faith respecting the merits of a performance submitted to the judgment of the public |
Seventh | A censure passed in good faith by a person having lawful authority over another, in matters to which that authority relates |
Eighth | An accusation preferred in good faith to a person having lawful authority over the person accused |
Ninth | An imputation made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good |
Tenth | A caution conveyed in good faith to one person against another, for the good of the person to whom it is conveyed, or of some person in whom he is interested, or for the public good |
4. The Crucial Difference: Truth
- In the civil action truth alone is a complete defence. A defendant who proves the substantial truth of the imputation wins, whatever his motive and whatever the consequences to the plaintiff. The reason is that the law does not protect a reputation that is not deserved.
- In the criminal proceeding truth is not enough. The First Exception requires that the imputation be true and that its publication be for the public good, and the second limb is a question of fact on which the accused bears the burden.
- The practical consequence is substantial. A defendant who publishes a true but private fact, with no public interest in its disclosure, has a complete defence to the suit and none to the prosecution.
- This is the single most important structural difference between the two, and it is the point at which criminal defamation is most strongly criticised, since it makes truthful speech punishable whenever a court concludes that publishing it served no public purpose.
5. The Constitutional Challenge
- Subramanian Swamy v. Union of India, (2016) 7 SCC 221 upheld the constitutional validity of criminal defamation. The provisions corresponding to the present sections were challenged as violating Article 19(1)(a).
- The Court held that reputation is an integral part of the right to life under Article 21, and that the right to free speech under Article 19(1)(a) must be balanced against it.
- Defamation is an express ground of restriction under Article 19(2), so the criminal provisions fall squarely within a permitted restriction and are not required to satisfy any additional test of necessity.
- The Court applied the principle of fraternity in the Preamble, holding that the reputation of one cannot be allowed to be crucified at the altar of another's right of free speech.
- The criticism of the decision is that a criminal sanction is disproportionate where a civil remedy exists, that the burden of a prosecution is itself the punishment, and that the requirement of public good in the First Exception chills truthful speech. The Court considered and rejected these arguments, and the provisions stand.
6. Which Remedy to Choose
The objective | The better route |
Money for a quantifiable loss | The civil suit. A prosecution yields a fine payable to the State, not to the complainant |
Stopping a continuing publication | The civil suit, for an injunction. But see the Bonnard v. Perryman rule below |
Vindication and a public finding | Either, though a decree after a trial is the more durable record |
Pressure and speed | The complaint, which is why it is so often used, and which is precisely the criticism of it |
Where the imputation is true but private | The complaint, since truth alone is a complete answer in the suit |
Where the publisher is a media organisation | The civil suit, since a prosecution against the press invites a constitutional argument and rarely succeeds |
- On an interim injunction, Bloomberg Television Production Services India Pvt. Ltd. v. Zee Entertainment Enterprises Ltd., 2024 INSC 224, decided 22 March 2024, adopts the rule in Bonnard v. Perryman: an interim injunction restraining publication should not ordinarily be granted unless the statement is unarguably defamatory and there is no conceivable defence. The Court also held that the three fold test for an interim injunction is not a mantra to be mechanically applied, and expressly recognised the danger of SLAPP suits brought to silence rather than to vindicate: TORT 070 and TORT 095.
⚠ Why the coexistence of the two is itself the problem The strongest objection to criminal defamation is not that it exists but that it exists alongside a perfectly adequate civil remedy, and that the availability of both changes what the criminal process is used for. A person genuinely injured in his reputation wants compensation, a retraction and an order stopping the publication, and the suit gives him all three. What the complaint gives him is something else: the summoning of the defendant to a Magistrate, repeated appearances in a distant court, the cost and anxiety of defending a criminal charge, and the prospect of a conviction carrying imprisonment. Those consequences fall on the defendant from the moment the process issues and long before any question of guilt is decided, which means that for a complainant whose real object is to silence rather than to be vindicated, the process is the remedy and the verdict is beside the point. Subramanian Swamy settles that the provisions are constitutional, and that ends the argument about validity. It does not end the argument about use, and the Supreme Court has addressed that side of the problem elsewhere, in Bloomberg, by making interim injunctions hard to obtain and by naming the SLAPP suit for what it is. A practitioner advising a would be complainant should be candid that a prosecution is very unlikely to produce either money or a retraction, and that its principal effect will be on the defendant rather than for the client. |
7. The Position Stated Shortly
1. Civil defamation is a tort yielding damages and an injunction; criminal defamation is an offence under section 356 of the Bharatiya Nyaya Sanhita, 2023.
2. In the civil action publication to a third person is essential; in the criminal proceeding communication to the person defamed may suffice.
3. The civil action requires no intention; the offence requires an intention to harm, or knowledge or reason to believe that harm would follow.
4. Section 356 carries four Explanations, covering deceased persons, companies and associations, ironical imputations, and the meaning of harming reputation.
5. It carries ten Exceptions, the first requiring that a true imputation also be published for the public good.
6. Truth alone is a complete defence in the suit and is not enough in the prosecution, which is the crucial structural difference between the two.
7. The punishment is simple imprisonment up to two years, or fine, or both, or community service, the last being new to the Sanhita.
8. Subramanian Swamy v. Union of India upheld criminal defamation, holding reputation to be part of Article 21 and defamation an express ground of restriction under Article 19(2).
9. Bloomberg v. Zee Entertainment adopts Bonnard v. Perryman: no interim injunction unless the statement is unarguably defamatory with no conceivable defence, and recognises SLAPP suits.
10. The two proceedings are independent, and a defendant may succeed in one and fail in the other.