Law and You > Criminal Laws > Indian Penal Code > Exception 2 to Defamation (S. 499 of IPC)

In the last article, we have studied the definition of criminal defamation under Section 499 of the Indian Penal Code, 1860 with its explanations and exceptions. In this and the next few articles, we shall study exception 2 to defamation under Section 499 of the Indian Penal Code, 1860 in detail.

Definition of Defamation:

Section 499 para 1 defines Defamation as “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”.

Essential Elements of Offence of Defamation:

1. making or publishing any imputation concerning any person;
2. such imputation must have been made by-
   • words, either spoken or intended to be read; or
   • signs; or
   • visible representations.
3. such imputation must be made with the intention (mens rea) of harming or with the knowledge or with reasons to believe that it will harm the reputation of that person.
4. The imputation must not be covered by any one of the ten exceptions given in the Section.

Exceptions:

Section 499 of the Indian Penal Code defines defamation with Explanations and ten exceptions and a number of illustrations.

In Mohammad Nazir v. Emperor, AIR 1928 All 321 case, the Court while dismissing the plea of justification on the facts, described it as a “dangerous plea”. The Court observed: “The defendant in proceedings for defamation whether in a suit or under S. 500, IPC, is usually in a delicate and difficult position …. The first step to consider is what is the exact nature of the defence that can be set up. . . . The facts may be so strong that occasionally it may happen that the counsel can advise the client to “justify” …. That most dangerous plea should never be put forward unless there is practical certainty of success”.

Exception 2 to Section 499 of IPC:

Elements of Exception 2 to Section 499 of IPC:

• It should be in a good faith
• It should be honest and fair opinion
• It should be concerning the conduct of public servant
• It should be related to discharge of his public functions, or respecting his character, so far as his character appears in that conduct

Every citizen has legal right to make fair comments on the public servants in the interest of public, provided such comments are not made with malice and slander under the garb of exercising freedom of speech provided by Article 19 of the Indian Constitution.

Under this exception, it should be noted that men holding public positions are not immune from fair criticism. Also note that this exception protects opinions and not assertions.  This exception provides that if an act in which the public servant is criticized for discharging any of his public functions or and the act of criticizing his conduct and character when it appears to be wrong and not otherwise. Then, such an act will not amount to defamation. Similarly, authors and publishers are not any different than any other person while making a comment, thereby are not warranted any special privileges or safeguards from Section 499, IPC.

In Purushottam Vijay v. State of M. P., AIR 1961 (M.P.) 205, 208, 210, 211, 212 case, an editorial in the daily Indore Samachar which imputed regional bias in the matter of granting successive extensions to an officer and his contemplated appointment as inspector general of police. The editorial was per se defamatory of the minister in charge of the department. However, the act of the accused was held to be within the am bit of “fair comment”, and was saved by the second and third exceptions to section 499. In so holding, the High Court pointed out, it is in the public interest that anything shaky or unjust or improper in a minister’s conduct should be brought to the notice of the country at large.

However, the Court, while observing that a newspaper writer should be more cautious than a private individual, dealing with the requirements of the defence available under the second and third exceptions to section 499 :

1. The facts (on which comment is offered) should be substantially true.
2. The comments should be fair, in the sense that they are inspired by a genuine desire on the part of the writer to serve the public interest, and not by any intention of wreaking private spite.
3. The criticism, even if called for by the facts, should be in public interest, and should not be malicious. It is for the accused to show that these requirements are satisfied.

In N.B. Khare v. M. R. Massani, AIR 1943 Nag 347 case, the Court observed that in order that comment may be fair:

1. It must be based on facts truly stated;
2. It must not contain imputations of corrupt or dishonest motives to the person whose conduct or work is being criticised (save in so far as such imputations are warranted by the facts);
3. It must be an honest expression of the writer’s real opinion made in good faith; and
4. It must be for public good.

In Charming Arnold v. King-Emperor, AIR 1914 PC 116 case, the accused, the editor of a newspaper, published an article alleging that the district magistrate, in discharging a military officer for the offence of rape, had committed a breach of trust and was unworthy of the position he held. In fact, the Lieutenant Governor of the Province had exonerated the district magistrate; and the editor did not produce any fresh information on the basis of which he had made the allegation. Hence the plea that the publication was made in good faith did not succeed.

In Sahib Singh v. State of U. P., AIR 1965 SC 1451 at 1467 case, there was a reckless comment in a newspaper article that “the prosecuting staff at Aligarh” was corrupt. No instances of bribery had been cited, and good faith was, therefore, held to be absent.

In Kartar Singh v. State of Punjab, AIR 1956 SC 541 case, the Court observed that those who fill a public position must not be too thin-skinned with respect to comments made against them in the discharge of their official functions. Whoever fills a public position renders himself open to attack. He must accept an attack as a necessary, though unpleasant, an appendage to his office. So, this exception is always raised in such kinds of cases.

In T. G. Goswami v. State, HC (P&H) Criminal Revision No. 118 of 1951 case, the Court said that newspapers must be more cautious than ordinary persons in publishing defamatory matters. It has also been pointed out that the defence of fair comment does not extend to defamatory allegations of fact.

In Rama Rao v. Emperor case, a Jail Superintendent was accused by the editor of a newspaper of having ill-treated prisoners in jail- It was emphasized by the court that the newspaper editor, accused of defamation, must show that he had reasonable grounds for believing the allegation to be true and that the person now complaining of defamation was responsible for mismanagement, and that that person could have remedied the mismanagement, but preferred not to do so, being (as was alleged) naturally disposed to cruelty. In Imperatrix v. B. Kakde, ILR 4 Bom 298 (1880) case, the Court held that a newspaper editor cannot publish a matter which is known to be a half-truth. Thus, to say that a person has been sent to be prosecuted when one knows that the prosecution had been ordered to be withdrawn, would be defamatory. A person publishing such imputation cannot enjoy immunity on the ground that the imputation was made in good faith for the public good.

Conclusion:

According to Section 499, “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.”. Thus the defamation involves harming the reputation of a person by making and publishing words either spoken or intended to be read, or by signs or by visible representations. There are ten exceptions to this definition of criminal defamation. According to the second exception to the definition, whenever any person gives 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 in good faith, it is not defamation. Thus to take defence of exception 2 to Section 499, the accused has to show that his comment was opinion on the conduct of a public servant in discharging his public functions and is in good faith. is for the public good and he has made it honestly and without wilful misrepresentation.

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