Report No. 42
21.1. Section 499.-
As the law of defamation is a restriction on the freedom of speech and expression, we had, in our Questionnaire, 1pointedly asked whether defamation as an offence should be retained in the Code. Mostly the answer has been that it should be retained. The reason is that, if the sanction of criminal law is removed, the only remedy left to a defamed person would be a suit for damages, which is not only expensive but also in many cases useless. Many such persons guilty of defamation are men of no substance and nothing can be recovered from them. Further, public servants are being frequently defamed, and the criminal law alone can effectively deal with such law breakers. We are consequently not suggesting that defamation should cease to be an offence. The right of free speech is, we think, sufficiently safeguarded by the several explanations and exceptions added to the definition of defamation in our Code.
1. Question 25.
21.2. Explanation 4.-
Explanation 4 to section 499 explains what is meant by harming a person's reputation, and it excludes every thing except an imputation "that, directly or indirectly, in the estimation of others, lowers the moral or intellectual 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."
We considered the possibility of simplifying this lengthy statement, but found it undesirable, as it was likely to become less concrete and, perhaps, more difficult to understand,
21.3. First Exceptio.-amendment proposed.-
The first exception to section 499 says that a true imputation made for the public good is not defamation, and then adds a sentences "whether or not it is for the public good is a question of fact". This is to make it clear that the question has to be decided by the jury in a jury trial. After the abolition of jury trials, this explanation has lost its significance, and we, therefore, propose to delete the second sentence of the first exception.
21.4. Fourth Exceptio.-amendment proposed.-
A substantially true report of the proceedings of a court of justice is expected by the fourth exception to section 499. We considered a suggestion that this exception should be limited to report of the proceedings in open court, and should not apply to proceeding's in camera which are not meant to be published. The object of excluding the public from the court is to deny publicity of any sort to those proceedings, and if any one violates that understanding and gives publicity to defamatory statements, he should not be allowed to avail of the protection of this exception. We agree with this reasoning, and recommended that the exception be amended by inserting the words "in open court" after the words "report of the proceedings".
The Explanation given in this exception is intended to cover commitment proceedings before Magistrates. Since according to the revised definitions of "judge" and "court of justice" proposed by us, all proceedings before a Magistrate acting judicially will be "proceedings of a court of justice" and no further explanation is necessary. The present Explanation can, therefore, be deleted.
21.5. Section 50.-amendments recommended.-
The maximum punishment for defamation provided in section 500 is two years' simple imprisonment. Although some suggestions have been made for enhancing it, we find no practical justification for doing so. We think, however, that the imprisonment need not necessarily be 'simple' as is now provided, and should be altered to imprisonment of either description.
Another useful suggestion is that, where the defamatory statement has been published in a newspaper and thus made known to a large number of persons, the fact of the offender's conviction should be similarly published. Such a step would, we think, afford more satisfaction to the innocent victim than the mere punishment of the offender, and we recommend the insertion of a new provision in section 500 empowering the convicting court to order such publication in suitable cases. The cost of publication should be made recoverable from the offender as a fine. The order for publication will, of course, be in addition to any other punishment to which the person convicted may have been sentenced. Section 500 should, accordingly, be revised as follows.-
"500. Punishment for defamation.-
(1) Whoever defames another shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
(2) Where the offence has been committed by publishing an imputation in a newspaper, the Court convicting the offender may further order that its judgment shall be published, in whole or in part, in such newspaper as it may specify.
(3) The cost of such publication shall be recoverable from the convicted person as a fine.
21.6. Sections 501 and 50.-punishment provision amended.-
Section 501 punishes any person who knowingly prints or engraves any defamatory matter, and section 502 punishes any person who knowingly sells the printed or engraved libel. As under section 500, the punishment under these two sections need not necessarily be simple imprisonment. We propose to replace the words "simple imprisonment" in both sections by the words "imprisonment of either description".